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EU maritime law: The external dimension
By Sir Robert Coleman
Source: BIMCO

The external dimension of the EU’s maritime policy was important from the outset. Given Europe’s geographical position and the importance of maritime transport to its external trade, it could hardly be otherwise. The exposure of European flagged or manned fleets to lower cost competition from many third countries was a constant concern and while the structural decline of the fleets has been halted in recent years, the employment problem remains of concern to many. Moreover, the competitive pressure has not disappeared and indeed has increased as result of the declines in economic activity since 2008. It will continue to influence the actions of both industry actors and policymakers. More fundamentally, the development of an integrated common transport policy based on liberalised access to markets, accompanied by a common commercial policy, would necessarily require the adaptation of the pre-existing arrangements, bilateral and multilateral. On the one hand, the Member States had long standing bilateral arrangements with third countries, especially former colonies, under which the shipping companies of the parties were given privileged access to trade between themselves. On the other, given the international nature of the industry, there was a natural tendency to favour finding solutions to important problems at the international level, in the International Labour Organisation, which had existed since the end of the first World War, and in the Intergovernmental Maritime Coordination Committee, which started to function in 1957, the same year as the adoption of the Treaty of Rome, changing its name to the International Maritime Organisation in 1982. The development of EU policies would necessarily be unsettling for all concerned, both inside and outside.

As the EU’s involvement in maritime affairs has developed in extent and complexity, it has necessarily produced pressures for the EU to assert its presence in multilateral fora and bilateral relations, and this process is still continuing. It is a lengthy, step by step process which is likely to take many years to resolve satisfactorily, though the maritime sector is in many ways ahead of the other transport modes.

Regional organisations in international law

However, before addressing in greater detail how the EU has developed its external maritime relations over the last half century, first, attention should probably be paid to the broader context of public international law within which regional organisations like the EU, and indeed other international organisations of States, operate.Those of us working within the Union tend to take its status under international law as a given and focus on internal issues like the scope of EU competence as distinct from those retained by the Member States or the procedures by which EU competence is exercised. That is understandable given that the organisation has functioned internationally for over fifty years. But when the Union is viewed from outside, questions do arise from time to time about its international status, not least when it starts to exercise its competence for the first time in a given context. Who is this newcomer purporting to exercise twenty seven votes or initial a new agreement in place of the States which have always acted on their own behalf in the past? And is this acceptable? These are legitimate questions which merit a reponse.

International organisations, including regional ones, are legal persons and subjects of international law. They are accordingly bound by obligations arising under the general rules of international law, their own constitutions and international agreements to which they are a party. Their powers are derived directly from their constituent instruments as an expression of the intentions of the sovereign States which found or join them. There is a paradox here: if States are sovereign, they can agree to delegate aspects of their powers to another entity which is to be recognised by other States and exercise those powers on their behalf. But if they are sovereign States, some intriguing questions can be imagined, which are gladly and normally theoretical, such as what happens if a Member State wishes to recover its sovereignty, on a specific issue or in general. Or, if the totality, or even a considerable proportion, of a group of States’ powers is ceded to another organisation, do they still qualify as States? Such questions may be of interest to legal theorists, but it is more important to go back to the beginning of the story and note that associated with the “concert” system initiated by the Congress of Vienna of 1815, certain European governments saw the necessity of creating instruments for co-operation in the administrative sphere which would have a permanent character as a supplement to periodic diplomatic conferences and bilateral relations conducted between governments and through embassies and consulates. Through the nineteenth century and subsequently, these organisations became increasingly common, dealing with a variety of matters from navigation on great trans-continental rivers, cross-frontier railway operations, telecommunications and postal services, public health and others. They also broadened their membership to include States from other continents.

Probably the earliest of these organisations was in many ways one of the most radical and it merits a short description, not least since it concerns waterborne transport, though fluvial not maritime. The Congress of Vienna itself, in 1815, created the Central Commission for Navigation on the Rhine. It was subsequently invested with increasingly extensive powers, including standard setting for vessels and operations, and a judicial function as the court of appeal from the local courts in each of the riparian States concerning implementation of the Rhine Convention and its “reglements”. Each riparian State had one vote within the Commission but while equality and unanimity were normally required, for certain administrative matters, voting power was based on the length of the river bank of each Member State. The Commission functions to this day and has yet to be fully integrated into the EU’s regulatory system. A similar body is responsible for the Danube.

The international community of nations and public international law have thus accepted for nearly two centuries the creation of organisations of States endowed with certain powers and subject to certain obligations. Their acceptance and development have been continuous: for example, under the League of Nations, which had an essentially theoretical role of “direction” of all “international bureaux established by general treaties if the parties to such treaties consent” (Article 24); then came the creation of the United Nations system, including its own regional arrangements and agencies and the acceptance for registration by its secretariat of treaties between States and international organisations under Article 102 of the Charter; and more recently throughout the latter part of the twentieth century, came the creation and development of regional economic integration organisations like the EU, including many in continents other than Europe and some with a specific transport vocation like the Maritime Organisation of West and Central Africa (MOWCA), founded under the Charter of Abidjan in 1975.

Formal confirmation of this acceptance is clearly found in the Vienna Conventions of 1969 and 1986 which fully recognise the status of international organisations, their provisions expressly applying to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation and this is expressly without prejudice to any relevant rules of the organisation. The primacy of each organisation’s own rules is thus recognised, but in the absence of such rules, the Vienna Conventions’ provisions, which are generally considered to reflect customary law, apply to such matters as the conclusion of the constituent treaty, reservations, interpretation, withdrawal and termination.

Moreover, as the number and range of activities of regional organisations have grown, so has their participation in international proceedings, organisations and relations in general, though often this is on an informal basis, especially at the beginning. These informal relations in some cases mature through devices like cooperation agreements, memoranda of understanding and the grant of observer and diplomatic status. In some cases, this has led to regional organisations becoming full members of another international organisation as the EU has in the case of the WTO and the FAO. More recently, constituent instruments have begun to include a specific clause expressly foreseeing the possibility of the future adhesion of a regional economic integration organisation with relevant powers and responsibilities without the need to amend the instrument itself (REIO clause). Similarly, the EU has become a party to important international instruments and a member of their implementing bodies for matters falling within its powers. For example, in 1999, having participated for many years in the preparation of the UN Convention of the Law of the Sea, it acceded to the Convention and became a participant in the International Seabed Authority. Its responsibility for the common fisheries policy, apart from any other matter, was a convincing basis for this development.

Of course, this tale of legal evolution should not be taken to imply that all problems of the role of regional organisations have been solved. They have not. Particularly at the political level, the assertion by an organisation like the EU of its desire to further develop its status in a particular context, even on the basis of well-established precedent, often provokes controversy, in the international community and within the EU itself. And at the more technical and procedural level, complex problems, such as the delimitation of the powers and responsibilities of the regional entity as distinct from those still retained by its individual Member States, often take time to resolve. This will be explored further subsequently.

The EU Treaty framework for its external maritime relations

Turning now to EU’s internal regime, it is necessary at this point to recall the EU Treaty framework for external action on maritime transport. The common transport chapter of the original Treaty was not limited to transport within the Community but addressed international transport to or from a Member State or passing across the territory of one or more Member States. The Union was thus empowered from the outset to take measures concerning shipping involving third countries in accordance wth the conditions and procedures prescribed by the Treaty at any given moment. As we saw in earlier articles, in the case of both maritime and air transport, these conditions were more restrictive than for inland transport until in 1986 the Single European Act established 1992 as the mandatory deadline for completing the internal market in all sectors, including maritime transport both between Member States and between Member States and third countries. But, as we shall see, the Union had not waited for that change but had begun to develop an external maritime policy on the basis of the common transport chapter as early as the late 1970s.

For many years, the European Commission and some other organisations and commentators considered that the common transport chapter might not be the only Treaty provisions on which external action might be based. Given the commercial character of many international maritime agreements, especially those dealing with market access, action might also be based on the Treaty provisions on its common commercial policy, in particular, Article 207 (133). Indeed, given the evolutions in international trade and relevant international regimes, especially the GATT, the Commission argued that trade in services, including maritime transport, had become an exclusive competence of the Union. Neither the Council nor the Parliament, which would have no right of prior consultation under the Treaty Article then applicable to the common commercial policy, agreed, leading to the European Court being seized in the context of the conclusion of the General Agreement on Trade in Services (GATS) at the end of the Uruguay Round.

In its Opinion 1/94, the Court did not support the Commission’s position. It agreed that given the evolutive character of international trade, trade in services should not be considered to fall completely outside the scope of Article 207 (then 113). But it observed that services, analysed in the light of the structure of the Treaty, could not be treated as a single, homogeneous category. The cross-frontier provision of services not requiring the presence of anyone in the State where the service is rendered is to be contrasted with three other categories: services provided to a customer travelling to the State of the service provider, those rendered through a commercial presence in another State or through the presence there of natural persons. The first category could indeed be assimilated to trade in goods as it has similar characteristics, but the Treaty has specific provisions dealing with the free movement of persons, natural and physical. Accordingly, those matters could not fall within the scope of Article 113, but fall to be dealt with under the specific Treaty provisions dealing with them. Transport, including maritime transport, having a specific chapter dedicated to the development of a common policy, including operations involving third countries, it could not thus be addressed on the basis of Article 113.

The Court also addressed the scope of the EU’s external competence based on the common transport policy, in the light of the doctrine that it first pronounced in the AETR decision in 1971. It has further clarified the doctrine in subsequent judgements, most recently in a judgement concerning the continuing problem of the replacement of the Member States’ bilateral agreements on aviation services by measures compatible with the functioning of a single aviation market. In brief, the Court has held that the Union has an implicit external power to negotiate and conclude international agreements in the fields for which it has an internal regulatory competence.This power exists when, in order to achieve a specific Union objective, the negotiation of an international agreement is necessary. The power becomes exclusive whenever the EU has actually exercised its internal powers in relation to any international negotiation or agreement “affecting” the EU rules adopted on the basis of those powers. Accordingly, as the EU develops its internal policies, its external exclusive competence automatically increases and the power of the Member States to act unilaterally shrinks. Moreover, the Court has emphasised that where the Union and the Member States both have powers in relation to a negotiation or agreement, for example, when they relate to an area in which the EU has adopted only minimum standards and some Member States have exceeded them, then the Member States and the Union have an obligation to cooperate in their approaches to the international arrangement in question. As we shall see, the AETR doctrine, given its dynamic, evolutive character, has played a very important role in expanding the external powers of the Union in the field of maritime transport and seems very likely to do so into the future.

Early success: market access

However, to begin the story of the actual exercise of Union competence in the maritime field at the beginning, we need to go back several decades for, in sharp contrast to the other transport sectors, the basic EU policy on access to markets was settled relatively early, in part due to the decisions of the European Court considered elsewhere on the application of the general rules of the Treaty to transport and the Council’s duty to complete the internal market in transport services. The story begins in 1979 with Council Regulation 1954/79 allowing the UNCTAD Liner Code to enter into force in a manner compatible with EU competition law, notably by excluding liner trades between developed countries altogether, assimilating companies established in any Member States to those formed under the laws of the others and providing for equitable sharing of cargoes between all EU companies engaged in a particular trade. More fundamentally and generally, in 1986, Regulation 4055/86 established the directly applicable general rule that there should be in future no restrictions on access to maritime transport services to and from both Member States and third countries and that existing restrictions, other than those compatible with the UNCTAD Code and certain narrow exceptions, should be abolished within certain periods of time, the final deadline for complete liberalisation being 1 January 1993. The process of suppressing incompatible restrictions was not without its difficulties, particularly as regards those based on bilateral agreements with particular third countries, often former colonies. But it now appears to have been succesfully completed with no reports of complaints about substantial continuing barriers or discrimination.

The adoption and implementation of Regulation 4055/86 has meant that the EU has not encountered the difficulties that have arisen in other transport sectors, notably aviation, in maintaining a coherent and liberal trade policy in relation to third countries. It has also served as a solid basis for initiatives within the WTO and, more recently, as regards bilateral agreements to facilitate maritime transport and associated activities. For example, the agreement reached with China in 2002 covers freedom to provide services, access to ports and auxiliary services and co-operation with regard to the use of inland waterways. A second negotiation was begun with India but has proved more difficult and was put on hold in 2011. Some have speculated that one factor has been issues concerning the free movement of seamen which have become particularly sensitive following the regulatory response to the events of 11 September 2001.

Security

The need to respond to increased security threats after 11 September 2001 has also provided the political momentum for the Union to adress common concerns with interested third countries. Working groups have been set up to exchange information and better coordinate action with the United States, Japan, South Korea, China and Russia. Much of this work is necessarily not in the public domain. And as explained in the chapter on security, the increasing number of acts of piracy and armed robbery at sea has led to the development of understandings of different kinds with coastal States in the regions concerned such as Somalia, Kenya and the Seychelles.

However, the overall and longstanding success on market access and recent developments on security have not been accompanied by a similar success as regards all aspects of international maritime policy, especially EU action within international organisations, in particular, on safety in the IMO.

Action and inertia within international organisations

Over the last fifteen years or so and, as described elsewhere, often spurred by tragic accidents in waters close to European shores, the EU has adopted an increasing number of legally binding measures on maritime safety. The Commission catalogued around twenty such maritime safety measures, in force or close to adoption, in its 2002 Recommendation to the Council on the accession of the EU to both then International Civil Aviation Organisation and the IMO. And as we have also seen, the EU is has recently completed the maritime safety legal framework with a new series of measures, including one on flag State responsibility. Within the EU’s legal and political order, there has thus been a huge shift in power and responsibility over recent years from the individual Member States to the Union itself. But this shift has not been reflected by a commensurate change in the relevant arrangements and procedures in force at the international level, in particular, the Geneva Convention of 1948 creating the IMO or in that organisation’s rules of procedure, though some limited changes have made it somewhat easier for the EU to pursue its objectives through largely informal cooperation with the Member States.

In 1974, the European Commission, as distinct from the Union itself, became an observer within the IMO and since 1994 it has been receiving all the the documents on the agenda of the IMO’s deliberative bodies, in particular its four main committees: the Maritime Safety Committee, the Marine Environment Protection Committee, the Technical Cooperation Committee and the Legal Committee. On this basis, since 1994, the Commission has sought to coordinate action by the EU Member States on matters relevant to the EU, especially those affecting EU rules or the realisation of Union objectives concerning safety, the protection of the environment and the functioning of the internal market. It does so by discussing in advance with the Member States, especially the Member State currently holding the Presidency of the Council, the issues to be addressed in IMO meetings, their implications for EU rules and objectives and the positions consequently to be taken by the Member States’ and the Commission’s representatives in the IMO deliberations, formal and informal. Much of this activity is low key, behind the scenes and at working level, including meetins in Brussels as well as in London. The positions taken by EU delegations thus frequently reflect the results of this internal coordination process without any reference being made to the EU’s responsibility for issues falling within its exclusive competence.

But this system, functioning primarily at official level, has limits. Internally, it has significant weaknesses which can lead to some Member States expressing views and even taking positions in the IMO which do not correspond to the position which the EU should have taken as a whole if its internal decision making rules had been respected. In 2009, the European Court of Justice at the demand of the European Commission condemned the Greek government for failing to respect its Treaty obligations by submitting a national position in an area falling within the exclusive competence of the Union under the AETR doctrine following the adoption of Regulation 725/2004 on the security requirements of SOLAS and the ISPS Code.

Sometimes when such problems threaten to arise, particularly at a late stage, it can lead to last minute, and therefore rarely satisfying, discussions at higher levels within the Council, notably in the Committee of Permanent Representatives but even occasionally in the Council itself, to ensure that EU positions prevail or are at least preserved for the time being pending further consideration. But on occasions such emergency procedures cannot be launched or completed in time or in any event simply fail to produce the desired result. In this regard, it is important to note that national administrations are not always tightly integrated or managed. The distribution of political and administrative power, unresolved divergences of view or simply poor communication can lead to incoherent positions being taken by different actors or levels of government. Largely informal coordination mechanisms at EU level are inherently unlikely to identify and address such problems on a consistent basis. As a result, EU action within the IMO is less effective than it might be and the EU does not always exercise the influence that it should on international discussions. It is also more open than it need be to “divide and rule” tactics from interlocutors seeking to exploit divergences of view and interest among its Member States.

The question of the proper role of regional regulators in the international rule making system for maritime affairs also merits comment in this connection. The proposition that, by reason of its global scale, maritime transport requires relatively uniform rules established at international level has been raised in many quarters to the level of a philosophical absolute. Indeed the EU, including the European Commission itself , pay repeated and not just verbal respect to the principle. On the other hand, from the outset, as described elsewhere, it has been obvious how important maritime transport is to the economy of the EU and to the realisation of its objectives. It has also been evident how important EU flagged or controlled vessels are as a percentage of the world’s fleet. Finally, in recent years, the EU has been repeatedly exposed to the consequences of major accidents at sea. Some of those accidents were, at least in part, due to weaknesses in the design and functioning of the international regulatory system. In these circumstances, the shift in regulatory power from the individual Member States to the Union has sooner or later to be followed by an adaptation of the international rule making system. The capacity of the global regulatory system to deliver world-wide rules of sufficient uniformity depends to a significant degree on it being able to accommodate the objectives and concerns of the EU. If it does not do so, the chances are the greater that regional political pressures will produce regional solutions, as has been seen in the past with regard to both the United States and the EU. The coherence and completeness of the international framework depends in the longer run on adapting its structures and rules of procedure to accommodate the emergence of regional regulators with responsibility for maritime law and policy.

International organisations: next steps

As already mentioned above, the Commission in 2002 proposed that the Union, given the extent of its legislation concerning maritime safety, should authorise the Commission to open and conduct negotiations with the IMO on the conditions and arrangements for EU accession, this requiring an amendment of the Geneva Convention. Unsurprisingly, this initiative has provoked some negative reactions within and outside the Union.

Previous initiatives similar in kind in relation to other organisations have frequently been received initially in a similar way. The objections typically do not challenge the requirement under EU law that the Member States must not seek to act on matters falling within the EU’s exclusive powers, but must allow the Union to act on its own behalf. Given the extent and clarity of the decisions of the European Court, they could hardly do so. The arguments instead focus on alleged practical and political disadvantages of the Union speaking with one voice, and especially through a single delegation, namely, the Commission. “Acting as a block”, it is said, will provoke similar behaviour by others and is incompatible with the technical character of the IMO’s work.

Such arguments ignore the fact that States already often act as groups, formally and informally, the developing countries, for example, having done so for decades, sometimes quite aggressively. Also, there is considerable experience from other contexts of techniques to minimise possibly negative reactions, for example, coordinated interventions by Member States accompanied by low profile interventions by the Commission or the Member State holding the EU presidency. Initial disquiet tends to disappear as participants become accustomed to the new situation. As to the technical character of the proceedings, experience from elsewhere, for example, in the FAO, also shows that EU participation is quite compatible with such proceedings provided the Commission is careful to equip itself with the appropriate expertise and is ready to mobilise the expertise of the Member States. The arrival on the scene of EMSA provides an excellent vehicle for the development and mobilisation of such maritime expertise at EU level.

These arguments in fact mask other, less honourable, considerations. The Member States’ ministers and officials are often reluctant to give up their historical roles in favour of others. This is not only a question of function and associated prestige, though this should not be underestimated. A classical intergovernmental environment, without clearly established rules and procedures for the exercise of EU competence, does give national delegations more room for manoeuvre to pursue particular national interests distinct from the common Union interest. This may seem particularly attractive if the outcome of the international proceedings will in practice determine or condition subsequent regulatory activity by the Union’s legislative institutions, including the Parliament. This risk of subversion of the EU’s institutional and political order is precisely one of the main considerations underlying the Court’s AETR doctrine. For the shipping industry, or important parts of it, which are still in a close relationship with their national maritime administrations, this kind of consideration can also be very important. The single market, including access to international trades, and a level playing field for competition having been largely achieved, the EU, and in particular the Commission, are often perceived essentially as a powerful, possibly overpowerful, regulator. It accordingly makes a certain kind of sense to resist a further concentration of power in its hands at the international level.

The Commission’s formal proposal of 2002 marks the beginning of a political process which is unlikely in the short term to lead to a mandate for the Commission to negotiate the EU’s accession to the IMO. But experience in other contexts suggests that it will lead to changes in the way that the EU and its Member States handle matters within the IMO, especially in cases in which the EU has exclusive competence for relevant matters under the AETR doctrine. Among the changes that are quite likely are recognition by the Council, possibly in the first place at the level of the Committee of Permanent Representatives rather than Ministers, of the extent of the Union’s competence and of the need for appropriate procedures to permit it’s effective exercise. This is likely to lead to changes in the way the Union’s Member States and its institutions conduct themselves within the IMO, though within the constraints of the Geneva Convention in its present form. One possibility, recently suggested by the Commission, is that the European Union itself, rather than the Commission, would become a formal observer in the IMO, the Commission or the Member State holding the Union Presidency speaking on its behalf depending on the subject of discussion. This formula has been used succesfully used in other contexts as a transitional device and would not require amendment of the Geneva Convention.

Developments in the IMO may well be influenced by events in other international organisations, not least the United Nations Forum on Climate Change for, given the economic importance and highly political character of such discussions, the EU has already a fairly long history of developing and presenting common positions on the measures needed to reduce greenhouse gas emissions. Some of these have concerned the transport sector, including maritime transport as explained in the chapter on marine pollution, and in future more specific international initiatives may well be contemplated. In this connection, the EU is currently actively supporting the development of an IMO monitoring, record keeping and verification regime (MRV) on greenhouse gases.

Bilateral and mutilateral relations: next steps

In 2009, the Commission announced that it intended to develop an action plan to reinforce and develop Europe’s transport links with Africa, but the Commission which took office in early 2010 appears not to have attributed high priority to this initiative.

In early 2011, the EU White Paper on Transport indicated that the Commission intended to continue strategic and sectoral dialogues with major partners like the United States, Russia, China, Japan, Canada and Australia and extend them to Brazil, India and South Africa. It has also sought to renew its cooperation on transport with neighbouring countries in eastern Europe and within the context of the Union for the Mediterranean. Such contacts frequently permit convergence to be sought on current maritime issues like environmental protection and also to resolve conflicts and avoid misunderstandings. At the present time, however, they do not appear likely to produce major new developments.