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| document | COM(1984)549  |
| date | October 4, 1984 |
COLLECTION RELIEE DES DOCUMENTS 'COM'
COM (84) 549
Vol. 1984/0218
Disclaimer
Conformement au reglement (CEE, Euratom) n° 354/83 du Conseil du 1er fevrier 1983 concernant l'ouverture au public des archives historiques de la Communaute economique europeenne et de la Communaute europeenne de l'energie atomique (JO L 43 du 15.2.1983, p. 1), tel que modifie par le reglement (CE, Euratom) n° 1700/2003 du 22 septembre 2003 (JO L 243 du 27.9.2003, p. 1), ce dossier est ouvert au public. Le cas echeant, les documents classifies presents dans ce dossier ont ete declassifies conformement a l'article 5 dudit reglement.
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as amended by Regulation (EC, Euratom) No 1700/2003 of 22 September 2003 (OJ L 243, 27.9.2003, p. 1), this file is open to the public. Where necessary, classified documents in this file have been declassified in conformity with Article 5 of the aforementioned regulation.
In Obereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1. Februar 1983 uber die Freigabe der historischen Archive der Europaischen Wirtschaftsgemeinschaft und der Europaischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983, S. 1), geandert durch die Verordnung (EG, Euratom) Nr. 1700/2003 vom 22. September 2003 (ABI. L 243 vom 27.9.2003, S. 1), ist diese Datei der Offentlichkeit zuganglich. Soweit erforderlich, wurden die Verschlusssachen in dieser Datei in Obereinstimmung mit Artikel 5 der genannten Verordnung freigegeben.
C0MC84)
Brussels,
549 final 5 October 1984
COMMISSION OF THE
EUROPEAN COMMUNITIES
FOR OFFICIAL USE ONLY
General Secretariat
CQMMUNICATION_FROM_THE_COMMISSION_IO_THE_COUNCIL
concerning the negotiations for a global framework convention for the protection of the ozone layer
C0MC84) 549 final
1. On 19 January 1982 the Council decided to authorize the Commission
to participate in the negotiations for a global framework convention on the protection of the Ozone Layer in order to enable the Community to become a contracting party. '
2. The Community, together with its Member States, has taken part in all the preparatory sessions and working groups which have now produced a text which could form the body of a future Ozone Layer Convention.
3. The participation clause originally proposed reads as follows : '
"This Convention shall be open for signature at _ from _
to _ by any State and by regional economic integration organisations,
constituted by sovereign States, which have competence in respect to the negotiation, conclusion and application of international agreements in matters covered by this Convention." The USSR has demanded a modification; that the words "and a majority of whose Member States are signatories to the Convention" should be added. The USA has also requested a similar qualifying clause "and at least one of whose Member States is a signatory to this Convention".
A. Acceptance of such a clause would be to accept that the Community has second-class status in international law, or that in other words, it is a perpetual legal minor, which cannot act in its own right without the assistance of its Member States. Such a doctrine is clearly unacceptable legally or politically.
5. The Council is therefore requested to complete the negotiating directives that it gave to the Commission on 19 January 1982, by instructing the Commission and Member States not to accept such a subordination or linkage clause, and instead to ensure that a clause similar to that originally proposed is obtained. At the same time the Commission and Member States should undertake demarches with the appropriate Governments in order to ensure support for its position.
6. The Council is requested to give the above directions as rapidly as possible, since the next working session on tne Draft uzone Layer Convention will take place from 22nd to 26th October 1984.
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL CONCERNING THE NEGOTIATIONS FOR A GLOBAL FRAMEWORK CONVENTION FOR THE PROTECTION OF THE OZONE LAYER
1. Introduction
On 19 January 1982 the Council decided to authorize the Commission to participate in the negotiations for a global framework convention on the protection of the Ozone Layer (hereafter referred to as the Ozone Convention (O.L.C.) ;n order to enable the Community to become a contracting party. In that Decision, the Council gave the Commission a negotiating mandate, because Community competence in relation to the danger to the ozone layer is well-established by Council Decisions and Resolution ,
concerning chloro-fluorocarbons in the environment, and its already existing cooperation with the United Nations Environment Programme (UNEP) concerning the ozone layer.
The Community, together with its Member States, has taken part in all the preparatory sessions and working groups which have now produced a text which could form the body of a future Ozone Layer Convention. The negotiations have not been easy and have given rise repeatedly to problems concerning the clause which will permit Community participation. The last session (second part of the third session), held in Vienna 16-20 January 1984, of the Ad Hoc Working Group of Legal and Technical Experts for the Elaboration of a Global Framework Convention for the Protection of the Ozone Layer was the occasion for serious confrontation
(1) 80/372/EEC, O.J. L90 of 3/4/1980
62/795/EEC, O.J. Lb<:y ot o/ i t/»y©z . .
Resolution of 30 May 1978, O.J.C133 of 7/6/1978
Provisional atfdtaaa: ftua da la Loi 300. B-1C4* IruMali - Talaphona 735 00 40/73680 40 - Talag.apf.ie adaraaa "COM tU* ••utM't"
between the Community and the USSR. There was also grave disagreement between the Community and the USA, and no solutions were found to these disagreements.
The UNEP Governing Council at its last session (May-June 1984) passed a Resolution recommending that a fourth session of this Working Group should be convened in 1984, and should complete its work on the Convention, which should then be adopted and signed at a diplomatic conference during the first three months of 1985.
The Community, to make sure that it can be a signatory to the
Convention on a satisfactory basis, must act rapidly to overcome
th# existing problems concerning the clause permitting its participatio,
In the directives for the negotiations annexea to the Council Decision
of 19 January 1982, it is stated
"2. The directives for the negotiations shall be determined, as the need arises, in the framework of the usual procedures.
3. The negotiations should also aim at ensuring that appropriate provisions enabling the Community to become a Contracting Party be contained in the Convention."
The Commission has therefore deemed it necessary to request specific directives from the Council concerning the nature of the Community's future participation in the O.L.C.
2. Problems raised by the Community participation clause.
The O.L.C. is a universal convention within the framework of the United Nations (UNEP). It would therefore create difficulties to seek a participation clause mentioning the Community specifically. The Community had suggested informally that a clause such as that in the Geneva Convention on long-range transboundary air pollution
1979 (LRTAp) might be used.The formula 'regional economic
Integration organisation' avoids the oroblems of a clause mentioning the Community specifically, and has already been accepted irj several Conventions, notably LRTAP, where it was accepted by the Eastern Bloc as well as by the USA.
The formula was accepted as the basis of a negotiating text in the meetings of the working groups for O.L.C. *2) However, the IBSR demanded that after regional economic organisations a t^rase should be added 'and a majority of vhose Ptenber^Statejs are signatories to this Convention'.
The Community and its Member States having declared that this was unacceptable, the USA then put forward its so-called compromise proposal; 'and at least one of whose Member States is a signatory to this Convention'.
(1) "Article 14: 1. The present Convention shall be open for . signature at the United Nations Office at Geneva from
13 to 16 November 1979 on the occasion of the High-Level meeting within the framework of the Economic Commission , for Europe on the Protection of the Environment, by the Member States of the Economic Commission for Europe as well as States having consultative status with the Economic Commission for Europe, pursuant to paragraph 8 of Economic and Social Council Resolution 36 (IV) of 29 March 1947, and by regional economic integration organizations, constituted by sovereign States, members of the Economic Commission for Europe, which have competence in respect of the negotiation, conclusion and application of international
agreements in matters covered by the present Convention."
(2) "This Convention shall be open for signature at _
from _ to _ by any State and by regional*
economic integration organizations, constituted by sovereign States, which have competence in respect to the negotiation, conclusion and application of international agreements in matters covered by this Convention." • . ■
The origin of the USSR'* proposals is clear. It is based on the formula used in the Law of the Sea Convention^. The motivation for the USSR's proposals is even clearer. In recent times, in ^various UN fora (UNGA, Second and Sixth Committees, FAO), the USSR has been contesting the Community's right to speak in its own right, and promulgating the legal theory that international organisations are always legally subordinated to their member States.
3. The Law of the Sea Participation Clause
It is suggested that the Law of the Sea Convention is not a valid analogy for other treaties, universal or regional. The Law of the Sea Treaty was a very far-ranging Treaty dealing with legal issues from right of innocent passage to fisheries and environment and deep-sea mining. Unlike the Ozone Convention, it also relates to military or other matters outside the scope of the Community's non-exclusive powers.
The Law of the Sea Convention was'a wide-ranging package deal involving reciprocal rights and duties to which it was important to have every ratifying party openly and obviously committed. It representsa delicate balance between rights obtained and ‘
responsibilities incurred. There was a perhaps legitimate concern on the part of third States that the participation of an international organisation
(1) ANNEX IX. PARTICIPATION BY INTERNATIONAL ORGANISATIONS:
Article 1. Use of terms: For the purposes of article 305 and of this Annex, international organisation means an .
intergovernmental organisation constituted by States to which its member States have transferred competence over matters governed by this Convention, including the competence to enter into treaties in respect o* those matters.
A-ticle 2. Signature: An international organisation may sign this Convention if a majority of its member States are signatories of this Convention. At the time of signature an international organisation shall make a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to that organisation by its member States which are signatories, and the nature and extent of that competence.
r
might allow one of its member States which was a non-signatory to take advantage of the Convention (via its participation in the international organisation), without assuming the duties inherent in the Convention. This is not the case in the O.L.C., which imposes responsibilities for the future benefit of all mankind.
It was only under the special political and legal circumstances of the Law of the Sea Convention that the Community consented, as a political compromise, to a participation clause which required the prior membership of a majority of its Member States.
The Commission submits that the Law of the Sea Convention is a case sui generis, and that the participation clause in it should not be used as a precedent for other Conventions, in so ? far as it involves subordination of the Community's participation to participation by its Member States.
The participation clause in the Law of the Sea Convention in fact raised two issues; one of subordination which will be discussed in more detail below, and secondly that of the specification of its competence by an international organisation in a formal declaration.
The question of the competence declaration has been thoroughly discussed by the Council on several occasions in relation to the Law of the Sea Convention. It has been acknowledged by the Community that third States may need to be assured that the totality of legal obligations under that convention will be assumed .. by the Community and its-Member States, and,that there is'no question of any loophole occurring. clauses involving a declaration of competence in a general form have been accepted by the Cpmmunity in the Law of the Sea Convention, the Convention on the Protection and Development of the Marine Environment of the Wider Caribbean Region, and the • Convention on International Trade in Endangered Species. The details of who is responsible for what is however an internal • matter for the Community, to be decided in the Council, and *
should not be discussed with third States: detailed statements of Community competence are inappropriate and undesirable.
1 . -
The Court has stated that " it is not necessary to set out amp determine as regards other parties to the Convention, the division o* powers betw-en the Community and the Member States, particularly as it may change in ti.e course of time. It is sufficient to state to the other contracting parties that the matter gives rise to a division of powers within the Community, it being understood that the exact nature of that division is a domestic question in which third parties have no need to intervene... The important ^thing is that the implementation of the convention should not be incomplete' (Ruling 1/78, 1978 EL,R 2151 ad para.35).
4. Subordination Clauses from the International Point of View
As seen above, the Community accepted a subordination clause in the Law of the Sea Convention because of the particular circumstances.
The Community has also accepted such a clause in the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, which reads "by any regional economic integration organisation exercising competence in the fields covered by the *
Convention and that Protocol and having at least one member
State which belongs to the Wider Caribbean Region......"
In this latter case the subordination clause was considered as acceptable, because the Caribbean Convention is a regional convention, ' -
and it is only good sense that international organisations: should participate only in those conventions where they have a geograph-'cal interest. In a regional convention, such a clause does offer guarantees to third States of genuine involvement by the international organi-_sa_t\on concerned. (1)
Such guarantees and assurances are not needed by third states in relation to the Ozone Layer Convention. This Convention is not a package-deal and it is a universal, not regional, convention. Therefore, there is no justification for third states demanding the subordination of the participation by the Community to that of its Member States. The guarantees which are necessary having been given in the declaration of competence, it is in fact interference by third states in the Community's internal processes to demand such subordination. The position of the United States is especially curious in this case. The USSR is consistent with its policies in trying to subject the Community legal existence to the most stringent conditions. But the presence of one Member State in the Convention cannot afford to the USA or other third states any additional guarantee of any kind.
(1) However, it might be argued that it is sufficient that the international organisation has as its member a state with territorial interests in the region, and that there is no necessary requirement for this state to be a member of the convention.
5. Subordination Clauses : their compatibility with EEC Law
If for any proposed Convention it is established that the Community has competence/ in respect to matters covered by this Convention the Commission may request from the Council an authorisation to participate in the negotiations/ so that the Community can become a party to the Convention. The Community having international legal personality/ having competence for the subject matter of the Convention and having been authorised to negotiate Community participation/ cannot legally accept that the exercise of its powers should be subjected to the condition of prior participation by one or more of its Member States^ unless the Community institutions determined-in particular^ in regard to the speciaL characteristics of the convention that joint participation by the Community and one or more of its Member States is appropriate. _ _
• *
The Community institutions must oppose subordination clauses because of the negative effects they are bound to have on the Community's legal capacity in the international legal order. The Community would be made to appear as having second-class legal personality in international law, and as needing to have recourse to the assistance of one or more of its Member States in order to exercise its own competence. In other words, the subordination clause undermines the Community's independent international legal personality; such a clause constitutes a capitis diminutio with regard to other subjects of international law.
The Community institutions must do all in their power to protect the auton&my of the Community; they must resist any attack upon its independent personality.
The case of the Law of the Sea Convention shows that there may be situations in which the Community may be led to accept a clause linking its own participation to that of its Member States. However, in the present case, there is nothing in the draft Convention which would justify recourse to such a clause. As it stands, the draft
Ozone Layer Convention contains only very vaguely circumscribed commitments. Only after further development of the Convention (through addition of protocols) will it have to be determined how the Community and Member States should act in complying with such commitments. The present structure of the Convention and the obligations proposed by it do not provide any reason for arguing that, for the purposes of the Convention, an international organisation having competence in the fields covered by it must have its participation linked to participation by one or more of its Member States.
Under these circumstances the subordination clause proposed for the Ozone Layer Convention does not correspond to the particular character of this Convention, but reflects political attitudes of third countries towards the legal personality of the Community.
6. The proposed clause in the Ozone Convention
As already underlined in points 4 and 5, the clauses proposed by the USSR and the USA in the negotiating text for the O.L.C. are not justified from the international point of view and are incompatible with Community law. It should be underlined that the O.L.C. is a Convention to which it is not possible to enter reservations.
As is well-established, there is mixed competence in relation to this draft convention : thus no Member State has competence for all the areas'covered by the Convention. Therefore, the Member States are not free to sign the Convention and assume its obligations, unless the Community also signs and ratifies it. As a result.
any Member State attempting to sign or ratify the Convention without Community participation would be in breach of its
obligations under the Treaty of Rome, and would be subject to
an Article 169 procedure.
The O.L.C. is a Convention which is of great interest to the Community and its Member States, and it is essential for the future success of the Convention that the Community and its Member States should be able to sign it, and subsequently participate fully in its work. The USSR also attaches great importance to this Convention. It is suggested
that if it comes to a 'show-down' with the USSR concerning the subordination clause, and if other parties are in favour of Community participation, the USSR will probably climb down, in order to achieve Community participation, just as it did in the LRTAP Convention. However, in that case, the USA was firmly on the side of the Community.The USA has to be convinced by the Community and its Member States that it cannot benefit from insisting that one Member State must sign before the Community does so, and that there is no logical basis for asking for this. The USA also should be made aware that if the Community does not get a^satisfactory response concerning the participation clause, it will not sign the Convention. It must be explained to the USA that to accept such a clause would not be consistent with the Community legal order, and to attempt to force such a clause upon us is interference in internal Community affairs.
7. Conclusions
The Commission therefore proposes to the Council that in accordance . with its Decision of 19 January 1982 it should hereby give the Commission the following directives for its negotiation of the Draft Ozone Layer Convention. In addition, the Council should decide that the Member States should also act (in concert) on the following. . .
* 10 -
I) The Commission and Member States should ensure during the negotiations that a clause permitting unfettered Community participa tion is written into the draft Convention. Such a clause might
, be on lines similar to the following:
"This Convention shall be open for signature at _
from_ to _by any State and by
regional economic integration organisations, constituted by ,
• sovereign States, which have competence in respect to the negotiation, conclusion and application of international , , agreements in matters covered by this Convention."
II) The Commission and Member States shall not under any circumstances accept a Community participation clause which would make signature or ratification by the Community subject to previous signature or ratification by any one or more Member States of the Community.
III) The Commission, and Member States, to the extent that this may be necessary, shall undertake demarches with the Government of,the USA to explain to them why the Council has decided that such a subordination clause is not consistent with the Community legal order. Subsequently, the Commission shall undertake similar demarches with other countries including developing countries who are actively concerned in the negotiations of the D.O.L.C.
These' actions should be undertaken as rapidly as possible if the negotiations during the fourth session of the Ad Hoc Group are to have an outcome acceptable and satisfactory to the Community.