1 GA Res. 3067, 28 UN GAOR, Supp. (No. 30) 13, UN Doc. A/9030 (1973).

2 8 Official Records, Third un Conference on the Law of the Sea (1978) [hereinafter cited as OFF. REC], UN Doc. A/CONF.62/WP.10 and Add.l (1977), reprinted in 16 ILM 1108 (1977).

3 Included were provisions on ratification, accession, entry into force, status of annexes, and authentication, as well as a testimonium clause; there were no proposals on such issues as provisional application, reservations, and depository functions.

4 In the Plenary of May 5, 1978.

5 294 UNTS 23. The treaty entered into force on January 1, 1958, between Belgium, the Federal Republic of Germany, France, Italy, Luxembourg, and the Netherlands; as from January 1, 1973, Denmark, Ireland, and the United Kingdom acceded to it.

6 Art. 211.

7 E.g., Arts. 111(2) and 114 on tariff agreements; Arts. 113(3) and 114 on trade agreements; Art. 238 on agreements creating associations.

8 E.g., Arts. 229, 230, and 231.

9 Art. 228. The Commission (13 members) is independent from national governments; the Council is composed of representatives of national governments; the Parliament will be elected by direct suffrage from 1979. On the EEC's institutional structure, see, e.g., E. STEIN, P. HAY, & M. Waelbroeck, European Community Law And institutions in perspective. texts, cases and readings (1976).

10 No. 22/70, Re the European Road Transport Agreement [ERTA]: E.C. Commission v. E.C. Council, [1971] ECR 263, 274, ground 14.

11 Such as those referred to in notes 7 and 8 supra.

12 [1971] ECR 274, ground 16.

13 Ibid., ground 17.

14 Opinion of the Court given pursuant to Article 228 of the EEC Treaty, 11 November 1975, [19751 ECR 1355.

15 I.e., in a field in which an EEC Treaty provision confers upon the Community the power to conclude agreements, which reduces the relevancy of what was said in Opinion 1/75 for situations in which the EEC's treatymaking power is based upon the doctrine developed in the Erta case.

16 Joined cases 3, 4, and 6/76, Cornelis Kramer and others, Judgment of 14 July 1976, [1976] ECR 1279.

17 Article 102 of the Act of Accession, which states that “from the sixth year after accession at the latest” the Council must determine “conditions for fishing.“

18 Opinion of the Court of 26 April 1977 given pursuant to Article 228(1) of the EEC Treaty, [1977] ECR 741.

19 Id. at 755, ground 4.

20 If external powers are based upon an express provision in the treaty, that provision also determines the nature of those powers.

21 [1971] ECR 263.

22 Id. at 274, ground 17.

23 Ibid., ground 18.

24 [1976] ECR 1279.

25 Id. at 1311, ground 39.

26 Id. at 1312, ground 41.

27 Ibid., ground 42/43. Article 5 requires member states to facilitate the achievement of the Community's tasks and to abstain from any measure which could jeopardize the attainment of the objectives of the treaty; Article 116 requires member states to proceed by common action within international organizations of an economic character.

28 Opinion 1/76, [1977] ECR 741; see also ERTA case, [1971] ECR 263.

29 In the latter case the Community's power is exclusive as from this date; prior to it the member states and the Community have concurrent powers. Kramer case, [1976] ECR 1279.

30 ERTA case, [1971] ECR 263.

31 Kramer case, [1976] ECR 1279.

32 Which declares the treaty applicable to the member states of the Community.

33 E.g., Fleischer, L'accés aux lieux de péche et le Traité de Rome, 1971 REV. Marche Commun 148, 151.

34 E.g., ground 30/33 of the Kramer case, [1976] ECR 1279.

35 Vignes, The E.E.C. and the Law of the Sea, in 3 NEW Directions In The Law Of The SEA 335 (eds. Lay, Churchill, & Nordquist, 1973); Van der Mensbrugghe, The common market fisheries policy and the law of the sea, [1975] NETHERLANDS Y.B. INT'L L. 199.

36 See the above principles on the EEC's treatymaking powers.

37 Such restrictions are, for example, contained in Articles 48 and 52 of the treaty.

38 Art. 2 of the EEC Treaty. It also refers to “a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States.“

39 Arts. 3(d) and 38 of the treaty.

40 13 O.J. EUR. COMM. (NO. L 236) 1 and 5 (1970); they have been reissued as Regulations No. 100/76 and No. 101/76, 19 O.J. EUR. COMM. (NO. L 20) 1 and 19 (1976).

41 This provision applies Article 7 of the treaty to the fisheries sector.

42 See Hardy, The Fisheries Policy of the European Community, in LAW OF The Sea: Conference Outcomes And Problems Of Implementation 3-24 (eds. Miles & Gamble, 1977); Koers, The External Authority of the EEC in regard to Marine Fisheries, 14 Common Market L. Rev. 269-301 (1977); Hardy, External Aspects of the Fisheries Policy of the European Community, in Regionalizatton Of The Law Of The Sea 73-81 (ed. Johnston, 1978); and Koers, Internal Aspects of the Common Fisheries Policy of the European Community, in id. at 81-88.

43 E.g., the United States, Canada, Norway, Sweden, Spain, the Soviet Union, the German Democratic Republic, Poland, Senegal, and Mauritania.

44 The most important example being the agreement with the United States, 20 O.J. EUR. Comm. (NO. L 141) 1 (1977).

45 Supra, section I.

46 See principle 1.

47 See principle 2a; Article 102 of the Act of Accession requires the Council to act “from the sixth year after accession at the latest,” an expression that is somewhat ambiguous but does not allow a date later than January 1, 1979.

48 Ground 41 of the judgment in the Kramer case, [1976] ECR 1312.

49 Arts. 61-73 and 116-120.

50 Under Article 38 of the treaty the common agricultural policy applies to “products of fisheries,” which raises the question whether the common fisheries policy extends to the exploitation of marine mammals. If not, the EEC would have no power to implement Articles 65 and 120 of the ICNT. However, it seems very artificial to consider marine mammals as not covered by the phrase “products of fisheries.“

51 Art. 110 of the EEC Treaty.

52 Art. 113(2) of the EEC Treaty.

53 Ibid.

54 Art. 114 of the EEC Treaty.

55 Art. 116 of the EEC Treaty.

56 Which covers in any case matters such as changes in tariff rates, the conclusion of tariff and trade agreements, uniformity in measures of liberalization, export policy, and measures to protect trade. See Art. 113(1) of the EEC Treaty.

57 See principle 2a in section I supra.

58 An objective which is very similar to that of the EEC's common commercial policy. See Art. 110 of the EEC Treaty, text at note 51 supra.

59 It should be noted that the EEC is a contracting party to the International Wheat Agreement of 1971, the International Cocoa Agreement of 1975, the International Tin Agreement of 1975, and the International Coffee Agreement of 1976. Furthermore, the Community participates in the work of UNCTAD on international arrangements regarding raw materials.

60 Art. 158(1) of the ICNT.

61 It may be assumed that if the EEC has treatymaking powers in respect of certain matters, it is also empowered to participate in the work of international organizations dealing with these matters. In fact, on July 26, 1978, the Council of Ministers decided that consideration should be given to the ways in which the Community could be represented in the organs of the Authority.

62 This is clearly not the case with the provisions in part XI on the protection of the marine environment. See “Protection of the Marine Environment,” infra.

63 Most notably the Lomé Convention of 1975.

64 E.g., Arts. 148 and 150(1) of the ICNT.

65 If, for example, the Community were to develop a common energy policy, it is possible that under this policy certain powers would be transferred from the member states to the Community, which could enlarge the Community's role in respect of part XI of the ICNT.

66 However, for matters that fall within the exclusive powers of the Community (such as matters within the scope of the common commercial policy) common action by the member states would not be in accordance with Community law; for such matters the Community as such is responsible, which implies that it is for the institutions of the Community to act.

67 16 O.J. EUR. COMM. (No. C 112) 1 (1973).

68 Which also explains why the declaration was adopted by the Council and the “representatives of the governments of the Member States meeting in the Council.“

69 Which is binding as to the result to be achieved, but which leaves the methods to be used to the member states. See Art. 189 of the EEC Treaty.

70 19 O.J. EUR. COMM. (No. L 129) 23 (1976).

71 Under Art. 100 of the EEC Treaty.

72 It should be noted that these rules were adopted on the basis of Article 235 of the treaty on the ground that “the powers required for this purpose have not been provided for by the Treaty.” See preamble of the directive.

73 In adopting the resolution, the procedure outlined in note 68 supra was followed once again.

74 Paris, June 4, 1974, reprinted in 13 ILM 352 (1974). On EEC accession, see 18 O.J. EUR. COMM. (NO. L 194) 5 (1975).

75 Barcelona, February 16, 1976, reprinted in 15 ILM 290 (1976), On EEC accession, see 20 O.J. EUH. COMM. (NO. L 240) 1 (1977).

76 Helsinki, March 22, 1974, reprinted in 13 ILM 546 (1974). The present contracting parties are Denmark, Finland, the Federal Republic of Germany, the German Democratic Republic, Poland, and Sweden.

77 See principle 1 in section I supra.

78 The Commission of the EEC, however, is of the opinion that the Community has exclusive external powers in respect of environmental protection. See 21 O.J. EUR. COMM. (No. C 56) 1 (1978).

79 See principle 2b in section I supra.

80 Art. 3(c) of the EEC Treaty.

81 Article 75(1) of the EEC Treaty; however, for sea and air transport these powers are more restricted: Article 84 of the treaty implies that the powers of Article 75 apply only to transport by rail, road, and inland waterway, while for sea and air transport the Council may, by unanimous vote, decide whether, to what extent, and by what procedure appropriate provisions may be adopted.

82 E.g., the provisions of part X on the right of access of landlocked states to and from the sea and freedom of transit.

83 Part VI.

84 Whether or not the Community has certain powers.

85 Whether or not the Community has exclusive powers.

86 Part XV.

87 This situation occurs most clearly in respect of the ICNT provisions dealing with the utilization and conservation of living resources.

88 It is, of course, no coincidence that the Community's objectives and powers relate in particular to these 3 areas. See section II supra.

89 It is beyond the scope of this study to say more about the participation of the member states and the Community in UNCLOS III, but this is certainly a subject which deserves further study.

90 In most cases such common positions were presented on behalf of all 9 member states, but recently positions have been introduced on behalf of the European Economic Community, particularly in relation to fisheries questions.

91 Which country held, at that time, the presidency of the EEC Council of Ministers.

92 6 OFF. REC. 119, UN Doc. A/CONF.62/48 (1976).

93 It follows from the analysis in section I that this statement is valid only for situations in which the Community has exclusive powers.

94 E.g., within the Community member states have a right of equal access to the exclusive fishing zones of the other member states; this right should take precedence over any right of access to these waters granted by the future convention to third states. See also 3 OFF. REC. 217, UN Doc. A/CONF.62/L.40 (1976), Art. 23.

95 New York, May 23 to July 15, 1977.

96 7 OFF. REC. 48, UN Doc. A/CONF.62/54 (1977).

97 Geneva, March 20 to May 15, 1978.

98 UN Doc. A/CONF.62/SR.95 (1978).

99 E.g., Egypt, Iceland, Greece, and Portugal.

100 Particularly from the Arab and Latin American groups.

101 New York, August 21 to September 15, 1978.

102 UN Doc. A/CONF.62/L.32 (1978).

103 UN Docs. A/CONF.62/48 and A/CONF.62/54 (1978), notes 92 and 96 supra.

104 Text and notes 59, 63, 74, 75, and 76 supra.

105 Exceptions are the agreements of association between the EEC and certain states and the Lomé Convention of 1975.

106 The Court of Justice of the Community has in many cases resolved these uncertainties, and will continue to do so. However, not all questions of Community law reach the Court.

107 E.g., the idea expressed by certain delegations at UNCLOS III to limit the participation of international organizations to certain specific areas does not reflect the needs of the Community.

108 See also section III; the delegate from Byelorussia stated that only a provision that the convention applied to relevant intergovernmental organizations could be considered.