CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ LAW OF THE SEA: IS IT RELEVANT FOR THE CZECH REPUBLIC? draft text of the Instrument exists. The only basis for the first IGC session thus remains the President’s Aid to Discussions 74 , containing just a list of questions. The relevance of this process for the Czech Republic, leading possibly to a new law of the sea treaty, is both substantial and procedural. Given the inter-linked character of the natural processes, there is no doubt that the Czech Republic has an interest in strengthening the protection of marine environment beyond national jurisdiction. According to the current Concept of the Czech Republic’s Foreign Policy, approved by the Government on 13 July 2015, “[t]he broader aim of foreign policy is to contribute to rising global prosperity…[h]owever, this is conditional on the fact that such growth does not widen social and income gaps, is inclusive, spares natural resources and is environmentally friendly…and as such is sustainable.“ 75 In view of the above, the proposed parts of the Instrument on the area-based management tools, including the MPAs, and on the EIA certainly lie within these objectives of the Czech foreign policy. The procedural relevance is related to the membership of the Czech Republic in the EU that also directly participates in the negotiations of the Instrument. Within EU law, the Instrument is considered to be a “mixed agreement”, mostly defined as an international agreement covering subject matters that fall within the shared competence or competences of both the EU and the Member States, so both of them are a party to such agreement. 76 That also applied to the previous law of the sea treaties, as the European Community became a Party to the UNCLOS and the 1994 Implementation Agreement in 1998. 77 In this context, the Council decided to authorize the Commission to negotiate, on behalf of the EU, pursuant to Article 218(3) and (4) of the Treaty on the Functioning of the EU, on the elements of a draft text of the Instrument in 2016. 78 This decision enabled the EU to participate in the sessions of the Preparatory Committee. Once its mandate was over, the Council made another Decision on this issue authorizing the Commission to open negotiations on the Instrument on 19 March 2018. In order to prepare the positions of the EU in this field of international law, the Council of the EU established a special Working Party on the Law of the Sea (hereinafter, the “COMAR”). Every Member State of the EU sends to its meetings a representative who is – in the Czech practice – a legal officer from the International Law Department of the Ministry of Foreign Affairs. As such, due to its participation in COMAR, this Department needs to closely follow the latest developments in this process. The Conclusion It is perhaps not surprising that the question on the relevance of the law of the sea for the Czech Republic was answered in the affirmative. By providing three specific examples from practice, I tried to demonstrate that even a land-locked country like the Czech Republic has a stake in this field of international law: first, by relying on the UNCLOS as a guarantee of 74 UN Document No. A/CONF.232/2018/3. 75 Concept of the Czech Republic’s Foreign Policy, part 4.2, available (in English) at: https://www.mzv.cz/jnp/en/ foreign_relations/policy_planning/concept_of_the_czech_republic_s_foreign.html. 76 VERWEY, D. R.: T he European Community, the European Union and the International Law of Treaties , The Hague 2004, p. 38. 5.

77 Council Decision 98/392/EC of 23 March 1998. 78 Council Decision (EU) 2016/455 of 22 March 2016.

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