Apart from her many writings on the World Trade Organization (WTO) and international economic law, Gabrielle Marceau has always shown a great interest in the law applicable to international organizations. She has often been a pioneer in exploring new ideas and topics. By exploring the notion of territory of international organizations, a neglected topic in the literature of international law, we want to pay homage to her many qualities, among which her legal curiosity stands out.

Founding treaties of international organizations are “normal” treaties, which are governed by the law of treaties, as laid down by the *VCLT*. In general, treaties are concluded between the States parties to the treaty without paying special attention to their territorial or geographic scope in a specific provision. States are seemingly aware—or assumed to be aware—of the geographic dimension of their treaty partners and thus of the sum of the territorial coverage of the treaty they are concluding. One may well ask whether this will be enough for all types of treaties. Are there treaties for which it would be useful, or even necessary, to define the exact territory (of the states) where the treaty shall be of application?

One would assume that this is the case for multilateral treaties dealing with such subject matters as finance and trade or for treaties/organizations equipped with important rule-making powers. It would seem self-evident that for such treaties or organizations it is important to be certain about the territory where the rules of the founding treaty, or the secondary rules based on it, apply. Nevertheless, this simple hypothesis turns out to be incorrect, as the founding treaties of such organizations as the World Bank, the International Monetary Fund (IMF), the WTO, the World Health Organization (WHO) and similar specialized agencies of the UN have no provision defining their geographic or territorial coverage. More so, further research into the founding treaties of free-trade areas and customs unions in Africa, Asia and the Americas did not yield such provisions. All these treaties are based on the belief that the territorial coverage of the treaty in question can be left to each of the contracting parties themselves, if and when the need for it arises. No need seems to be felt to lay down the matter in advance. Only the *US—Mexico—Canada Agreement* (*USMCA*) on free trade, as far as we know, has a provision in the preliminary part of the treaty, on definitions, explaining what “territory” means for each of the three parties. From the point of view of international law it is not surprising that that the definitions for each of the three Member States mention broadly the same three elements of territory on free trade: (1) land territory, including internal waters; (2) the territorial sea, the continental shelf, and any areas beyond the territorial sea within which states may exercise jurisdiction or sovereign rights, in accordance with customary international law (with a reference to *United Nations Convention on the Law of the Sea* (*UNCLOS*)). The US gives a clear trade flavour to its land territory by referring to its “customs territory”, which includes the 50 states, the District of Columbia and Puerto Rico, and the foreign trade zones located therein.<fnref n="1" /> These three definitions together form a totally unsurprising overall definition of the territory covered by the agreement, which was not considered necessary in any of the other founding instruments of international organizations covering financial, trade and other economic matters.

<footnote n="1">*Canada—United States—Mexico Agreement as amended by Protocol of Amendment to the Agreement between Canada, the United States of America, and the United Mexican States*, 10 December 2019, Can TS 2020 No 6*.*</footnote>
# I. The EU Treaty Provisions

The European Union (EU), and its predecessor organization, the European Economic Community (E(E)C), is therefore one of the few international organizations with a definition of the geographic scope of its powers with respect to its rulemaking (regulations, directives and decisions) and its implementation thereof. Article 52 (1) *Treaty on European Union* (*TEU*) simply states that “the [EU] Treaties apply to….”<fnref n="2" /> [follow the names of all the member states from Belgium to Sweden]. Article 55(2) *TEU* then states that “the territorial scope of the Treaties is specified in Article 355 *TFEU*.”<fnref n="3" /> That article contains a number of detailed provisions on “the territorial scope of the Treaties”, in particular in respect of territories inside Europe with a special relation to their motherland (such as the Channel Islands and Man during the period of Great-Britain’s membership) and non-European territories of the member states. They will not be discussed in detail here, because many of them have disappeared after Brexit. Let it suffice to say that these provisions are now essentially about non-European territories of a few member states, and they give a possibility of differentiating their inclusion in, or their relation to the Union, also depending on their (evolving) relation with their European motherlands. Some of these territories have moved from full integration into the territorial scope of the European Community (EC)/EU, to the regime for the so-called outermost regions (of France, Portugal and Spain) mentioned in Article 349 *Treaty on the Functioning of the European Union* (*TFEU*), or to a treaty-based association regime (and sometimes even back again), depending on their degree of autonomy (or even independence) from, or integration into their European motherlands. This back-and-forth has been a feature in particular of certain French and Dutch overseas territories.<fnref n="4" />

It is, therefore, safe to say that the original need for the provisions of what are now Article 52 *TEU* and Articles 355 and 349 *TFEU* sprang in part from the remnants of the colonial past of many of the original six member States (and later also the UK and Denmark) and the different ways in which these States wanted to deal with these (former) overseas territories and their relation to the “common market”. However, as will be shown below, it is the evolution and continuity of the E(E)C, by the way of the EC, to the EU, and the evolving nature of its institutions and their political, legislative and judicial work that has led this colonial legacy to give birth to “Union boundaries” and “Union territory.”

<footnote n="2">*Treaty on European Union*, 13 December 2007, OJ C 202, 7.6.2016 para 52(1) [*TEU*].</footnote>

<footnote n="3">*Ibid* para 55(2). It is not surprising that the *European Economic Area* (*EEA*) has a treaty provision that closely resembles the model of Article 52 of the *Treaty on European Union* (*TEU*) and Article 355 of the *Treaty on the Functioning of the European Union* (Article 326 *EEA Agreement*).</footnote>

<footnote n="4">On Article 52 *TEU*, see Hermann-Josef Blanke & Stelio Mangiameli, *The Treaty on European Union (TEU) A Commentary*, (Berlin: Springer, 2013) at paras 1433—46 and on that article and on Articles 55 *TEU*, 355 and 349 *TFEU* see Pieter Jan Kuijper et al, *The Law of the European Union*, 5th ed (Alphen aan den Rijn: Wolters Kluwer, 2018) at paras 1120—28.</footnote>
# II. The Evolving Notion of European Community or Union Territory

As a preliminary remark, it is important to recall that the EC/EU has two kinds of boundaries and territories: on the one hand the national boundaries and territories of the member states within the EC/EU and, on the other hand, the external boundary of the EC/EU: that is to say the boundary formed by those national boundaries that are boundaries with third states and with the high seas. The latter boundary encompasses what one might call the EC or EU territory and is also called the “external boundary” of the EU. It is important to recall that this distinction plays a role in the implementation and enforcement of the laws of the EU. National authorities have a role to play in the implementation and enforcement of Union law; they are even duty-bound to fulfil these roles as implementer and enforcer. In important areas of Union legislation (e.g. the protection of personal data, supervision of the application of competition law, including state aids, the application and enforcement of intellectual property law, admission and expulsion of aliens and reception of asylum seekers), this is the normal way of assuring the enforcement of Union law.

Union law may even prescribe the creation of new national authorities. An example of this kind is the case of the national data protection controllers in the field of data protection.<fnref n="5" /> Similarly, Union law may mobilize existing national institutions to help enforce Union law. For instance, the national competition authority and the national judicial authorities of a member State are obliged to help the Commission of the European Communities civil servants to gain access to the premises of companies suspected of anti-competitive practices in unannounced inspections, so-called “dawn-raids.”<fnref n="6" /> More generally, the EU and the member states have gone further down this road of collaboration between the Commission and member state authorities, according to which the applicable EC or EU competition law is applied with the help and the assistance or enforcement power of the member states, also based on the direct effect of the competition rules laid down in the *TFEU*.<fnref n="7" /> This kind of institutionalized collaboration between member states and the EC/EU (primarily the Commission) has also led to the creation of so-called decentralized agencies in areas of Union law where direct effect of the *TFEU* is less clear or largely absent. Frontex is a good example in the domains, where the question whether the EU has a territory certainly plays a role.<fnref n="8" /> It is a collaborative organization that disposes of national and Union components (hardware, such as ships, airplanes and helicopters) and manpower. Frontex has the task to apply and enforce Union law in the field of the EU law on entry into the Union territory, but also certain national aspects of these rules, notably where it concerns the (still national) regular long term immigration policy, next to entry for other reasons governed by Union law, such as short stay visas and residence permits and free travel within the EU for a limited period and seeking asylum, for instance.<fnref n="9" /> It is indispensable, in order to gain a proper perspective on the question of the Community or Union external borders, first to have a brief look at the practice of the Community/Union institutions relating to the application and interpretation of articles 52 *TEU* and 355 and 349 *TFEU* and to what extent it implies that there is such a thing as a Community/Union Territory.

To begin with the European Court, it decided rather early on, in a case concerning the width of the Irish territorial sea (and fishing zone), that an extension of the external sea boundaries of the Union and the member States (partly as a consequence of the changing international law of the sea, as laid down in *UNCLOS* *1982*) would have an immediate effect on existing EC/EU legislation, without any formal modification being necessary: the principle of moving treaty boundaries applied internally to the E(E)C). This was seen as compatible with the drafting of Art. 52 *TEU* and applied not only to primary law, but also to secondary legislation. Thus, as the Court put it, “any extension of the maritime zones in question automatically means precisely the same extension of the area to which the [EU fisheries] regulation applies.”<fnref n="10" /> This opened the way for the Court to decide later on (in 2015) that the flexibility granted to the outermost territories of the member states in respect of the application of Community/Union law under Article 349 *TFEU* was not restricted to primary law but could also be applied to regulations and directives in all fields of secondary law. Moreover, given the use of the broad term “measure” in Article 349 *TFEU* there is great flexibility for the EU legislature. The Court indicated that the EU legislature and executive not only had the power to vary the application in time of EU legislation to these overseas territories (e.g. a longer period of transition to full application than the member states) but also could adapt legislation and other “measures” as to their substance given the special position of the outermost regions.<fnref n="11" />

In 2017 the Court of Justice was presented with the opportunity to fill a potential hole in the Union borders, when a certain Mr. Dakkak, on a trip from Benin to Lebanon with a stop-over at Charles De Gaulle airport near Paris, was stopped and checked by French customs in the international transit hall for possession of a large amount of cash in excess of the maximum of 10.000 euros, which he was obliged to declare in conformity with EU law. Was he or was he not “a natural person entering or leaving” the European Union, while walking in the transit hall” (according to Art. 3(1) of *Regulation (EC) No. 1889/2005 on controls of cash entering or leaving the Community*)? The Court could only answer that question by having recourse to Articles 52 *TEU* and 355 *TFEU*, as the regulation on controls of cash and the Schengen Borders Code (then *Regulation 562/2006*) did not give any further clarification of that phrase. The Court then states, while repeatedly using the term “EU territory”, that entering or leaving EU territory is a matter of moving between a place that is part of EU territory to or from a place which is not. Moreover, “EU territory corresponds to the geographical space referred to in Article 52 *TEU* and Article 355 *TFEU* which define the territorial scope of the Treaties.” Airports of member states are part of that geographical area, and therefore part of EU territory.<fnref n="12" />

It would seem from other cases decided by the Court, especially in situations relating to the movement of third state persons and goods from outside the EU into the Union and one of its member states and between the member states, that ever since the entry into force of the *Treaty of Lisbon*and the full integration of the Schengen regime into Union law, the Court of Justice is more and more at ease with using the term “EU territory” as opposed to “Member State territory [ies]”. An example of such a case is a rather sorry dispute involving a Russian man with a long- term residence permit in Estonia, who tried as much as possible to live and work in Finland because his estranged wife and daughter were there. As is wont to happen in such cases, this wish to be close to his child led to tensions, which became so serious that the Finnish authorities tried to expel him to Russia. Apart from a wonderful Solomonic judgment by the Court’s second chamber, the case is interesting from our perspective because the argument of the Court is shot through with constant references to “EU territory”, next to “Estonian territory”, “Finnish territory” and even, in the operative part of the judgment, to “the territory of the European Union.”<fnref n="13" />

The Court may also no longer feel constrained in using terms like “EU territory”, because terms like “EU or Union territory” or “territory of the Union” are now regularly used as well by the legislative institutions of the EU, Council and Parliament, and by the Commission in its implementing legislation. Examples are the Regulation on protective measures on pests of plants and its numerous Commission implementing measures<fnref n="14" />, the *PNR/Passenger Name Records Directive*<fnref n="15" /> and the *Regulation on strengthening security of identity cards of Union citizens*.<fnref n="16" />

Finally, it is important to say a few words about the problem of extra-territoriality of EU legislation. Originally this was an issue that played a role primarily in the application of the EC competition rules. Initially, during the E(E)C)/EC period, several member states tended to be very restrictive, as they had suffered (or so they felt) under the so-called “effects doctrine” applied by the US in its anti-trust law, which had had important repercussions on the industries of the original six E(E)C), member states and on Great-Britain before its accession. Since the notion of adverse effects on another economy could be very elastic, many member states felt that they had to practice what they preached to the US, and thus the Commission in its application of competition law to foreign companies was urged to be moderate. Nowadays the possible extraterritorial effect of EU law plays an important role in many areas beyond competition law alone. Recently, however, the Court of Justice has briefly summarized the present state of the vexed question of extra-territoriality of EU law once again in a competition case, this time in the field of speed-skating. The Court explains that the EU rules of competition law apply in respect of the activities of the International Skating Union (ISU) only to speed skating competitions as an economic activity. And these rules apply only “insofar as they are implemented in the territory in which the *TEU* and *TFEU* apply irrespective of the place where the entities that adopted them are established.” (Here the Court refers to a number of cases going back to 1971).<fnref n="17" /> For good measure, the Court repeats: “[i]t is, consequently, only the implementation of such rules in the context of such disputes and in the territory of the European Union that is at issue in the present case”.<fnref n="18" /> It may be concluded that the jurisdiction of the EU institutions (primarily the Commission and the Court) still cannot be established on the basis of “mere effects” on the economic actors within the EU but needs at least some measure of implementation “in the territory of the Union.”

Finally, it is interesting to note that the EC/EU, while itself adhering to a moderate “effects doctrine”, bound as it is by the Court’s insistence on at least some modicum of implementation inside the EU territory, has adopted already in 1996 a “blocking regulation”, provoked by a number of US “acts”, which penalized investments in and trade and transport of certain goods to Cuba and Libya at the time, and later to Iran. The sanctions against these countries included investments, trade and transport by non-US companies, even if there was neither a basis in international law nor an EU-US agreement for such sanctions against these countries. These are so-called secondary sanctions.<fnref n="19" /> This regulation is still on the books in slightly modified form and, over time new foreign legislation and regulations were added to the annex listing the blocked third country legislation to which the regulation applies. The effect of prohibiting EU companies to submit to US legislation containing so-called secondary sanctions was based partly on the rule of “foreign sovereign compulsion” that US Courts were supposed to apply in conformity with standing US case law on such conflicts between national statutes, of which the foreign one did not leave any discretion to its subjects, and partly on the possibility to “claw back”, i.e. to claim compensation, under private law before the courts of EU Member States, for any damage that EU companies had suffered as a consequence of the application of US legislation containing secondary sanctions.<fnref n="20" />

“The blocking statute” can be seen to defend the “EU territory”, including companies, ships and planes registered in that territory, where the writ of foreign (i.e. US) law should not run, if and when the relevant EU legislation has a public policy character. (cf. the public policy exception in private international law). The rule of foreign sovereign compulsion applied by the US courts can also be seen as the recognition of the fundamental legal rule that US public law should have no validity within the territory of the EU.<fnref n="21" />

<footnote n="5">On the national data controllers, see EU, *Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation)*, [2016] OJ, L 119/1 at art 24.</footnote>

<footnote n="6">See EU, *Regulation 1/2003 on the Implementation of the Rules of Competition as laid down in Articles 81 and 82 of the Treaty*, [2002] OJ, L 1/15 at arts 20(4)—20(6), now articles 101 and 102 of the *TFEU* [*Reg 1/2003*]*.* This is an old power that the Commission already possessed under the predeceasing of this regulation.</footnote>

<footnote n="7">*Ibid.* Especially on the side of the member states, the collaboration under *Regulation 1/2003* has led to an increased number of competition policy decisions; less so on the number of EU competition decisions. Presently *Regulation 1/2003* is subject to further modernization.</footnote>

<footnote n="8">EU, *Regulation (EU) 2019/1896 on the European Border and Coast Guard*, [2019] OJ, L 295/1-112 [*Reg 2019/1896*]. Frontex, presently laid down *Reg 2019/1896*, is one of the 11 decentralized agencies, most of which were originally created within the framework of the so-called “Third Pillar” (now *Title V Area of Freedom, Security and Justice of Part III, Union Policies and Internal Actions* of the *TFEU*) and also include, for example, Eurojust, Europol, the European Union Drugs Agency (EUDA) and the Fundamental Rights Agency. The members of Frontex are the member States of the EU (except Ireland) and the Schengen States, Iceland, Norway, Switzerland and Liechtenstein.</footnote>

<footnote n="9">See EU, *Consolidated Version of the Treaty on the European Union*, [2008] OJ, C 115/13 at arts 77 and 78 [*TFEU*]*.*</footnote>

<footnote n="10">See *Commission v Ireland*, C-61/77, [1978] ECR I-418 at I-446.</footnote>

<footnote n="11">See *European Parliament and European Commission v. Council*, C-132/14 to C-136/14, [2015] ECLI:EU:C:2015:813 at paras 76—77 and 81—83. Note that the Parliament and the Commission had always opposed substantive adaptation to the outermost regions, since the objective had to be full uniformity, if one wanted full integration of these territories into the single market [*Joined Cases*].</footnote>

<footnote n="12">*Oussama El Dakkak, International SARL v Administration des douanes et des droits indirects*, C-17/16, [2017] ECR I-1 at I-4.</footnote>

<footnote n="13">*EP v Maahanmuttovirasto*, C-752/22, [2024] ECR I-1. The Solomonic character of this judgment compare the reply to the first question and the reply to the second question and contemplate what the result in practice will be of these two interpretations being applied at the same time.</footnote>

<footnote n="14">EU, *Regulation 2016/2031°f* *the European Parliament and of the Council of 26 October 2016 on the Protective Measures against Pests of Plants, amending Regulations (EU) No 228/2013, (EU) No 652/2014 and (EU) No 1143/2014 of the European Parliament and of the Council and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC, 2000/29/EC, 2006/91/EC and 2007/33/EC*, [2016] OJ, L 317/4 at art 40.</footnote>

<footnote n="15">EU, *Directive 2016/681 of the European Parliament and of the Council of 27 April 2016 on the Use of Passenger Name Record (PNR) Data for the Prevention, Detection, Investigation and Prosecution of Terrorist Offences and Serious Crime*, [2016] OJ, L 119/132 at preamble at paras 21, 34.</footnote>

<footnote n="16">EU, *Regulation 2019/1157 of the European Parliament and of the Council of 20 June 2019 on Strengthening the Security of Identity Cards of Union Citizens and of Residence Documents issued to Union Citizens and their Family Members Exercising their Right of Free Movement*, [2019] OJ, L188/67 at preamble at para 37.</footnote>

<footnote n="17">*International Skating Union v Commission*, C-124/21, [2023] ECR I-1 at para 189.</footnote>

<footnote n="18">*Ibid* at para 190.</footnote>

<footnote n="19">EU, *Regulation 2271/96 of the European Parliament and of the Council of 22 November 1996 on Protecting against the Effects of the Extra-territorial Application of Legislation adopted by a Third Country, and Actions based thereon or Resulting therefrom*, [1996] OJ, L 309/1. See the US legislation listed in the annex as from entry into force.</footnote>

<footnote n="20">*Ibid* at art 6.</footnote>

<footnote n="21">Note that a particularly gross attempt on the part of the US to make its public law applicable within the EU territory is the recent US pressure exercised on EU companies—and this includes of course subsidiaries of US companies incorporated in the EU Member States—to drop their so-called Diversity, Equity, and Inclusion policies within the EU under the threat of trade sanctions, notably exclusion from US public procurement. At the time of writing any US legislative or regulatory texts at the basis of these measures had not (yet) been added to the Annex of *Reg 2271/96* (“the blocking Statute”). See Tom Ruys & Cedric Ryngaert, “Secondary Sanctions, a Weapon out of Control? The International Legality of, and European Responses to, the US Secondary Sanctions” (2020) Brit YB Intl L 1 at 81—99. Note that the authors are rather sceptical about the effectiveness of the EU “blocking statute”.</footnote>
# III. Some Final Remarks

Viewed in this perspective, it is possible to argue that the “physical territory” of EU Member States is overlaid with two “legal territories” that may considerably or even wholly overlap: the national legal territory and the EU legal territory.<fnref n="22" /> Moreover both of these legal layers are subject to the authority of international law.<fnref n="23" /> One could call this the EU “layer cake approach” to territory. The EU legal territory is circumscribed by the powers which the member states have conferred on the EU in general in the foundational documents of the Union and by the use that the EU has made—through its legislative institutions (Council and Parliament, in which the Member States are represented in different ways)—of these powers in specific instances. The overlap between national and Union legislation is, of course, most obvious when the Union has used directives as the favoured legislative instrument.

Furthermore, according to well-established case law of the EU Court of Justice, in all areas of Union activity, the adoption of internal EU legislation has the consequence that in the corresponding international domain the Union alone has the exclusive power to act, both in a material and a contractual (treaty) sense of the term.<fnref n="24" /> This explains, for example, why the EU can conclude international agreements with third States about actions linked to entry into the Union territory or their territory, carried out by Frontex personnel. There is no doubt that Frontex, notwithstanding its autonomous status and having its own budget and its own legal personality, cannot independently conclude international agreements. Cooperation with third countries is possible and can lead to so-called “arrangements” between Frontex and its counterparts but should always respect and comply with existing Union law.<fnref n="25" /> Moreover, nothing that the EU institutions or Frontex do or agree shall affect in any way “the competence of the Member States concerning the geographical demarcation of their borders in accordance with international law.”<fnref n="26" />

All things considered, the “layer cake approach” to Union territory is a useful one. The physical side of it is determined by the just-mentioned competence of the member states to draw their borders in accordance with international law. This links the new Union law on entry and (short-term) residence etc. to the old case according to which the breadth of the territorial sea of the member states, and thus of the Union, was to expand automatically with the relevant international norms.<fnref n="27" /> On top of that sits the national legislation, which should be in conformity with—as far as territory and its demarcation are concerned—with international law and EC/EU law. Moreover, according to standing case law of the Court of Justice, Union law should be in conformity with international law, which includes rules on demarcation of territory on land, which is mostly of a customary nature, as well as territorial jurisdiction and jurisdiction of a different nature over certain sea areas, as laid down in *UNCLOS* and other maritime conventions, to which the European Union and in principle all member states are parties, since they are mixed agreements. It would seem, therefore, that the sea-side territory of the Union will nearly always be in conformity with international law vis-a-vis third states.

What can be said in conclusion is that, as everywhere in the EU construction, there is considerable transfer of power from the member states to their common Union, but that the core notion of sovereignty (over a physical piece of land and/or sea) stays with the member states, even if many powers which were part and parcel of this broader notion of sovereignty have been transferred to the Union in whole or in part. As has been shown above, there is now an important layer of the law relating to borders and territory, including executive tasks relating to border control (Frontex), that is part and parcel of the EU now. In that, perhaps limited, sense the EU has its own territory.

<footnote n="22">For a different approach see Gail C. Lythgoe, “Distinct Persons; Distinct Territories: Rethinking the Spaces of International Organizations” (2022) 19:2 Intl Organizations L Rev 365. Her approach to the question of the existence of an EU territory emphasizes that territory is something produced by the exercise of social control. It is obviously an enormous task to make this plausible in the framework of a single law review article. Hence, we have restricted ourselves here to legal control, even though her approach is very challenging and deserves more work.</footnote>

<footnote n="23">See *TFEU*, *supra* note 9 at art 77(4) and see *Joined Cases*,*supra* note 11.</footnote>

<footnote n="24">See Merijn Chamon, “Implied Exclusive Powers in the ECJ’S Post-Lisbon Jurisprudence: The continued Development of the ERTA Doctrine” (2018) 55:4 CML Rev at paras 1101—41. See also Graham Butler & Ramses A Wessel, “Happy Birthday ERTA! Fifty Years of the Implied External Powers Doctrine in EU Law” (March 21, 2021), online (blog): <europeanlawblog.eu> [perma.cc/ZFB7-VCQL].</footnote>

<footnote n="25">See *Reg 2019/1896*, *supra*note 8 at arts 71 and 73.</footnote>

<footnote n="26">See *TFEU*, *supra* note 9 at art 77(4).</footnote>

<footnote n="27">*Joined Cases*, *supra*note 11.</footnote>