Agora 6: Law of the Sea

Chaired by Judge Rüdiger Wolfrum

The UN Convention on the Law of the Sea was drafted during the Cold War but entered into force after its end. Has the subsequent period reflected a qualitative change in the Convention’s relevance, effectiveness and implementation? What are the Convention’s weaknesses? Is the law of the sea capable of addressing piracy, climate change and the scramble for marine and seabed resources?

Global warming and Arctic seas: a northwest passage convention as a UNCLOS Evolution?

DR FIAMMETTA BORGIA, Lecturer of International Law, University of Rome "Tor Vergata"

Abstract: Global warming and the gradual ice reduction in the polar regions have recently determined the opening of the Northwest Passage which represents the possibility of establishing a commercial route, navigable for most of the year, linking Europe to the Far East, 7000 km less than that through the Panama Canal.


This navigational possibility has led to increased quarrels between the U.S. and Canada concerning the legal regime of the Passage: Canada believes that this is its territorial waters, subject to its sovereignty. The United States considers that the Passage is in international waters.


The theory of internal waters, of straight baselines as well as of the qualifications of passage as an international strait represent three different starting points to try to resolve the legal question concerning the status of the Passage, but the application of each perspective gives rise to conflicting results.


The recent efforts of the United States to accede to the Convention on the Law of the Sea of 1982 provided new perspectives on the composition of these interests. The application of art. 311 of the Convention would allow the contracting countries not to change their rights and obligations under other agreements. Also, its application would allow States parties to conclude agreements modifying or suspending certain provisions of the Convention but applicable only in their mutual relations. The Convention seems to be the legal reference in this matter, especially since it could legitimise other types of inter-state co-operation.

Biography: Fiammetta Borgia is a lecturer of international law at the University of Rome "Tor Vergata". She has written various articles on international economic law, international private law and law of the sea. In partnership with other Italian universities, she is actively involved in research related to human rights and economy, and the international regime of polar regions. She has already produced two monographs and several publications on these concerns and is currently finalising her next monograph on the Arctic sea.

Borgia - Draft ESIL Paper

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The terms of reference of the Commission: a scrutinised legal mandate

MR BJØRN KUNOY, Legal Adviser, Ministry of Foreign Affairs, Faroe Islands; PhD Student, Université Paris X-Nanterre

Abstract: The Commission on the Limits of the Continental Shelf (Commission) is neither fish nor fowl, yet its role in the delineation of the outer limits of the continental shelf is of pivotal importance. Its purpose is to consider the data and other scientific material that are submitted by States Parties to the LOS Convention, which underlie such coastal States proposed limits of the outer continental shelf.


It is a firm principle of international law that the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to modify or suppress it. The Commission cannot as such be seen to be vested with such powers. Yet, its recommendations shall be in accordance with Article 76 of the LOS Convention.


Due to its mandate and role it is fair to say that the Commission is by way of implication deemed to be vested with rights to undertake interpretations of the Convention. This paper seeks to determine the exact terms of reference of the Commission and to what extent it comprises powers to undertake legal interpretations of the Convention. It will be concluded that a fair balance governs the operations of the Commission, though which at times comprise tasks which are essentially of a legal nature.

Biography: Bjørn Kunoy holds a French law degree and a Master of International Law at Université Paris X-Nanterre coupled with a LLM in European Legal Studes at College of Europe, Bruges. Bjørn is Legal Adviser at the Ministry of Foreign Affairs, Faroes and is also enrolled in a ph.d on Law of the Sea at Université Paris X-Nanterre. Bjørn is Head of Delegation of the Kingdom of Denmark presenting its proposed outer limits of the continental shelf north of Faroe Islands to the Commission on the Limits of the Continental Shelf.

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Postmodern international fisheries law, or we are all coastal States now

DR ANDREW SERDY, Lecturer in Public International Law and Law of the Sea, University of Southampton

Abstract: The 1995 UN Fish Stocks Agreement was a hard-fought compromise between coastal and distant-water fishing States, one of whose aims is to strengthen international fisheries commissions' authority to manage stocks exploited on both sides of EEZ/high seas boundaries. Since then, however, international fisheries law has largely ceased to be driven by the clashing interests of these two groupings, but increasingly has focused on how States in existing international fisheries, mostly with some degree of responsibility for their depletion, try to exclude newcomers without such responsibility. They thereby seek to overcome the residual high seas freedom of fishing, an obstacle to regulation by international commissions, since States outside them are not bound by conservation measures adopted under treaties to which they are not party – in turn creating a disincentive for States inside to accept necessary restraints. Rules limiting entry to international fisheries are indeed therefore now needed; Articles 8 and 17 of the 1995 Agreement come close, but their transformation into custom binding non-parties risks being retarded by self-serving views of commissions and their leading members on what cooperation with them by new entrants entails for these. Despite insiders’ desire to deny newcomers’ political and legal claims to share in the fishery, the law is unlikely to allow this solution without significant qualification. This paper canvasses the legal problems to which the tragedy of the commons phenomenon characterising high seas fisheries has led among States whose nationals and vessels exploit them, venturing suggestions on how they might be resolved or alleviated.

• Draft Paper - Dr Andrew Serdy

Biography: In academia since 2005, Andrew was previously an employed solicitor with Freehill, Hollingdale & Page in Sydney and then worked for many years in the Department of Foreign Affairs and Trade, Canberra, serving in several positions at home and abroad, before specialising from 1996 in the law of the sea. He appeared for Australia in 2000 in the Southern Bluefin Tuna case and drafted much of the legal documentation for Australia's 2004 submission to the Commission on the Limits of the Continental Shelf. Andrew is a member of the Board of Editors of Ocean Development and International Law.

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