Dr. Warwick Gullett—Historical Development of the Law of the Sea: A Framework for Understanding and Addressing Current Challenges

Speaker: Dr. Warwick Gullett, Professor of Law and Dean at University of Wollongong, Australia

Place: Room 213 Nan-An Building, Xiamen University

Date: June 27, 2016

On June 27 Professor Warwick Gullett from University of Wollongong delivered a lecture at the South Chia Seas Institute of Xiamen University. This lecture was hosted by Professor Zhang Kening. Nearly 40 teachers and students, including those from the South China Sea Institute, the Law School and Taiwan Research Institute, attended this lecture.

Professor Gullett’s lecture consists of two parts, namely historical development of the law of the sea and approaches to interpreting the provisions of the United Nations Convention on the Law of the Sea (LOSC) and addressing current challenges.

In the first part, Professor Gullett classified the historical development of LOSC into three 3 periods. The first period is from 14th Century to 15th Century. The crucial event in this period was Papal Bull of demarcation 1493 (Pope Alexander VI) –Demarcation line defined spheres of Spanish and Portuguese possession in the New World. This demarcation hindered the using of the seas. Then, the second period started from 16th Century to 19th Century. Santa Catharina incident occurred in 1603, which indicated the conflict between Dutch company and the Portuguese. Consequently, the concept of mare liberum (freedom of the seas) was created by Hugo Grotius namely no ocean can be the property of a nation because it is impossible for any nation to take it into possession by occupation (contrary to the laws of nature). However, not all scholars totally agree with this concept. Afterwards, the concept of mare clausum (closed seas) was put forward by John Selden, an English lawyer.Based on this concept, States can only control their coastal waters. It should be noted that, the major debates at that time include: should seas be closed or free, what should be the width of the territorial sea, and how to balance the sovereignty with freedom? The third period began at 20th Century and last till now. The First Law of the Sea Conference (UNCLOS I) was convened in this period. The conference resulted in four conventions in 1958: The Convention on the Territorial Sea and the Contiguous Zone, The Convention on the High Seas, The Convention on the Continental Shelf, and The Convention on Fishing and Conservation of the Living Resources of the High Seas 1958. Nevertheless, the four Conventions were not perfect. Eventually, the LOSC was adopted in 1982 and entered into force in 1994.

In the second part of the lecture, Professor Gullett pointed out the intractable issues in LOSC such as innocent passage, freedom of navigation, fisheries, maritime security, and maritime boundary delimitation.

The trends to implement the LOSC so far is adopting supplement conventions rather than modifying the Convention for example Agenda 21 (chapter 17) and Biodiversity Convention 1992, 1993 FAO Compliance Agreement, 1994 Agreement to Implement Part XI, and 1995 Code of Conduct for Responsible Fisheries, 1995 Straddling/Highly Migratory Stocks Agreement and FAO Plan of Action on IUU Fishing. Professor Gullett introduced the complicated procedure to amend the LOSC. In particular he discussed the amendment of the convention by simplified procedure as provided in Article 313 of the Convention. After the lecture, Professor Gullett answered the questions from the audience.

Written by YODSAPON NITIRUCHIROT.