MICRONESIAN MARITIME SURVEILLANCE AND EEZ ENFORCEMENT SEMINAR – FACILITATOR’S REPORT

Introduction

The Micronesian Maritime Surveillance and EEZ Enforcement Seminar (MMSES) was held at the Palau Pacific Resort in Koror, Republic of Palau, between 20 and 22 November 2006. It was attended by four representatives each from the Governments of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI), and six from the Republic of Palau; the RAN Maritime Surveillance Advisers (MSAs) from these three countries; two officers from the Forum Fisheries Agency (FFA); nine diplomatic, naval and coast guard officers from the United States; one officer each from the Australian Federal Police (AFP) and the New Zealand Police; and six officers of the Australian Government, including H.E. Corinne Tomkinson, Australian Ambassador to the FSM, RMI and Palau; and Commodore Kevin Taylor, Director- General Pacific and East Timor (DGPACET), International Policy Division, Department of Defence.

Unfortunately the participants from Kiribati who were planned to attend the MMSES had to withdraw at the last minute due to problems with cancelled flights and airline schedules. A full list of attendees is attached at Annex A. The seminar was facilitated by Dr Sam Bateman from the Centre for Maritime Policy, University of Wollongong.

Objectives

The MMSES examined the role that Governments, government agencies and regional organisations play in enabling and enhancing maritime security in national EEZs and across the Micronesian region. Specific objectives were to:  explore opportunities for greater maritime security cooperation and coordination between relevant stakeholder agencies, both within and between Micronesian Governments;  identify weaknesses in the current legal and management regimes for providing maritime security in the Micronesian region;  foster the establishment of dialogue on maritime security between the various agencies in the participating countries;  enhance the national and regional capability to prosecute crimes at sea; and  identify opportunities for capacity building and capability development across and between the Micronesian Governments in the area of maritime security.

Programme

Day One of the programme on Monday 20 November 2006 was used to set the scene for the seminar with welcoming addresses, opening presentations, briefings on the national

1 arrangements for maritime security in the three participating Micronesian countries, reports on two major operations in the region during 2006, and a presentation by the FFA on current issues with fisheries surveillance and enforcement. Days Two and Three on Tuesday 21 and Wednesday 22 November respectively were primarily occupied with syndicate problems designed to assist in achieving the objectives of the seminar. Sufficient time was allowed on the last afternoon for plenary discussion of the outcomes from the MMSES.

Opening Session

Welcoming addresses were provided by the Honourable Elias Chin, Vice President of Palau and Minister of Justice, and DGPACET. The Vice President acknowledged the support provided in the region by the Australian and US Governments. He spoke of the need to enhance the regional ability to catch and prosecute maritime law offenders and to avoid simple paying “lip-service” to requirements. DGPACET highlighted two issues: the need to develop collective ideas about how to deal with maritime security and that the idea of the seminar had originally been suggested by Palau. He spoke of the outcomes of the seminar as potentially comprising the Palau Strategy for maritime security in Micronesia.

Following the welcoming addresses, the facilitator gave a presentation on “Maritime Security in the 21st Century” in which he described the many developments that have occurred in the international maritime security environment since 9/11. Maritime security now needed to deal comprehensively with the full range of multidimensional threats. For the purposes of the seminar, maritime security was defined as: “the suppression of illegal activity at sea, including IUU fishing, piracy, maritime terrorism, drug, arms and human trafficking; the prevention of ship-sourced marine pollution; and the provision of relevant safety services, especially for search and rescue (SAR); and the mitigation of marine natural hazards.” This presentation identified that while the RMI is party to most relevant international conventions covering maritime safety, security and marine environmental protection, Palau and the FSM have ratified relatively few of these conventions. The ultimate objective was a regional maritime security and safety regime that allows for law and order at sea; the free and safe movement of shipping and seaborne trade; and countries able to pursue their maritime interests and use their marine resources in accordance with agreed principles of international law.

This presentation was followed by one on “Transnational Crime in the Pacific” by Federal Agent Anita van Hilst of the AFP. She identified reasons why transnational crime was an issue for the Pacific island countries, including weak border security due to the wide maritime areas and lack of resources; the volume of maritime traffic in the region; weak legislation; and poor communications. She then outlined developments with the Pacific Transnational Crime Network (PTCN) and the establishment of Transnational Crime Units (TCU) throughout the Pacific islands region. She emphasised that due to the tightening of aviation security and the small number of airports in the region, transnational criminal activities were largely carried out by sea and the prevention of these activities was a major challenge for maritime security in the region.

2 National Arrangements

The presentations on national arrangements for maritime security were invited to cover:  agency responsibilities for maritime security and safety, including fisheries surveillance and enforcement, port security, SAR, smuggling;  the respective roles of agencies in maritime security in terms of the main drivers: legal frameworks, information and enforcement;  relevant national committees;  national legislation;  whether particular international conventions have been ratified;  any other national arrangements or agreements, such as bilateral ship-boarding agreements; and  any current areas of deficiency with regard to maritime security.

The presentation by the Attorney General of Palau identified the smuggling of people and goods (especially cigarettes) as new problems whereas the ongoing concern was with illegal fishing. Most of the illegal fishing vessels in Palauan waters were small outrigger canoes of little value and if they were forfeited, there was then a problem with looking after destitute crews. While there was a reasonably strong legal framework in Palau, the country lacked resources to enforce national laws effectively. There was just the one patrol boat and it was expensive to operate. Maritime boundaries are still to be agreed with Indonesia and the Philippines.

The FSM Attorney General in her presentation identified six national agencies with a responsibility for some dimension of maritime security, as well as State authorities responsible for port security. All maritime boundaries with neighbouring countries have been agreed with the exception of that with Guam but the FSM has not yet declared a contiguous zone. A successful operation in monitoring fishing activities had recently been conducted by using ship-riders on a Greenpeace vessel. The Attorney General identified a number of challenges: maritime law enforcement was concentrated on illegal fishing and officers do not have the capacity or authority for dealing with other offences; much surveillance was only conducted in port and vessels may already have disposed of incriminating evidence; and a general lack of resources for law enforcement at sea. The FSM has a unique arrangement whereby a discounted fishing licence is allowed to foreign fishing vessels that assist in a SAR mission.

The presentation by the Minister of Justice for the RMI provided a comprehensive overview of the statutory authorities, agencies and ministries in the RMI with some responsibility for maritime security and the framework that links them together. The RMI International Ship Registry has now the sixth largest ship registry in the world and is one of the biggest single earners of revenue for the RMI. As a result of this open registry, the RMI is extremely responsive to changes and developments in international maritime law. The country has two committees dealing with maritime security: a Port Security Committee and a Counter-Terrorism Committee. It is likely that the latter committee will take on further responsibilities for maritime security. On the legislative front, completing

3 domestic shipping regulations, including possibly bringing fishing vessels under the domestic maritime law regime, is a priority. In relation to port security, there have been some difficulties with the implementation of the International Ship and Port Facility Security (ISPS) Code, including the handling of the fishing base and fishing vessels.

Operational Issues

The operational presentations included reports on Operations Island Chief and Kuru Kuru conducted during 2006 with a particular focus on the lessons learned. Both operations had confirmed the utility of the Nuie Treaty Subsidiary Agreements (NTSAs), although some of the participating countries have not entered into NTSAs. It is also a complication that France and the US are not parties to the Nuie Treaty. Operation Kuru Kuru 2006 had a number of innovations, including not having a central gathering of patrol boats prior to the start of the exercise. This represented a big saving on fuel. Palau had suggested doing more frequent but more focussed operations along the lines of Kuru Kuru. These might include “vessels of interest” lists from a range of sources.

Some problems were encountered with communications and there was a lack of skills to manage incidents and conduct multilateral operations with so many assets available. There was scope to”demilitarise” the communications and make greater use of email. The analysis of data and the sharing of VMS information were other issues. It was thought that too much emphasis with VMS data had been given in the past to confidentiality aspects and not enough to strategic considerations. There was a perceived need to get away from the formalities of the past and develop a new FFA data-sharing policy. This was particularly important in the new maritime security environment with multi- dimensional threats and concerns that fishing vessels might be involved in other forms of illegal activity. The FFA was an efficient regional organisation for dealing with one form of illegal activity at sea i.e. illegal fishing, and consideration needed to be given to how to build on it to deal with other forms of maritime crime.

The FFA presentation reminded the seminar that IUU fishing was not just about fish but it was also about “treasury, trade and crime”. It was costing the region about US$400 million per annum. Currently there was a lack of integration of the different types of data: (1) FFA registrations and licences; (2) SPC observer and stock data; and (3) boarding reports from individual members. It was very difficult to catch fishing vessels doing something illegal when they get “smart” using diversionary tactics, monitoring patrol boat movements, and listening in on their communications. The risks of extinguishing a fish stock had never stopped fishing – it only increased prices! While surveillance was not “an end in itself”, there was a need for an integrated regional surveillance strategy that identified risks and harmonised different national approaches.

Capacity Building

Day Two of the MMSES commenced with a presentation on prosecuting illegal fishing by Mr Paul Usher from the Office of the Commonwealth Director of Public Prosecutions (DPP) in Darwin. This office has considerable experience in dealing with illegal fishing

4 offences, handling some 660 apprehensions and 1500 prosecutions from the Australian Fishing Zone (AFZ) in 2005-2006. While DPP officers are not investigators themselves, there is a need for them to be involved at the “front end” to ensure the adequacy and accuracy of evidence, and to participate in the training of fisheries officers. Mr Usher addressed the full range of considerations with prosecutions, including the definitions and elements of an offence and issues with the use of force. The latter issue is becoming more important as fishermen are becoming more violent with the use of anti-boarding devices and threatening the use of weapons.

This DPP presentation was a great success and attracted considerable interest from the Micronesian and US participants. Particular issues that attracted attention included the fact that no foreign fishing vessels were currently licensed for the AFZ (this made it simple to prove that a vessel was unlicensed); the use of custodial sentences for non- payment of fines and offences inside the territorial sea (including landings and the intention to land); the non-use of out of court settlements; deterrence factors, including court appearances; the need to take environmental impacts into consideration; and the “zero tolerance” principle.

The DPP presentation was followed by one on “Capacity for Maritime Security – Concepts and Requirements” delivered by the facilitator. This paper identified elements of capacity at the national and regional levels in terms of institutional arrangements, legal frameworks and resources/capabilities. Capacity at the sub-regional and regional levels include arrangements for cooperation and coordination of maritime security arrangements, information exchange, and cooperative training and education, as well as the development of protocols and systems to facilitate such arrangements.

Syndicate Problems

There were two syndicate problems, the details of which are attached as Annex B to this report. Problem One split the Micronesian participants into national syndicates to identify responses to a maritime security incident, involving possible drug smuggling by sea and including issues of inter-agency coordination. The solutions to the problem revealed some differences in the national responses, including differences of view with regard to the action that could be taken, particularly with regard to whether the fishing vessel suspected of drug smuggling could be boarded on the high seas or in the EEZ. The consensus was that as a general principle, all fishing vessels could be boarded in the EEZ.

Most syndicates considered that standing procedures were not in place to deal with such an incident and that some ad hoc arrangements would be required. The problem showed clearly that there were gaps in national arrangements and legislation to deal with crimes at sea other than illegal fishing. Cruising yachts were identified as vessels whose movements needed to be monitored for possible illegal activity.

For the second problem, participants were split into multinational syndicates, which were required to identify the attributes (or characteristics or requirements) of an effective regime for maritime security, safety and surveillance in Micronesia, including the

5 problems that might arise with establishing the regime. There were four syndicates each comprised of representatives from all countries participating in the workshop. One MSA was assigned to each syndicate.

Some of the considerations that emerged from the Problem Two presentations were:

 There was a strong commonality of interest in maritime security between the Micronesian countries, Australia and the US, but the Micronesian countries lacked the capacity to provide effective maritime security in their waters – and probably always would.

 Some mechanism needed to be developed which would allow the non-Forum members, France and the US, as well as possibly Japan, to cooperate in maritime security arrangements in the region.

 A Surveillance Working Group was desirable at the national level to set priorities, identify risks, coordinate surveillance, share data, develop memorandums of understanding (MOUs) between agencies, and review operations. This might include private sector representatives.

 Coordination at a regional level could be achieved through a Regional Security (or Surveillance) Secretariat or Centre to coordinate operations, and to harmonise and disseminate information.

 There was a need for a regional cooperative maritime law enforcement instrument to deal with transnational crimes at sea. This might be along the lines of the Nuie Treaty but this was administered by the FFA which would not want to be involved in policing at sea other than for illegal fishing.

 Significant gaps existed in national legal frameworks to deal with the full range of illegal activity at sea but the ability to deal with drug smuggling was a particular priority.

 The national observer programmes should be broadened to cover a wider range of illegal activity and to cover more than one country. There was scope also for coastwatchers and some involvement of national airlines and commercial shipping. Paucity of aerial surveillance remained a problem and the opportunity should be explored to buy –in Dash-8 time.

 “Stumbling blocks” to effective cooperation and coordination included: the lack of funding and effective training (knowledge, skills and abilities); perceptions of sovereignty remained a potential obstacle to full cooperation; and the existing Compacts of Association between the US and the Micronesian countries were worded in pre 9/11 terminology and did not reflect broader homeland security considerations..

6 Outcomes

The MMSES acknowledged the importance of working together to provide maritime security in the Micronesian region with the sharing of ideas and information, and the introduction of compatible equipments and procedures. The MMSES also recognised that there were other forums in the region that were dealing with security issues. The Pacific Plan, for example, calls for the Forum to implement measures to strengthen and deepen regional cooperation and integration, including ones related to security. The MMSES was specifically focussed on measures of maritime security and in that regard, the outcomes derived from the MMSES will assist in implementing measures in the Pacific Plan.

The last session of the MMSES was devoted to identifying specific outcomes from the seminar including the identification of agencies responsible for taking action and target dates for completion of the action. While work on these outcomes is still to be progressed, the following is a brief summary of the main actions agreed:

 Transnational Crime at Sea. There is a clear requirement to enhance the region’s ability to deal with transnational crime at sea. The strategy and legal frameworks for maritime law enforcement must be widened to include all possible crimes at sea and not just be focussed on illegal fishing as they are at present. The legal mandate of patrol boat crews needs to be extended to deal with more than just illegal fishing. Actions required should include cooperative law enforcement training and improved capacity in investigations and evidence gathering.

 Intelligence. Effective enforcement against transnational crime relies upon intelligence from many sources, as well as cooperation between law enforcement agencies at a national level and between agencies in different jurisdictions. The development and integration of intelligence collection, analysis and information- sharing among Micronesian countries should be progressed as quickly as possible.

 Communications. Communications on maritime law enforcement and SAR should be available between the Micronesian countries on a 24/7 basis.

 Institutional Arrangements. National surveillance and security working groups should be reinvigorated and the establishment of a Micronesian surveillance and security coordination mechanism should be explored. An integrated regional surveillance strategy should be developed at a multi-agency level.

 Legal Frameworks. The full range of national jurisdiction at sea should be recognised including for example, the establishment of contiguous zones and the recognition of jurisdiction over own-Flag vessels. Legally agreed maritime boundaries should be established between neighbouring countries and relevant international conventions, particularly the SAR and SOLAS Conventions, should be ratified. The establishment of appropriate legal frameworks at the national and regional levels was identified as an important area for technical assistance by Australia and the US.

7  Funding of Enforcement Activities. A need was identified for the development of best regional practice for the use of licensing fees and illegal fishing fines to fund enforcement activities.

 Observer Programmes. The extension of existing observer programs offers a possible means of monitoring illegal activity at sea and these programs are reportedly under-utilised for enforcement. Extension of the observer programmes would require an independent and secure means of reporting incidents.

 VMS Data Sharing. This was not being done at present due to technical problems, lack of political will and commercial sensitivities. It should be expanded within the Micronesian region and used as a model for the wider Pacific islands’ region.

 Flag State Responsibilities. A mechanism should be developed to ensure that the flag States of fishing vessels exercise the full range of their responsibilities as flag States.

The MMSES noted that it was appropriate to sort some of these issues out at the sub- regional level. The forthcoming Micronesian Presidential Summit offered a possible opportunity to take some of the outcomes forward, notably the proposal for a greater level of coordination and cooperation within the Micronesian region, including the possible establishment of a mechanism for coordinating maritime security in the region.

Other Issues for Consideration

In addition to the outcomes from the seminar identified in the preceding section, there are several other issues that emerged from the MMSES that are worthy of further consideration.

Foreign Fishing Vessels. As well as potentially being involved in IUU fishing activities, including the transfer of catch at sea, foreign fishing vessels and their crews now require additional monitoring to ensure that they are not involved in other illegal activity, particularly smuggling (e.g. cigarette smuggling into Palau). These vessels are not captured by the ISPS Code and there is a requirement to bring them within domestic maritime security legislation. Fishing vessels are also becoming smarter with regard to avoiding detection for illegal fishing or other illegal activities.

Japanese Involvement. Japan is one country with a major stake in the region but so far has not been involved in cooperative arrangements to any great extent despite having significant skills and resources to assist in capacity building for regional maritime security. Largely through the Japan Coast Guard, Japan has been very active in Southeast Asia in assisting to build the capacity of countries in that region to deal with piracy and the threat of maritime terrorism. It may be possible to get Japan involved in a similar way in the Pacific islands region.

8 Nationalism. Even with IUU fishing, a degree of nationalism is still apparent that inhibits processes of cooperation and coordination. As the FSM Attorney General observed during the seminar, “islanders are very territorial”. It is important to keep demonstrating the importance of cooperation - “to do it alone, is to do it wrong”.

Oceans Management and Policy. The Pacific Islands Regional Oceans Policy agreed in February 2004 was distributed at the MMSES. This is an important political charter for effective and cooperative oceans management in the region. It identifies strategic actions inter alia to ensure that the ocean is not used for criminal activities or for other activities that breech local, national or international laws; and to encourage cooperation amongst law enforcement agencies. Australia will be hosting an International Conference on Oceans Management in 2007, which presumably will address issues associated with the implementation of the Regional Oceans Policy. This conference will offer some potential for leverage of outcomes from the MMSES. It is recommended that the Department of Defence seek involvement in that conference which is being organised by the Commonwealth Department of the Environment and Heritage.

Conclusion

The MMSES was a valuable exercise in bringing together participants from the Micronesian countries, as well as Australia and the US, to share experiences and develop some ideas about regional best practice. The Micronesian region is relatively well advanced in establishing appropriate procedures, and offers some potential as a model for the Melanesian and Polynesian regions.

One of the most pressing needs is the requirement to improve national legislation so that it captures the full range of potential crimes at sea, including drug smuggling and piracy. The full range of national jurisdiction at sea should be recognised, including for example, the establishment of contiguous zones, the recognition of the full range of rights and duties in the EEZ, and the recognition of jurisdiction over own-Flag vessels. This has been identified above as an important area for technical assistance by Australia and the United States.

Sam Bateman (Dr) Senior Research Fellow Centre for Maritime Policy University of Wollongong

1 December 2006

Annexes: A. List of Participants B. Syndicate Problems

9 ANNEX A

MMSES LIST OF PARTICIPANTS

Federated States of Micronesia

The Honourable Marstella Jack, Secretary/Attorney General, Department of Justice Mr Timoci Ramanu, Assistant Attorney General, Department of Justice Mr Pius Chotailug, Chief, FSM National Police Mr Eugene Pangelinan, Executive Director, National Oceanic Resource Management Authority (NORMA) LCDR Mark Sorby RAN, MSA

Republic of the Marshall Islands

The Honourable Donald Capelle, Minister of Justice Mr Posesi Bloomfield, Attorney General Mr George Lanwi, Police Commissioned Mr Glen Joseph, Marshall Islands Maritime Resource Authority LCDR Ben Hemphill RAN, MSA

Republic of Palau

The Honourable Elias Camsek Chin, Vice President and Minister of Justice Mr Jeffrey Beattie, Attorney General Mr James W. Taylor, Legal Counsel to the Vice President Mr Hazime Telei, Director, Bureau of Public Safety Mr Teo Isamu, Director, Bureau of Marine Resources Ms Jennifer Anson, Executive Assistant to the Vice President LCDR Dave Hannah RAN, MSA

United States

Mr Richard K. Pruett, Deputy Chief of Mission, US Embassy, Pohnpei Mr Thomas Maus, Military/Public Diplomacy Officer, US Embassy, Majuro Mr Mark J. Beezner, Acting Charge d’Affaires, US Embassy, Koror CAPT Janice Wynn USN, Chief of Staff, COMNAVMARIANAS CAPT William Marhoffer USCG, Sector Commander, US Coast Guard Sector Guam LCDR Theresa Neumann USCG, Head Response Department, USCG Guam Mr Roy Tsutsui, Staff of COMNAVMARIANAS CAPT Dana Ware USCG, Joint Task Force – Homeland Defense, Honolulu Mr Gary Bell, Joint Inter Agency Task Force West (JIATFW), Honolulu

10 Australia

H.E. Corinne Tomkinson, Australian Ambassador to FSM, RMI and Palau CDRE Kevin Taylor RAN, DGPACET, International Policy Division, Department of Defence COL Chris Burns, Head, Australian Defence Staff, Manila SQNLDR Damian Gilchrist, Coordinator, International Policy Division Ms Belinda McNamara, Coordinator, Australian Defence Staff, Manila Federal Agent Anita van Hilst, Adviser, Pacific Islands Chiefs of Police Secretariat Mr Paul Usher, Assistant Director, Commonwealth Director of Public Prosecutions, Darwin Dr Sam Bateman, Facilitator, Centre for Maritime Policy, University of Wollongong

New Zealand

Inspector Paula Stevens, NZ Police, Pacific Islands Chiefs of Police Secretariat

Forum Fisheries Agency (FFA)

Mr Marcel Kroese, Director Fisheries Operations LCDR Mark W. Korsten RAN, Surveillance Operations Officer

11