Pacific Islands Law Officers Meeting 1994 Kitano Tusitala Hotel Apia, Western 11 - 13 October 1994

FFA Report 94/33

PACIFIC ISLANDS FORUM FISHERIES AGENCY P.O.BOX 629 HONIARA TELEPHONE (677) 21124 FAX (677) 23995 WEB http://www.ffa.int PACIFIC ISLAND LAW OFFICERS MEETING 1994 KITANO TUSITALA HOTEL APIA, WESTERN SAMOA 11 - 13 OCTOBER 1994

REPORT BY THE SOUTH PACIFIC FORUM FISHERIES AGENCY

1. The South Pacific Forum Fisheries Agency wishes to express its gratitude to PILOM and the host country for the invitation to be present at this year’s meeting. The Agency has maintained in the past that PILOM is an important regional meeting and as evidenced since the last meeting in Nauru, PILOM has played a vital role for legal advisers in the regional through its training programmes. The Agency welcomes and appreciates the opportunity to present a report of its work programme to senior law officers from the region. 2. The report will attempt to briefly highlight some of the major legal developments that have taken place in the past twelve months with regard to fisheries in the South Pacific region. As all of you are aware, fisheries is an important resource to all the countries of the region. Fisheries is a source of revenue for all the governments of the region but more important, it is protein for the people of the region. The Agency in its report to this meeting last year in Nauru, advised that PILOM will be kept informed of the developments of United Nations Conference on Straddling Fish and Highly Migratory.Fish Stocks. UNITED NATIONS CONFERENCE ON STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS 3. As reported to this meeting last year, the dominant event has been the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. The Conference has continued to hold centre stage in legal developments for the region. Representatives from , , FSM, , Tonga, , , , , Solomon Islands, and Western Samoa. The Legal Counsel of FFA continues to provide assistance to delegations from the region and represented the Agency in the two sessions of 1994. 4. The Agency, in preparation for the Second Session of the Conference, co-ordinated an FFA Inter-sessional working Group in January 26 -28 1994, to consider a regional strategy. The Working Group of technical and legal advisers produced a supplementary negotiating brief for FFA member countries which presented an analysis of the Chairman’s Negotiating Text and proposed negotiating positions on key issues before the Conference. A record of proceedings is collated into an FFA Report 94/6. 5. The Second Session of the Conference was held on 14 - 31 March 1994. Law officers were included in delegations from Australia, New Zealand, Papua New Guinea, FSM and Solomon Islands. The Conference discussions focused on the Chairman’s Negotiating Text. The substantive and detailed provisions of the Text were severely attacked by DWFNs and the South Pacific delegations worked at defending these provisions by adopting a non-confrontational and constructive approach to the discussions. The Chairman provided a revised version of the Text that would form the basis for

FFA/rept/PILOM 94 discussions at the August session. For FFA delegations, it became clear that certain vital issues such as the form of the outcome of the Conference, had to be addressed in the next session. 6. The Third Session of the Conference was held in New York on 15 - 26 August 1994. Delegations from Australia, New Zealand, FSM, Fiji, Cook Islands, Marshall Islands and Papua New Guinea included legal advisers. The work of the group was again co-ordinated by the Legal Counsel, as in the Second Session in March, with the assistance of the Deputy Director. 7. As expected, the issue of the form of outcome dominated the proceedings. The FFA member countries agreed, after discussions with other delegations to the Conference, to support a legally- binding outcome. The decision to support a legally-binding outcome was made only after exhaustive consultations and after taking the view that no other options existed which would secure the sort of outcomes that FFA member countries desired. In particular, there was a strong feeling that certain key issues, such as dispute settlement, could not be progressed any further until a decision was reached on the form of the outcome. Although none of the distant water fishing nations spoke in support of a legally binding outcome, it became apparent that a legally-binding convention would be the likely outcome of the Conference. 8. The Conference agreed to recommend to the General Assembly of the United Nations the convening of two further sessions of the Conference in April and July 1995. Although a detailed analysis of the draft agreement has not been provided to member countries of FFA, a set of recommendations for further actions has been forwarded to member countries to study closely and to make appropriate comments. The Agency undertakes to continue to inform this meeting of further developments of the Conference. MULTILATERAL TREATY WITH THE UNITED STATES 9. Since the last PILOM meeting, all the member countries have accepted amendments to the Annexes of the Treaty and ratified the amendments to the Internal Agreement among Pacific Island Parties to the Treaty. This has enabled the Agency to pay out full entitlements to the Parties received from the United States under the new arrangement. The licensing period under the Treaty is 12 months and runs from June to June of each year. The Treaty is therefore in its 7 licensing period. 10. As of 30 September 1994, there are 47 US vessels licensed under the Treaty. There are 50 licences available to US vessels. 11. Annual consultations of the Parties to the Treaty were held in Nadi, Fiji in March 1994. The Pacific Island Parties continue to benefit from an increased financial by the Government of the United States and tuna industry. The Administrator (Director of FFA) continues to administer the unspent balances available under the Economic Development Fund (EDF) and the Technical Assistance Fund (TA) established during the first five years of operation of the Treaty. CONVENTION FOR THE PROHIBITION OF FISHING WITH LONG DRIFTNETS IN THE SOUTH PACIFIC 12. The Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, commonly known as the Convention was opened for signature on 29 November 1989 and entered into force on 17 May 1991. Protocols I and II were adopted and opened for signature on 20 October 1990. The depositary for the Convention is the Government of New Zealand. 13. The Convention has been signed by 14 FFA member countries, the most recent being Fiji in August 1993. Of those, 9 member countries have ratified the Convention. However, so far, only Australia, Cook Islands, Marshall Islands New Zealand, Tokelau, Vanuatu and have passed domestic legislation implement provisions of the Wellington Convention. Table I shows the current status of the Wellington Convention. (Information provided by the Ministry of Foreign Affairs and Trade, Wellington, New Zealand)

Table I: Status of Wellington Convention as at 30 September

Pag e TREATY ON CO-OPERATION IN FISHERIES SURVEILLANCE AND LAW ENFORCEMENT IN THE SOUTH PACIFIC REGION

14. The Niue Treaty was opened for signature at Honiara on 9 July 1992. It was signed by all FFA member countries with the exceptions of Fiji, Kiribati, Papua New Guinea and Tokelau. Kiribati, Tokelau and Papua New Guinea signed the Treaty at FFC23 at in May 1993. Fiji signed on 12 August 1993. As at 30 September 1994, 8 countries have deposited instruments of ratifications with the Government of Niue. Table 2 shows the current status of the Niue Treaty. (Information provided by the Government of Niue)

Table 2: Status of Niue Treaty as at 30 September 1994 Date of Signature Date of Ratification

Australia 9-July-92 3-Sept-93

FFA/rept/PILOM 94 Pag e Cook Islands 9-July-92 3-Mar-93 Federated States of Micronesia 9-July-92 3-Dec-93 Fiji 11-Aug-93 Kiribati 11-May-93 Marshall Islands 9-July-92 Nauru 9-July-92 30-Sept-92 New Zealand 9-July-92 Niue 9-July-92 9-Mar-93 Palau 9-July-92 Papua New Guinea 11-May-93 Solomon Islands 9-July-92 27-May-94 Tokelau 11-May-93 Tonga 9-July-92 20-May-93 Tuvalu 9-July-92 Vanuatu 9-July-92 10-Nov-93 Western Samoa 9-July-92

THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

15. The United Nations Convention on the Law of the Sea was opened for signature on 10 December 1982, at Montego Bay, Jamaica. The Convention marked the end of an era of freedom of the seas; introducing a comprehensive legal framework governing all aspects of mankind’s use of the sea, seabed and the living and non-living resources thereof. On 16 November 1993, Guyana deposited the 60th instrument of ratification with the United Nations, thus becoming bringing the Convention into force on 16 November 1994, being one year after the deposit of the 60th instrument of ratification.

16. Of FFA member countries, only Fiji, Federated States of Micronesia and Marshall Islands have ratified or acceded to the Convention, although Australia, Cook Islands, Nauru, New Zealand, Niue, Papua New Guinea, Solomon Islands Tuvalu, Vanuatu and Western Samoa are signatories and Palau is a signatory to the Final Act of the Third United Nations Conference on the Law of the Sea by virtue of its status as a trust territory of the Trust Territory of the Pacific Islands.

17. The entry into force of the Convention is certain to have profound effects for the global community, including the South Pacific region. FFA will continue to render assistance to member countries with preparations for the ratification of the Convention. In this connection, in 1993, requests were received from Western Samoa and Solomon Islands for legal assistance in the review of domestic legislation in preparation for ratification of the Convention. The work in Western Samoa has been

Pag e divided into 5 Phases and the review reports have been completed. These will be submitted to the Government of Western Samoa in the form of a report with recommendations that can be implemented in the next phase of the project. The programme is scheduled for completion by the end of the year and the work in the Solomon Islands will possibly begin early in 1995.

MARITIME BOUNDARY DELIMITATION PROGRAMME

18. This programme which is one of the components of the Pacific Regional Marine Resources Development Programme, is still funded by the European Union. However the funding is due to expire at the end of 1994. The current status of the programme for FFA member countries is attached as Annex A to this report. It is anticipated that AIDAB will fund the continuation of the programme.

19. The Agency conducted a series of In-country Maritime Boundary Delimitation Workshops in September 1994 for Tonga, Western Samoa, Niue and Cook Islands. These workshops have proven to be a successful formula for addressing the specific maritime boundary delimitation needs of the member countries. It is envisaged that more of these types of workshops will be conducted for the rest of the membership of FFA when the preparation of their base point information has reached a stage where negotiations for final delimitation could commenced between FFA member countries and their neighbours.

20. The Agency was able to conduct these workshops with the assistance of Mr. Bill Campbell of the Australian Attorney-General’s Department in Canberra. The Agency and FFA member countries are grateful to the Secretary of the Department for making his staff available to conduct training programmes for government officials of the region.

WORK PROGRAMME FOR 1993/94

21. The work programme of the Legal Services Division will include the following aspects:

(a) Legislative Assistance

The provision of advice and assistance in reviewing relevant national legislation continues to be one of the most important parts of the legal services programme with a continuing emphasis on the need for a strong national legislation as the foundation for all fisheries activity, offshore and nearshore, domestic and foreign. During the reporting period, specific assistance was given to Cook Islands and Tonga in the development of national fisheries regulations and Niue for reviewing their fisheries legislation and a re-draft of their draft fisheries bill. Requests for legislative assistance are currently being actioned for Fiji and Kiribati while projects in Tonga, Cook Islands, Niue and Palau are on- going. In addition, FFA has published a major report on the status of implementation of the minimum terms and conditions for access in the fisheries/exclusive economic zone through legislation in PNA (Parties to the Nauru Agreement 1982) countries. (FFA Report 93/50)

After nearly 18 months work, the joint FAO/FFA Compendium of Fisheries Legislation for the South Pacific Region was published and distributed late in 1993. The Compendium which runs into 3 volumes, contains the text of all current fisheries and maritime boundary legislation of all FFA member countries, as well as a brief analysis of the fisheries legislative regime in each country. In order to help member countries keep abreast of new legislative developments, it is planned to build upon the work that has already been done by providing regular updates to the Compendium.

It is anticipated that the demand for legislative assistance will continue in the future and will continue to be one of the most important aspects of the division’s work programme. In order to develop interest and expertise in fisheries law on the part of Pacific Island lawyers, the Agency has adopted a policy of encouraging lawyers from member countries to take in the drafting process by offering fellowships at FFA followed by in-country visits and continuing support. Legal fellowships offer an ideal opportunity for Pacific Island lawyers to gain a thorough understanding of regional and

FFA/rept/PILOM 94 Pag e international fisheries issues, conduct research into the fisheries laws of other countries and familiarise themselves with international law in general. During 1994, the following fellowships took place -

Country Name and position Project undertaken

Palau Kate Salii Review of domestic legislation Assistant Attorney-General Attorney-General’s Office

Niue Togia Sioneholo Review of re-draft fisheries bill Assistant Government Solicitor Premier’s Office

Cook Island Tai Nicholas Review of fisheries regulations Senior State Solicitor Dept. of Justice

The Agency has received a request from the Government of Kiribati. This is scheduled for late October or early November 1994. Marshall Islands, Tonga and the Federated States of Micronesia have shown interest in this programme and Vanuatu has an outstanding nomination but have not as yet identified a legal adviser to take-up the fellowship.

(b) Management and regulation of fisheries

Increased efforts have been made in 1993/1994 to promote greater awareness by member countries of international and regional legal developments. This has been undertaken by the fellowship programme but also of significance was the sub-regional Legal Consultation held in Rabaul, Papua New Guinea in October 1993. The report of the Consultation (FFA Report 93/55) identifies a number of areas requiring further research. These include - ♦ work on a new model subsidiary agreement for the Niue Treaty; ♦ work on model fisheries legislation covering aspects of enforcement; ♦ study of the possibilities of developing civil/administrative penalties for fisheries offences similar to U.S. legislation; ♦ study of the legal implications from a trial of a vessel monitoring system; ♦ study of the possibility of developing extra-territorial jurisdictional provisions for fisheries offences in the region. It is envisaged that at least one further Consultation in 1995, which should pursue further some of the issues raised by the Rabaul Consultation. In terms of international and regional legal and fisheries issues, the Legal Services Division will continue to assist member countries in the preparation of briefing papers and statements at the UN Conference and attendance at substantive negotiating sessions in 1995. Closely associated with the UN Conference is the development by FAO of a Code of Conduct for Responsible Fishing. Work on this in 1993 has continued on into 1994 and closely related this work is the development by FAO of the Agreement to Promote Compliance with International Conservation and Management Measures by fishing Vessels on the High Seas. The Agency has been closely involved with the development work of these agreements and will continue to be associated with the negotiations until they are completed. Regional policy in relation to management of the regions tuna resources prompted the Agency to:

Pag e ♦ negotiate with Japanese vessel owners an agreement relating to the registration of their vessels on the Regional Register; and ♦ negotiate with Taiwan on the possibility of a multilateral fisheries arrangement and related issues. Work on these negotiations will be on-going and this meeting will be kept informed of their outcomes. (c) Prosecution Assistance A revised Regional Fisheries Prosecution Manual is virtually complete and is scheduled for publication by the end of October 1994. Fisheries Prosecution training were on-hold until the Revised Manual has been prepared. To coincide with the release of the Manual, an In-Country Fisheries Prosecution Workshop and Boarding Exercise is scheduled for Vanuatu on 24 November to 2 December 1994. This will be followed by a second in-country workshop for the Federated States of Micronesia which is tentatively scheduled for late January/early February 1995. The Agency has again requested the assistance of the Attorney-General’s Office in Canberra to release Mr. Gardner as one the resource people for these workshops. The Agency would take this opportunity to record its gratitude to the Secretary of the Attorney-General’s Department for making Mr. Gardner available to work on the revision of the Prosecutions Manual. (d) Legal Assistance in Access Agreements The Division continues to provide assistance to the member countries in their bilateral access negotiations with DWFN (distant water fishing nations). This was provided to Tuvalu in their negotiations with Japan in March 1994. Currently, a sub-group of FFA member countries who have bilateral access agreements with Taiwan on the longlining fishery, are preparing for a possible multilateral arrangement with Taiwan. The Division will continue to assist and provide advice to this FFA sub-group with the preparation and negotiation process. The full membership of the FFA are also currently conducting discussions with Taiwan for a possible multilateral on the purse seine fishery. The Division has provided advice and assistance to the member countries and these discussions will continue into 1995. The Division will continue to advise and assist the member countries in these discussions. (g) Regional initiatives in the development of the Law of the Sea. The Division will continue to co-ordinate regional initiatives such as legal consultations, seminars, fellowships and other training programmes. It is expected that another sub-regional legal consultation will be scheduled in 1995 to address specific regional fisheries law and issues identified by the Rabaul Consultation. The work in Western Samoa, as reported in paragraph 17 above, is on- going and the request from the Solomon Islands is programmed to commence in 1995. The Agency has encouraged member countries to address the process of ratification of the Law of the Sea Convention and the Division has continued to offer assistance in the preparation process for ratification. (h) Database of fisheries prosecution cases The collection of cases for the database has been completed and the material has been edited for publication and inclusion into the database. It is envisaged that a published fisheries cases’ report will be available by the end of 1994. The database will be made available to national authorities and case reports and decisions are then added to the database as they become available. It is intention that this type of information is readily available to prosecuting and fisheries officials. CONCLUSION 22. It is hoped that PILOM participants will find this brief overview of the activities and programmes of the Agency’s Legal Services Division useful and informative. The Agency believes and encourages closer co-operation between technical, scientific and legal expertise in the formulation and determination of fisheries policies. The importance of this resource to the South Pacific region has been echoed in many regional discussions and meetings. It is timely to move to the implementation of FFA/rept/PILOM 94 Pag e effective conservation and management programmes to preserve the resource for the present and future generations. 23. The Agency is therefore anxious to ensure that the considerable amount of legal expertise in the region is utilised to the full. For this reason, the Agency welcomes the participation of lawyers from the region in its work programme as well as suggestions for improvements to the work programme and activities of the Legal Services Division.

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