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Marine Biodiversity Law in Fiji, Solomon and Vanuatu Islands

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Marine Biodiversity Law in Fiji, Solomon and Vanuatu Islands COMPONENT 2C Marine Bioprospection PROJECT 2C1 Legal framework - Upgrading the legislations December 2009 FINAL REPORT MMARINEARINE BBIODIVERSITYIODIVERSITY LLAWAW IINN FFIJI,IJI, SSOLOMONOLOMON AANDND VVANUATUANUATU IISLANDSSLANDS AAuthors:uthors: JJean-Pierreean-Pierre BBEURIEREURIER BBleuennleuenn GGUILLOUXUILLOUX KKarolinaarolina ZZAKOVSKAAKOVSKA The CRISP programme is implemented as part of the policy developed by the Secretariat of the Pacifi c Regional Environment Programme for a contribution to conservation and sustainable development of coral reefs in the Pacifi c. he Initiative for the Protection and Management of Coral Reefs in the Paci- T fi c (CRISP), sponsored by France and prepared by the French Development Agency (AFD) as part of an inter-ministerial project from 2002 onwards, aims to develop a vision for the future of these unique ecosystems and the communities that depend on them and to introduce strategies and projects to conserve their biodiversity, while developing the economic and environmental services that they provide both locally and globally. Also, it is designed as a factor for inte- gration between developed countries (Australia, New Zealand, Japan and USA), French overseas territories and Pacifi c Island developing countries. The CRISP Programme comprises three major components, themselves composed of projects, which are: Component 1A: Integrated Coastal Management and Watershed Management - 1A1: Marine biodiversity conservation planning - 1A2: Marine Protected Areas (MPAs) - 1A3: Institutional strengthening and networking - 1A4: Integrated coastal reef zone and watershed management Component 2: Development of Coral Ecosystems - 2A: Knowledge, benefi cial use and management of coral ecosytems CRISP Coordinating Unit (CCU) - 2B: Reef rehabilitation Programme manager: Eric CLUA - 2C: Development of active marine substances SPC - PO Box D5 - 2D: Development of regional data base (ReefBase Pacifi c) 98848 Noumea Cedex New Caledonia Component 3: Programme Coordination and Development Tel./Fax: (687) 26 54 71 - 3A: Capitalisation, value-adding and extension of CRISP Programme activities - 3B: Coordination, promotion and development of CRISP Programme E-mail: [email protected] - 3C: Support to alternative livelihoods www.crisponline.net - 3D: Vulnerability of ecosystems and species - 3E: Economic task force COMPONENT 2C Marine Bioprospection Component contact person: PROJECT 2C-1: Cécile DEBITUS Legal framework - Upgrading island country legislation for the sharing of IRD - UMR 152 University Paul Sabatier benefi ts from development of active marine substances Toulouse II PROJECT 2C-2: Science Faculty Taxonomy - Improvement of knowledge of benthic reef invertebrate and 31062 Toulouse cedex 9 algae taxonomy France PROJECT 2C-3: Tel.: (33) 5 62 25 98 11 Technological aspect - Identifi cation of active marine substances Fax: (33) 5 62 25 98 02 PROJECT 2C-4: E-mail: [email protected] Institutional strengthening - Training of Pacifi c island resource persons CRISP is funded by : CORAL REEF INITIATIVES FOR THE PACIFIC (CRISP) COMPONENT 2C: BIOPROSPECTION AND MARINE ACTIVE SUBSTANCES Final report on Legal aspects related to the valorization of marine active substances: MARINE BIODIVERSITY LAW IN FIJI , VANUATU AND SOLOMON ISLANDS By Prof. Jean-Pierre Beurier, Dr. Karolina Zakovska and Bleuenn Guilloux* Researchers at CDMO, Law Faculty, Nantes University (*) The research team thanks Mr. Jacques Francheteau for his translation, Cécile Debitus for her support, the CRISP and all the people met in the three Partner States during our mission. TABLE OF CONTENTS I- Introduction: General presentation and methodology p. 6 II- Final report p. 9 A- General characteristics of the three legal systems and determination of convergent and divergent points.............................p. 9 B- Facilitation of Marine Scientific Research (MSR) and Procedure to obtain the coastal State authorization for scientific expeditions conducted from the littoral and at sea...............p. 19 C- Table of international conventions to which Fiji Islands, Salomon Islands and Vanuatu are State parties.........................................p. 33 D- Identification of legal gaps and necessary evolution of the legal framework........................................p. 40 E- Outline of the principles for the legal qualification of marine living organisms: Absence of a unique status for marine living organisms in Melanesia..................................................p. 67 III- Models of texts p. 81 A- Methods for a law on marine bioprospection...............................................p. 81 B- Methods for a law on marine protected areas...............................................p. 83 C- Methods for a law on the protection of deep-sea coral reefs........................p. 84 D- Method for the sharing of benefits and (potential) setting up of joint ventures..................................................p. 85 IV- Conclusion p. 86 2 LIST OF FIGURES AND TABLES Table 1- The seven selected branches of the legal work method ......p. 7-8 Table 2- USP funds (dollars) in 2004- 2005 .......................................p. 23 Table 3- Rules pertaining to Marine Scientific Research in Partner States ..............................................................................p. 24-26 Figure 1- Procedure to require a bioprspecting permit in Vanuatu ........................................................................................p. 28 Table 4- Situation of Marine Scientific Research in Partner States:synthesis and assessment ...................................p. 30-31 Table 5- Table of international conventions to which Fiji Islands, Solomon Islands and Vanuatu are States parties .......................................................p. 33-39 Table 6- Synthesis of legal gaps ............................................................p. 41-51 Table 7- Legal framework suggested to Partner States: comparative table .............................................................................p. 60 Figure 2- Evolution of aleatory component in activities involving marine biological resources ...........................................p. 62 Table 8- Criterions of distinction between fishing (fisheries research included) and bioprospecting ..........................p. 63 Table 9- Intellectual Property Law of Partner States ........................p. 64 Table 10- Qualifications and customary rights regarding the environmental elements ...........................................p. 70-71 Table 11- Legal definitions of the environmental elements in Partner States ...............................................................................p. 75-77 3 ABBREVIATIONS ACP European Union/ African, Caribbean and Pacific group of States programmes ADB Asian Development Bank BG Bonn Guidelines on access to genetic resources and the fair and equitable sharing of benefits arising out of their utilization CBD Convention on Biological Diversity CCA Community Conservation Areas CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora EEZ Exclusive Economic Zone EIA Environmental Impact Assessment EMCA Vanuatu Environment Management and Conservation Act (2002) FFA South Pacific Forum Fisheries Agency FAO Food and Agriculture Organization of the United Nations IDA International Development Association IMO International Maritime Organization IRD Institute of Research for Development LDCs Least Developed Countries LMMAs Locally Managed Marine Areas MNHN Muséum National d’Histoire Naturelle MPA Marine Protected Area MSR Marine scientific research SIDS Small islands Developing States SPC South Pacific Community SPREP South Pacific Regional Environment Programme 4 TRIPS Agreement on Trade-related Aspects of Intellectual Property Agreement Rights UNCLOS United Nations Convention on the Law of the Sea UNESCO United Nations Educational, Scientific and Cultural Organization USP University of the South Pacific WCPFC Western and Central Pacific Fisheries Commission WDPA World Database on Protected Areas WIPO World Intellectual Property Organization WTO World Trade Organization 5 I- INTRODUCTION: GENERAL PRESENTATION AND METHODOLOGY The research agreement signed on 19th December 2005 by the Institute of Research for Development (IRD), the University Paul Sabatier (Toulouse III) and Nantes University, the Pharmacochemical laboratories of Natural Substances and Pharmacophores Redox (UMR 1165) and the Centre of Maritime and Ocean Law (EA 1165, CDMO) led to the international research program “Coral Reef Initiatives for the Pacific” (CRISP). Within the CRISP program, the research work was incorporated under component 2C: Bioprospection and marine active substances, CDMO being in charge of the section: Legal aspects related to the valorization of marine biodiversity 1. This study was undertaken by a team of researchers from CDMO as named below: - Professor Jean-Pierre BEURIER, Director of Research - Bleuenn GUILLOUX, researcher - Doctor Karolina ZAKOVSKA, researcher 1- OBJECTIVES OF THE STUDY Studying the marine biodiversity valorization process in the light of legal science requires answering two preliminary questions: What is the state of international law in force in partner States and what is the state of their positive law capable of influencing this valorization? The answer to these questions firstly allows us to document the enforceable international law and to compare it with the domestic law of partner States. This legal point
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