Pacific Island Law Officers Meeting , 2 - 4 October, 1991

Report On Legal Developments In FFA Member Countries, 1990 - 1991 By Michael W Lodge

FFA Report 91/66

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 Wellington, New Zealand 2 - 4 October, 1991 Report on Legal Developments in FFA Member Countries, 1990 - 1991 by Michael W Lodge

FFA Report 91/66 PACIFIC ISLAND LAW OFFICERS MEETING

Wellington, New Zealand 2 - 4 October, 1991

REPORT ON LEGAL DEVELOPMENTS IN FFA MEMBER COUNTRIES, 1990 - 1991

LEGAL COUNSEL, FORUM FISHERIES AGENCY

OVERVIEW - DEVELOPMENTS IN REGIONAL FISHERIES

1. As the South Pacific Forum Fisheries Agency enters the 1990s there is increasing pressure on member countries to manage the marine environment and its resources in a sustainable manner. At the same time nearly all member countries are faced with problems arising from diminishing returns from traditional exports, such as copra, and consequently are increasingly being compelled to exploit their natural resources to pay for and maintain essential public services such as health and education.

2. FFA member countries are fortunate in that they control a disproportionately large area of ocean space compared to their total land area, and with it, the living and non-living resources of the ocean. The South Pacific Forum recognized as early as 1977 that one of the ways in which Pacific Island States would be able to realize their economic aspirations would be to cooperate through a regional organization in order to obtain tangible benefits from the resources of the sea. Thus the Forum recognised at the eighth meeting in Port Moresby in 1977:

"...that in the continued absence of a comprehensive international convention on the law of the sea and in view of the action taken by a large number of countries including distant water fishing countries exploiting the valuable highly migratory species in the region, the countries in the region should move quickly to establish fishing or exclusive economic zones and should take steps to coordinate their policies and activities if they are to secure more than a very small part of the benefits from the resource for their peoples..."

In the same meeting the Forum requested the Director of SPEC to prepare a draft Convention establishing a regional fisheries agency open to all Forum countries and Pacific coastal States in the region which supported the sovereign rights of coastal States over the living resources of the exclusive economic zone, and within a year, FFA was established. 2 3. In the light of the Forum declaration and in accordance with emerging principles of the international law of the sea many of the Forum countries moved swiftly in the late 1970s and early 1980s to enact legislation declaring exclusive economic zones or fisheries zones and asserting sovereign rights over the living and non-living resources contained therein. This clearly demonstrated the seriousness with which Forum countries perceived the marine environment in relation to their economic development.

4. In the late 1970's the region was still very young politically; indeed only eight of the present sixteen members of the Agency had achieved political autonomy. Today, fifteen of the sixteen member countries of the Agency are politically autonomous, and all have played an important role in shaping developments within the region and no doubt will continue to do so well into the foreseeable future.

5. In the last twelve years FFA has been at the forefront of a number of significant legal developments. Perhaps the most significant regional development, and one that has enormous implications on the law of the sea, is the recognition by the United States that coastal States have sovereign rights over highly migratory species of tuna in their exclusive economic zones.

6. It was the United States' position on the jurisdiction of coastal States over highly migratory species which stalled political relations between the United States and FFA member countries in the mid 1980s, and gave rise to great difficulties in negotiating a Treaty on fisheries. The United States' position arose from fundamentally different interpretations of the relevant provisions of the Law of the Sea Convention (UNCLOS). The United States claimed that the high seas freedom of fishing followed highly migratory species into the EEZ. This claim was based on the premise that tuna is a migratory species which is found in the waters of more than one State, therefore it cannot be managed by individual States; only through a competent international organisation. Consequently the United States refused to concede that highly migratory species were subject to the jurisdiction of the coastal State while in areas of national jurisdiction.

7. The United States position on highly migratory species was supported by domestic legislation, most significantly the Magnuson Fishery Conservation and Management Act (MFCMA). This provided, inter alia, that the sovereign rights and exclusive fishery management authority asserted by the United States over the resources in the EEZ were not to extend to highly migratory species. The Act further provided for sanctions to be applied by the Secretary of State against any State which seized any fishing vessel of the United States as a consequence of a claim of jurisdiction not recognised by the United States. Such sanctions included a ban on the importation of all fish and fish products from the State concerned. This meant that any Pacific Island State which arrested a United States vessel for illegal fishing for highly migratory species in the EEZ would be liable to have sanctions applied against it. In addition, the Fishermen's Protection Act provided that the United States Government would reimburse tuna boat owners for the losses associated with

3 seizure, such reimbursement to be deducted from any foreign assistance funds allocated to the State concerned in the seizure. 8. When the multilateral Treaty on Fisheries between the Government of the United States of America was signed in 1987 the United States did not formally abandon its position on highly migratory species. However, by entering into the Treaty it could be said that the United States gave de facto recognition to the jurisdictional claims of the Pacific Island Parties, particularly since the parties acknowledged in the Preamble to the Treaty "their jurisdiction" over the natural resources in their respective exclusive economic zones.

9. The United States was always in a minority position. Nearly all other coastal States in the international community supported the concept of national jurisdiction over all species in the EEZ, including highly migratory species. Partly as a result of the Treaty, and partly due to continued international pressure, there has recently been a change in the United States' position. On 28th November 1990 the President of the United States signed the re-authorisation of the Magnuson Act. The Act has been substantially amended, and several of the amendments have important implications, not only for the Treaty, but for Pacific Island fisheries in general. Highly migratory species of tuna are now included as species of fish under United States jurisdiction within the EEZ. As a result embargoes will no longer be applied if foreign countries seize United States vessels within their EEZs. In addition the Fishermen's Protection Act will no longer automatically reimburse tuna boat owners for the losses associated with a seizure. The amendment is to come into effect on 1st January 1992.

10. Notwithstanding such positive developments, the future of the Agency and its role in facilitating legal developments is overshadowed by two important considerations, which create a degree of uncertainty over the future of fisheries in the region. These considerations are environmental and economic.

11. Environmental concerns stem from the growing realisation that marine resources are finite and there is a need to ensure sustainable use of the oceans' resources. The surge in international efforts to encourage more sustainable use of the oceans' resources has not spared the tuna industry. Indeed, the growing emphasis on conservation and proper management of the fishery has led to the near collapse of the eastern Pacific tuna fishery. For reasons which are as yet unknown, tuna in the eastern Pacific tend to associate with schools of dolphins. One of the principal methods of catching tuna is by encircling dolphins with the purse seine nets. Although attempts are made to release the dolphins there is still an unacceptably high mortality rate. The environmental lobby in the United States successfully led a campaign to require all canned tuna to be certified "dolphin free" before it may be passed on to the consumer. Legislation now in place in the United States imposes strict conditions which must be complied with before a product can be certified "dolphin free", thus putting great pressure on the tuna industry.

12. There is also growing concern about the state of the tuna stock in the western

4 Pacific, and environmental groups, as well as those involved in fisheries management are beginning to raise some concern about the relatively high level of by-catch being taken by purse seine and longline vessels.

13. The adverse economic factors that principally affect the fishery are high fuel costs and increasingly expensive operational overheads. This has resulted in a decline in the number of longline and pole and line vessels operating in the South Pacific. At the same time however, this decline is being offset by an overall increase in the use of more cost-effective and efficient purse seine vessels.

14. One of the main driving forces that could dictate the future shape of the fishery is the desire of many of the Pacific Island countries to participate more actively in the fishery in order to ensure greater returns. Indeed, some of the countries with the greatest stake in the fishery are already planning to restrict the number of licences that may be issued to foreign fishing vessels. The hypothesis is that by limiting the entry of foreign fishing vessels into their zones Pacific Island States will be able to increase access fees thereby increasing the rate of return from foreign fishing vessels.

15. Unpredictable developments are to be expected in a high risk, capital intensive industry. That notwithstanding, the FFA has shown itself to be a dynamic organization, capable of responding positively to the needs of its member countries. Against this background of positive achievements, clouded by concern for the future, this report will attempt to highlight the legal developments that have taken place between November 1990 and September 1991 in the following fields.

(1) Regional Access Agreements

(i) Harmonised minimum terms and conditions of access (ii) Multilateral Treaty with the United States (iii) Multilateral Arrangements with Japan (iv) Bilateral access agreements

(2) Review of National Legislation

(3) Surveillance and Enforcement Programme

(i) Draft Treaty on Cooperation in Fisheries Surveillance and Enforcement

(4) Boundary Delimitation Programme

(5) A Management Regime for South Pacific Albacore Tuna

(i) High Seas Driftnet Fishery

5 (ii) Consultations on arrangements for the management of South Pacific Albacore Tuna

(6) Western Pacific Purse Seine Fishery Management

(7) Legal Regime for High Seas Fisheries

(8) Customary Marine Tenure Systems

(9) Continuing Legal Education

REGIONAL ACCESS AGREEMENTS

16. International fisheries access agreements are consistent with the general obligation of coastal States to promote the objective of optimum utilization of the living resources of the exclusive economic zone spelt out in article 61(1) of UNCLOS. Indeed, UNCLOS provides that where coastal States do not have the capacity to harvest the entire allowable catch, they shall give other States access to the surplus catch "through agreements or other arrangements", subject only to certain terms and conditions which may be stipulated by the coastal State.

17. Access agreements currently provide FFA member countries with the only basis for managing the tuna resource. In exchange for access to their exclusive economic zones for the purpose of exploiting the living resources therein, distant water fishing nations (DWFN) are required to provide financial remuneration to member countries. This currently takes the form of access fees combined with non- cash benefits, though in some situations there is also provision for the training of personnel, transfer of technology and enhancement of member countries capacity to undertake fisheries research. Non-cash benefits are normally described as " goods and services ". While access fees are commonly paid into the consolidated fund or Government revenue, goods and services (which commonly take the form of computers, trucks, canoes, outboard motor engines, and fishing equipment) are aimed almost exclusively at the fisheries sector. Regional access agreements have been both multilateral and bilateral in nature.

18. Recent developments in access agreements in the region centre around the implementation of the harmonised minimum terms and conditions of access for foreign fishing vessels, and the modified Regional Register Rules.

Harmonised Minimum Terms and Conditions of Access and the Regional Register

19. The concept of harmonised minimum terms and conditions (MTCs) was first introduced in 1982 as part of the Nauru Agreement, and the regional register in 1983. It was not long before cooperation on development and adoption of minimum terms and conditions of access began to emerge as a crucial bargaining tool against 6 the distant water fishing nations. Certain important amendments were made to the MTCs and Regional Register Rules during 1990 and these were approved by the Ninth Annual Meeting of the Parties to the Nauru Agreement and the Eighteenth Forum Fisheries Committee meeting in Nauru in April/May 1990. These amendments were endorsed by the 21st South Pacific Forum meeting at Port Vila, in July 1990. The parties to the Nauru Agreement, at a special ministerial level meeting at in September 1990, signed a Second Arrangement Implementing the Nauru Agreement Setting Forth Additional Minimum Terms and Conditions of Access to the Fishing Zones of the parties. By virtue of this agreement the parties agreed that the new MTCs would take effect from 1st January 1991.

20. In essence, the new provisions of the 1990 harmonised minimum terms and conditions are as follows:

(1) Definitions of key terms of art such as "fishing", and "vessel operator" are enhanced;

(2) Transhipment at sea is prohibited because it poses a danger to sound management of the resource in that it distorts the level of catch for each particular trip.

(3) It will be necessary to introduce a new application form for the regional register with a requirement that all foreign fishing vessels renew their registration annually. A new licence form that has been developed by the Pacific Island States for regional use was introduced. These are aimed at encouraging better compliance by vessel captains.

(4) Vessel operators are required to maintain daily log sheets of all catch within the zone as well as on the high seas and to submit these to Pacific Island States on completion of the trip.

(5) Vessels are required to report the position of the vessel and the catch on board the vessel when entering the zone or port of a Pacific Island State.

(6) Vessel operators are required to meet the full cost of placing observers on board vessels including travel costs to and from the observer's country, salary and full insurance coverage.

(7) Vessel operators are required to appoint agents in countries in whose zones they operate for purposes of legal process.

(8) For surveillance and enforcement purposes vessel operators are required to meet certain operational standards including the UN/FAO Standard Specifications for Marking and Identification of Fishing Vessels.

7 (9) Access agreements concluded with DWFN are required to contain an undertaking by flag States or fishing associations to comply with and enforce coastal States' laws.

8 Multilateral Treaty on Fisheries with the United States

21. The only multilateral access agreement currently operating in the region is the Multilateral Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America. This was signed on 2nd April 1987 and entered into force on 15th June 1988. All sixteen FFA member countries are now party to the Treaty.

22. The Treaty is now in its fourth year of operation and negotiations are under way to extend the Treaty for a further term. Article 7 of the Treaty requires the Parties to consult annually on the operation of the Treaty and it is heartening to note that at the first, second and third annual consultations both the United States and Pacific Island sides expressed general satisfaction with the operation of the Treaty. This has led to a substantial improvement in the political relationship between the United States and Pacific Island States.

23. Naturally some problems were to be expected in the operation of such a complex Treaty. One of the initial problems was that most captains were not absolutely certain about the exact extent of member countries zones and consequently would inadvertently misreport the position of their catches. This was largely due to the fact that most member countries had not delimited their EEZs and fisheries waters at the time the Treaty entered into force. This difficulty has been resolved in part by the adoption of provisional treaty lines (PTLs) which has made the reporting of positions much more certain.

24. All the Pacific Island parties agree that the Treaty has enhanced their capacity to manage the tuna stock and, more importantly, it has enabled them to gain access to data relating to catch and effort both within their exclusive economic zones and on those portions of high seas within the Treaty Area. However, one of the main unrealised developments which most member countries, especially those with the largest stake in the fishery, want to see come to fruition is the establishment of shore based facilities and other forms of tangible benefits envisaged under Article 2 of the Treaty which calls for broader cooperation between the parties.

T hird Annual Consultations

25. The third annual consultations were held in Honiara, Solomon Islands in March 1991. As in previous consultations most parties expressed satisfaction with the operation of the Treaty. It was noted that there was a marked improvement in compliance with licensing and reporting requirements compared to previous licensing periods. The third licensing period was also characterized by an increase in fishing trips of shorter duration which was reflected in a larger number of returned catch report forms.

26. Concerns were expressed over enforcement of the Treaty. A number of violations were noted, and although most of these were eventually resolved

9 satisfactorily, some concern was voiced about the length of time it had taken for the United States to respond to requests for investigations under article 4 of the Treaty. FFA was asked to monitor future reports of violations more closely and assist member countries by providing a manual explaining the relevant provisions of the Treaty. Such a manual has been drafted and is likely to be tabled at the internal meeting of Pacific Island Parties during the fourth annual consultations.

27. During the negotiations leading up to the Treaty the United States insisted that the terms and conditions of access be set out in full in the annexes to the Treaty. This was done in Annexes I and II. However, since the Treaty came into force there has been a review of the MTCs. Accordingly it was seen as imperative that the revised MTCs be incorporated into the Treaty as quickly as possible. This can be achieved by amendments to the Annexes to the Treaty pursuant to article 9, but such amendments may only become effective upon acceptance being notified to the depositary by all parties to the Treaty including the United States.

28. The Pacific Island parties went into the consultations with the United States with this specific legal issue very much in mind. It was also proposed to introduce into the Treaty the use or attempted use of banned or harmful fishing gear as a ground for withdrawal of good standing on the regional Register and the introduction of the concept of suspension of good standing.

29. The United States, on the other hand, were interested in increasing the number of permitted licences from the present maximum of 50 to 55. They were also interested in revising the procedures for investigating violations of the Treaty to make them more informal which would help resolve some of the cases more quickly yet would still be without prejudice to any party's rights under the Treaty. The third matter the United States raised related to the observer programme particularly the logistics, and responsibilities of placing the observers aboard vessels.

30. It quickly became apparent that, although the United States side was prepared to discuss the proposed amendments to the Treaty in detail, there was a strong feeling that any question of amendment should be linked to the question of an extension to the Treaty arrangements. In view of the length of time that it would take to implement any agreed amendments, and the effective power of veto possessed by the United States, it was difficult for the Pacific Island parties to object to this. Even if all the amendments could have been agreed upon at the third annual consultations, the process of formal acceptance by all Parties could take at least nine to twelve months to complete, which would mean that the amendments would not be in place until well into the fifth, and final, licensing period.

31. It was nevertheless possible to resolve many of the issues relating to the minimum terms and conditions. The issues which were resolved in principle at the consultations were as follows:

(1) the revised definition of "fishing trip" and "transhipment" in Annex 1;

10 (2) the new provisions incorporating the 1989 UN/FAO Standard Specifications for the Marking and Identification of Fishing Vessels in Annex 1, Part 6;

(3) new provisions giving observers access to radio, navigational equipment and charts;

(4) the revised catch report form (Annex 1, Schedule 5) and unloading form (Annex 1, Schedule 6), and the inclusion of a transhipment telex report form; and

(5) a new provision in Annex II to encourage informal consultations before formally requesting investigations under Article 4.4.

32. A number of important legal issues were not satisfactorily resolved. On the question of transhipment at sea, the Pacific Island parties' view is that transhipment at sea is to be prohibited except in designated areas in accordance with special conditions to ensure sound management of the tuna resource. The United States, however, was not prepared to accept a general prohibition at sea, arguing that under UNCLOS the Pacific Island parties could not possibly control transhipment in all areas of sea. Nonetheless, they were prepared to accept a prohibition on transhipment in the exclusive economic zone of Pacific Island parties subject to such terms and conditions as may be agreed with the Pacific Island party concerned.

33. One of the most effective conventional means of ensuring that foreign fishing vessels comply with coastal States' fisheries laws and regulations is to have observers physically on board to monitor all the vessels' activities. An observer programme has been a feature of the Treaty from the outset, and the aim is to achieve a minimum 20% coverage of all fishing trips. Hitherto, the programme has been funded partly by aid, and partly by Treaty revenue. The aid donors have given notice that they expect the observer programme to become self supporting and there has thus been a need to explore other means of funding the programme. During the consultations, the United States agreed in principle to a Pacific Islands' proposal that the industry should meet the full cost of observers, including full travel costs, salary and full insurance coverage. Although it was agreed that this could be effected by an industry paid annually in a lump sum to FFA, the United States insisted on limiting the provision by specifying that it would be responsible for the cost of observers on up to twenty percent of the trips of US vessels to a limit of US$80,000, which was unacceptable to Pacific Island parties. This matter is still unresolved and could possibly be incorporated as an amendment to the Agreed Statement on the Observer Programme done in Port Moresby in 1987. It is FFA's feeling that these issues may be resolved at the next consultations.

F ourth Annual Consultations

11 34. The fourth annual consultations will take place in Suva, Republic of , from 4-6 December 1991.

M eeting of Parties to Consider the Extension of the Treaty.

35. The current financial arrangements under the Treaty come to an end in 1993, at the conclusion of the fifth licensing period. Both the Pacific Island parties and the United States are keen to negotiate an extension of the Treaty arrangements. The United States tuna industry is facing a severe recession and is anxious to secure guaranteed access for as many boats as possible for as long as possible. In the amendments to the Magnuson Act the industry managed to secure the insertion of a "sense of Congress" clause requiring the United States Government to begin negotiation at the earliest possible opportunity for an extension of the Treaty for an additional 10 years "on terms and conditions at least as favourable to vessels of the United States and the United States Government".

36. In order to meet the internal budgetary requirements of the United States Congress it is essential to conclude negotiations on an extension as soon as possible. The first meeting to consider the extension of the Treaty and related Agreements was held in Honiara, Solomon Islands immediately after the third annual consultations. Although the general thrust of the meeting was exploratory, the Pacific Island parties did indicate that they would be looking for a substantial increase in the financial package. The United States on the other hand clearly expressed their interest in a 10 year extension of the Treaty with an increase to a maximum of 60 licensed vessels and the opening of some closed areas.

37. The proposed technical and administrative changes to the Treaty did not pose any substantial difficulties for both parties. The United States delegation pointed out in their opening statement that they are prepared, in the context of an extension, to reach agreement on the modifications required in Annex I and Annex II to implement the harmonised minimum terms and conditions. The meeting did not specifically discuss the financial package because it was felt by Pacific Island parties that this should not be discussed until the United States position becomes clear.

38. A special working group comprising representatives from seven FFA member countries met in Honiara in June to discuss outstanding issues from the March meeting. The group made a number of significant recommendations which will be discussed at the next round of negotiations in Suva from 6-8 December 1991.

39. FFA believes that many of the remaining issues will be narrowed down further and subsequent negotiations will concentrate entirely on the question of the duration of the next Treaty period, the level of financial compensation and the number of licensed vessels. The fishery in the south west Pacific is very important and the United States is very unlikely to forgo the favourable access terms it currently enjoys.

40. From the point of view of the Pacific Island parties, the Treaty offers a

12 guaranteed and favourable rate of return over a long period with a minimum of administrative work. In addition, access to the technical assistance and economic development funds provide them with an important alternative source of development funds which they would not wish to abandon very easily. This does not mean, however, that they are willing to compromise in their demand for a substantial increase in the fees payable by the United States.

Multilateral Fisheries Arrangement with Japan

41. In 1987 the Forum directed FFA member countries to consider a multilateral fisheries arrangement with Japan in order to improve Japan's increasingly unsteady fisheries relations in the region. A preliminary meeting with the Japanese was held in Port Moresby in June 1989 and some initial progress was made. Unfortunately, however, the Japanese have recently indicated that they have no interest in continuing negotiations for a multilateral arrangement.

Bilateral Access Agreements

42. Bilateral agreements are the most common type of access agreements in the region and will continue to be for the foreseeable future. Several FFA member countries have bilateral fishing agreements with distant water fishing nations: principally Japan, South Korea and Taiwan (Republic of China). FFA's role in relation to bilateral agreements includes the provision of assistance in negotiations upon request, the provision of statistical data and advice on fee calculations, and legal assistance where necessary.

43. As already mentioned, all FFA member countries have made a commitment to implement the MTCs in all future access agreements, notwithstanding the objections of distant water fishing nations. Naturally, DWFN have put considerable pressure on individual countries not to insist on the MTCs and it is inevitable that such divide- and-rule tactics will lead to tensions between member countries. Insistence on the MTCs has led to at least one member country breaking off access negotiations with a DWFN and sacrificing potentially substantial access fees.

44. A number of common problems in the implementation of access agreements have been noted in the past and these continue to persist. A major problem relates to under reporting of catch by DWFN. It is estimated that the level of under-reporting is anywhere between 30-50%, with the Taiwanese having the worst record of all. It is believed that the Taiwanese are reporting only 20% of their catch. One of FFA's tasks will be to review existing access agreements to examine how they may be strengthened to address issues such as under reporting of catch. Since July 1991, FFA has been endeavouring to update its holdings of copies of access agreements between member countries and DWFN. Unfortunately, a number of countries have not been furnishing the Agency with copies of access agreements as required of them under Article 9 of the South Pacific Forum Fisheries Agency Convention.

13 REVIEW OF NATIONAL LEGISLATION

45. Strong national legislation is the foundation for all fisheries activity, and the provision of advice and assistance in reviewing relevant national legislation is one of the most important parts of the work programme for the FFA legal division. In relation to foreign fishing there is great merit in including as many as possible of the MTCs in national legislation, since this places the member country in a strong bargaining position when negotiating with DWFN. Similarly, increased harmonisation of regional legislation, while allowing sufficient flexibility for the specific needs of individual countries, enhances regional solidarity. While the emphasis in the past few years has been on the regulation of foreign fishing, there is increasing recognition that legislation dealing with inshore and local fishing also needs to be revised.

46. FFA takes a particular interest in the development of evidentiary and enforcement provisions to facilitate more effective prosecutions. The particular areas that the Agency will be examining are:

(1) certificate evidence, allowing enforcement officers to submit certificates on various matters (e.g. catch, and location of vessels) and thereby avoid unnecessary attendance at hearings;

(2) provisions relating to the burden and standard of proof such as reducing the standard of proof to "balance of probabilities" instead of "beyond reasonable doubt" and reversing the burden of proof of particular matters once prima facie evidence is produced;

(3) provisions to facilitate the use of new technology such as vessel position locators and satellite navigation systems; and

(4) provisions which would promote the development of new international legal standards e.g. some influence/control by coastal States over activities on the high seas which affect resources in the exclusive economic zone.

47. FFA provides legislative assistance upon request from member countries. With the recent increase in staffing of the legal division to two, it is anticipated that such assistance will be more readily available. During the period covered by this report, FFA has provided assistance to by facilitating a legal consultancy, and has recently drafted new fisheries regulations for the Kingdom of Tonga. FFA has also been working in consultation with the United Nations Food and Agriculture Organisation (FAO) to develop fisheries regulations for the .

48. In providing legislative assistance it is not the intention of FFA to usurp the functions of the legal draftsmen, but rather to facilitate the drafting process by offering advice on regional developments which may need to be incorporated into 14 the legislation. It is therefore seen as important that lawyers from member countries work with FFA's legal division in the drafting of fisheries legislation, including through fellowships. It is felt that this approach is more constructive than the past practice of using overseas consultants.

49. One of the principal long term tasks currently being undertaken by FFA is a comprehensive review of all fisheries legislation in the region. The first step in this process is to collect up to date copies of all relevant legislation and regulations from member countries. Once this part of the exercise is complete FFA intends to explore the possibility of compiling a comprehensive compendium of regional legislation relevant to fisheries and boundary delimitation. Such a compendium was produced by FAO in 1984, but is now out of date.

SURVEILLANCE AND ENFORCEMENT PROGRAMME

Draft Treaty on Cooperation in Fisheries Surveillance and Enforcement in the Pacific Islands Region

50. Fisheries surveillance and enforcement planning, training, surveillance assistance and co-ordination of fisheries surveillance and enforcement are key elements of FFA's work programme. A five year plan, which was reviewed in January 1991, has been drawn up. The plan relies substantially for its effect upon the successful implementation of a reciprocal and joint enforcement programme.

51. The 4th ICOD/FFA Regional Fisheries Surveillance Meeting at Rarotonga in October 1988 recommended that consideration be given to developing an agreement on reciprocal enforcement. Subsequently the 20th South Pacific Forum meeting in Tarawa in 1989 reviewed the urgent need for closer co-operation among all Forum members in order to protect and preserve their fisheries and directed the FFA to investigate, promote and implement the design and development of an integrated programme of regional fisheries surveillance.

52. In the light of the directive by the South Pacific Forum the 5th Regional Fisheries Surveillance Meeting at Honiara in October 1989 drew up a framework for a Convention on Reciprocal/Joint Surveillance and Enforcement. This framework was referred to the eighteenth meeting of the Forum Fisheries Committee in Nauru in 1990 (FFC18). FFC18 endorsed the principles set out in the framework and directed the secretariat to convene a small group of experts to continue development of the draft convention and to circulate a draft for consideration at the Forum Fisheries Sub-Committee Meeting at Noumea in October 1990.

53. Accordingly a mini-legal consultation was held in Honiara between 27-31 August 1990. The consultation produced a draft Treaty and a model subsidiary agreement on cooperation in fisheries surveillance and enforcement.

15 54. The report was presented to the Noumea meeting and the secretariat was asked to collate responses from countries and attempt to incorporate responses into a revised draft. It was accepted that final clearance for the agreement would be sought at the annual FFC in 1991 (FFC20) and that the decision of that meeting could be referred to the South Pacific Forum. In fact, owing to the lack of member responses and severe time constraints, FFC20, meeting at Wellington in May 1991, did not consider the matter. Since then only one member country has commented in detail on the draft prepared by the mini-legal consultation, despite the fact that the drafts were circulated in October 1990.

T he Terms of the Treaty

55. The draft Treaty provisions are based on general principles flowing from the United Nations Convention on the Law of the Sea, particularly Article 73. The Treaty is a head agreement intended to provide flexible arrangements for co-operation. It defines the general principles upon which parties may enter into more detailed subsidiary agreements. The model subsidiary agreement contains clauses facilitating closer co-operation in more concrete ways such as the physical sharing of surveillance and enforcement equipment, the empowerment of each other's officers to perform enforcement duties, enhancement of extradition procedures and evidentiary provisions. These clauses are models only; the actual provisions are, of course, a matter for the parties thereto.

56. Some concern has been expressed that the draft Treaty may require parties to make significant amendments to existing domestic legislation. The extent to which the Treaty requires any party to amend its domestic laws depends, however, entirely upon the willingness of that party to enter into subsidiary agreements and upon the terms of those subsidiary agreements. There is nothing in the Treaty itself which requires parties to make amendments to domestic legislation or to share the use of defence assets.

57. The twenty first meeting of the Forum Fisheries Committee at Pohnpei in July 1991 renewed its call on member countries to give serious consideration to the adoption of the Treaty. Unfortunately, however, in spite of requests from the Agency for member countries to submit their comments on the draft Treaty only one country had done so at the time this report was compiled. Nevertheless, the Secretariat continues to maintain the view that the Treaty provides member countries with a unique opportunity to cooperate in matters of surveillance and enforcement, and the legal division is ready to assist and advise any member country having difficulty with the provisions of the draft Treaty. If the Treaty is adopted it will be the first of its kind in any region in the world.

58. The need for some sort of formal arrangement on surveillance was very recently highlighted in a most dramatic way. On 11th September 1991 FFA received reports from licensed United States purse seiners fishing in waters of possible illegal fishing activity by Taiwanese and Korean vessels. FFA requested

16 assistance from RAAF and within four hours of the first request to Canberra, an RAAF Orion aircraft picked up FFA's surveillance officer at Honiara and flew to the scene. During the course of that night it is estimated that over 50 radar contacts were made, with 37 purse seiners, and 6 carrier vessels being recorded on the infra- red detection system. Many of these contacts were inside Tuvalu's EEZ. Subsequently two further daytime patrols were made and it is hoped that photographs will conclusively identify at least some of the vessels involved.

59. Unfortunately, Tuvalu has no patrol boat capability, and there is no flag State agreement in effect with either Korea or Taiwan. Indeed, the offences are made even more gross when one considers that the week before the incident Taiwan formally broke off access negotiations with Tuvalu. An Australian patrol boat happened to be in waters at the time, bound for Niutao and Funafuti on a goodwill mission. In the hope of diverting the patrol boat in order to apprehend at least one vessel, FFA made arrangements for two experienced fisheries officers from Kiribati to be collected from Tarawa, and immediately designated by the Minister responsible as authorised officers under Tuvalu fisheries legislation. Unfortunately, the eventual response from Canberra to this proposal was not favourable; the Australian authorities indicating that a patrol boat could not be used in this manner unless there was in effect a formal Government to Government agreement covering all aspects of jurisdiction and liability. No criticism is intended of the position taken by the Australian Government, which was clearly correct in law, but the incident serves to underline the importance of greater regional cooperation, and the need to urgently address the issues raised by the draft Treaty on surveillance and enforcement.

BOUNDARY DELIMITATION PROGRAMME

60. As mentioned in the introduction to this paper, most countries in the region moved swiftly in the late 1970s to introduce legislation providing for 200 mile economic zones. Very little, however, has been done towards accurately defining and delimiting the precise extent of the economic zones. The European Community is currently funding a two year delimitation project administered by FFA, coordinated by a delimitation expert based at FFA and available for consultation by member countries. Since the project started the delimitation programme coordinator has visited Vanuatu, Tonga, Western , Niue, Cook Islands, Palau, , Kiribati, Tuvalu and the Federated States of Micronesia in order to assess the status of data and base points available for delimitation and to advise on national priorities. The delimitation programme forms part of the legal services division, and the programme coordinator has been working closely with legal personnel in reviewing existing regional legislation. It is becoming apparent that much of the legislation passed in the late 1970s needs amending to reflect current international practice and new developments in delimitation technology. Again, there is an opportunity here for Pacific Island States to influence international practice. One particular aspect of international law which may be of significance is that relating to the regime of islands under UNCLOS, and the extent to which uninhabited islands, 17 such as the United States' possessions in the Pacific, should be entitled to generate 200 mile exclusive economic zones.

A MANAGEMENT REGIME FOR SOUTH PACIFIC ALBACORE TUNA

61. There are two issues involving southern albacore tuna. The first is the southern albacore high seas driftnet fishery. The second is consultations on future arrangements for South Pacific albacore fisheries management. High Seas Driftnet Fishery

62. The 1990/91 season saw a substantial reduction in the number of driftnet vessels operating in the South Pacific. All the countries involved in this fishery agreed to comply with United Nations Resolution 44/225 and to cease fishing operations in the South Pacific pending the formulation of management arrangements for southern albacore tuna. At the third consultations in Noumea, in October 1990, the representative of Taiwan announced that it would also comply with the United Nations resolution. There were only seven Taiwanese driftnet vessels operating in the South Pacific in the 1990/91 season. Although there were reports that other vessels had also been operating, the Agency was not able to confirm this information.

63. The Wellington Convention entered into force on 17th May 1991 with the deposit by New Zealand and Tokelau of their instruments of ratification. It is expected that more countries will ratify the Convention once they have appropriate implementing legislation in place. The Convention draws attention to the importance of the living resources to the South Pacific countries and prohibits nationals and vessels of Parties to the Convention from engaging in driftnet activities in the Convention Area. The Agency is aware of only one country, that is New Zealand, which has specifically enacted legislation prohibiting the use of long driftnets.

64. As required by operative paragraph 4(a) of United Nations Resolution 45/197 the members of the South Pacific Forum presented a report on driftnet fishing in the South Pacific to the Secretary-General of the United Nations in August 1991. The report noted that member countries remain fully committed to the terms of United Nations Resolution 44/225 and 45/197. The member countries fervently believe that all members of the international community should move expeditiously to implement the resolutions. The swift implementation of those provisions will help conserve the fisheries resources of the world's oceans and seas in order that all members of the international community, particularly developing countries, can cooperate in and benefit from the careful management of those resources.

Consultations on Arrangements for the Management of South Pacific Albacore Tuna

65. Three consultations with concerned countries and organisations have been held since November 1989. The fourth round of consultations is scheduled for 18 December 1991 in the Republic of Fiji. The Pacific Island States have drawn up a draft management arrangement prepared by a small working group of legal officials during Mini-Legal Consultations held in Honiara, Solomon Islands in August 1990. This draft was tabled at the third round of consultations in Noumea in October 1990. However, at the same meeting the Japanese delegation simultaneously submitted its own draft of a Convention to establish an international fisheries organisation. Since there seemed to be no common ground between the two proposals no further discussions were held. The 20th meeting of the Forum Fisheries Committee in April 1991 directed FFA to undertake a comparative analysis of the two drafts to be considered by the Pacific Island States prior to the next round of consultations. The analysis is now almost ready for circulation.

66. It appears as though there is now no real urgency in developing a management arrangement for southern albacore tuna since most of the activities that threatened its sustainability have been temporarily halted. Certainly the Japanese do not appear to be making any serious progress towards the conclusion of any agreement. Nonetheless, the Pacific Island States are concerned that unless management arrangements for southern albacore tuna are in place, driftnet fishing could possibly recur, and there will not be any broad framework within which the conservation and management of the stock may be addressed.

WESTERN PACIFIC PURSE SEINE FISHERY MANAGEMENT

67. An important legal development that is taking shape is the formulation of a management arrangement for the western Pacific purse seine fishery. The impetus to develop a management arrangement was set in motion by the Federated States of Micronesia and at the ninth meeting of Parties to the Nauru Agreement (PNA) in Nauru in April, 1990. A special Ministerial meeting of PNA was held in Palau in September 1990 in which the member countries were alerted to the conservation concerns arising out of the expansion of the western Pacific purse seine fishery. The broad principles governing the arrangement were agreed to at the tenth meeting of PNA in Wellington in April 1991, and the Parties directed FFA to prepare a draft arrangement to be considered by the next meeting of PNA - which is tentatively scheduled to be convened in December 1991.

68. The draft arrangement endeavours to limit the number of licenses that will be issued to foreign purse seine vessels. It creates a mechanism whereby Parties will be able to meet once a year to review the status of the tuna stocks and to establish such measures as may be necessary for the management and conservation of the stocks. The meeting of Parties, (the Management Meeting), is given broad parameters within which it may exercise management functions. The functions of the Management Meeting include, inter alia, the regulation of fishing effort by foreign fishing vessels which have good standing on the regional register. Restrictions may be applied to the size, operation, type or other classification of vessels. The arrangement also makes provision for the allocation of licenses according to a list of 19 criteria which are stipulated in the arrangement. FFA believes that this will be a first step towards achieving a management arrangement based on restricted entry into the fishery.

LEGAL REGIME FOR HIGH SEAS FISHERIES

69. The United Nations Office for Ocean Affairs and the Law of the Sea has recently initiated discussion on the nature of the legal regime for high seas fisheries as set out in the Law of the Sea Convention. In this connection FFA was invited to participate in a meeting of a small group of experts at UN headquarters, New York. The meeting considered a draft UN policy paper. Many of the issues raised in the paper are of prime importance to FFA member States.

70. The legal issues focus on an analysis of the existing provisions of UNCLOS relating to high seas fisheries, in particular articles 116 - 119, and 63 and 64 (in relation to straddling stocks and highly migratory species). The position of most coastal States is that the freedom to fish on the high seas is subject to obligations of conservation and cooperation in establishing conservation and management measures. In relation to highly migratory species and straddling stocks there is a further conflict between the right to exploit the resource on the high seas and the interests of coastal States in conserving and managing the resources within their EEZs. These conflicts are resolved by UNCLOS in favour of the interests of the coastal State, leading to the claim of a "special interest" in the area of high seas adjacent to the EEZ. These rights, duties and obligations contained in the relevant provisions of UNCLOS are not universally accepted by DWFNs and need to be elucidated in greater detail. 71. FFA member States are in a unique position to be able to influence these important developments in international law from the outset by applying collective pressure on other regional groupings as well as DWFN. Following the New York meeting a legal paper was circulated to member countries inviting comments on the following matters in order to give FFA a clear mandate to continue further discussions. These matters are:

(1) principles and criteria upon which the extent of the areas of high seas over which coastal States may claim a special interest are to be determined;

(2) the precise nature of the "special interest" and the way in which it may be enforced;

(3) the nature and extent of the obligation to cooperate through international organisations or arrangements and the legitimate non- coastal State role in such arrangements;

(4) the precise nature of the principles upon which sound conservation and 20 management regimes must be based.

Responses from lawyers in member countries are eagerly awaited.

CUSTOMARY MARINE TENURE SYSTEMS

72. The FFA Corporate Plan for 1990 - 1999 requires the Agency to explore the possibilities of integrating traditional fisheries management structures with the national management regimes of member countries. The region contains the richest source and variety of traditional marine tenure practices in any region in the world, and it is the Agency's fervent desire to ensure that where possible traditional concepts should be integrated with modern management techniques. This would involve the utilization of information gathered from traditional sources in the implementation of fisheries information schemes, and identification of other aspects of traditional structures which might usefully be employed as components of a management regime, for example enforcement mechanisms, and identification of appropriate legal mechanisms to carry out this integration.

73. In carrying out its work programme in this area, the Agency will be guided by the following issues. The nature and extent of customary marine tenure systems in member countries must first be understood, and the current status of recognition and protection of traditional marine tenure rights under national legislation must also be identified. Once these issues become clear, consideration may be given to legislative requirements to further the recognition and protection of marine tenure rights.

CONTINUING LEGAL EDUCATION

74. FFA continues to provide fellowships to lawyers from member countries either to undertake short term attachments at the Agency or to attend relevant international and regional Conferences. The Agency also provides training opportunities by identifying scholarships for suitable candidates from member countries. The objective of the fellowship programme is to help develop management skills of senior personnel in national administrations and, in the legal sector, to enhance the capability of national governments to pursue access negotiations and draft fisheries and related legislation.

CONCLUSION

75. In the cool light of retrospect, there is no way that FFA member countries could possibly have foreseen either the numerous legal developments the Agency has helped initiate or the rapid growth and development of the law of the sea. The United Nations Convention on the Law of the Sea was opened for signature on 10th December 1982 and during the period it was open for signature was signed by 159 21 States and entities. Since then it has been ratified by 47 States, the latest State to ratify the Convention being the Federated States of Micronesia on 29th April 1991 - only the second FFA member country to do so. Only thirteen more ratifications are needed to bring the Convention into force. One hesitates to suggest it, but it is indicative of the importance of the Pacific region that the FFA member countries effectively have the capacity to force the hand of the industrialised countries by bringing the Convention into force.

76. FFA's functions are basically facilitative and its activities depend primarily on the needs of member countries. Wherever possible it endeavours to explore mechanisms that would enhance member countries capability to adequately manage the region's tuna resource. Such legal developments that have taken place have had their origin in initiatives taken by the member countries. However, the Agency feels strongly that in order for these legal developments to bear any significance, member countries must demonstrate unconditional political commitment at all levels of government in order to make these legal arrangements work. The experience to date with the Draft Treaty on Cooperation in Fisheries Surveillance and Enforcement exemplifies the inherent difficulties in implementing legal initiatives without the backing of strong political commitment.

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