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 ISLANDS FORUM FISHERIES AGENCY P.O.BOX 629 HONIARA SOLOMON ISLANDS 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.