The Western and Central Pacific Fisheries Commission (WCPFC) emerged as result of the 1982 United Nations Law of the Sea Convention (LOSC) that, amongst other things, requires regional cooperation to promote the conservation and management of shared fisheries resources.

WCPFC determines, advises on and implements many of the regional management mechanisms required by international law with the aim of securing cooperation between States to better protect, conserve and manage the Pacific’s vitally important fisheries. This role focuses on the conservation and management of the valuable, shared and highly migratory tuna (and similar fish) resources of the western and central Pacific Ocean (WCPO) that are under threat from many sources, not least, marine pollution.

Tackling marine pollution is challenging because of its many sources, most of which cannot be regulated by the WCPFC, and while pollution from shipping is regulated, pollution from or created by fishing vessels has been largely overlooked. In this legal bulletin we consider how the WCPFC is addressing the pressing and important issue of marine pollution created by fishing vessels plying their trade in the Western Pacific. For more information on the issue of marine pollution from fishing vessels please see this report from SPREP: here or Fisheries Consultant, Francisco Blaha's blog on the topic: here

The regulation of marine pollution from fishing vessels has lagged behind the regulation of marine pollution from shipping vessels

The International Convention for the Prevention of Pollution from Ships (MARPOL) is the primary international instrument regulating pollution of the marine environment by ships.

However, the regulation and control of marine pollution connected to offshore fishing vessels has lagged behind the control of marine pollution from shipping. In the WCPO, this lag arises due to a number of reasons including:

• the staggered adoption of MARPOL and its numerous amendments that have been made over the past few decades
• a lack of clarity regarding MARPOL obligations due to the fact that there are six Annexes to MARPOL (only two of which must be ratified in order to be a party) which apply to different vessel types and sizes
• confusion regarding how MARPOL interacts with other international agreements regulating marine pollution such as the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Convention) and the 1996 Protocol (London Protocol) – both of which promote the effective control of all sources of marine pollution.

The confusion created by MARPOL’s complexity is likely to have contributed to States’ weak and inconsistent implementation of their various marine pollution obligations. This is exacerbated by the fact that not all WCPFC Members, Cooperating non-members and Participating Territories (CCMs) are party to MARPOL and there is limited enforcement of MARPOL obligations by some flag States. This is significant because pursuant to LOSC, flag States have, save in limited circumstances, the enforcement jurisdiction over ships registered under national jurisdiction to fly their flag. Open registries or flags of convenience mean some flag States have no will or capacity to enforce standards even if they have agreed to meet those standards.

Moreover, the laws relating to the regulation of marine pollution activities in many coastal States’ laws can be hit and miss and relevant international fora, such as the WCPFC, have placed limited focus on the importance of preventing marine pollution from fishing vessels. This is a common issue that affects the international fishing industry causing it to lag behind the shipping industry both in terms of marine pollution and employment standards.

Although some coastal States regulate marine pollution better than others, in the context set out above, more needed to be done in the WCPFC before all relevant States could understand and apply their MARPOL obligations consistently. Fortunately, most WCPFC CCMs are party to MARPOL[2]. While this is positive, understanding and meeting MARPOL obligations is an area in which CCMs may need support.

The recognition of flag States’ poor implementation of MARPOL obligations prompted the Republic of the Marshall Islands (RMI), supported by all FFA member countries[3], to submit a proposal for a binding WCPFC conservation and management measure. RMI led this proposal to ensure States’ implementation of core international principles and obligations in relation to marine pollution throughout the WCPO. It also lays a platform for closer environmental scrutiny of tuna fishing vessels’ current practices through enhanced data collection and monitoring of illegal pollution activities.

Conservation and Management Measures

A management tool available to the WCPFC includes Conservation and management measures (CMMs). CMMs are legally binding regulations developed in the WCPFC. Once agreed, CMMs must be implemented by States, with monitoring of this compliance undertaken on an annual basis.

In this context, in 2017, the WCPFC adopted a CMM on Marine Pollution (CMM 2017-04). CMM 2017-04 is the first binding measure specifically addressing marine pollution across all CCMs and is a positive step in Pacific island countries’ efforts to address marine pollution arising from tuna fisheries. The binding measure will enter into force on 1 January 2019 and seeks to protect marine ecosystems from environmental degradation, as well as minimising incidental mortality of non-target marine species by addressing marine pollution emanating from fishing vessels.

The measure also supports UN States’ commitment to significantly reduce marine pollution in accordance with Sustainable Development Goal 14[1]. However, there remain significant challenges before CMM 2017-04 is able to be effective.

Positive provisions of CMM 2017-04

CMM 2017-04 contains a number of useful provisions that regulate, or support regulation of, marine pollution in Pacific tuna fisheries. The most critical provision of the measure is the requirement that CCMs prohibit their fishing vessels, operating within the WCPF Convention Area, from discharging any plastics (including plastic packaging, items containing plastic and polystyrene)[4].

Plastic waste emanating from fishing vessels, such as bait and food packaging, is a significant environmental concern. This waste contributes to the degradation of the marine environment through increasing risk of harm to marine species, degrading coastal environments, and contributing to the widespread introduction of microplastics into the ocean, many of which ultimately enter the food chain.

Additional useful provisions of CMM 2017-04 include:

• Encouraging all CCMs to ratify or accede to the annexes of MARPOL and the London Convention and, where relevant, seek the assistance of the International Maritime Organization to address any technical difficulties[5]
• Encouraging all CCMs to prohibit their fishing vessels operating within the WCPFC Convention Area from discharging:
• oil or fuel products, or oil residues into the sea
• garbage, including fishing gear (but excluding gear deployed with the intention of later retrieval), food waste, domestic waste, incinerator ashes and cooking oil and
• sewage.[6]
• Encouraging CCMs to provide, and support SIDS in providing, adequate port reception facilities to receive fishing vessel waste, and to comply with MARPOL obligations regarding adequate port reception facilities[7] and
• Encouraging CCMs to conduct training and awareness programs for crew and fishing masters regarding impacts of marine pollution and positive operational practices to minimise this pollution[8].

The international community may support this initiative by reminding CCMs of the above provisions within CMM 2017-04 and, in this role, assist to document and highlight any positive developments made by CCMs with respect to them.

In addition, these provisions provide a good blueprint for areas of collaboration with, and support from, non-governmental organisations (NGOs). It also provides NGOs with an opportunity to transition from advocacy and outreach into investment and facilitation of marine pollution initiatives within Pacific tuna fisheries.

Focus areas for improvement

Although a number of the measure’s key provisions are positive (namely the prohibition of discharging plastics), the measure also contains a number of soft obligations to ‘encourage’ or ‘cooperate’. These discretionary obligations run the risk of not being meaningfully implemented, while also sitting outside the scope of established compliance and enforcement efforts and processes. Therefore, it is imperative that CCMs maintain focus on these areas to ensure they are transitioned into binding obligations in the future.

One focus area for improvement is the regulation of abandoned, lost or otherwise discarded fishing gear.

Although CMM 2017-04 contains preambular text acknowledging the harmful impact that fishing gear can have on the marine environment, it does not contain any binding provisions regulating this key risk area. Instead, fishing gear is specifically excluded from the prohibition of discharging plastics[9].

CCMs are required to ‘encourage’ their fishing vessels to retrieve abandoned, lost or discarded fishing gear and, where retrieval is not possible, to encourage their vessels to report the position and description of any such gear[10].

The measure does attempt to establish better communication frameworks for the reporting, recording and sharing of information of gear loss[11]. However, similar to the obligation regarding fishing gear retrieval, CCMs are not obligated to undertake any specific action.

Another area for improvement is the measure’s regulation of oil pollution from fishing vessels. As noted above, the measure encourages all CCMs to prohibit their fishing vessels operating within the WCPFC Convention Area from discharging oil or fuel products, or oil residues into the sea. As this is not a mandatory obligation, there remains a risk that oil pollution from fishing vessels is not sufficiently regulated, at least by the WCPFC.

Abandoned, lost or discarded fishing gear remains a critical issue affecting the marine environment by harming marine life through ghost fishing, entanglement, ingestion and habitat damage. Likewise, oil pollution also poses a significant risk to the marine environment, particularly from older vessels. Therefore, regulation of these areas requires strengthening in the WPCFC forum, as well as other relevant regulatory frameworks (e.g. coastal and flag State legislation). In the WCPFC context, CCMs will therefore need to consider the best process for transitioning the current discretionary obligations into binding obligations.

Evolution of the measure

In order to strengthen CMM 2017-04’s regulation of fishing gear, oil and other relevant waste from fishing vessels, CCMs will need to address a number of issues regarding interpretation and application of key terms and provisions. For example, to effectively regulate marine pollution arising from fishing gear, it will be imperative for CCMs to discuss and negotiate an accepted definition of ‘discarded fishing gear’. This, necessarily, must take into account purse seine fishing operations and how it would potentially regulate or impact FAD deployment.

For other potential concerns regarding the regulation of oil and different types of waste, States, with the assistance of NGOs or other relevant bodies, should look at operational solutions and efficiencies to address such marine pollution. Lessons learned from fleets operating outside of the WCPO may assist, including experiences and regulatory measures from other RFMOs. In addition to this, States (including their respective fishing industries) must have a more comprehensive understanding of their existing MARPOL, London Convention and Protocol, obligations applicable to the types of fishing vessels operating in the WCPO. Through progressing these work areas, there is potential to positively transition current fishing vessel practices that can harm the marine environment to environmentally sustainable practices, while also facilitating a broader acceptance of the need for more stringent regulation.

Conclusions

CMM 2017-04 is a positive step towards strengthening marine pollution regulation in Pacific tuna fisheries emanating from fishing vessels, traditionally an under-regulated area. It also addresses one of the highest priorities, plastic waste, in a binding manner and serves as a useful tool from which further marine pollution regulation can be based.

CCMs have agreed to review the measure every three years specifically to consider expanding its scope with respect to the elimination of marine pollution caused by fishing vessels[12]. While the measure usefully sharpens States’ focus on this critical issue in the context of offshore fisheries, the scope of the measure does not provide comprehensive protection of the marine environment from all sources of pollution emanating from fishing vessels. Therefore, work needs to commence now to place States and their industries in a position to agree to further binding regulation in three years.

Written by: Viv Fernandes

About the author: Viv Fernandes is the Compliance Policy Adviser for the Pacific Island Forum Fisheries Agency (FFA). Working within FFA’s Fisheries Operations Division, his role involves providing MCS policy advice to FFA’s member countries and assisting countries’ compliance with existing regional and international obligations.

Edited by: James Sloan

[1] Sustainable Development Goal 14, to conserve and sustainably use the oceans, seas and marine resources for sustainable development (https://www.un.org/development/desa/disabilities/envision2030-goal14.html), with a specific target to prevent and significantly reduce marine pollution of all kinds by 2025.

[2] To ratify MARPOL, States must at least ratify Annexes I (oil pollution) and II (noxious liquid substances). Ratification of the remaining Annexes is optional. See http://www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx for the current status of MARPOL and related Conventions.

[3] FFA Member countries: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and Vanuatu.

[4] CMM 2017-04, Paragraph 2.

[5] CMM 2017-04, Paragraph 1.

[6] CMM 2017-04, Paragraph 3.

[7] CMM 2017-04, Paragraphs 6, 7 and 8.

[8] CMM 2017-04, Paragraph 11.

[9] CMM 2017-04, Paragraph 2.

[10] CMM 2017-04, Paragraph 5.

[11] CMM 2017-04, Paragraphs 9 and 10.

[12] CMM 2017-04, Paragraph 12.