Ocean Law Bulletins

Scientists have, for decades, warned us that oceans are warming, expanding, and becoming more acidic and polluted. In addition, humans are overfishing and failing to control the amount of waste material, particularly plastic, that ends up in oceans. In the face of these and other threats, Marine Protected Areas (MPAs) may be seen as a potential solution. The call for MPAs has a long history in international legal conventions, which have also expressly called for MPAs to be made consistent with the law of the sea framework after following a transparent and consultative process. This principled and process-led approach to MPAs reflects the important point that MPAs will curtail activities and potentially user rights in the ocean.

Fiji has, via government and Ministry of Fisheries leadership created several MPAs. In addition there have also been numerous community led initiatives assisted by Fiji's Locally Managed Marine Area Network (FLMMA) to establish fisheries management tools that have included no fishing zones (also known as tabu areas) within traditional fishing grounds.

Fiji’s efforts are consistent with the law of the sea framework which, at present, provides MPAs can only be created within areas of ocean where nation States have the authority to do so.

In this legal bulletin we particularly consider Fiji’s legal and governance framework, and how this may assist with the sort of transparent, open and consultative process that was envisaged in modern international legal conventions. We also briefly consider why MPAs will not be a solution, unless Fiji also adopts an integrated management approach to its oceans, which will include, but not be limited to the establishment of MPAs following due process.

Sharks that are alive and healthy in Fiji's oceans are worth a great deal of money to Fiji's economy. In 2012, the Pew Foundation calculated that shark diving alone generated US$42.2 million for Fiji's economy

Unfortunately, the unnecessary killing of sharks, whether intentional or as a result of an accidental bycatch, removes this opportunity and has adverse effects on marine ecosystems and Fiji’s tourism industry. It is vital, therefore, to provide protection for shark nurseries, and ensure Fiji has effective fisheries laws and initiatives for shark protection that are implemented.

Early this year, dead baby sharks hit the headlines when around 10 juvenile hammerhead sharks were found dumped in a culvert near Suva. These endangered animals may have been caught illegally in nets set across a nearby river mouth where scientists at the Marine School, USP have undertaken a detailed and celebrated study and found a significant and important breeding ground.

Fortunately, the newly created Inshore Fisheries Management Division (IFMD) within the Ministry of Fisheries is currently looking to strengthen a variety of fisheries laws and regulations and their implementation including, but not limited to, the laws that protect sharks. In this bulletin, we consider the existing relevant laws on netting around rivers and discuss additional measures to ensure that sharks are better protected. We also briefly consider other initiatives that are currently being led by the IFMD to make Fiji's inshore fisheries more sustainable for the benefit of all Fijians. For more information regarding other shark conservation measures in Fiji, please see our previous bulletin: “A Legal Policy Discussion of Shark Conservation in Fiji”.

The international awareness of inequitable and often inhumane working conditions in the offshore fishing industry has increased in recent years.

Unfortunately, it has reached a point where offshore fishing is an industry that has become synonymous with poor working conditions and human rights abuses when compared with other ocean industries like shipping. This is because the activity of fishing itself takes place outside of the legal jurisdiction of any nation State, on the “high seas” and within EEZs where no State has sovereignty to make and enforce laws. In effect it is an industry where bad players can get away with being unregulated and through the regime of flag State registration effectively claim "immunity" from legal oversight in relation to working conditions. This is not to say all offshore fishing vessel operators are bad players but those fishing vessel operators who do want to comply with good employment standards do not compete on a "level playing field".

The awareness raised by civil society organisations (CSOs) and stakeholders has led to various recent developments, including the development of a specific International Labour Organisation Convention (“ILO”) (Work in Fishing Convention, 2007 (No. 188)) (“C-188”). C-188 entered into force in November 2017.

Six months ago, in Cape Town, South Africa, the provisions of C-188 were brought to bear by South African authorities against a foreign owned fishing vessel (a link to ILO’s report on this story can be found here).

The problem of unregulated labour standards in offshore fishing exists because some flag States who do have the legal jurisdiction to enforce labour standards on vessels on the high seas that are registered to that flag State lack the ability or willingness to regulate offshore fishing vessels that "fly their flag". Effective and universal flag State regulation is an issue of oceans governance and this is same issue that underpins Illegal, Unreported and Unregulated (“IUU”) fishing on the high seas and within coastal States’ EEZs. Solving this ocean governance issue in the fishing industry would likely lead to direct benefits for Pacific Island States both because employment opportunities would improve for Pacific Islanders and because those fishing vessels that are well regulated are more likely to comply with conservation and management measures put in place to protect the Pacific’s essential fish stocks.

In this extended legal bulletin we summarise the international law problem of unregulated labour standards in the offshore fishing industry and consider recent efforts that provide steps in the right direction to bring an end to a shameful problem that should no longer be tolerated in the 21st century. After all, as things stand, on the high seas (areas beyond national jurisdiction) the transportation of slaves by sea is an international crime and is regulated by the law of the sea framework. Contrast this with forced/slave labour and human rights abuses on people “employed” on fishing vessels in the same areas of ocean, and who fall outside any effective regulatory law of the sea framework and as a consequence find themselves outside the reach and protection of the law. To change this may require an overdue shift in general international consensus to amend the current law of the sea and governance framework. 

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

Although not yet an operational industry, seabed mining is a trending topic in the Pacific. This is because the exploration of the seabed beneath the Pacific ocean is revealing or has revealed potential mine sites for valuable minerals that are in global demand particularly for new technologies.

Proponents of seabed mining suggest, amongst other things, that mining of seabed minerals will ease demand for, and have less negative social impact than, terrestrial mining, will assist in the development of new greener technologies, and will provide economic benefits to those who participate in the mining ventures. Those who oppose seabed mining question, amongst other things, the potential environmental effects of or from the activity of seabed mining, the resultant damage to other uses or users of the ocean, whether developing nations will benefit from the mining ventures, and whether it will, in fact, ease pressure on terrestrial mining.

This legal bulletin considers the international legal framework of seabed mining and how it is regulated or intended to be regulated. This legal framework is important for Pacific Island Countries (PICs) because the 1982 United Nations Law of the Sea Convention (LOSC) has granted to PICs sovereignty or exclusive sovereign rights to extract (explore and exploit) resources from the seabed within vast ocean areas. The legal framework may assist PICs as they decide how to balance potential adverse environmental impacts of seabed mining against the value of their exclusive rights to, and benefits from, other living resources within the oceans.