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Ocean Law Bulletins

James Sloan


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Coral Reef Insurance - an option to promote resilience for Fiji and the Pacific?

Jul 7, 2021 / by James Sloan posted in Marine Conservation, Insurance law Fiji, Fiji risk allocation, Integrated Oceans Management Pacific, Pacific Ocean Rights, Pacific Blue Economy, UN Oceans, Oceans Governance, Pacific Ocean, OceansPolicy, OPOC, Office of the Pacific Ocean Commissioner, Pacific Islands Forum Secretariat, parametric insurance, Sustainable Oceans Finance, Coral Reefs, Coral Reef Insurance

In February 2021, the Office of the Pacific Ocean Commission (OPOC), established under the then Pacific Ocean Commissioner, Dame Meg Taylor launched an excellent “suite of Ocean reports” with a focus on ocean finance. This focus on ocean finance is well timed to assist PICs to address the major challenge of finding a way to make the protection of its ocean ecosystems both politically and economically viable.

One of the reports titled “Pacific Ocean Finance Program - Insurance” is authored by Dr. Simon Young and Jacqueline Wharton of the “global advisory, broking, and solutions company” - Willis Towers Watson. The report provides a detailed and informative discussion and explanation of the potential for a type of insurance known as “parametric insurance” to play a role in relation to adapting to the effects of climate change and to promote marine conservation.

The idea of utilising insurance products to increase resilience of coastal ecosystems is innovative but it also naturally leads to questions relating to how this type of insurance product will work and what its role could be. In this bulletin we consider how this type of insurance product could work within the legal and governance context in Fiji and the broader Pacific Island context. We also note that there are currently a number of initiatives underway in Fiji in relation to ocean insurance and sustainable financing initiatives, and these are being promoted by a number of development agencies including the Asian Development Bank (ADB) and the World Bank who are working with Fiji’s Ministry of Economy. In this bulletin we provide a brief update in relation to ADB’s project on “Partnerships for Coral Reef Finance and Insurance in Asia and the Pacific”. ADB has secured concept approval from the Global Environment Facility (GEF) for this project; which will cover Indonesia, Philippines and Solomon Islands. As this is a topic relevant to Fiji, ADB has supported[1] an initial baseline assessment to explore feasibility of including Fiji in this, or similar type of initiative. Some of the insights presented below are the result of this work.

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Offshore Marine Protected Areas for Fiji - Essential next steps in terms of sustainable financing

Feb 18, 2021 / by James Sloan posted in Oceans Law, Marine Protected Areas, Commercial fishing, Integrated Oceans Management Policy, Fiji Oceans, Fiji law, Blue Economy, Large Ocean States, Pacific Ocean, Fiji National Ocean Policy, Fiji Blue Economy, OceansPolicy, Sustainable Ocean Finance, EEZ, OPOC, Office of the Pacific Ocean Commissioner, Pacific Islands Forum Secretariat

This is a big year for oceans governance in Fiji and the Pacific. The Fiji government has just published Fiji's first National Ocean Policy (NOP) online and has announced that the NOP will be “enshrined in law” as part of its proposed Climate Change legislation. Fiji will then move towards designating 30% of its 1.2 million km2 of ocean within its Exclusive Economic Zone (EEZ) as marine protected areas (MPAs) with 100% sustainable management of its EEZ by 2030. These ocean initiatives are line with the United Nations Sustainable Development Goal 14 (SDG 14 - Life Below Water), and Fiji’s long standing commitments on the world stage.

Fiji’s goal to designate 30% of its EEZ as offshore MPAs presents significant challenges for the Fiji government because - to put it bluntly - this is an expensive initiative. In 2021, more than ever before economies everywhere, and particularly in the Pacific, are suffering. In this context designating MPAs that will alter and limit existing rights and activities, including but not limited to existing fishing practices that contribute to Fiji’s economy, requires both significant political will and long term funding. This funding is essential to undertake a proper process of designating MPAs but more importantly to assist the longer term government burden of regulation of those designated MPAs. This regulatory burden includes the ongoing monitoring, control, surveillance and enforcement of Fiji’s EEZ and MPAs across a vast area of Pacific ocean.

In February 2021, the Office of the Pacific Ocean Commission (OPOC), established under the Pacific Ocean Commissioner, Dame Meg Taylor launched an excellent “suite of Ocean reports” with a focus on ocean finance. This focus on ocean finance is well timed to assist PICs to address the major challenge of finding a way to make the protection of its ocean ecosystems both politically and economically viable.

In this bulletin we consider OPOC’s paper “Funding Marine Protection At Scale” and make some respectful recommendations in relation to how to increase the funding within Fiji to assist Fiji's government, acting on behalf of the State, to fund the designation and regulation of MPAs.

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The Importance of regional cooperation between Pacific Island Countries for fisheries management and to increase the benefits for Pacific Islanders

Apr 27, 2020 / by James Sloan posted in Oceans Law, Human Rights, Pacific, human rights at sea, Flags of convenience, Labour standards at sea, human rights abuses at sea, Parties to the Nauru Agreement, UNCLOS, International Law, Maritime boundaries, Sovereignty, Traditional fishing rights, Integrated Oceans Management Policy, fisheries management, Environmental governance, Environmental decision making, fisheries law, Fiji commercial lawyers, Law of the Sea Convention, Sovereign Rights, Integrated Oceans Management Pacific, traditional rights, Pacific Blue Economy, Blue Economy, Pacific Island Rights, Tuna fisheries, WCPFC, Tuna Management Pacific, Covid-19, Pacific Island Fisheries

In accordance with the United Nations Law of the Sea Convention (UNCLOS) Pacific Island Countries (PICs) have the use and management rights to the resources within and under huge areas of Pacific ocean. These rights include the exclusive sovereign rights to use and manage all of the resources in these ocean spaces and on and under the seabed. However, there remains disagreement between some PICs over where the maritime boundaries should be drawn as well as a lack of a unified position in relation to how the resources should be exploited.

As the world goes through unprecedented change due to the Covid-19 pandemic, renewed cooperation among PICs is more important than ever to secure better governance, more effective fisheries management and more benefits from the resources flowing back to Pacific Islanders.

Dr Transform Aqorau has recently published an insightful article that explains some of the resilience more Pacific based tuna operations are experiencing in the face of Covid-19. This is available here.

In this legal bulletin we set out an explanation of the law and governance context that we hope explains why and how more regional cooperation to implement a shared plan with more transparency at regional and national levels will benefit Pacific Islanders.

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Seabed mining - how is it intended to be regulated and what are the risks for States that seek a licence from the International Seabed Authority?

Nov 26, 2019 / by James Sloan posted in Oceans Law, Pacific, UNCLOS, Environmental governance, Environmental decision making, Law of the Sea Convention, Integrated Oceans Management Pacific, Blue Economy, UN Oceans, Seabed Mining, Oceans Governance, Deep Seabed Mining, Precautionary Principle, School of Marine Studies, University of the South Pacific

Seabed mining is a new industry that seeks to exploit the value of metals on or in the seabed. The drivers for this industry include the rising demand and costs for the metals in question. Many of the potential mining sites are found under the Pacific Ocean in areas beyond the national jurisdiction of any State. This area of deep seabed beyond national jurisdiction is defined by the United Nations Convention on the Law of the Sea ("LOSC") as “the Area”.

This new industry is intended to be regulated pursuant to LOSC by the International Seabed Authority (a body created by LOSC). The International Seabed Authority will issue licences to Applicants that are sponsored by nation States (sponsoring States). The licences will be issued subject to conditions that are intended to protect the marine environment, however, sponsoring States are themselves subject to duties under international law and amongst other things are required by LOSC to have their own legislation in place to regulate the mining companies that they sponsor. If this legislation is not in place or is inadequate then sponsoring States will not meet their international law duties, will incur legal risk, and this new industry will not be properly regulated.

In this bulletin, we set out what is known from a legal and governance perspective about seabed mining in the Area, describe how the international regulatory framework is supposed to work and review the results of a recent legal analysis that demonstrates the legal framework is not yet in place to meet various requirements under the international legal framework. We respectfully suggest that this legal analysis supports the view that seabed mining is not, as yet, ready to proceed as an effectively regulated industry in accordance with international law.

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Deep Seabed mining in the Pacific, a recent lecture prompts the question - Who bears the legal risk under the legal framework for seabed mining outside areas of national jurisdiction (the Area)?

Aug 6, 2019 / by James Sloan posted in Oceans Law, Pacific, Maritime boundaries, Environmental governance, Environmental decision making, Fiji commercial lawyers, Integrated Oceans Management Pacific, Pacific Ocean Rights, Pacific Blue Economy, Large Ocean States, Seabed Mining, Deep Seabed Mining, Pacific Ocean, Precautionary Principle, School of Marine Studies, University of the South Pacific

On Friday 2 August 2019, the School of Marine Studies at the University of the South Pacific (USP) hosted an informative and well attended public lecture entitled “The issue of Deep Seabed Mining and Pacific Island States”. The lecture was jointly delivered by Mr Akuila Tawake from the CROP agency SPC who covered technical aspects of deep seabed mining and Mr Michael W Lodge, the Secretary General of the International Seabed Authority (ISA).

The lecture was an impressive achievement given that it was arranged a day or so before when Mr Lodge dropped in to say hello to his old friend, Dr Joeli Veitayaki. The high attendance at this public lecture and the robust nature of debate and questions are indicative of the interest and concern that exists in the region relating to the potential risks and rewards for mining ventures that if they do take place will be in areas of seabed beyond the national jurisdictions of continental shelves. This area of seabed beyond national jurisdictions is defined by the 1982 United Nations Convention of the Law of the Sea (LOSC) as “the Area”.

We were privileged to be joined by Mr Lodge who provided an informative and eloquent talk in his role as Secretary General of ISA. ISA is the international organisation created by LOSC to regulate deep seabed mining in the Area. In this legal bulletin we update on his lecture and consider the specific question of legal risk associated with DSM. Please see our earlier legal bulletin for a full explanation of the legal framework for seabed mining, including deep seabed mining in the Area: here

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Fiji Planning law: Fiji’s government has announced new Town Planning Schemes may be adopted for Suva, Lautoka and Nadi - an opportunity for consultation and good decision making

Jul 1, 2019 / by James Sloan posted in Environmental Management Act 2005, Investing in Fiji, Fiji commercial lawyers, Fiji Planning Law, Fiji Planning and Environmental Law, Town Planning Fiji, Town and Country Planning Fiji, Town Planning Schemes Fiji

In common with other common law jurisdictions, Fiji exercises State control over land including but not limited to how it may be developed. The regulation of development falls within the domain of planning and environmental law.

The government has announced that in the public interest it is in the process of updating its Town Planning Schemes for Suva, Lautoka and Nadi. This is an important nation building initiative because a Town Planning Scheme will shape future development in all these cities. But, it is also a significant undertaking that provides an opportunity for, and in our view, requires - wide consultation. If this consultative process is successful it will result in better planned development that along with the effective regulation of environmental standards, is essential to create sustainable and resilient cities and towns for Fiji’s future and its citizens' well-being.

In this update, we take a look at Fiji’s planning law framework and set out various reasons why it is vital for Fiji’s citizens to become involved in the consultation process that is being led by the Ministry for Industry, Trade, Tourism, Local Government, Housing and Community Development to create and adopt new Town Planning Schemes.

The reasons that public involvement is vital include but are not limited to:

  • the significance of Town Planning Schemes to the way planning law and decisions operate in Fiji law
  • the fact that the decisions made pursuant to Town Planning Schemes will have far reaching effects on all citizens, and may affect existing property rights
  • Town Planning Schemes should be suited to Fiji’s context and linked to a shared and bold vision for Fiji’s future.
Each citizen who becomes involved in this consultative process has an opportunity to provide her/his views on how Fiji’s towns and cities should develop to improve but also what aspects of Fiji’s culture and values should be part of that future too.
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Oceans Governance: The Class of 2019 from the University of the South Pacific, School of Marine Studies

Jun 6, 2019 / by James Sloan posted in fisheries law, Integrated Oceans Management Pacific, Oceans Governance, School of Marine Studies, University of the South Pacific

Oceans Governance is a 3rd year undergraduate course offered by the School of Marine Studies, USP that complements the 2nd year undergraduate course in “Law of the Sea”. Both courses offered by the School of Marine Studies are designed by the highly regarded fisheries legal expert, Mr Pio Manoa.

Oceans Governance promotes an understanding of how the international legal frameworks fit with national legal and governance frameworks to provide a rules based approach to oceans use. This means that as part of the course there is a detailed look at how the varied uses of the ocean are regulated and how more modern concepts like sustainable development and an eco-systems approach to natural resource management should be taken into account by decision-makers.

Major themes that have arisen throughout the semester include: the importance of consultation and due process for good decision making, legal concepts of sovereignty and sovereign rights, and the importance of the ocean and traditional rights for Pacific Island cultures. Our firm has been fortunate enough to coordinate and teach this Semester's class of 2019 and provide this update relating to the course and their progress that involved contributions from many individuals demonstrating the multi-disciplinary approach required for oceans governance.

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Fiji Fisheries: Economic and other opportunities from regulation of fisheries in archipelagic and territorial waters

Jun 6, 2019 / by James Sloan posted in Oceans Law, Marine Protected Areas, Inshore fisheries, fisheries management, Fiji Fisheries decision making, Fiji Fisheries Regulations, Sovereign Rights, Pacific Ocean Rights, Oceans Governance, Ministry of Fisheries Fiji, Inshore Fisheries Management Division Fiji, Fiji fisheries laws, Fiji Game Fishing

In accordance with Fiji law, commercial fishing within Fiji's large archipelagic and territorial waters is reserved only for Fiji registered fishing vessels. Foreign fishing vessels may be licensed to fish within Fiji Exclusive Economic Zone (EEZ) and Fiji registered fishing vessels may also be licensed to fish in Fiji's EEZ.

Fiji has total authority to regulate and manage its fisheries across its vast archipelagic and territorial waters (which we refer to as inshore areas) and this authority derives from Fiji's territorial sovereignty. Getting its fisheries management regime right in these inshore areas is in Fiji's national interest.

In this legal bulletin we describe Fiji's inshore areas and its authority to regulate fisheries, discuss the modern legislative framework Fiji has in place to manage and regulate its inshore fisheries, and set out why Fiji's opportunity to implement sustainable management is dependent on good decision-making processes led by Fiji's Ministry of Fisheries. We also update on some initiatives that are being undertaken by the Ministry of Fisheries to manage inshore fisheries.

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Marine Protected Areas in Fiji waters: The law and governance context requires careful consideration and transparent decision-making

Apr 30, 2019 / by James Sloan posted in Oceans Law, Marine Protected Areas, Marine Conservation, Fiji Fisheries decision making, Fiji Fisheries Regulations, Law of the Sea Convention, Integrated Oceans Management Pacific, UN Oceans, Oceans Governance, Ministry of Fisheries Fiji, Fiji fisheries laws

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.

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Seabed Mining in the Pacific Ocean: To mine or not to mine?  Exploring the legal rights and implications for Pacific Island Countries

Oct 4, 2018 / by James Sloan posted in Oceans Law, Sovereignty, Environmental Impact Assessments, Fiji commercial lawyers, Law of the Sea Convention, Pacific Blue Economy, Blue Economy, Pacific Island Rights, Large Ocean States, UN Oceans, Seabed Mining, Oceans Governance, Deep Seabed Mining, Pacific Ocean, Precautionary Principle

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.

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