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Ocean Law Bulletins

James Sloan


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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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Marine Pollution in the Pacific Ocean - The International Legal Framework - how it works and its challenges for Pacific Island Countries

Sep 16, 2018 / by James Sloan posted in Marine Conservation, Forum Fisheries Agency, Environmental Impact Assessments, fisheries law, marine pollution from shipping, Fiji Environmental law, Law of the Sea Convention, Sovereign Rights, Integrated Oceans Management Pacific, Marine Spatial Planning Pacific, Pacific Ocean Rights, Blue Economy, Raising Pacific Voices, Pacific Island Rights, Large Ocean States, Marine Pollution, UN Oceans

Pollution of the oceans and marine environment is an important issue for Pacific Island Countries (PICs) because it damages natural resources, reduces the economic value of PICs' legal rights to those resources, and negatively impacts fishing communities as well as income generating activities like tourism.

A significant challenge is that marine pollution comes from many sources and most of those sources are land based, including but not limited to, careless discard of plastics. For more information on plastic pollution in the Pacific ocean please see here

This legal bulletin examines the overall international legal framework for the protection and preservation of the marine environment set out in the the 1982 United Nations Law of the Sea Convention (LOSC) and suggests other actions that PICs, regional organisations, and CSOs may take in accordance with LOSC to address marine pollution in the Pacific ocean.

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Pacific Ocean Legal Rights: The implications for a Pacific Blue Economy, the importance of Integrated Oceans Management and the vital role of Civil Society Organisations

Sep 5, 2018 / by James Sloan posted in Oceans Law, UNCLOS, International Law, Maritime boundaries, Sovereignty, Integrated Oceans Management Policy, Law of the Sea Convention, Sovereign Rights, Integrated Oceans Management Pacific, Marine Spatial Planning Pacific, Pacific Ocean Rights, traditional rights, Pacific Blue Economy, Blue Economy, Raising Pacific Voices, Oxfam in the Pacific, Pacific Island Rights, Large Ocean States

Pacific Island Countries (PICs) have legal rights to and within enormous ocean areas. These legal rights are, to a large extent, provided by operation of international law and are codified in the 1982 Law of the Sea Convention (LOSC).

The LOSC is often referred to as a “Constitution for the Oceans” because, amongst other things, it sets out and regulates the recognised legal rights that the international community agree that all nations have on or in the ocean to undertake or benefit from various activities that include but are not limited to navigation, fishing and other extractive industry. The LOSC also allocates the legal rights to PICs over and within ocean “zones” that includes the large Exclusive Economic Zones (EEZs). However, fisheries and marine scientists suggest that the sustainable use and management of the PICs’ valuable marine resources can only be achieved by Integrated Oceans Management based on eco-systems and not ocean zones.

In this legal bulletin we set out why the Pacific Island Countries have sufficient legal rights to build and implement effective oceans integrated management systems to support the development of their national and regional blue economies in a way that best suits them and based on an ecosystems approach. However, to meet good governance outcomes (successful, equitable, sustainable) those management systems must be suited to the context of PICs which means that the collective process to create those systems must be inclusive, practical and carefully undertaken.

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Fiji's Minister for Fisheries has created two new Marine Reserves with Regulations made under powers conferred by section 9 of the Fisheries Act, 1941

Jan 30, 2018 / by James Sloan posted in Marine Protected Areas, Fiji fisheries, Fisheries Act, Traditional fishing rights, Inshore fisheries, administrative law, Environmental decision making, Fiji law

On, Friday, 19th January 2018 by Legal Notices No. 3 and No. 4 the Honourable Minister for Fisheries exercised his powers pursuant to section 9 of the Fisheries Act, Cap 158 (Fisheries Act) to create two new marine reserves in inshore areas within Fiji’s fisheries waters.

The creation of the marine reserves has been by way of Regulations that are cited as:

Fisheries (Kiuva Marine Reserve) Regulations 2018
Fisheries (Naiqoro Passage Spawning Aggregation Marine Reserve) Regulations 2018.

In this legal bulletin we set out the powers that section 9 of the Fisheries Act provides to the Minister for Fisheries to create and declare marine reserves via Regulations. We also expand on the effect of these new Regulations that have been brought into force by being published (gazetted) in Fiji’s Government Gazette.

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Fiji’s natural resources: governance and decision-making, the importance of participating

Jan 10, 2018 / by James Sloan posted in Traditional fishing rights, Fiji Oceans, environmental law, The Environment Management Act, Fiji's Constitution, Environmental governance, Environmental decision making, EIA, Environmental Impact Assessments

Fiji is a common law jurisdiction and a constitutional democracy that guarantees its citizens the right to a clean and healthy environment.

Fiji's Constitution and environmental laws also guarantee the rights of those concerned by any development that may have a significant impact on the environment to participate in the decision-making process. 

In this bulletin we consider how those who are concerned may exercise their rights to participate in decisions that will ultimately assist Fiji, its government and people better safeguard the environment, ocean and natural resources that are so vital for its economy and well being. 

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The Forum Fisheries Agency has considered how to improve working conditions in commercial fishing

Oct 25, 2017 / by James Sloan posted in Oceans Law, human rights at sea, Flags of convenience, UNCLOS, Commercial fishing, ILO Convention c188, Crewing conditions on Commercial Fishing vessels, Forum Fisheries Agency

Between 9-12 October 2017, the Forum Fisheries Agency hosted a Crewing Workshop in Honiara, Solomon Islands to discuss how to increase the benefits to Pacific Island economies from their fisheries resources. The Crewing Workshop addressed 2 questions:

  1. How to promote Pacific Islander crewing and increase Pacific Islander crew numbers on fishing vessels.
  2. How to develop and ensure minimum employment standards for any Pacific Islander fishing crew employed in the commercial fishing industry.

These questions were considered over 4 days by Government officials, training school representatives and private sector representatives from Fiji, Federated States of Micronesia, Kiribati, Marshall Islands, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. This bulletin sets out the complex legal and governance challenges and the outcomes from the FFA workshop.

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Oceans and Climate Change: how can Pacific Islands rise to the challenge?

Oct 23, 2017 / by James Sloan posted in Oceans Law, Pacific, Fiji mangroves, Marine Protected Areas, UNCLOS, climate change, Maritime boundaries, Marine Conservation

The Pacific Island States have a moral authority to call on developed and developing States to curb their CO2 emissions which are the main cause of Climate Change. This is a message that Fiji will, on behalf of the people of the Pacific, lead with when it co-hosts COP23 in Bonn, Germany in November 2017.

In facing the unprecedented challenge of climate change Pacific Island States are also clear about what they want. This includes:

  • The global temperature rise stays below 1.5 degrees celsius
  • Healthy oceans with functioning ecosystems to enable the oceans to continue to capture CO2
  • Meeting the adaptation challenges in coastal areas and on low lying atolls
  • Climate financing for oceans/fisheries projects that promote sustainable use of resources and the return of a fair income from the sustainable harvesting of these resources to Pacific Island economies
  • Innovative solutions to reduce the pollution and CO2 from the maritime shipping industry.

In this bulletin we address 3 specific ocean issues that represent part of how Pacific Islands can rise to the challenges of Climate Change and also illustrate why law and governance is integral to meeting the challenges. The 3 ocean issues are:

  • Legal rights to ocean spaces
  • Mangroves
  • Marine Protected Areas
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The legal framework for effective Marine Protected Areas in Fiji - the Fiji Environmental Law Association's latest publication

Sep 14, 2017 / by James Sloan posted in Marine Protected Areas, Fiji fisheries, Fisheries Act, Fiji Oceans, fisheries management, administrative law

The Fiji government has made a bold commitment to designate marine protected areas (MPAs) across 30% of its ocean spaces.

Given the well documented threats to all oceans and their resources it is a natural response to create protected areas that restrict the use of certain areas of ocean. The aims for greater protection may be varied and include to protect areas or species of special scientific interest, to preserve bio-diversity, for fisheries management reasons including for food security or to promote resilience to natural disasters and counter the effects of climate change. However, MPAs are designed to restrict the way a designated area of ocean is used, and because of this the designation of a MPA may alter, restrict, reduce, or remove pre-existing rights and commercial interests to use the marine area subject to the designation. As such the creation of MPAs may raise ethical questions and will definitely raise legal questions particularly in the area of administrative law. Last February we published this bulletin that looked at the designation of MPAs from an administrative law perspective.

In September 2017, the Fiji Environmental Law Association (FELA) together with EDO NSW and the University of the South Pacific (USP) has added to the MPA discussion through a study that considers the existing legal framework in Fiji for the creation of MPAs. This study is entitled “Towards an Effective Legal Framework for Marine Protected Areas In Fiji - a Policy and Law Discussion Paper” (ISBN 975-982-01-0965-0), and available now from the USP bookshop.

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The Fiji Environmental Law Association has published a paper that discusses Fiji's path towards Integrated Oceans Management

Sep 10, 2017 / by James Sloan posted in Oceans Law, Integrated Oceans Management Policy, Fiji Oceans

Fiji, like other Pacific Island States, is blessed with large areas of ocean space that contain important and wondrous natural resources. To manage its ocean (60 times larger than Fiji's landmass) is more important than ever given the numerous challenges that our oceans face.

In support of good management, due process and planned decision making the Fiji Environmental Law Association (FELA) together with EDO NSW and the University of the South Pacific (USP) has just published a policy and law scoping paper entitled "Towards an Integrated Ocean Management Policy for Fiji" (ISBN 978-982-01-0964-3) and on sale at the USP bookshop.

It is hoped that this scoping paper will assist Fiji draft its National Oceans Policy Framework and also support an exciting pathway for Fiji to create its own Integrated Oceans Management Policy (IOM Policy) that is adapted to Fiji's legal and governance context.

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