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Ocean Law Bulletins

Oceans Governance: The Class of 2020 provide promise for the Pacific region

Jul 28, 2020 / by Siwatibau & Sloan posted in Oceans Law, Pacific, National Fisheries Policy, Marine Protected Areas, Parties to the Nauru Agreement, Environmental Management Act 2005, UNCLOS, International Law, Commercial fishing, Integrated Oceans Management Policy, Forum Fisheries Agency, Environmental governance, Environmental decision making, Environmental Impact Assessments, Law of the Sea Convention, Sovereign Rights, Integrated Oceans Management Pacific, Pacific Ocean Rights, traditional rights, Pacific Blue Economy, Pacific Island Rights, Large Ocean States, Marine Pollution, UN Oceans, Seabed Mining, Oceans Governance, Pacific Ocean, Precautionary Principle, School of Marine Studies, Tuna Management Pacific, TuvaluExperts, TuvaluNationalOceanPolicy, OceansPolicy

Oceans Governance is a 3rd year undergraduate course offered by the School of Marine Studies, within the University of the South Pacific (USP).

Oceans Governance attracts a number of motivated students from a variety of Pacific Island Countries who frequently bring years of professional work experience to compliment their future careers as marine managers and decision makers. Oceans Governance complements the 2nd year undergraduate course in “Law of the Sea”. Both courses are designed by the highly regarded law of the sea and fisheries legal expert, Mr Pio Manoa who is currently working with the Forum Fisheries Agency.

While our firm has been privileged to coordinate and teach Oceans Governance and Law of the Sea for the last 3 years - to reflect the multi-disciplinary nature and broad topic that is Oceans Governance - a variety of guest lecturers have complimented the course. As well as adding interest and providing inspirational talks for the students this demonstrates the depth of knowledge and expertise in the Pacific. In this brief overview of the course we draw specific attention to the expertise of the visiting lecturers and the efforts made by the talented students of USP and how we think this bodes well for the Pacific region in the future.

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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 Inshore Fisheries Management: commitment to conserve grouper and sea cucumber leads to amendments to Fiji’s Offshore Fisheries Management Regulation

Jun 14, 2019 / by Emily Samuela and James Sloan posted in Oceans Law, Beche de mer, Fiji fisheries, Fisheries Act, Underwater breathing apparatus, Marine Conservation, Inshore fisheries, Fiji Oceans, Nearshore Fiji fisheries, Fiji Fisheries Regulations, fisheries law, Sovereign Rights, Integrated Oceans Management Pacific, Pacific Blue Economy, Oceans Governance, Ministry of Fisheries Fiji, Inshore Fisheries Management Division Fiji, Fiji fisheries laws, School of Marine Studies, University of the South Pacific

On Wednesday, 12 June 2019, by Legal Notice No. 32 ("Legal Notice"), the Minister of Fisheries in exercise of his powers amended the Offshore Fisheries Management Regulations 2014 and introduced seasonal bans of species of sea cucumbers, groupers and coral trout with effect from 1 June 2019.

The exercise of the Honourable Minister of Fisheries' powers reflects the growing public concern for the health and sustainability of Fiji's inshore fisheries, the ongoing success of Fiji's 4FJ public awareness campaign and the commitment and vision of Fiji's Ministry of Fisheries working with various NGOs and academics to take action to conserve and manage Fiji's vital fisheries resources for future generations in line with Fiji's commitments to the United Nations Ocean Conference.

In this bulletin, we set out the amendments to the law that are now in force, and briefly discuss the factors that have led to the implementation of this conservation initiative.

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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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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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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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