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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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A National Oceans Policy for Tuvalu: 3 experts consider the process to get there

Jul 21, 2020 / by Scott Pelesala I Maani Petaia I Onosai Takataka posted in Oceans Law, Pacific Ocean Rights, Pacific Blue Economy, Pacific Island Rights, Oceans Governance, Pacific Ocean, United Nations, Pacific Island Fisheries, Tuvalu, TuvaluExperts, TuvaluNationalOceanPolicy, OceansPolicy

At present, Tuvalu does not have a national ocean policy that unites Tuvaluans and the Government towards implementing a shared vision and aims for its ocean and resources. The need for a national ocean policy arises due to the importance of the ocean and its resources to Tuvaluans in terms of culture, food, and economy[1], the wide variety of ocean uses, and the need to protect and sustainably manage Tuvalu’s natural resources in an integrated way[2].

In this report the authors review Tuvalu’s governance context, the laws and policies that presently exist and explain why a national ocean policy is needed. The authors set out the sort of process that they think is suited to Tuvalu culture and the Tuvalu context and why they are hopeful that from this process there should emerge a way to create coordination across government and all sectors of Tuvalu society for the benefit of all Tuvaluans and Tuvalu’s ocean and the health of its resources.

The authors believe it is not enough for Tuvalu to have a well written National Ocean Policy, if it is not implemented and owned by the Tuvaluan people. This means the process to create the ocean policy must be locally driven with procedures for inclusive and respectful consultation. This is to ensure that the moralities and legitimacy of an integrated ocean policy are created along with the national ocean policy.

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Fiji’s first National Ocean Policy Analysis and Submission

May 21, 2020 / by James Sloan, Kevin Chand and Emily Samuela posted in Oceans Law, Environmental governance, Environmental decision making, Fiji lawyers, Pacific Blue Economy, Oceans Governance, Fiji National Ocean Policy, Fiji Blue Economy

On 12 May 2020, Fiji’s Ministry of Economy[1] published a working draft of Fiji's first National Ocean Policy (NOP) and opened it up for public consultation. The period of public consultation will end on 25 May 2020. [Editor's note: our firm made its submission on 24 May 2020 and amongst other submissions, we respectfully submitted, in accordance with our analysis below that extending the time to consult on the draft NOP beyond 25 May 2020 would be welcome.

The NOP represents a step forward for Fiji’s ocean governance in that it endeavours to consolidate ocean initiatives through its aim to increase integration between Fiji government Ministries[2]. As the NOP explains Fiji is blessed with large areas of ocean and marine resources that it has both rights to use but responsibility to manage. These ocean areas accommodate numerous and sometimes competing uses and may be adversely impacted by a range of development activities that are regulated by different government Ministries or Departments. National oceans governance is therefore notoriously difficult unless there is a single vision or policy that commits all of government to follow and implement in an integrated way. 

As a small group of Fijian and Fiji-based lawyers, with an interest in law of the sea, oceans governance, traditional rights, and Fiji’s unique law and governance system we provide our analysis of the draft NOP and provide some respectful suggestions for consideration as part of the important consultation process. We note at the outset that we fully support this initiative by the Fiji government and are pleased that this process is being locally driven.

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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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Fiji fisheries law update: Ban on importation and exportation of shark fins and live coral

Jul 15, 2019 / by Emily Samuela posted in Oceans Law, Sovereignty, Inshore fisheries, Fiji Oceans, fisheries management, fisheries law, UN Oceans, Oceans Governance, Precautionary Principle, Fiji Sharks, Ministry of Fisheries Fiji, Inshore Fisheries Management Division Fiji, Fiji fisheries laws

The importance of healthy sharks, and coastal marine ecosystems, to Fiji’s economy has been recognised by the Ministry of Fisheries and the Fiji government via new customs laws that have expanded the list of banned imports and exports to include shark fins and live coral.

The importation into Fiji of any goods specified in Schedule 1 of the Customs (Prohibited Imports and Exports) Regulations 1986 is illegal. On Friday, 7 June 2019, by Legal Notice No. 31, the Honourable Minister exercised powers pursuant to section 64 of the Customs Act and expanded the list of Prohibited Imports and Exports in Schedule 1 to include shark fins and live coral.

In this legal bulletin we provide a brief update on what this means for the import and export of shark fin.

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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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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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Strengthening Fiji's laws to protect sharks and other important species

Apr 1, 2019 / by James Sloan and Emily Samuela posted in Sharks, Inshore fisheries, Illegal fishing in Fiji's nearshore waters, Fiji Fisheries Regulations, Oceans Governance, Fiji Sharks, Ministry of Fisheries Fiji, Inshore Fisheries Management Division Fiji, Fiji fisheries laws

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”.

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