Ocean Law Bulletins

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.

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

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.

In a previously published legal bulletin we discussed Biodiversity on the high seas, and the increasingly recognized need for an international legally binding instrument (ILBI) to regulate biodiversity in Areas Beyond National Jurisdiction (ABNJ). Recently, progress towards the ILBI came in the way of the third session of the preparatory committee on Marine Biodiversity in Areas Beyond National Jurisdiction (PrepCom 3).

PrepCom 3 was held at the United Nations headquarters in New York from March 27 to April 7. I had the good fortune to observe proceedings as an observer through an invite from a New York City based non-profit that supports small islands developing states permanent missions to the UN in oceans and climate change negotiations.

In this bulletin, we set out how PrepCom 3 fleshed out discussions on what the main elements of the treaty would be. This included inter alia, Marine Genetic Resources, Area-Based Management Tools, Environmental Impact Assessments, Capacity Building and Technology Transfer. These substantive areas of discussion form what will be the core elements of the treaty body and address some of the primary issues faced with respect to high seas regulation and management (or lack thereof). The lack of any cohesive form of regulation on the high seas means that these parts of the ocean are often subject to unchecked resource exploitation. Coming to a consensus on how this treaty is framed and articulated is one of the first steps towards an ILBI.

Climate change and its impacts are one of the greatest environmental problems of today and its effects include, inter alia, changing climate patterns, warming ocean temperatures, melting glaciers and ice caps, and sea level rise. These impacts while felt globally are disproportionately distributed. Low lying island States are particularly vulnerable with Pacific Islands like the Marshall Islands, Tuvalu and Kiribati facing uncertain futures because of the very real threat of sea level rise submerging their land territory (inundation). As well as the threatened loss of their homes, extinction of their cultures and the unwelcome prospect of becoming climate change refugees, they also face the consequence of losing their rights of sovereignty in International law.

In this piece we examine the unresolved question of whether States threatened with inundation may also lose their claim to their maritime zones and associated legal rights. We consider whether the international climate change regime has provisions that address this threat and briefly look at the limited opportunities for recourse under the present system and suggest an amendment to UNCLOS may be necessary to guarantee the rights of States threatened with the terrifying prospect of inundation.

In November 2016, the Moroccan city of Marrakech hosted the 22nd Conference of the Parties (COP 22) under the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC provides the foundation for international cooperation to combat climate change and its impacts on nations and the environment. Both the Kyoto Protocol and the Paris Agreement sit within this framework. The Conference of the Parties serve as formal meetings for parties to the UNFCCC where member nations can take stock of their progress, monitor the implementation of their obligations and continue discussions on how best to tackle climate change. Marrakech also served as the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1). Marrakech followed COP 21 in Paris, which culminated in the much-lauded Paris Agreement. Marrakech was seen as the opportunity to tie up loose ends and finalize details for implementation of the Paris Agreement.

In this bulletin we examine why climate change is an important legal issue for oceans, and provide an overview of the significant achievement of COP 21 in Paries, what happened in Marrakech and look forward to the opportunities and challenges at COP 23 in Bonn where Fiji will take a leading role and at what is being dubbed as "the Pacific COP".

Despite the attention of Fiji’s lawmakers, up until 2014 the humphead wrasse has not received full legal protection from being killed or captured in Fiji waters.

In this bulletin we briefly explore the legal protection that has been provided to the humphead wrasse and set out how the introduction of the Offshore Fisheries Management Decree and Regulations is a “game changer” for all fish species listed in Appendix I and II of CITES.

Inshore fisheries law and governance is a complex topic that requires consideration of Fiji’s unique culture and historical background. In this overview we consider the evolution of Fiji’s inshore fisheries law and governance context, as understanding it is an important tool in the management of Fiji’s inshore fisheries . We aim to describe this rich nuanced system that is based on a balance of customary rights and centralized regulation.

This is a summary of a presentation provided to the Fiji Environmental Law Association and the Department of Fisheries, Coastal Fisheries Management Legal Development Forum held at the Tanoa Hotel, Suva 10-12 February 2016.

Areas beyond national jurisdiction (ABNJ) includes the High Seas, which accounts for approximately 64% of the world’s ocean, and the deep seabed beyond national jurisdiction. In the High Seas no State has jurisdiction, meaning individual States have no management rights, and activities in this area with respect to marine biodiversity remain largely unregulated.

While there are some regional management plans that exist on the High Seas, these are often restricted to certain species or industries and ultimately result in an ad hoc and overall, poorly managed ocean. Overexploitation of fish stocks, increasing marine pollution, and habitat destruction, together with the impacts of climate change and ocean acidification mean that now more than ever there is an urgent need to protect larger expanses of the ocean particularly the High Seas.

In this bulletin we look at the efforts of the international community through the United Nations, as it attempts to regulate the High Seas through international law mechanisms. 

Sharks are renowned apex predators in the ecosystems they occupy and therefore play an important regulatory role in maintaining the health and balance in an ocean ecosystem. Sharks primarily prey on the weak and sick in other marine species and this helps in both strengthening genepools and preventing the spread of disease in prey species. This grooming of other species is an important function in the intricate ocean food webs and one of the reasons why sharks are considered keystone species by some marine scientists, meaning that their removal could cause a collapse of these systems. This role is particularly important in vulnerable ecosystems like coral reefs.

In this bulletin we briefly consider the Fiji legislation that protects sharks in Fiji's waters and suggest that an integrated approach to protecting sharks in line with a National Plan of Action may be required.