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:
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 FFA - value of tuna stocks - aims of the FFA
The Forum Fisheries Agency is established by treaty and represents the interests of its 17 Member States in the Pacific that together hold the rights to harvest the World's last remaining healthy stock of tuna as well as other fish species and mineral resources. The annual landings of tuna from the Pacific alone are valued in the USD billions and have been estimated to be worth up to USD20 billion
The vision and aim of the FFA is to encourage sustainable management of its Member States' valuable fisheries resources, collaboration between Member States and to maximise the economic benefits flowing back to their economies.
The legal and practical challenges
If more Pacific Island crew are employed in the commercial fishing industry it should deliver meaningful economic benefit back to the Pacific Island economies.
However, the FFA and its Member States do not want to compromise the safety, or working conditions, of Pacific Islanders and they are acutely aware that the commercial fishing industry provides difficult and potentially hazardous working conditions. There are also complex legal challenges around regulating and enforcing minimum employment standards.
It is the nature of commercial fishing and in particular where it takes place that creates the complex legal challenges. This is because the commercial fishing in question takes place in FFA Member States' Exclusive Economic Zones (EEZs) where Pacific Islands have certain prescribed sovereign and exclusive rights but do not have territorial sovereignty.
The sovereign and exclusive right of FFA Member States to harvest fish from their claimed EEZs is bestowed by operation of International Law and is a right recorded in Article 56 of the UN Convention on the Law of Sea (UNCLOS). In accordance with the Law of the Sea, the Coastal State (the State that has claimed the EEZ), has a duty to manage the fish stocks within its EEZ and if it cannot capture the fish stocks up to the Optimum Sustainable Yield (OSY) it must permit "foreign" fishing vessels to harvest those fish. The permission to access and harvest EEZ fisheries may be subject to conditions including a licence fee and the type of fish that may be caught, and how many. It is the licence fee that provides much needed sources of revenue to Pacific Island/Coastal States.
While Coastal States can regulate the fishing activity within their EEZs (Art. 56 of UNCLOS, provides the exclusive right to "exploit, conserve and manage" those resources), this right does not, in the absence of the express agreement by the licensed foreign fisher, enable the Coastal State to impose the Coastal State's employment law standards onto the foreign fishing vessel. In fact, pursuant to UNCLOS foreign fishing vessels have their own rights including the right to freedom of the seas, and to fish without conditions on the high seas and are ultimately regulated by the foreign fishing vessel's Flag State. The complexities all arise because EEZ's are not part of Coastal State's territories and the following further points must also be considered to understand the context:
It should be remembered that these legal challenges (set out above) only arise when the Coastal State grants a fishing licence to a fishing vessel flagged to another State. Australia and New Zealand have both adopted innovative but different solutions to address these legal challenges that enable Australia and NZ to regulate all fishing vessels within their respective EEZs.
In Australia's case the capacity of their domestic commercial fishing fleet is such that it is able to fish up to the Optimum Sustainable Yield (OSY) within its EEZ and therefore Australia is not obliged to, and does not, provide licences to foreign flagged vessels within its EEZ. This means that commercial fishing vessels in Australia's EEZ are flagged to Australia and as the Flag State, Australia is able to apply and enforce Australian law including employment standards.
New Zealand's approach is perhaps more radical still as it has enacted specific legislation that requires all foreign flagged commercial fishing vessels who want to fish in the NZ EEZ to reflag their vessel to New Zealand (register in NZ). This approach forces all commercial fishing vessels regardless of ownership of the vessel to register in and submit to the NZ jurisdiction, thus enabling NZ to apply and enforce NZ employment/labour and health and safety standards (amongst others).
Further, it should be remembered these legal challenges relating to regulating employment standards do not arise where the commercial fishing vessel is flagged to the Coastal State that enjoys the sovereign rights in its EEZ.
The Outcomes from the FFA Crewing Workshop
The overall aim of the FFA Crewing Workshop was to consider the legal and practical challenges of securing more employment for Pacific Island crew and to determine the best next steps to encourage more employment and decent minimum working conditions.
The particular points that the Crewing Workshop noted included:
The FFA Crewing Workshop also considered updates from both FFA Member government representatives and industry representatives that attended. Some common themes that emerged from this included:
In terms of possible next steps, the FFA Crewing Workshop expressly considered developing Draft Labour/Employment Standards as these would assist by setting out a regionally agreed international standard and considered that the following should be recommended:
The Crewing Workshop made some practical recommendations relating to employment contracts for Pacific Island Crew and. amongst other things, considered that the contract of employment should:
The FFA Crewing Workshop recommended that regionally agreed minimum terms and conditions (MTCs) for licensing of commercial fishing vessels to fish within a FFA Member EEZ be developed. These regionally agreed MTCs would, amongst other things: only apply to Pacific Island crew, be a condition of the access/licence, should comply with the ILO Work in Fishing Convention (c-188), include details relating to how Pacific Island crew are tracked and monitored and provide a regionally agreed minimum set of standards.
In its wrapping up the participants of the FFA Crewing Workshop recognised the excellent coordination and facilities offered by the FFA and noted that further work is needed to collect more information relating to current Pacific Island crewing in the region, and national profiles should be developed for crewing activities.
Conclusions
It is correct that FFA Member States should receive a fair proportion of the revenue from their exclusive harvesting rights that they have in their EEZs. There is also a link between fishing vessels that want to comply with regulatory standards and a reduction in IUU fishing. However, the sovereign rights to harvest come with duties, limits and responsibilities that present complex legal challenges to requiring the employment of more Pacific Island crew and regulating and enforcing good working conditions for those Pacific Island crew.
It is becoming increasingly apparent that controlling access to the valuable fisheries of the FFA Member States provides leverage to require compliance with fisheries laws that are aimed at sustainable management and good governance.
In accordance with the Law of the Sea and national legislation across the FFA Member States, fishing licences and conditions may also be imposed in return for access to fish. The outcomes of the FFA Crewing Workshop indicate that in the near future FFA Member States may also negotiate better and more meaningful employment for Pacific Island crew as part of the lawful conditions to access and harvest fisheries resources over which FFA Member States enjoy the exclusive sovereign rights to "exploit, conserve and manage".
Fish on sale in Honiara Market, October, 2017
Please note that this bulletin provides only a summary of the FFA Crewing Workshop, its outcomes, discussions and agreements, and the author's views are his own and he does not speak on behalf of the FFA or any FFA Member State. If more information is required regarding the FFA Crewing Workshop and its outcomes please contact Mr Len Rodwell: leonard.rodwell@ffa.int
Please further note:
This legal bulletin is provided for general information purposes only and it is not, and should not be relied on as, legal advice.