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Ocean Law Bulletins

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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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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Human rights abuses and poor working conditions in the offshore fishing industry call for fundamental changes in international, regional and national governance

Jan 10, 2019 / by Francisco Blaha and James Sloan posted in Oceans Law, human rights at sea, Flags of convenience, Labour standards at sea, human rights abuses at sea, UNCLOS, Sovereignty, ILO Convention c188, Crewing conditions on Commercial Fishing vessels, Forum Fisheries Agency, fisheries law, Law of the Sea Convention, Pacific Island Rights, UN Oceans, Oceans Governance, Pacific Ocean, Tuna fisheries, WCPFC

The international awareness of inequitable and often inhumane working conditions in the offshore fishing industry has increased in recent years.

Unfortunately, it has reached a point where offshore fishing is an industry that has become synonymous with poor working conditions and human rights abuses when compared with other ocean industries like shipping. This is because the activity of fishing itself takes place outside of the legal jurisdiction of any nation State, on the “high seas” and within EEZs where no State has sovereignty to make and enforce laws. In effect it is an industry where bad players can get away with being unregulated and through the regime of flag State registration effectively claim "immunity" from legal oversight in relation to working conditions. This is not to say all offshore fishing vessel operators are bad players but those fishing vessel operators who do want to comply with good employment standards do not compete on a "level playing field".

The awareness raised by civil society organisations (CSOs) and stakeholders has led to various recent developments, including the development of a specific International Labour Organisation Convention (“ILO”) (Work in Fishing Convention, 2007 (No. 188)) (“C-188”). C-188 entered into force in November 2017.

Six months ago, in Cape Town, South Africa, the provisions of C-188 were brought to bear by South African authorities against a foreign owned fishing vessel (a link to ILO’s report on this story can be found here).

The problem of unregulated labour standards in offshore fishing exists because some flag States who do have the legal jurisdiction to enforce labour standards on vessels on the high seas that are registered to that flag State lack the ability or willingness to regulate offshore fishing vessels that "fly their flag". Effective and universal flag State regulation is an issue of oceans governance and this is same issue that underpins Illegal, Unreported and Unregulated (“IUU”) fishing on the high seas and within coastal States’ EEZs. Solving this ocean governance issue in the fishing industry would likely lead to direct benefits for Pacific Island States both because employment opportunities would improve for Pacific Islanders and because those fishing vessels that are well regulated are more likely to comply with conservation and management measures put in place to protect the Pacific’s essential fish stocks.

In this extended legal bulletin we summarise the international law problem of unregulated labour standards in the offshore fishing industry and consider recent efforts that provide steps in the right direction to bring an end to a shameful problem that should no longer be tolerated in the 21st century. After all, as things stand, on the high seas (areas beyond national jurisdiction) the transportation of slaves by sea is an international crime and is regulated by the law of the sea framework. Contrast this with forced/slave labour and human rights abuses on people “employed” on fishing vessels in the same areas of ocean, and who fall outside any effective regulatory law of the sea framework and as a consequence find themselves outside the reach and protection of the law. To change this may require an overdue shift in general international consensus to amend the current law of the sea and governance framework. 

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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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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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Submerged States and the legal rights at risk

Mar 30, 2017 / by Kevin Chand and James Sloan posted in Oceans Law, Human Rights, Pacific, UNCLOS, International Law, Maritime boundaries, Sovereignty

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.

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