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Tuna management and UNCLOS : implementation of UNCLOS through the Forum Fisheries Agency Aqorau, Transform 1990

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T U N A MANAGEMENT AND UNCLOS: IMPLEMENTATION OF UNCLOS T H R O U G H T H E FORUM FISHERIES AGENCY By TRANSFORM AQORAU LL.B The University of Papua New Guinea, 1987 L L . M The University of British Columbia, 1990  A THESIS SUBMITTED IN PARTIAL F U L F I L M E N T T H E REQUIREMENTS FOR T H E D E G R E E OF MASTER OF LAWS in T H E F A C U L T Y OF G R A D U A T E STUDIES ( F A C U L T Y OF LAW)  We accept this thesis as conforming to the required standard.  T H E UNIVERSITY OF BRITISH COLUMBIA July 1990 (g) Transform Aqorau, 1990  OF  In presenting this thesis  in partial fulfilment of the requirements for an advanced  degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. 1 further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department  or  by his or  her  representatives.  It  is  understood  that  copying or  publication of this thesis for financial gain shall not be allowed without my written permission.  Department of The University of British Columbia Vancouver, Canada  DE-6 (2/88)  ii  ABSTRACT  Regional organisations have often played a cataiytical role in developing regional  ocean  regimes  that  directly  circumstances of a given region.  pertain  to  the  peculiar  needs  and  As a response to the challenges imposed by the  United Nations Convention on the Law of the Sea, the island States of the South Pacific region established the South Pacific Forum Fisheries Agency, with the specific mandate to assist them manage the enormous tuna resource of the region. The thesis seeks to ascertain the extent to which those needs have been satisfied. The thesis begins with the hypothesis that the Forum Fisheries Agency has in fact fulfilled those needs.  The analysis is based on inferences which are drawn  from the functions and responsibilities of the Forum Fisheries Agency, and certain significant legal developments it has helped spawn.  The thesis does not engage in  a cost/benefit evaluation of the Forum Fisheries Agency because that is an issue best left to the purview of individual member States to determine. Two conclusions are drawn from the analysis. Agency has met the needs of the island States. Fisheries  Agency,  the  island  States  Convention on the Law of the Sea.  are  First, the Forum Fisheries  Secondly, through the Forum  implementing  the  United  Nations  iii  T A B L E OF CONTENTS  Page TABLES  vi  FIGURES  vii  INTRODUCTION  , i.x  C H A P T E R I: A. B. C. D. E. F.  T H E S O U T H PACIFIC REGION Culture Geography Economy Politics Tuna Resource Rationale for Regional Cooperation  C H A P T E R II: A. B. C.  D.  T H E E X C L U S I V E ECONOMIC Z O N E (EEZ) South Pacific States (SPSs) Interests in the E E Z History of the E E Z Legal Status of the E E Z (1) General Scope of Authority (2) Determination of Allowable Catch (3) Promotion of Optimum Utilization (4) Highly Migratory Species (HMSs) Impact of the E E Z Regime on SPSs  C H A P T E R III: A. B.  M A N A G E M E N T OF T U N A IN T H E S O U T H PACIFIC  Management Goals of SPSs International Law of Fisheries (1) Coastal States Do Not Have Sovereign Rights Over HMSs (2) Coastal States Have Sovereign Rights Over HMSs  1 2 5 9 14 17 21 25 26 30 41 42 45 47 50 52 55 58 62 65 67  iv  C. D.  E.  (3) International Law Scientific Research in the South Pacific Management of Tuna Through Access Agreements (1) Nauru Agreement (2) Implementing Arrangements (2.1) Regional Register (2.2) Minimum Terms and Conditions (3) Bilateral Access Agreements (4) Multilateral Access Agreements (4.1) Multilateral Fisheries Treaty (4.2) Driftnet Fishing Convention Management by Domestic Legislation  C H A P T E R IV: A. B.  C. D.  E. F. G. C H A P T E R V: A. B.  MECHANISMS FOR REGIME BUILDING IN T H E S O U T H PACIFIC  Nature of Regional Cooperation in the South Pacific South Pacific Commission (SPC) (1) Structure of the SPC (2) The South Pacific Conference (3) Committee of Representatives of Governments and Administration (CRGA) (4) The Secretariat (5) Tuna and Billfish Assessment Programme The Growth of Endogenous Organizations (1) Pacific Islanders Producers Association (PIPA) The South Pacific Forum (SPF) (1) The Forum Secretariat (FS) (2) Functions of the Committee (3) Functions of the Secretariat (4) Major Activities of the SPF The South Pacific Nuclear Free Zone Treaty (SPNFZ) The Convention for the Protection of the Natural Resources and Environment of the South Pacific (SPREP) Contemporary Perspectives  68 72 75 77 80 80 83 85 87 87 90 93  96 97 98 100 100 102 103 105 106 108 109 112 113 114 116 119 123 125  T H E F O R U M FISHERIES A G E N C Y (FFA)  127  History of the F F A Role of the F F A in Developing a Regional Tuna Management Regime (1) The Preamble (2) The Forum Fisheries Committee (FFC) (3) Functions of the Forum Fisheries Committee (FFC) (4) Functions of the Forum Fisheries Agency (FFA)  128 138 138 142 143 145  V  C.  D.  Major Legal Developments (1) Access Negotiations (2) Harmonization and Coordination (3) Enforcement and Surveillance Meeting the Needs of South Pacific States (SPSs) (1) F F A and Article 56 of UNCLOS (2) F F A and Article 61 of UNCLOS (3) F F A and Article 62 of UNCLOS (4) F F A and Customary International Law  147 148 149 151 153 154 156 158 159  CONCLUSION  163  BIBLIOGRAPHY  167  APPENDIXES  173  vi  LIST OF T A B L E S  Page 1.  T A B L E 1 - INDEPENDENT STATES  2.  T A B L E 2 - T O T A L C A T C H E S OF T U N A A N D T U N A - L I K E SPECIES IN T H E WESTERN PACIFIC  19  3.  T A B L E 3 - T O T A L C A T C H E S IN T H E WESTERN PACIFIC BY SPECIES  20  4.  TABLE 4 -  57  A N N E X I H I G H L Y M I G R A T O R Y SPECIES  8  vn  LIST OF FIGURES  F I G U R E 1 - SPS's E X C L U S I V E ECONOMIC ZONES  ACKNOWLEDGEMENT  The completion and production of this thesis would not have been realised without the  generous  organisations. appreciation  assistance and contribution of  certain  individuals and  It would be so indiscreet of me not to acknowledge with sincere the contribution of the following individuals  and organisations.  Professor Ian Townsend-Gault, Director, Asian Legal Studies Program, UBC, and Adjunct Professor Richard Kyle Paisley, who read the manuscript and provided me with clarity respective  of direction.  recommendations  Mr. Alban Kome and Ms. Dorothy Prince whose enhanced  the  credibility of  my  application  to  undertake graduate studies in Canada. Mr. Phillip Muller, Dr. David Doulman and Ms.  Judith  Swan  encouragement Development  of  and who  the  Forum  Fisheries  enlightenment. provided the  duration of my study in Canada.  The  necessary  Agency  who  International  were Centre  financial support  a  source for  of  Ocean  throughout  the  My friends and colleagues in the Ministry of  Foreign Affairs and the people of the Solomon Islands to whom this work is dedicated.  The inspiration for this work comes from them:  the weaknesses and  flaws are mine and mine alone. Finally, I wish to express my wholehearted and sincere gratitude to my beloved wife, Annette Muiliku Laura for her encouragement and forbearance. can do no more than reaffirm my everloving commitment and love.  I  INTRODUCTION  The United Nations Convention on the Law of the Sea (UNCLOS) has had an enormous impact on the island States of the South Pacific (SPSs). It has enabled them to claim territorial  waters up to a limit of  12 nautical miles, claim a  contiguous zone extending 24 nautical miles, and arguably more significant, it has allowed them to exercise sovereign rights over the living and non-living resources, particularly highly migratory species (HMS) such as tuna, in an exclusive economic zone (EEZ) stretching over an area of 200  nautical miles.  The emergence of  U N C L O S was particularly significant in that no less than 10 SPSs promulgated their liberation from the ties of colonial subjugation during the period between the first Conference to discuss the new regime in 1970 and its signing on 10 December, 1982, at Montego Bay, Jamaica.  This enabled them to claim large areas of ocean  space, and exercise sovereign rights in respect of managing, conserving, exploiting and exploring the living and non-living resources therein. SPSs, the concept  of self-government  and extended  Thus, at least for the  maritime jurisdiction was  intrinsically interwoven virtually from the outset of nationhood. U N C L O S transformed international law governing and regulating fisheries by creating a regime encompassing all facets of the oceans.  It contains various  provisions and obligations governing, amongst other things, the limits of national jurisdiction over ocean space, access to the seas, navigation, protection of the marine  environment,  exploitation  of  living  conservation and marine scientific research.  and  non-living  resources  and  However, as far as the SPSs are  concerned, its most important-innovation is the recognition that coastal States have, within their EEZs, sovereign rights for purposes of managing and conserving and  «x  exploring and exploiting the living and non-living resources therein. Unfortunately, as a legacy of the colonial powers' negligence towards fisheries development and management, practically all SPSs were not in a position to assume their new responsibilities and obligations. The area that had come under their national jurisdiction was indeed large, and, in consequence, their inability to enforce their sovereign rights and manage the fisheries resources therein would effectively have rendered their declarations of EEZs somewhat meaningless. weakness was recognised at the outset. individual  This  Therefore, in order to offset their  vulnerability and susceptability to economic exploitation by large  capital intensive distant water  fishing operations from distant water  fishing  nations (DWFNs), SPSs decided to establish the South Pacific Forum Fisheries Agency (FFA) to assist them manage tuna in their EEZs.  After some initial  ideological differences amongst themselves the F F A was formally established in 1979.  Its formation is significant because it represents a cross-fertilization between  SPSs who at the time were newly independent nations and an emerging order of the ocean, which amongst other things enabled them to expand their territorial and jurisdictional limits. In other words, F F A was formed in response to UNCLOS. F F A has been operating now for 10 years, and hence it is opportune to appraise its operations in order to ascertain whether it has satisfied the region's needs which prompted its formation.  However, the needs of SPSs as defined in  this discussion relate specifically to those that arose as a result of UNCLOS, namely, the need for fisheries information, legislation, enforcement mechanisms and  surveillance measures, etcetera.  In the course of this research, it became  apparent that in meeting those needs, F F A was not only assisting them with a service they were not able to provide themselves, but more importantly, they were implicitly implementing UNCLOS. i  xi  In this regard the basic premise of this thesis is that the F F A is indeed meeting the needs of SPSs, and moreover, in the course of doing so, UNCLOS is also being implemented simultaneously.  This hypothesis may be supported by  inferences drawn from FFA's functions and the various legal developments it has helped spawn which arguably point to the onset of a regional law of the sea.  This  work may be described as an ends/means analysis wherein F F A is the means in which the ends, namely the management of tuna, is achieved. factors  necessitating  the  formation  of  FFA  are,  of  The conditioning  course,  the  need  for  information, the exercise of legal power, enforcement and the administrative costs involved in managing the fishery, etcetera. Chapter I offers a brief description of the region, its geography,  the  economy, politics, the importance of the tuna resource, and advances reasons why the region shows a strong compulsion towards working and doing things in unison. It is intended to give a wider appreciation of the underlying forces that enable the SPSs, in spite of the enormous diversity of the region, to work together. Chapter II discusses and analyses the evolution of the E E Z . It examines the relevant  provisions of UNCLOS, discusses  limitations,  and  articulates  how  these  their ambiguities, points out  different  interpretations  have  their been  reconciled. Chapter III outlines the management of tuna in the region.  Amongst other  things, it discusses the various institutional mechanisms for tuna management, both bilateral and multilateral, examines  their shortcomings and advocates essential  changes to current arrangements. Chapter IV discusses the various mechanisms for regime building in the region, and Chapter V exa-mines  the formation of  F F A , describes  achievements and articulates how it has met the needs of the SPSs.  its  major  1  CHAPTER I  T H E S O U T H PACIFIC REGION  The South Pacific region encompasses a wide area of the Pacific Ocean. 1  Although the region is not geographically defined, for purposes of this discussion, 2  it is generally taken to include those melanesian, micronesian, and Polynesian islands which are members of the South Pacific Forum Fisheries Agency (FFA). As such, the region is composed of the following self-governing States and entities; the Cook Islands, Fiji, Federated States of Micronesia (FSM), Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu and Western Samoa as well as Australia and New Zealand.  The region  covers an area approximately 30 million square kilometres (kms.) of which only 2 3  percent or 551,000 square kms. is land. The South Pacific States (SPSs) are heavily 1.  For a genera] discussion on the South Pacific see, Freeman, W . , Otis (ed.), Geography of the Pacific. John Wiley Si Sons, Inc., London, 1966; King F . P . , (ed.), Oceania and Beyond:  Essays on the Pacific  Since 1945. Greenwood Press, Westport Connecticut, London, 1976. 2.  The term "South Pacific" is a misnomer because it implies a geographic region south of the equator. This is not so because many island States located north of the equator are invariably referred to as being in the South Pacific.  L . Alexander, in "Marine Regionalism in the Southeast Asian Seas", (Eastwest  Environment and Policy Institute Research Rep. No. 11, 1982), defines a region as, an area of the earth's surface differentiated from other features that are not present outside the region.  The distinguishing  criteria for the region may be physical in nature, or represent demographic, economic, political or other elements.  Two major bases for defining the South Pacific as a region are the political and environmental  concerns that are shared by the governments of South Pacific States (SPSs).  See, Morgan, "Marine  Regions and Regionalism in Southeast Asia", 8 Marine Policy 299, 301-02, 1984. T h e SPSs lie mainly in the area bounded by latitudes 23 degrees north and 27 degrees south and longitudes 130 degrees east and 125 degrees west. Exceptions to this are New Zealand, which lies in the Southern temperate zone. The New Encyclopedia Britannica. V o l . 25, 15th edition, 1990 (hereinafter called Britannica).  3.  Although the Pacific Ocean makes up nearly one third of the earth's surface, the SPSs discussed in this thesis add up to a little less than 500,000 square kilometres (1,300,000 square miles) of land area.  2  characterized  by diverse landforms  4  and marked inequalities and contrasts in  physical size, economic prospects and political status.  5  The following discussion provides a background to the region served by the F F A , and sets the context in which regional cooperation has evolved, and continues to develop.  It discusses the various cultural, geographic, economic and political  traits of the region.  These factors are crucial to understanding and appreciating  the context in which regional cooperation has evolved in the South Pacific.  A.  Anthropologists ethnogeographic  have  groups;  CULTURE  generally  classified  the  region  viz., melanesia, micronesia and Polynesia.  into 6  three  Melanesia,  7  (which includes Papua New Guinea, Solomon Islands, Vanuatu and Fiji) is by far 4.  The SPSs may be classified as either continental or oceanic.  The former are associated with the ancient  continental platforms of Asia and Australia, now partially submerged.  Oceanic islands, located eastward  in the deeper Pacific basin, are differentiated as high volcanic-based islands or low coral islands and atolls. A coral island may be single, or two or more coral islets may be part of an atoll if connected by a reef ringing a lagoon.  The "high-low" distinction is misleading as the two types occur in many  combinations, and some coral islands have been elevated considerably by changes in the ocean level. Britannica, supra note 2 at p. 243. 5.  See Neemia, Uentabo Fakaofo, Cooperation and Conflict:  Costs. Benefits and National Interests in  Pacific Cooperation. Institute of Pacific Studies (IPS) of the University of the South Pacific, (USP), Suva, 1986, p. 2. (Hereinafter referred to as Neemia). 6.  For a general discussion of the cultural traits of the South Pacific region see, Crocombe, R., The South Pacific:  A n Introduction. (4th ed.), Longman Paul Limited, Auckland, New Zealand, 1987;  Oliver L .  Douglas, The Pacific Islands (revised ed.), DoubleDay &i Company Inc., N . Y . , 1961. 7.  Melanesia is taken  from  the Greek  words melas  meaning  "black"  and nesos,  meaning "island".  Melanesians are predominantly dark-skinned. For general information on everything from linguistics to archaeology and history of melanesia see, May R . J . & Nelson, Hank (eds.), Melanesia Beyond Diversity. 2 V o l . , (1982).  For an excelle'nt summary, in the light of findings in early history and linguistics Bee,  Chowning A n n , A n Introduction to the Peoples and Culture of Melanesia. 2nd ed. (1977).  3  the  largest  culture  area  accounting  for 98 percent  approximately 84 percent of the population.  of the land area and  Polynesia, (which consists of the 8  Cook Islands, Niue, Tonga, Tuvalu and Western Samoa) constitutes 1.4 percent of the land area and 10 percent  of the population  Micronesia, (comprising of 9  Kiribati, Nauru, Federated States of Micronesia (FSM), Marshall Islands and Palau) constitutes only 0.6 percent of the total land area and 6 percent of the region's population.  However, it is suffice to mention that some territories, although  10  geographically  are part of the region, are because of their  political status,  generally excluded from the category of independent States and territories that constitute  the South Pacific region.  These territories  include New Caledonia,  Tahiti, Hawaii, and Irian Jaya. The categorization  of the region into these ethnic groups is arbitrary,  because within each culture area one can ascertain some marked differences and clear  similarities.  heterogenuity. 8.  12  11  Melanesia  is the area  of greatest social  and cultural  Polynesia on the other hand, is often described as the most  Polynesia is taken from the word poly meaning "many".  For a treatment on the development of  Polynesian cultures, see Soloman Irving, Ancient Polynesian Society (1970); Jennings D . Jesse (ed.), The Prehistory of Polynesia (1979);  and Hooper Antony it Huntsman Judith, (eds.), Transformations of  Polynesian Culture (1985). 9.  Micronesia is so named because of the smaller size of the islands and atolls.  For a general overview of  micronesian culture, see Alkire H . William, A n Introduction to the Peoples and Cultures of Micronesia. (2nd ed.) (1977). 10.  F o r a general discussion of the SPSs see, Norman and Ngaire Douglas, Pacific Islands Yearbook (16th ed.), Angus and Robertson Publishers, Sydney, 1989.  11.  Neemia, supra note 5 at p. 2.  12.  Melanesian societies are, because of their great diversity, less easily characterized.  They were in less  concerned with social rank based on birth than with prestige gained through manipulation of resources. Root-crop agriculture (principally yams, sweet potatoes and taro) was practised as in many parts of micronesia and Polynesia, and the resources of the sea were widely exploited. rich ceremonial life were combined to produce a wealth of religious practices; situations and incorporated both venerative and propritiative behaviour.  Ancestor worship and a they marked life crisis  In many areas, complicated  and highly ritualistic trading relationships were developed and there were usually differences between  4  culturally homogenous of the three culture areas, but again there are some quite marked  local  variations.  For  13  instance,  although  Polynesian  societies  are  hierarchical, the degree of social order and status varies from one society to another.  14  Micronesia is less diverse than melanesia, but more so than Polynesia.  15  What significance then does the cultural heterogenuity of the region play in regional  cooperation?  Neemia  argues  that,  "notwithstanding  the  apparent  superficiality of the regions ethnic categorization, the division of the region into melanesia, micronesia and Polynesia, is becoming increasingly significant as a framework for action amongst participants in regional cooperation". Neemia contends  16  that such factors as geography, economic prospects,  Moreover, resource  endowment and political development seem to coincide with and to reinforce the culture area groups.  17  situations and incorporated both venerative and propritiative behaviour.  In many areas, complicated  and highly ritualistic trading relationships were developed and there were usually differences between coastal and inland societies.  Personal adornment was often elaborate;  warring raids, in which heads  were taken and cannibalism was sometimes practised, were common. Melanesia's domesticated animals were those found elsewhere in the Pacific region, but pigs were vastly more important in the pursuit of personal prestige, Britannica. supra note 2 at p. 259. 13.  Neemia, supra note 5 at p. 3. Polynesia and micronesia.  High stratified social structures are typical of the aboriginal cultures of  Hereditary chieftainship was closely related to supernatural beliefs that  incorporated concepts of power (mana) and avoidance (tapu). include an elaborate mythology, specialist craftsmen; isolation;  pandemic and sometimes savage warfare;  genealogies;  Features of these two cultural areas  distinctive artistic styles produced in part by  strong bonds of kinship and a related emphasis on  and, in places, strong trading or tributary relationships between island communities.  Britannica. supra note 2 at p. 259. 14.  Neemia, supra note 5 at p. 3.  15.  Neemia, supra note 5 at p. 3.  16.  Neemia, supra note 5 at p. 4.  17.  Neemia, supra note 5 at p. 4;  The polarization of regional politics in terms of ethnic categorization  sometimes permeates in the election/designation of heads of regional organizations.  A classic example is  the recent appointment of the Secretary General of the South Pacific Commission (SPC), following the resignation of the previous Secretary General who was Polynesian. melanesian, and therefore,  His immediate predecessor was a  there was a strong lobby during the period immediately preceding the  appointment of the Secretary General, that the new appointee should be a micronesian.  5  B. Geography  1ft  Fairbairn  describes the geography of the region as heavily characterized  by the "smallness of most SPSs, the paucity of exploitable resources, the highly scattered nature of many island groups and distance from the large metropolitan countries (and from each other)".  Distance affects the migration and activities of  man as well as limits the spread of plants and animals.  19  The region is spread over an area of 30 million square kms. of sea (approximately the size of the African continent). characteristics.  20  SPSs show diverse physical  Only a small part of the sea area, equal to 551,000 square kms. is  land of which Papua New Guinea accounts for 462,000 square kms. (see Table I). Among the smaller SPSs, Solomon Islands is the largest with 28,500 square kms., followed by Fiji, with 18,300 square kms. The smallest is Tuvalu with 26 square kms.  21  There is also a disproportionate disparity in the distribution of natural resources.  The melanesian SPSs are generally volcanic and are distinguished by the  fact that they are archipelagic States which allowed them to claim a larger area of 18.  Fairbairn, I.J. Teo, "Economic Forces:  Constraints and Potentials", Foreign Forces in Pacific Politics.  Vol. 4, (IPS), (USP), Suva, 1983, p. 230 (hereinafter referred to as Fairbairn). 19.  For a general discussion of the geography of the South Pacific region, see, Frederica, M . , Bunge and Cook, W . , Melinda (eds.), Oceania: A Regional Study D . C . ) , 1985;  (2nd ed.), Ill American University (Washington,  for a discussion of SPSs environments physical characteristics see, Wiens J . Harold, Atoll  Environment and Ecology. (1962). 20.  Neemia, supra note 5 at p. 2.  21.  Fairbairn, supra note 18 at p. 231.  6  ocean  space  than  circumstances.  22  they  would  They have  otherwise  larger  have  been  able  populations, and are  to  under normal  well endowed with  minerals, good soil and a wide range of natural resources including those of the sea.  23  By contrast, the micronesian and Polynesian SPSs generally have smaller  populations, smaller land area, and resource poor soil sustaining  extensive  agricultural  activities.  24  which are not capable of  However,  there  are  also  broad  similarities and common problems, which are discussed below. The region is characterized by a high rate of growth.  25  The current rate of  population increase is estimated to be approximately 2.5 percent per annum.  26  This  implies that within the next 30 years most SPSs population would have doubled.  27  The high rate of growth is heavily influenced by Solomon Islands with a growth rate of 3.4 percent, and by Papua New Guinea, Tuvalu, Vanuatu, the Federated 22.  U N C L O S Article 46: (a)  For the purposes of this Convention:  "archipelagic State" means a State constituted wholly by one or more archipelagoes and may  include other islands; (b)  "archipelago" means a group of islands, including parts of islands, inter-connecting waters and  other natural features which are so closely inter-related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. 23.  See, Annex 3. Corporate Plan for the Forum Fisheries Agency ( F F A ) 1990-1999. (hereinafter referred to as Corporate Plan.)  24.  Pacific Islands soils develop through the action of temperature, rainfall, and organic matter on the original rock materials. This process is further influenced by factors of time and land relief. Coral island soiU are the least mature and are deficient in organic materials and low in fertility. The mineral-bearing soils of the continental islands are more complex and, are richer than those of the volcanic based high islands.  The most productive soils on high islands occur in the lower valley slopes, alluvial floodplains,  and deltas, in some instances are further enriched by volcanic ash deposits of recent age. temperatures  and rainfall have  produced laterite  soils from which nutrients  have  Tropical  been leached.  Britannica, supra note 2 at p. 249. 25.  Fairbairn, supra note 18, at p. 232.  26.  Fairbairn, supra note 18 at p. 232.  27.  For a classic demographic study see, McArthur Norma, Island Populations of the Pacific. (1967 reprinted 1983).  7  States of Micronesia (FSM), and the Marshall Islands, all of which average over 2 percent per annum.  28  Tonga, Western Samoa, Niue and the Cook Islands would  show comparative rates had heavy out-migration to New Zealand and Australia not occurred.  29  The high birth rates, combined with low mortality rates are attributed  to the application of modern medical practises, technology and improved health facilities.  30  A significant feature of their demographic structure is the high  proportion of children reflecting  high birth rates over  a sustained period.  31  Fairbairn estimates that approximately 45 percent of the region's population is in the age group 0-15 years.  32  He further contends that such a youthful age structure  will inevitably create pressure on education, health and related facilities and pose serious problems for employment.  28.  Fairbairn, supra note 18 at p. 232.  29  Fairbairn, supra note 18 at p. 232.  30.  Fairbairn, supra note 18 at p. 232.  31.  Fairbairn, supra note 18 at p. 232.  32.  Fairbairn, supra note 18 at p. 232.  33.  Fairbairn, supra note 18 at p. 232.  33  8  TABLE 1 - INDEPENDENT STATES  —  O  CO  r»-  rs.  fs.  r-  o  IS)  .—  ,—  0"\  r-.  «—  o  fO  CM  f—  \o  ©  s  s  o  o  s  o 00  00 U  O T3 »X5 w» O \G  >Si o o> «£ £ —  o.  «o ai *->  21^  u at p a> « -» t " o <o o a ; «-» — u . t/i X  >ources:  C 00 t_> ON O *—  r-  C  ••-» Tu.  U co  § 8 o «  8  E  C *->  CO  o o% c  a.  <o a> +•*  Q.  <C  a; *o — C l» ao  C 1~ « CD  2  O  5.= 5  «  o E o c* c a> «-»  TD •*-  C U —• CO  E  ao ^  c ao  O CTi L- »— «*-  o <—  C  a . T> 01 •»-» •o —  C i— CO  i  55  William Sutherland, "Regional Cooperation and Fisheries Management in the South Pacific", L L M Thesis, University of Hull, 1985, Table 1, page 5; South Pacific Commission 1981. Statistical Summary. Noumea (1984), pp. 5-7; Brittanica Book of the Year. 1989.  9  C. Economy  The economies of SPSs are generally small relative to the economies of other developing areas in the world.  Their economies vary in size from Tuvalu's gross  domestic product (GDP) of slightly less than AUSS2.2 million to Papua New Guinea's GDP of AUS$1,551  million.  34  Fairbairn has stated  that with the  exception of Papua New Guinea, the difference among SPSs economies is indeed striking.  35  Vanuatu.  The highest GDP is that of Fiji, followed by the Solomon Islands and The remaining countries fall within the range of AUS$2.2 million to  AUSS50 million.  36  Notwithstanding these differences, there are also broad similarities and common problems. A l l SPSs have a narrow production base with very high export concentration as to markets and products.  They experience external and internal  shocks which generate high amplitude fluctuations in exports, GDP, consumption, revenue receipt, current account of balance of payments, money base, money supply and external reserves.  Consequently, imbalances which they introduce call  for adjustment measures which are painful politically and economically. Moreover, they have very open economies, (except for Papua New Guinea, the Solomon 34.  Neemia, supra note 5 at p. 3.  35.  Fairbairn, supra note 18 at p. 233.  36.  Neemia, supra note 5 at p. 3.  37.  Pacific Islanders, as producers of agricultural, marine, and mineral commodities, face problems of market demand, labour supply, management skills, and transport that restrict them to an insignificant role in world export trade.  Neither do the small, scattered populations present an attractive consumer market  to overseas entrepreneurs.  The combination of limited exportable products, heavy dependence on food  imports, high cost of fuel in ports, and overreliance on foreign aid makes each island State's economy extremely vulnerable, Britannica, supra note 2 at p. 251.  10  Islands and Fiji, the ratios to GDP of their imports and exports of goods and services are relatively large. External price movements or exchange rate variations have rapid impact on domestic prices);  and a relatively high degree of capital  mobility in spite of the exchange control guidelines which most SPSs have in place. SPSs are vulnerable to natural disasters particularly through hurricanes. Their  domestic  markets  are  small and fragmented.  economies of scale are rarely enjoyed and distances  The benefits  of  from the main external  markets are large making cost per unit of transportation, production and marketing high.  Transport services to the rest of the world particularly for the smaller  countries are poor and expensive as the main sea and air trunk routes increasingly exclude them.  They suffer from severe shortages of skilled and professional  labour, thus resulting in low productivity, (a function of inadequate training programmes, relatively poor management capability and insufficient investments in modern and appropriate technology). Generally, the public sector, including public sector corporations, tend to be the largest employer (wages and salaries in the public sector are generally high and set the pace for the rest of the economy). domestic resources  Furthermore, the mobilisation of  for development face difficulties emanating from low per  capita income, narrow tax bases, negative interest rate structure, and relatively undeveloped financial systems. Per capita aid to the region is among the highest in the world, (aid has not always flowed into sectors which could maximise returns to the countries).  All SPSs have relatively difficult land tenurial problems and  generally economic  growth rates have on the average been low (they have  consistently been lower than growth targets in their development plans).  The  natural environment in the region is very fragile, consequently, environmental degradation in the wake of bad management of the resources of the land and sea  11  and of other human activities have become a very serious problem in parts of the region.  This is exacerbated by the fact that they have relatively poor national  planning and project appraisal and evaluation capability.  38  In terms of dependence on metropolitan countries for development and budgetary assistance, export markets and sources of imports, Neemia stated that this dependence has reached an extent that for most SPSs, the sustenance and growth of the local economy are predominantly influenced by decisions taken externally over which they have little control.  39  Nonetheless, they are deeply  committed to the objective of economic development as a means of promoting the material and social welfare of their people.  40  However, almost without exception,  they are severely handicapped by the lack of financial and technical expertise for developing what physical and human resources are available.  41  Their Development  Plans generally have the following objectives which are common to all of them. This is to promote economic growth, generate employment and improve the standard of living for the population; fruits  of  development;  maintain  strengthen national identity;  ensure the equitable distribution of the  external  and  internal  financial stability;  achieve economic independence and self-reliance;  promote economic diversification into sectors such as those served by the F F A ; emphasize the preservation of their environmental and cultural heritage; 38.  and  Corporate Plan, supra note 23 at p. 61; For a discussion on Economic Trends and Trade Development in the South Pacific region, see paper presented  by Samuel Osifelo,  Project  Office ( R T A ) ,  Forum  Secretariat, at the 1988 Ocean Resources Management In-Service Course. Also see Keynote Address by Savenaca Siwafibau to the 17th Meeting of the Forum Fisheries Committee, 25 September, 1989, F F A Report 89/89. 39.  Neemia, supra note 5 at p. 4.  40.  Fairbairn, supra note 18 at p. 234.  41.  Fairbairn, supra note 18 at p. 234.  12  develop harmonious relationship with other countries in the pursuit of common interests.  42  However, their economic performance have invariably  fallen short of  planned target, which is probably caused by the difficult economic and physical characteristics  described  above.  Fairbairn, once  development programmes are characterized  again  states  that  their  by heavy dependence on external  factors - "foreign aid and loans, private investment, management, technical skills, markets, terms of trade and personal cash remittances". Their fisheries.  44  economic structure  43  is predominantly based  on  agriculture and  In terms of their economic structure, they may be divided into three  broad categories.  Category A consists of Papua New Guinea, the Solomon Islands,  Vanuatu and Fiji.  They have the largest populations, are made up of large  volcanic islands, they are endowed with natural resources  such as minerals,  forestry and fish, they all have large industrial and manufacturing activities, they actively promote manufacturing, and given sound national economic management, political stability and capital investments, these countries are capable of achieving economic independence, self-reliance and steady long term growth.  45  SPSs in category B are Tonga, Western Samoa and the Federated States of Micronesia (FSM). They are also heavily dependent on external trade and finance. Their imports exceed their exports and in Tonga remittances are currently running at more than 300 percent of exports and 50 percent of imports. Similar ratios of 42.  Corporate Plan, supra note 23 at p. 62.  43.  Fairbairn, supra note 18 at p. 235.  44.  Fairbairn, supra note 18 at p. 235.  45.  Corporate Plan, supra note 23 at p. 61.  13  remittances and official aid to exports and imports are current in Western Samoa. They have good soil, but natural resources are comparatively limited. important to them.  Fishing is  They have prospects for agricultural diversification and for  widening and deepening their subsistance sectors.  47  The prospects for finding  minerals are limited, although the presence of minerals under the seabed as in other SPSs, are yet to be determined.  48  The SPSs in category C are the Cook Islands, Kiribati, Tuvalu, Niue and the Marshall Islands.  They are made up of atolls.  They are relatively resource poor  and land is not plentiful and the quality is poor. Minerals are not found and the level of economic activity in their money sectors are determined by the external prices of copper and other minor crops, the inflow of remittances and aid, rent upon the use of fishing rights within their EEZs and overseas investments by financial institutions. The  characteristics  confronting SPSs. the physical size, development. restricting  49  51  outlined  above  portrays  the  economic  constraints  Fairbairn has argued that the major development constraint is 50  which limits the range and variety of materials available for  Small populations limit the size of the domestic market thus  industrialization and the scope for realizing significant economies  through large scale operations.  52  Another major constraint pertains to the shortage  46.  Corporate Plan, supra note 23 at p. 61.  47.  Corporate Plan, supra note 23 at p. 61.  48.  Corporate Plan, supra note 23 at p. 61.  49.  Corporate Plan, supra note 23 at p. 61.  50.  Fairbairn, supra note 18 at p. 234.  51.  Fairbairn, supra note 18 at p. 235.  52.  Fairbairn, supra note 18 at p. 235.  14  of capital funds for development.  Fairbairn states that this is caused by the low  rates of savings associated with low levels of per head incomes and generally underdeveloped financial institutions capable of mobilizing savings and making them available for investment.  53  Consequently, there has been an increasing  tendency in recent years towards receiving foreign aid and overseas borrowing to meet the need to raise more developmental funds for expanding development programmes.  54  This problem is exacerbated by the general shortage of staff at all  levels - the professional, technical, administrative and entrepreneurial, which has perpetuated dependence on expatriates. It is submitted that the economic factors described above are important in order to appreciate the rationale for regional cooperation in the region. They are common to all facets of SPSs economic goals and aspirations, including fisheries sector.  the  Indeed, as articulated below, the formation of F F A not only  coincided with the evolution and acceptance by the international community of the EEZ,  but more significantly the economic  characteristics  of SPSs inevitably  dictated the collective action that culminated in its formation.  D. Politics  The factors articulated in the preceding section are enough to consume considerable time by governments in developed European, North American or other developed countries which have been dealing extensively with economic issues over  53.  Fairbairn, supra note 18 at p. 235.  54.  Fairbairn, supra note 18 at p. 235.  15  the  years.  However,  additional overlay:  in the Pacific  region, the following factor  provides  for many SPSs, political autonomy only came during the 1970s.  They were left with a situation of newly formed bureaucracies and little expertise, particularly on fisheries matters.  66  The administration which was invariably based  on the European model, emphasised agriculture rather than fisheries training.  57  The historical development of the region has been influenced by both the cultural backgrounds of the melanesian, micronesian and Polynesian peoples, and by the different institutions brought about by three major colonial traditions: British, United States and French. product  58  The present political map of the region is a  of the colonial divisions of the last and early  part of the present  59  centuries. The region has a diversity of political systems and structures which include a Kingdom (Tonga), a State in which only chiefs can vote or be elected (Western Samoa), a government installed by a military coup (Fiji), a Republic (Vanuatu), and an Associated State (Cook Islands).  60  Of the sixteen member States of F F A ,  there are eleven constitutionally independent States, two self-governing States in Association 55.  61  with New Zealand, two self-governing States in association with the  Swan J . , "Highly Migratory Species - The South Pacific Forum Fisheries Agency", Implementation of the Law of the Sea Convention Through International Institutions (23rd Annual Conference of the Law of the Sea Institute) at p. 1.  56.  Swan J . , ibid at p. 2.  57.  Swan J., ibid at p. 3.  58.  Australian Foreign Affairs Review, (hereinafter referred to as A F A R ) , V o l . 54, 1983 at p. 379.  59.  A F A R , ibid, at p. 379;  for a discussion of politics in the South Pacific see, Larmour, Peter ii Qalo  Ropate, Decentralization in the South Pacific:  Local, Provincial and State Government in Twenty  Countries, (1985). 60.  Neemia, supra note 5 at p. 6.  61.  T h e concept of "free association" or "associated State" was set forth in the United Nations General  16  United States of America (USA), and one state which is still mandated under USA trusteeship. Neemia has pointed out that notwithstanding these differences in political form and constitutional status there are no major differences in political ideology, not only between SPSs, but also between them and metropolitan countries with dependencies in the region.  62  Furthermore, irrespective of their differences in  policies and political status, they have demonstrated their interest in regional cooperation  through  organizations  63  participation  including  the  in  a  range  South Pacific  of  regional  Forum (SPF),  the  meetings  and  South Pacific  Commission (SPC), the Forum Secretariat, the Forum Fisheries Agency (FFA), the Pacific Forum Line (PFL), and the University of the South Pacific (USP). However,  each  entity  is  politically unique, having  its  64  own national  problems. For example, in Papua New Guinea, it is unifying a profoundly diverse heterogenous society;  in Fiji, the major political issue is one of racial balance  Assembly ( U N G A ) Resolution 1541 of December 15, 1960, which establishes the principles to be utilized in determining when entities governed by other countries had reached the status of self-government and thus were no longer "colonies".  The resolution defines "free association" as an association between two  entities that is "the result of a free and voluntary choice ... through informed and democratic process". U N G A R E S . 1541, 15 U N G A O R S U P P . (No. 16), U N D O C . A4684 (1961).  In a relationship of "free  association", there must be respect for the individuality and the cultural characteristics of the area and its people. The most essential element is that the people of each of the freely associated states must ... unilaterally have "the freedom to modify the status of that territory through the expression of their will by democratic means". outside interference.  Finally, the people have the right to develop their own constitution without any  In the usual context, "freely associated" states are self-governing, except in matters  related to external affairs and defence.  Biliana Cicin-Sain it Robert W . Knecht, The Emergence of a  Regional Ocean Regime in the South Pacific, Ecology Law Quarterly. V o l . 16, No. 1, 1989, p. 179. 62.  Neemia, supra note 5 at p. 6.  63.  A F A R , supra note 58 at p. 379.  64.  The University of the South Pacific was established in 1968 education needs of SPSs.  It is based in Suva.  by SPSs with the aim of serving the  While growth and maturation has not been without  difficulty, it is playing an important role in educating the population of the region, Neemia, supra note 5, at pp. 38, 83-87, 106-08.  17  between indigenous Fijians, and Indians; in Western Samoa, it is the power rivalry between factions of matai (chiefs), and in Vanuatu, it is the colonial legacies of the Anglo-French condominium. and  insignificant.  65  Their political status may appear superficial  However, Neemia  has  pointed out  that  in a  "collective  arrangement such as regional cooperation, these differences in political emphasis and  constitutional  status among actors have  different interests".  the potential to crystallize  into  66  E. Tuna Resource of the South Pacific Region  In setting the context in which F F A was formed, and in order to appreciate the mandate it has, it would be pertinent to discuss the status of the tuna stock in the region, and its significance to SPSs development plans. The creation of the 200 nautical mile E E Z opened up a new dimension on SPSs economic goals.  67  It enabled them to exercise strategic control of the major  part of the Pacific Ocean with its rich stock of tuna and other fish varieties and potential in mining manganese nodules and energy generation.  68  The interest they  took in the E E Z concept is discussed below, but for present purposes, it is suffice to mention that they have all subscribed to the concept by declaring their own EEZs. 65.  Neemia, supra note 5 at p. 6.  66.  Neemia, supra note 5 at p. 6.  67.  Fairbairn, supra note 18 at p. 235.  68.  Fairbairn, supra note 18 at p. 235.  18  In a Consultancy Report  on the status of tuna in the region, Shepard, M ,  and Clerk, L., reported that the region has one of the richest tuna grounds in the world (see Tables 2 and 3). yellowfin (tunnus  The main species of tuna found in the region are  albacares), skipjack (katsuwonus  alalunga), and bigeye (tunnus obesus).  pelamis),  albacore  It has been estimated  (tunnus  that the region  currently provides one quarter of the world's tuna catch in terms of weight and over one half of the world catch of skipjack. region between  1980 and 1985 accounted  world's  catches.  annual  commercial fishery.  71  The tuna  70  Moreover, skipjack catches in the  for an average of 64 percent of the  fishery  is the region's  most  valuable  It has been estimated that the unprocessed value of tuna  caught in the region is approximately worth US$600 to US$700 million annually.  73  According to statistics of the Food and Agriculture Organization (FAO), an average of 20 percent of world catches of the main tuna species was caught in the region between 1977 and 1985 - an average of 326,662 metric tonnes annually.  69.  74  Shepard, M . , and Clerk, L . , "South Pacific Fisheries Development Assistance Needs", Consultancy Report prepared for F A O and U N D P , 1984, p. 5. (Hereinafter referred to as Shepard ii Clerk.)  70.  See Waugh, Geoffrey, "Trends in the Western Pacific, Eastern Pacific, Indian and Atlantic Ocean Fisheries", F F A Report No. 88/27 at p. 3;  Also, see Kelly, R . , Christopher, "Law of the Sea: T h e  Jurisdictional Dispute over High Migratory Species of T u n a " , Columbia Journal of Transnational Law. V o l . 26, No. 3, 1988 at 71.  p. 478.  See generally, F A O Yearbook of Fisheries. Statistics, and Indo-Pacific Fishery Commission. Recent Trends in the Tuna Fisheries in the Western Pacific and South East Asia, 1987.  72.  See, Togolo, M a r y - C a t h , "Domestic and Distant-Water Fishing Industry", in The Development of the T u n a Industry in the Pacific Islands Region: A n Analysis of Options. Doulman, J . David, (ed.) Eastwest Center, Hawaii, 1987 at p. 55.  73.  Togolo, ibid, at p. 55.  74.  Togolo, ibid, at p. 55.  19  Table 2:  T o t a l Catches of Tuna and Tuna-like Species in the Western P a c i f i c - '000 Tonnes  Years  World Catch  Western Pacific Tonnes  Percent of World  Central Western Pacific Tonnes  Percent of World  1980 1981 1982 1983 1984 1985  2633 2647 2788 2739 3078 3111  1371 1307 1354 1599 1727 1690  52.1 49.1 48.6 54.4 56.1 54.3  792 849 87.9 977 1104  30.1 32.1 31.5 33.3 35.9  Sources:  F A Q Yearbook of Fishery Statistics and Indo-Pacific Fishery Commission. Recent Trends in the Tuna Fisheries in the Western Pacific and South East Asia. 1987; Waugh, G., "Trends in the Western Pacific, Eastern Pacific, Indian and Atlantic Ocean Fisheries", F F A Report No. 88/27.  20  Table 3:  Total Catches in the Western Pacific by Species - '000 Tonnes 1980  1981  1982  1983  1984  1985  % of World Catch  Skipjack Yellowfin  495 210 97 46 14 14 177  Albacore Bigeye Northern Bluefin Southern B l u e f i n Coastal T u n a Billfishes Seerfishes Unidentified  58 172 102  TOTAL  1385  Source:  634  449 209 82  219 81 36 25 11 172 44  36 23 7  189 118  175 38 195 140  1307  1354  71  248 56 33 15 5 222  730 241 62 33 7  716 242  3 214  40 205 142  39 235 163  3 185 38 192 207  36 35 18 18 8 80 45 65 66  1600  1727  1690  54  65 35 7  Indo-Pacific Fisheries Commission.  H o w e v e r , more primarily  the  t h a n 90  f i s h e d b y large,  f r o m distant and  412  water f i s h i n g  USA.  7 5  percent  capital  of all tuna  species c a u g h t  intensive, distant  water  i n the  fishing  r e g i o n is  fleets  (DWFF)  n a t i o n s ( D W F N s ) s u c h as J a p a n , S o u t h K o r e a , T a i w a n  One commentator  has  suggested  that  the  West  Central  Pacific  r e g i o n , w h i c h c o n t a i n s vast a n d c u r r e n t l y u n d e r u t i l i z e d stocks, h o l d s great p r o m i s e for  future  exploration.  these species o f t u n a . discussed  below.  include:  (a)  At  76  The  greatest  challenge  to SPSs  T h e factors f o r m i n g management this j u n c t u r e  the m a x i m i s a t i o n  it  is s u f f i c e  of b e n e f i t s  to  to t h e m ;  is the  of  p r i n c i p l e s i n the r e g i o n is  mention (b)  that  these p r i n c i p l e s  the e x p l o i t a t i o n o f  75.  Kelly, R. Christopher, supra note 70 at p. 478.  76.  See, Doulman, J. David, The T u n a Industry in the Pacific Islands Region: Investment, Pacific Islands Development Program, (1985).  management  the  Opportunities for Foreign  21  tuna fishery by DWFNs; conclusions; industries.  and  (d)  (c)  the collection and analysis of scientific data and  SPSs medium to long-term plans to develop national fishing  77  F.  Rationale for Regional Cooperation in the South P a c i f i c Region  SPSs have demonstrated  a very strong political will to tackle common  problems by cooperating with one another.  In a region with limited resources the  tackling of problems through regional cooperation makes sense. established regional organisations in several areas.  78  Thus, they have  In the area of family health,  nutrition, and telecommunications, they established the South Pacific Commission (SPC);  in education,  there is the University of the South Pacific (USP); in  economic and political affairs, they have the Forum Secretariat (formerly SPEC); in regional transportation, fisheries management,  they have the Pacific Forum Line (PFL);  they have the Forum Fisheries Agency (FFA).  and in  A detailed  discussion of the mechanisms for decision making in the region is given below. Some of the reasons for regional cooperation preceding section of this Chapter.  has been discussed in the  However, an important factor appertains to the  large ocean space that has come under their national jurisdiction, coupled with the heavy financial burden of managing the resources therein.  79  The large area of sea  77.  Swan, J., supra note 55 at p. 3.  78.  Fairbairn, supra note 18 at p. 235.  79.  Tsamenyi, F., Martin, "The South Pacific States and Sovereignty over Highly Migratory Species", Marine Policy. Vol. 10, January 1986 at p. SO.  22  under  their  national  jurisdiction  imposes  tremendous  constraints  on  the  management of tuna in their EEZs and the effective enforcement of management regulations within the E E Z . Tsamenyi attributes the rationale for regional cooperation to the fact that most SPSs are developing countries.  Therefore, in order to obtain maximum  benefits from the exploration of the fisheries resources in their EEZS, there is the need to protect the E E Z against foreign fishermen.  80  Thus, they are compelled to  formulate effective surveillance measures, consolidate enforcement mechanisms, and establish research facilities to increase their capacity to manage the resources within their E E Z . These measures are expensive to formulate and implement, and moreover, they invariably require the availability of highly trained and skilled manpower.  81  Regional disadvantages; capacity.  fisheries cooperation  is also dictated  by shared  comparative  smallness, relative isolation and apparent lack of industrial fishing  Doulman stated that this makes them vulnerable to the sophisticated  tactics of DWFNs who had major objections to SPSs and other coastal States extended  jurisdiction.  This made them potentially vulnerable to economic  exploitation, and therefore it was in their own interest and in the interest of the region as a whole, to form a unified bloc.  83  Another important reason for regional cooperation relates to the importance of tuna.  Tuna is a highly migratory species of fish.  Therefore, it presents  80.  Tsamenyi, M . , ibid, at p. 30.  81.  Tsamenyi, M . , ibid at p. 31.  82.  Doulman, J. David, "In Pursuit of Fisheries Cooperation: The South Pacific Forum Fisheries Agency" 10 University of Hawaii Law Review. No. 1, 1988 at p. 139.  83.  Doulman, D . , ibid, at p. 139.  23  management problems for individual SPSs.  What happens to them in one portion  of stock range dramatically affects the stock throughout the entire region. have realised the need to cooperate to avoid overexploitation.  They  Because of its  85  highly migratory patterns, any coastal State, let alone the small island States of the region would face considerable difficulties to manage it unilaterally. It was in the interest of the region that they formed a management system based on regional cooperation to meet the requirements of the resource. believes that SPSs deserve to be congratulated  In this regard, the author  for their foresight in establishing  F F A for the purposes of assisting them manage the resource. Finally,  regional  cooperation  may be seen  as their  response  to the  implementation of decisions taken at the Third United Nations Conference on the Law of the Sea. Indeed, Article 63  86  of the United Nations Convention on the Law  of the Sea (UNCLOS) calls for cooperation among neighbouring coastal States over shared stocks.  87  The foregoing discussion endeavours to provide a brief conspectus of the more significant characteristics of the region.  From the discussion it may be  inferred that the South Pacific region is surrounded by a vast span of ocean. 84.  Kent, George, The Politics of Pacific Islands Fisheries, Westview Press, Colorado, 1980, at p. 166.  85.  Van Dyke, Jon and Heft el, Susan, " T u n a Management in the Pacific:  A n Analysis of the South Pacific  Forum Fisheries Agency", 3 University of Hawaii Law Review. No. 1, 1981 at p. 6.  For a further  discussion see Knight G . , Managing the Sea's Living Resources. Legal and Political Aspects of High Seas Fisheries  (1977;  Saila  S. ic  Norton V . , T u n a :  Status.  Trends  and Alternative  Management  Arrangements. (1974). 86.  See U N . D O C . A / C O N F . 62/122 (1982) hereinafter referred to as U N C L O S : Article 63(1) states: [Wjhere the same stock or stocks of associated species occur within the E E Z of two or more coastal States, these states shall seek, either directly or through appropriate subregional or regional organisations, to agree upon measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.  87.  Kearney, R . E . , "The Law of the Sea A: Regional Fisheries Policy", Ocean Development and International Law. V o l . 5, 1978, pp. 249-286.  24  Nonetheless, in spite of the region's diversity, SPSs all share similar inherent economic and social problems. The sea, undoubtedly, has played a significant role in  the  lives of the peoples of the South Pacific.  Traditionally, they  have  invariably depended on the sea as the primary source of nutrition, and recreation. As more SPSs evolve from a subsistence based economy to a cash oriented economy, the resources of the sea have acquired a substantially new connotation. The adoption of UNCLOS, and in particular, the acceptance of a so-called E E Z , no doubt has had a significant impact on them. The author has no hesitation in pointing out that much of UNCLOS, if not all of it, has had an effect on the peoples of the South Pacific in one way or another. time for them.  UNCLOS emerged at the right  As noted above, being small in size and without any significant  economic or military power, UNCLOS has served as the weapon with which they manage the vast and rich tuna resource in the region. Although the full extent of the implications of UNCLOS for the region is beyond the scope of this discussion, it is suffice to mention that nowhere in the world is UNCLOS more important and relevant by much of what it is as it is in the South Pacific. U N C L O S is of relevance to the South Pacific.  88  Nearly every part of  It is submitted that in this respect  U N C L O S has had a significant impact in their development.  88.  Narokobi S . N . Camillus, The ' U N Convention on the Law of the Sea - Impact on the South Pacific Region. 1989 (unpublished) at p. 17.  25  C H A P T E R II  T H E E X C L U S I V E ECONOMIC Z O N E (EEZ)  The E E Z  is a zone extending 200 nautical miles from the baseline, within  which coastal States enjoy extensive rights in relation to natural resources and other jurisdictional rights, and third States enjoy the freedoms of navigation, overflight by aircraft and the laying of cables and pipelines. discussion  articulates  SPSs interests  in  the  EEZ.  It  90  traces  The following the  historical  development of the E E Z , and discusses the relevant provisions of U N C L O S dealing with conservation, utilization, and tuna therein.  The discussion will examine the  pertinent provisions of UNCLOS by attempting to look at the actual wording of the provision, discuss any limits or ambiguities that might exist therein, define any legal problems with the provision, and point out how these have been interpreted.  89.  The E E Z is defined under Article 55 of U N C L O S as an [a]rea beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.  90.  Churchill, R.R. & Lowe, A . V . , The Law of the Sea, Manchester University Press, (hereinafter referred to as Churchill <k Lowe).  1983  at p.  125  26  A. SPSs Interest in the E E Z  It will be recalled that most SPSs have limited landbased resources. the creation  Thus  of the E E Z and its subsequent acceptance by the international  community provided major opportunities for them to increase the benefits they accrue from fish and other offshore resources.  91  In his report, Shepard  92  stated,  that most SPSs are already receiving financial and other types of compensation from foreign fleets fishing in their zones.  A number of them are working with  DWFNs in cooperative ventures aimed at increasing local fishing and processing capacities. Their moves towards claiming EEZs may be traced to the seventh meeting of the SPF in Nauru, in 1976.  At that meeting, Ratu Sir Kamisese Mara, the Prime  Minister of Fiji, presented a Discussion Paper pointing out amongst other things, that the concept of extended jurisdiction had been accepted internationally.  94  Fiji  was among the few SPSs who participated actively at the Third United Nations Conference on the Law of the Sea, and therefore, was well placed to provide other 91.  Narokobi, supra note 88 at p. 7.  92.  Shepard, M . , "Cooperation Among Forum Member and Observer Island States Regarding Access of Foreign Fishing Vessels to their 200 Mile Zones", paragraph 10, (a copy is with F F A ) , 1980.  93. 94.  Shepard, ibid., at paragraph 10. Harris, D . J . , Cases and Materials on International Law, Sweet ii Maxwell, London, 1979 at p. 377 states: "It is clear that the international community is prepared to allow coastal States a 200 mile E E Z .  A  consensus to this effect quickly emerged at U N C L O S III and provision is accordingly made for such a zone in the I C N T .  By early 1977, 27 coastal States from all political groupings made claims to 200 mile  E E Z s , mostly after the start of U N C L O S III.  Indicative of the speed of events is the fact that the U K  which had fought a "war" over Iceland's claim to a 200 mile zone just 12 months previously, claimed its own 200 mile E E Z as of January 1, 1977.  27  SPSs with meticulous details pertaining to the deliberations of the Conference. The SPF declared, inter alia, that its members stand to benefit from the creation of the 200 mile E E Z .  95  They recognized that bringing the resources of the  E E Z under their control would open up the way to major economic opportunities. At the eighth SPF meeting in Port Moresby in August 1977, the SPF declared  96  their intention to undertake as late as possible, by 31 March, 1978, the legislative and administrative actions necessary to establish extended fisheries jurisdiction to the fullest extent possible under international law and to apply within their zones, principles  and  measures  for  the  conservation of the living resources.  exploration,  exploitation,  management  and  97  Implicit in the declaration was the recognition at the time, that in the continued absence of a comprehensive international convention on the law of the sea, and in view of the action taken by a large number of countries, including DWFNs, exploiting HMS in the region, they should move quickly to establish EEZs, and should take steps to coordinate their policies and activities if they are to secure maximum benefits from their resources for their peoples.  98  It is interesting  to note that even as early as 1977, they already recognized their vulnerability to DWFNs. activities.  This is clearly manifested in the call to "coordinate" their policies and It appears as if the coordination of their policies was a condition upon  which maximum returns from their resources would be realised. 95.  For the text of the S P F Communique see A F A R , Vol. 45,  1976.  96.  S P F , "Declaration on Law of the Sea and a Regional Fisheries Agency", (hereinafter referred to as the Port Moresby Declaration), Port Moresby, August 31, 1977. 632.  97.  Port Moresby Declaration, ibid., at para. 4.  98.  Port Moresby Declaration, ibid., at para. 3.  See A F A R , V o l . 48, December 1977 at p.  Source:  David J. Doulman, (ed.) Tuna Issues and Perspectives in the Pacific Islands Region, (1987), Eastwest Center, Honolulu, Hawaii.  29  Teiwaki, based  on  "political and  p r i n c i p l e or countries, became  argues  that the case f o r the c r e a t i o n economic  grounds  past j u r i d i c a l f o u n d a t i o n " .  the  SPSs i n c l u d e d , the  the r i c h e r  a n d the  declarations  poorer  creation of a new economic o r d e r " .  of  clearly  extended  mile E E Z  formulated  was legal  the d e v e l o p i n g  maritime  jurisdiction  i n d e p e n d e n c e , a means o f c l o s i n g  nations, representing Whatever  1 0 0  on a n y  200  M o r e o v e r , he states, " f o r  s o m e t h i n g o f a s y m b o l of e c o n o m i c  gap b e t w e e n  than  o f the  a move  the  towards  the  t h e i r m o t i v a t i o n s m a y h a v e been,  there is a b s o l u t e l y no d o u b t that they h a v e b e n e f i t t e d f r o m the E E Z . As N a r o k o b i ,  p o i n t e d out, there is no other part o f U N C L O S  1 0 1  w h i c h is of  greater s i g n i f i c a n c e to t h e m t h a n P a r t V w h i c h establishes the r e g i m e o f the E E Z . Most  SPSs,  apart  from  Australia,  New  Zealand  and  Papua  New  Guinea,  g a i n e d f a r m o r e e c o n o m i c a l l y f r o m f u l l y u t i l i z i n g the r e g i m e o f the 200 than  any  other  part  UNCLOS.  fisheries  Some  found  EEZ.  I n d e e d , as S h e p a r d a n d C l e r k , i n t h e i r r e p o r t  99.  their  very  except  Development Assistance Needs, s t a t e ;  within  have  resource 1 0 2  for  of  l i t t l e else  waters  as  including  mile E E Z  their the  on S o u t h P a c i f i c  have  natural 200  mile  Fisheries  103  Teiwaki, R., Management of Marine Resources in Kiribati, University of the South Pacific (USP), at p. 73 (hereinafter referred to as Teiwaki).  100.  Teiwaiki, ibid., at p. 73.  101.  Narokobi, supra note 88 at p. 7.  102.  Narokobi, supra note 88 at p. 7.  103.  Shepard & Clerk, supra note 69 at pp. 5-6.  1988  30  "Clearly, tuna represents the region's most valuable renewable resource, and, in the long term, probably its most valuable asset overall. At present, the very substantial benefits flowing from the resource accrue mainly to distant water fishing nations. The harnessing of this resource for the benefit of the island countries represents perhaps their greatest opportunity to achieve economic self-sufficiency. For some, it may represent the only hope of ever achieving this goal. The recent changes in the Law of the Sea, granting coastal States sovereign rights for the exploitation of the resources within 200-mile zones, and the fact that the interlocking zones of the island nations cover the great majority of the South Pacific's ocean surface, provide excellent opportunities for the island States to gain substantial increased benefits from the tuna resources off their shores in the future."  B. History of the EEZ  The concept of the E E Z is a new development in international law. Until the acceptance of the notion of the E E Z , international law assumed international waters were res communis: totally free and belonging to any nation.  104  Nations  which had the technology and capital to support long distance fishing expeditions were free to exploit the resources of seas 104.  Cass, Deborah, " T h e Quiet Revolution:  105  adjacent to other States.  106  The reason  The Development of the Exclusive Economic Zone and the  Implications for Foreign Fishing Access in the Pacific", Melbourne University Law Review. V o l . 16, N o . 1, 1987 at p. 85. 105.  This principle was first codified in the Convention on Fishing and Conservation of Living Resources of the High Seas (1958 Convention on the High Seas), opened for signature April 29, 1958, 17 U . S . T . 138, T.I-A.S. No. 5969, 450 U . N . T . S . 82, reprinted in 1 International and United States Documents on Oceans Law and Policy 6 [hereinafter 1958 Convention on the High Seas].  Article 2 of the 1958 Convention on  the High Seas provides: The high seas being open to all nations, no [s]tate may validly purport to subject any part of them to its sovereignty.  Freedom of the high seas is exercised under the conditions laid down  by these articles and by other rules of international law. coastal and non-coastal [sjtates: (1)  Freedom of navigation;  (2)  Freedom of fishing;  It comprises inter alia, both for  31  for this was until the middle of the century, all waters beyond the territorial sea were regarded as high seas over which no State could exercise jurisdiction.  107  However, the growth in fishing technology and the realisation of the finiteness of the fisheries resources brought about a new kind of relationship between the coastal State and its adjacent sea areas.  108  While international ocean politics has in  the past tended to emphasize the protection of security, navigation and trade, since World War II, it has shifted its emphasis to the protection of ocean wealth and economic interests in the ocean.  109  While its historical roots are said to lie in the Truman Proclamations of September 28, 1945, for U N C L O S .  111  110  its more immediate and direct origins lie in the preparations  Nonetheless, a brief discussion of the initial claims of exclusive  (3)  Freedom to lay submarine cables and pipelines;  (4)  Freedom to fly over the high seas.  These freedoms, and others are recognized by the general principles of international law, shall be exercised by all (sjtates with reasonable regard to the interest of other [s]tates in their exercise of the freedom of the high seas. 106.  Belsky, M . H . , "Management of Large Marine Ecosystems:  Developing a New Role of Customary  International Law", 22 San Diego Law Review. 733, 1985, p. 744.  According to Belsky, the history of the  law of the sea has been to strike a balance between a broad interpretation of the freedom of the seas and a narrower interpretation of the notion of adjacent State sovereignty.  The result has been to tip the  balance almost completely toward the view that freedom of the high seas was immutable and included the right to overfish. 107.  For a discussion on the development of the modern law of fisheries see Fleischer C . A . , "The New Regime of Maritime Fisheries" Recueil Pes Cours. V o l . 11, 1988, at p. 119.  108.  Fleischer, C . A . , ibid, at pp. 120-121.  109.  Dahmani, M . , The Fisheries Regime of the Exclusive Economic Zone. Martinus Nijhoff Publishers, 1987 at p. 14.  110.  Presidential Proclamation No. 2667, Concerning Policy of the United States with Respect to the Natural Resources of the Subsoil and the Sea-bed of the Continental Shelf, 59 Stat. 884 (1945) and Presidential Proclamation No. 2668, Concerning the Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas.  111.  Churchill & Lowe, supra note 90 at p. 125.  32  jurisdiction would be in order.  112  As stated above, the first unmistakable unilateral claim to an extended ocean resource  jurisdiction was embodied in the Truman Proclamation.  The  United States claimed the natural resources of the subsoil and seabed of its continental shelf, primarily to ensure a stable investment climate for American oil companies. jurisdiction fisheries.  114  In addition, the United States also claimed fishery conservation  113  over  the superjacent  waters in order  to protect  The principle of unilaterally claimed sovereignty over offshore  resources became generally accepted in international l a w , expressed  New England  in various types of claims initially  115  and thereafter, was  developed in South America.  However, it is important to note that these claims were not identical.  While in  most cases the pertinent proclamations did not encompass the high seas and the airspace above it, most Latin American States combined the assertion of rights to the continental shelf with wide, though indefinite claims to the sea above i t .  116  What is clear is that two things were developing. One was the claim to continental shelves by the principal marine powers which at the time was deemed to be the 112.  For a survey of the historical background bearing on claims to an E E Z , see Johnston, D . , and Gold, E . , The Economic Zone in the Law of the Sea: Survey. Analysis and Appraisal of Current Trends (1973).  113.  Hudson, Carolyn, "Fishery and Economic Zones as Customary International Law", San Diego Law Review, vol. 17, 1980 at p. 664. In that Proclamation the government of the United States declared the natural resources of the subsoil and sea-bed of the continental shelf - described as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it - beneath the high seas but contiguous to the coasts of the United States to be subject to its jurisdiction and control.  Lauterpacht  H . , (ed.), International Law - A Treatise by Qppenheim L . . Longmans, 1955 at p. 631. 114.  Hudson, ibid., at p. 664. See Presidential Proclamation 2668. supra note 110.  115.  Hudson, ibid, at p. 664: Also see Lauterpacht, H . , International Law 64 (E. Lauterpacht ed. 1970). The Truman Proclamations received international sanction in the "Convention on the Continental Shelf", 499 U N T S 311.  116.  Garcia-Amador, " T h e Latin American Contribution to the Development of the Law of the Sea", 68 American Journal of International Law. 33 (1974). Lauterpacht, supra note 113 at p. 632.  33  only legitimate extension of territorial jurisdiction. The other was the claim by most Latin American States of territorial jurisdiction over the continental shelf as well as the water column above it. The Truman Proclamation was followed  by Chile's claim of national  sovereignty over the continental shelf off its coast and islands and over the seas above the shelf to a distance of 200 miles.  117  Generally, claims to 200 mile EEZs  were primarily motivated by a genuine concern for conservation, and by other economic considerations.  118  Chile's claim was motivated by at least three factors:  (a) Chilean business interests were seeking a measure to protect their new offshore whaling operations; (b) Chilean legal specialists thought that a 200 mile claim was consistent with the security zone adopted in the 1939 Declaration of Panama; and (c)  the distinction in the claim between the continental shelf and the superjacent  waters was added to strengthen Chile's assertion that the claim followed the precedent set by the United States in the Truman Declaration.  117.  Presidential Declaration concerning Continental Shelf, June 23, 1947;  119  Chile's claims,  U N Legislative Series, Laws and  Regulations on the Regime of the High Seas, U N Doc. S T / L E G / S E R V . B / 1 A T 6 (1951). 118.  The principle 200-mile claimants, Chile, Equador and Peru, supported their unilateral assertions with a new theory of the relation of man and earth to the sea, the "Dioma Theory".  "Modern biologists and  ecologists have called the sum of non-biotic factors, mainly climatological and hydrological, which are capable of creating a particular situation, that will permit an aggregate of vegetable and animal beings to live within an "eco-system".  Within an "eco-system" many living communities, including man, may co-  exist in a perfect chain, or succession, constituting a whole which is called a "bioma". Therefore, the term "bioma" designates the whole of the complex of living communities of a region, which under the influence of the climate and in the course of centuries, becomes constantly more homogenous until, in its final phase, it becomes a definite type ... [Thus] a perfect unity and inter-dependence exists between the communities that live in the sea, which supports their life, and the coastal population which requires both to survive .... These "bioma" are proper to each region ... and it is, therefore, a prime duty of every coastal State to insure that they are not destroyed in the only way that this is possible, which is by the depredations of man". Rieff Henry, The United States and the Law of the Sea. University of Minnesota Press, 1959, at pp. 308-309. 119.  Hollick, L . A n n . , "The Origins x>f 200 Mile Offshore Zones", T h e American Journal of International Law, vol. 71, 1977 at pp. 496-499.  34  however, were subject to protest  120  and were not thought to be l a w f u l .  121  Nonetheless, a number of Latin American countries soon followed the precedent reasons.  122  established Ecuador  although their  by Chile,  albeit,  as Hollick  points out for different  and Peru, were both disposed towards  respective  offshore  offshore claims,  interests differed from those of Chile's.  Hollick points out that although Peru, and Ecuador had not coastal waters within the Antartic region that would require international regulation, and moreover, regardless of the fact that their own fishermen, rarely operated beyond twenty five miles from shore, they nonetheless wanted to protect their fishing fleets.  124  The presence of American tuna vessels fishing off their shores was also growing. Peru adopted a 200 mile policy 200 mile zone in 1951.  126  125  shortly after Chile. Ecuador formally declared a  A number of Latin American countries subsequently  followed the 1951 Declaration of Santiago, including the Montevideo Declaration 120.  127  See K u r t , L . Josef, "Continental Shelf and International Law: Confusion and Abuse", American Journal of International Law. V o l . 7, 1956, p. 828;  at p. 880 Kurz states:  "These claims cannot be based on a  pre-existing norm of international law, neither on the so-called principle of contiguity which is not a norm of international law; nor, as Mouton tried to do, on the freedom of the exploitation of the high seas, since here an exclusive right is claimed". 121.  Reiff, Henry, supra note 118 at p. 308, "The United States contested this "bioma" theory when it was put into the record at the Santiago Conference in 1955. T h e relationship of coastal communities to the sea is, aside from the limited number of people who depend for sustenance on the sea food they catch, one of economic rather than biological character. consumed elsewhere.  T h e products enter into trade and are for the most part  The "eco-systems and biomas" are essentially localised manifestations of major  world-wide meteorological and oceanographic forces.  The stocks of fish, such as tuna, roam wide over  the oceans: they do not respect the limits of the "biomas". Ibid at p. 308. 122.  Hollick, supra note 119 at p. 499.  123.  Hollick, supra note 119 at p. 499.  124.  Hollick, supra note 119 at p. 499.  125.  Presidential Decree No. 781 of August 1, 1947.. U N D o c . S T / L E G / S E R . B / 1 .  126.  Maritime Hunting and Fishing Law (Decree No. 003, February 22, 1951).  127.  The Montevideo Declaration does list amongst its criteria the right to establish the limits of sovereignty  35  on the Law of the Sea in 1970, and the Declaration of Santa Domingo on the Patrimonial Sea in 1972.  128  Notwithstanding the opinion of Kunz pertaining to the legality of these initial claims, Hudson, in tracing the evolution of economic zones concludes that the four prerequisites of a general practice accepted as customary international law is satisfied.  129  It is the opinion of the author that although the unilateral claims  of the Latin American countries may have been inspired by diverse national interests, they were nonetheless perpetrated by an awareness of the significance of the resources in adjacent waters. According to Cass,  130  the next significant development towards recognizing  131  coastal State sovereignty beyond the territorial sea occurred at the 1958 United Nations Conference on the Law of the Sea with the introduction of the continental and jurisdiction in its 200 O'Connell's statement.  mile zone.  The use of the word "sovereignty" would tend to support  In contrast, the Santa Domingo Declaration talks in terms only of "sovereign  rights". In any event both claims were part of a general movement towards the recognition of the coastal States rights over the resources in the waters superjacent to its continental shelf.  Cass, supra note 104  at p. 86. 128.  Cass, supra note 104 at p. 86.  129.  Hudson, supra note 113 at p. 689;  Kunz's views are supported by Lauterpacht, supra note 113 at pp.  632-633: "The reasons which have inspired the conception of the freedom of the sea and which assisted in its development are not, it is asserted, in conflict with the recognition of the rights of the coastal State to exclusive exploitation of the natural resources of the sea-bed and the sub-soil of the continental shelf. The direct proximity of the coastal State;  the fact that the continental shelf constitutes a natural  prolongation of its territory and that the mineral deposits of the shelf and of the mainland may form a common pool;  the special interest of the coastal State in the exploitation of the resources of the  continental shelf;  the circumstances that it is, geographically, in the best position to do so;  legitimate reluctance  and its  to permit other states to establish themselves, for that purpose, in the direct  proximity of its coast - all these factors, it is said, substantiate the reasonableness of the claim of the coastal State to these areas". 130.  O'Connell, D . P . , The International Law of the Sea. V o l . 1, Clarendon Press, Oxford, 1982 referred to as O'Connell) at p. 553.  duty to ensure necessary food supplies and hence to conserve and protect natural resources. 533. 131.  Cass, supra note 104 at p. 85.  (hereinafter  According to O'Connell, the Santiago Declaration postulated the Ibid, at p.  36  shelf regime. coastal  133  While the Continental Shelf Convention  134  did not provide the  State with any rights in the water column above the shelf area, it  nonetheless created the significant precedent of extending coastal State sovereignty beyond contemporary limits. However, the foregoing statement is qualified to the extent that prior to the conclusion of the Continental Shelf Convention, there had been numerous cases in which States exploited through their nationals the resources of the surface of the seabed.  The Continental Shelf Convention merely codified  customary international law that recognised amongst other things, that a "State may acquire, for sedentary  fisheries and for other  purposes, sovereignty and  property in the surface of the sea-bed, provided that in doing so, it in no way interferes with freedom of navigation"  In other words, the Continental Shelf  135  Convention did not initiate the process.  It merely codified an existing norm of  law. An important development occurred with the Fisheries Jurisdiction Case United Kingdom v. Iceland in 19 7 4. order.  136  A brief background to the case would be in  The background to the case was a longstanding dispute between the two  countries over the rights of British trawlers to fish in Icelandic waters.  In 1958,  following the Geneva Conference, Iceland declared a 12 mile exclusive fishing zone. The United Kingdom protested and protected British trawlers as they fished  133.  The motivation behind the early continental shelf proclamations was the provision of a legal regime for offshore oil activities.  As it happened, however, the geographical concept of the continental shelf had  first been adverted to by jurists for the purpose of rationalizing claims to exclusive fisheries jurisdiction, upon the argument that the continental shelf generates fishing resources which for that reason are linked with the land. O'Connell, supra note 130 at p. 498. 134.  Geneva Convention on the Continental Shelf. 1968. United Nations Treaty Series ( U N T S ) . 311.  135.  Lauterpacht, supra note 113 at p. 628.  136.  United Kingdom v. Iceland, ICJ Reports, 1974.  37  on the high seas within Iceland's fishing zone.  In 1961, through an exchange of  notes the United Kingdom agreed to recognize Iceland's zone on the condition that the phasing out of Britain's fishing interests be gradual and that notice be given if the zone was to be further extended. the zone to 50 nautical miles. extension.  187  Iceland responded in 1971 by extending  The United Kingdom repeatedly protested the  Iceland, however, continued to ignore the protests and in 1972, enacted  legislation to enforce the new zone.  138  The United Kingdom again protested and  in April 1972, filed an application with the International Court of Justice (ICJ) basing jurisdiction on the exchange of notes. The pertinent portion of the ICJ's judgment to the present discussion are as follows:  the ICJ found that two trends in international law had emerged since  1958, (a)  the acceptance of a 12 nautical mile territorial sea, and (b)  the concept  that the coastal State has preferential rights in adjacent waters particularly if the coastal State is dependent on those waters, but these rights were not to be exercised to the exclusion of historic rights. The ICJ's judgment  140  139  is significant in terms of the development of the E E Z  concept because for the first time the ICJ recognized that coastal States had the right to exercise some form of control (although only preferential) over the fishing 137.  Cass, supra note 104 at p. 86.  138.  Harris, supra note 94 at p. 369.  139.  See, Brownlie, I., Principles of Public International Law. Clarendon Press, Oxford, 1979 at pp. 237-255.  140.  In the Fisheries Jurisdiction cases, where the ICJ was faced with determining the validity of Iceland's extension of its fishing limits from 12 to 50 miles, the ICJ held that under customary international law, a coastal  State particularly dependent on fishing for its economic livelihood in certain  circumstances  enjoyed preferential rights of access to the high seas fishery resources in the waters adjacent to its coasts. This finding by the ICJ has been criticised because of the lack of evidence and the imprecision of the alleged rule, and in practice no coastal State, either before or since the Court's judgment has sought to rely on it. Churchill Si Lowe, supra note 90 at p. 202.  38  resources of the area adjacent to its territorial sea. this decision was made  despite  the  141  It was also significant that  failure of the Second  Law of the Sea  Conference in 1960 to agree to an extension of the territorial sea to the 12 mile limit.  142  By the time the Third United Nations Conference on the Law of the Sea convened in 1974, the concept of the E E Z had attracted the interest and support of most developing nations and was beginning to obtain the support of developed nations such as Canada and Norway.  143  It is also important to note that the  number of countries who were now participating in the process to further define international law of the sea had substantially increased. the rapid decolonisation of former colonies.  This was largely due to  The new actors had an enormous  impact on the future shape and direction of discussions pertaining to the law of the sea, because their interests differed from the traditional maritime powers. Kenya,  144  was primarily responsible for advancing the concept of an E E Z in any  international fora when it put forward the E E Z concept to the Asian-African Legal Consultative Committee in January 1971, and to the U N Sea Bed Committee in  19 7 2.  145  Kenya's proposal also coincided with Latin American countries'  141.  Cass, supra note 104 at p. 86.  142.  Cass, supra note 104 at p. 86.  143.  Churchill it Lowe, supra note 90 at p. 125.  144.  Rembe S. Nasila, Africa and the International Law of the Sea:  A Study of the Contribution of the  African States to the Third United Nations Conference on the Law of the Sea. Sijthoff Sc Noordhoff International Publishers, 1980, at p. 116. 145.  The Kenyan delegate who is regarded as the architect of this concept, stated in the plenary session of U N C L O S III that:  39  development of the concept of the patrimonial sea.  The two line of approaches  146  had effectively merged, and by the time the Third United Nations Conference on the Law of the Sea culminated in the conclusion of UNCLOS, most coastal States had declared an adjacent fishery zone, albeit the form and content of that zone varied between States.  147  At the Conference a number of different solutions were proposed. reflected the different political and economic interests of States.  148  These  The Latin  American countries favoured seabed and fisheries jurisdiction combined to 200 nautical miles.  The African states on the other  "economic" nature of the E E Z . fisheries management zone,  150  1 4 9  hand sought  to stress the.  Australia and New Zealand advocated a limited  and DWFNs, such as the United States and Japan,  argued that as they were best equipped to ensure that maximum yield was taken,  [Tjhoee ideas [of the exclusive economic zone] had originated within the Asian-African Legal Consultations Committee meeting in Colombo in 1970 and in Lagos in 1971.  They had further  developed in the Declaration of Santo Domingo of 1972, which was similar to the conclusions of the Yaounde Seminar and also recognized the existence of a continental shelf beyond 200 nautical miles. Rembe, ibid, at p. 118. 146.  See, Declaration of Santa Domingo. June 1972.  U N Leg. Serv. B/16, p. 599.  Although this Declaration  is the first Latin American declaration to refer to the patrimonial sea, it is the culmination of a series of earlier Latin American proclamations moving towards this concept.  Churchill St Lowe, supra note 90 at  p. 141. 147.  Cass, supra note 104 at p. 86.  148.  The politics of U N C L O S and the negotiating process produced new alliances and groupings. It was not unusual for a State to belong to more than one interest group because it could have more than one vital law of the sea interest and affiliation due to factors such as:  the configuration of its coast; the length of  its coastline and the width of its continental shelf; its proximity to the coasts of neighbouring countries; whether the sea or sea-bed adjacent to it were rich in living or non-living resources; commercial and military fleet;  its relations with its neighbours;  H . M . , United Nations Convention on the Law of the Sea 1982: Publishers, 1985 at pp. 68-69. 149.  Rembe, supra note 144 at pp. 119-127.  150.  O'Connell, supra note 130 at p. 560.  the size of its  and its military alliances. Nordquist,  A Commentary, V o l . 1, Martinus Nijhoff  40  they should be free to continue fishing in the traditional manner. The SPSs having been informed of the economic potential of the E E Z were quite clear with their position. They were amongst the majority of States which spoke in favour of some form of an E E Z .  152  They were vehemently interested in  an E E Z wherein the coastal State would have national jurisdiction and control over the  living and non-living resources,  marine research and pollution and were  agreeable to the laying of submarine cables.  153  The E E Z has been described as a multifunctional zone.  154  As Churchill and  Lowe pointed out, the E E Z is a reflection of the aspiration of the developing countries for economic development and the desire to gain greater control over the economic resources off their coasts, particularly fish stocks which in many cases were exploited by DWFNs.  155  As of October 1984, out of some 104 independent  coastal States, over three quarters (106 States) claimed limits of 12 nautical miles, 92 claimed 200 miles and a further 7 claimed jurisdiction up to median lines short of 200  miles.  166  Although UNCLOS has not entered into force, it is generally  agreed that because of the widespread acceptance of the regime internationally, 151.  O'Connell, supra note 130 at pp. 560-561.  152.  Nordquist, supra note 148  at p. 79.  157  The members of the Oceania Group were Australia, Fiji, New  Zealand, Papua New Guinea, Samoa, Tonga and the Trust Territories of the Pacific.  This Group  represented the interests of the island States in the South Pacific. Its position was often shared by other States which possessed islands. The common interest of the group was to ensure that islands were not precluded from establishing E E Z s and continental shelves, ibid, at p. 79. 153.  Teiwaki, supra note 99 at p. 71.  154.  For a discussion of the E E Z as a multifunctional zone see, Kwiatkowska, Barbara,  T h e 200  Mile  Exclusive Economic Zone in the New Law of the Sea, Martinus Nijhoff Publishers, 1989 at pp. 1-44. 155.  Churchill Si Lowe, supra note 90 at p. 126.  156.  F A O , Legislation on Coastal State Requirements for Foreign Fishing, F A O Legislative Series No. 21, Rome, 1984 at p. 1.  157.  Krueger B . R . St Nordquist, H . M . , "The Evolution of the 200-Mile Exclusive Economic Zone:  State  41  it has crystallized into customary international law. It is the opinion of the author that the history of the E E Z is now academic. It  has become universally accepted  opposed the subsequent  concept.  SPSs contributed  crystallization  declaring EEZs.  even by developed nations who initially  into  customary  widespread practice,  international  law  by  They recognized the economic potential of an E E Z .  knew that the region was rich with tuna. tuna was harvested by DWFNs. resources  to the  and its  respectively They also  Moreover, they knew that most of the  In order to benefit from the enormous tuna  in the region, SPSs had to gain control over the waters the tuna  inhabited. The innovation of the E E Z has been a significant gain by them. It is a gain that has also cost them substantially in terms of their human and financial resources.  They recognized their vulnerability and limitations which consequently  led to the formation of F F A .  C. The Legal Status of the E E Z  The  legal  status  of  the  EEZ  is  primarily  international law and reflected in Part V of UNCLOS.  governed  by  customary  The pertinent provisions  governing the rights and duties of coastal States concerning tuna, are Articles 56, 61, 62 and 64.  The discussion that follows examines the wording of the provisions,  Practice in the Pacific Basin", Virginia Journal of International Law. V o l . 19, 1978 at pp. 32-400.  The  authors said, "Although the I C N T is a long way from official agreement, its provisions on the E E Z are influencing State practice.  In the Pacific Basin, there is strong evidence that nations, either individually  or in regional cooperation, are tempering their interests with the steel of collective international trend." Ibid at p. 372. 158.  Hudson, supra note 113 at p. 686.  42  highlights any limits or ambiguities therein and defines any legal problems with the provisions.  1. General Scope of Authority  It is generally accepted that Article 56(l)(a) is the basic Article on coastal State rights and duties in the E E Z with respect to the various uses of the living and non-living resources found therein.  159  Article 56(l)(a) provides:  [I]n the exclusive economic zone, the coastal State has sovereign rights for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed, and of the seabed and its subsoil .... Two points need to be noted about the general provisions of Article 56(l)(a). First,  Article 56(l)(a)  "sovereignty".  160  accords  the coastal  State "sovereign  rights"  and not  The coastal State has sovereign rights for four primary purposes,  namely, exploring, exploiting, conserving and managing the natural resources of the  EEZ.  According to O'Connell,  this implies that the coastal  preference, but not necessarily a monopoly over the living resources.  161  State has He argues  that the term "sovereign rights" underscores the limited authority of the coastal State.  162  Cass explains that the wording was deliberate.  She refers to Juda's  comments in an article on the compatibility of national claims and UNCLOS, that 159.  See, Burke T . W . , " U . S . Fishery Management and the New Law of the Sea", 76 American Journal of International Law. 1982 at pp. 24-55, in particular pp. 41-44, for a discussion on tuna.  160.  O'Connell, supra note ISO at p. 563.  161.  O'Connell, supra note 130 at p. 563.  162.  O'Connell, supra note 130 at p. 563.  43  many States had claimed "sovereignty" over their zones.  UNCLOS, therefore,  sets a limit on coastal States rights while still according them control sufficient to carry out the duties set out in the provision.  164  It is important to note, however,  that this limit was actually established in 1958 under the Geneva Convention on the Continental Shelf. Dhamani states that coastal States sovereign rights over the living resources are not exclusive. fishery zone.  165  In this respect the E E Z is a preferential  166  Secondly, the nature of coastal States rights and obligations in the E E Z implies that the E E Z is a transitional zone between the freedom of the high seas and the sovereignty of the territorial sea. Consequently, some writers have labelled the E E Z as a zone sui generis.  167  Amongst other rights that coastal States have in the E E Z , which are worth mentioning briefly are, the right to erect artificial islands, installations and structures  168  and other facilities for the economic exploitation and exploration of  the zone, such as the production and exploration of energy from the water, currents and winds,  163.  169  scientific research  170  and jurisdiction with respect to the  Juda, L . , "The E E Z : Compatibility of National Claims and the U N Convention on the Law of the Sea", 16 Ocean Development and International Law. 1986 at p. 44.  164.  Juda, ibid, at p. 44.  165.  Dhamani, supra note 109 at p. 35.  166.  O'Connell, supra note 130 at p. 563.  167.  Cass, supra note 104 at p. 88.  168.  U N C L O S , Article 56(l)(b)(i).  169.  U N C L O S , Article 56(l)(a).  170.  U N C L O S , Article 56(l)(b)(ii).  44  marine environment, including pollution control and abatement.  These are  generally regarded as secondary purposes over which coastal States may exercise sovereign rights.  These rights are to be exercised with due regard to the rights  and duties of other States,  173  and are specifically subjected to the freedoms of  navigation and overflight, and of the laying of submarine cables and pipelines and other  internationally  lawful uses of the sea pertaining  to navigation and  174  communication. The management and conservation of the living resources in the E E Z are ultimately subject to coastal State authority.  175  Tuna is also subject to coastal State  authority with an additional obligation to cooperate with other States, which will be subsequently discussed.  176  a point  SPSs claim that they have sovereign rights  for purposes of managing, conserving, exploiting and exploring tuna and other living resources in their respective E E Z s .  177  This is recognized by DWFNs, such as  Japan, USSR, South Korea, Taiwan and more recently the United States, all of whom either have or have had bilateral access agreements with one or more SPS, or in the case of the United States, a multilateral access agreement.  SPSs are  emphatic on the issue of coastal States sovereign rights over the resources in the 171.  U N C L O S , Article 56(l)(b)(iii).  172.  O'Connell, supra note 130 at p. 562.  173.  U N C L O S , Article 56(2).  174.  O'Connell, supra note 130 at p. 563.  175.  See, Burke, T . William, "The Law of the Sea Convention Provisions on Access of Fisheries Subject to National Jurisdiction", 63 Oregon Law Review, at pp. 73-120.  176.  Fleischer, supra note 107 at p. 150.  177.  Swan, supra note 55 at p. 2.  45  E E Z , and the F F A Convention leaves no doubt as to their position on tuna. Article III(l) of the F F A Convention states: [T]he Parties to this Convention recognize that the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the living resources, including highly migratory species, within its exclusive economic zone ....  2. Determination of Allowable Catch  The responsibilities pertaining to the management and conservation of the living resources within the E E Z , are of greater significance and interest to SPSs. The main feature of conservation and management under Article 61 of U N C L O S .  requirements, is stipulated  Under Article 61, the coastal State "[s]hall  179  determine the allowable catch of the living resources in its EEZ".  In addition,  coastal  management  States  measures.  180  are  required  to  adopt  proper  conservation  and  It should do this by taking into account the best scientific evidence to  ensure that the living resources of the E E Z are not endangered by overexploitation. Burke  181  outlines this process as comprising five stages: (a)  total allowable catch; 178.  182  (b)  calculating the restrictions on harvesting capacity;  Slade, Neroni, "Forum Fisheries Agency and the Next Decade: the  Conference  determining the  on Management  and  Development  The Legal Aspects", Paper presented to  Strategies  in  South  Pacific  Fisheries.  FFC  17/TM3/3.7. 179.  For a discussion of the definition of "conservation"  and "management",  see Sutherland, William,  "Management, Conservation and Cooperation in E E Z Fishing: The Law of the Sea and the South Pacific Forum Fisheries Agency", Ocean Development & International Law, V o l . 18, 1987 at pp. 613-640. 180.  Churchill & Lowe, supra note 90 at p. 206.  181.  Burke, supra note 175 at p. 77.  182.  The Department of Fisheries of the F A O defines "allowable catch" as, that catch which, if taken in any  46  (c) making a decision as to how much the coastal State can harvest;  (d) deciding  what other nations may have access to harvesting and on what terms; negotiating arrangements  on the basis of these decisions.  and (e)  It is submitted that  although this is a convenient structure in which to consider these issues, it is by no means conclusive.  The coastal State must maintain or restore populations of  183  harvested fisheries at levels which produce "maximum sustainable yield" (MSY).  184  The MSY is the level of fishing a stock at which the maximum tonnage of fish can be harvested without depleting the stock.  185  Although the MSY is primarily based  on scientific and biological data, the coastal State must take into account, such factors as economic needs of coastal fishing communities, the special requirements for developing States, fishing patterns, and generally recommended international minimum standards.  186  It is quite clear from the wording of Article 61, that the determination of the allowable catch is discretionary, particularly in regard to how it can be made.  187  However, it does contain certain qualifications which allow the coastal  State to make the determination at its own discretion.  188  The first of these  one year will best enable the objectives of [fisheries] management (e.g. the optimum long term yield) to be achieved.  [Definition provided by the Department of Fisheries of F A O , mimeographed documents  submitted to U N C L O S III, Geneva Session, Doc. G E . 76.640 93.] 183.  Cass, supra note 104 at p. 91.  184.  U N C L O S Article 61(3) & (4).  186.  See, Joseph, James, "International T u n a Management Revisited", Global Fisheries Perspectives for the 1980s. Rothschild, B . J . , (ed.) (hereinafter referred to as Global Fisheries).  186.  F o r a discussion of problems of M S Y in management, see Gulland, "Goals and Objectives of Fishery Management", F A O Fisheries Technical Paper No. 166 U N D O C . FIRS/T166 (1977).  187.  Cass, supra note 104 at p. 91.  188.  Cass, supra note 104 at p. 91.  47  qualifications is seen in Article 61(2), which obliges the coastal State to use the "[b]est scientific evidence available to i t " . here.  189  Cass,  190  noted that two problems arise  Firstly, the use of the term "best" presupposes that the coastal State is not  obliged to ascertain the most precise scientific data, but only the best it can manage, and secondly, the phrase "available to it" implies that the coastal State does not necessarily have a duty to ascertain the data.  191  The second qualification pertains to the determination of the M S Y .  192  As  outlined above, the MSY is determined by recourse to scientific and biological parameters, including relevant economic and environmental factors.  The inclusion  of broad delineations, both economic and environmental, presupposes that the coastal State may have recourse to other factors to qualify its determination of the MSY.  193  The inference that may be drawn from the language of Article 61, is that  the determination of the MSY, to an extent, is discretionary.  3. Promotion of Optimum Utilization  The  coastal  State is required  to promote  the objective  of optimum  189.  O'Connell, supra note 130 at p. 562.  190.  Cass, supra note 104 at p. 91.  191.  Burke, supra note 175 at pp. 84-85.  192.  For a discussion of the impact of this in an area of major significance, see Troadec, "Practices and Prospects for Fisheries Development and Management.  The Case of Northwest African Fisheries", in  Global Fisheries, supra note 184 at p. 97. 193.  Burke, supra note 175 at p. 82. Burke contends that the term "environmental" may be taken to include all major features of the situation for which the coastal State initiates management measures.  It would  be inconsistent with the basic authority of the coastal States as established in Article 56, to read this phrase restrictively and exclude social and political concerns from management.  Ibid, at p. 82.  48  utilization of the living resources in the E E Z .  To achieve this, the coastal State  is required to determine the allowable catch of the living resources within its E E Z and its own capacity to harvest the allowable catch.  195  The coastal State may set  the allowable catch at a level equal to its capacity to harvest, even if such level is below the level which would ensure optimum utilization of fishery resources,  196  thus cutting off access to foreign nations to any surplus which the coastal State cannot harvest.  197  If the allowable catch is set at levels above which the coastal  State have the capacity to harvest, it must grant access to other States to harvest the available surplus.  198  Article 62(3) requires coastal States in giving access to  other States in its E E Z , to take into account all relevant factors, including inter alia, the significance of the living resources of the area to its economy, and the rights and needs of land-locked and geographically disadvantaged States in the region. A few comments must be made about the provision. Firstly, Article 62 does not  stipulate  determined.  199  any criteria  as  to  how the harvesting  capacity  Consequently, this raises a series of questions;  should be  how far will the  coastal State determine its actual capacity at some future time and limit the surplus that will be available to other States?  Should the coastal States' capacity  be viewed as excluding any joint fisheries venture?  How far will the flag of  194.  U N C L O S Article 62(1).  195.  U N C L O S Article 62(2).  196.  Burke, supra note 175 at p. 88.  197.  Dhamani, supra note 109 at p. 51.  198.  U N C L O S Article 62(2).  199.  Clingan, A . T . , " A n Overview of Second Committee Negotiations in the Law of the Sea Conference, Oregon Law Review. Vol. 63, 1984 at p. 57.  49  convenience fishing vessels count in the total harvesting capacity of a coastal State?  20  Secondly, as Dhamani argues, whether or not Article 62 obliges coastal  States to give other States access to the surplus of the allowable catch must be examined in the light of three considerations:  201  (a)  Article 62 speaks of "surplus"  to the harvesting capacity of the coastal State as determined by that coastal State itself and not "surplus" to the actual harvesting capacity of the coastal State determined by reference to objective criteria.  202  Thus, Dhamani points out, in  order for the coastal State to deny the existence of such surplus and consequently access by other States, "it can subjectively equate its harvesting capacity with the entire allowable catch which it is capable to set at levels which may best suit its own economic interests". automatic.  203  (b)  Access by third States to the surplus is not  It is conditional upon reaching "[agreement or other arrangements".  204  The terms and conditions of which may not be altogether satisfactory or acceptable to the third State seeking access to the surplus resources of the E E Z .  205  The words  "[s]hall seek through agreement or other arrangements" do not seem to suggest that an obligation to enter into agreement is cast upon the coastal State, represents only a requirement that  the coastal State  206  but  should negotiate to its  satisfaction "access agreements" with other States wishing to fish for the surplus.  207  200.  Dhamani, supra note 109 at p. S3.  201.  Dhamani, supra note 109 at p. 54.  202.  Burke, supra note 175 at p. 90.  203.  Dhamani, supra note 109 at p. 55.  204.  U N C L O S Article 62(2).  205.  Dhamani, supra note 109 at p. 55.  206.  Churchill ii Lowe, supra note 90 at p. 207.  207.  For a contrary view, see Phillips, "The Exclusive Economic Zone as a Concept in International Law",  50  (c)  The provisions of Article 62(2) do not give any indication as to the nature of  "access agreements".  208  Many solutions may be envisaged.  For example, direct  licensing, joint ventures, cooperation agreements or an international with a number of States to allocate between themselves the surplus.  agreement  209  Moreover, the wording of the first paragraph once again indicates the discretionary nature of the obligation on coastal States.  The coastal State is only  required to "promote" the "objective" of optimum utilization. It is submitted that there is no compulsion upon the coastal State to achieve a quantifiable standard. This is reflected in the use of the word "optimum" rather than "maximum".  210  211  4. Highly Migratory Species  Tuna is a HMS, which are singled out by UNCLOS because they pose a peculiar conservation  and management  problem.  U N C L O S governing HMS is Article 64(1).  The pertinent  provision of  In respect of HMS, Article 64(1)  provides that "[cjoastal States whose nationals fish in the region for HMS should cooperate either directly or through appropriate international organizations with a view to ensuring conservation and the objective of optimum utilization of such species, throughout the region both within and beyond the EEZ".  Article 64(2)  International Comparative Law Quarterly. Vol. 26, at pp. 602-603. 208.  Swan, J., " T u n a Management in the South Pacific", The Law of the Sea: What Lies Ahead?". Clingan, A . T . (jnr.), (ed.), Proceedings of the 20th Conference of the L O S Institute at p. 185.  209.  Dhamani, supra note 109 at p. 55.  210.  Burke, supra note 175 at p. 90.  211.  Cass, supra note 104 at p. 92.  51  provides that the international management set out in paragraph one of Article 64, is "[i]n addition" to the coastal States normal management rights and duties when these species are found in its EEZ. Article 64 has presented the most problems for the region. 64.  213  212  There is considerable disagreement over the meaning of Article  As Cass  214  points out, does it override the earlier provisions which give  coastal States exclusive authority, or is it an additional obligation to cooperation which does not take away from their sovereign rights under Article 56. elaborate discussion of this point is given below.  A more  At this stage, it is suffice to  mention that the only area of potential difficulty arising out of this provision is whether or not the coastal States authority over HMS extends beyond the E E Z . It appears from the provision that in order to discharge its obligation to conserve and manage these stock, the coastal State would have to exercise authority within the high seas beyond the E E Z .  2 1 5  The analysis of the various provisions above reveals that the decision to allocate surplus to third parties rests entirely with the coastal State. Cass  216  points  out that this is because the determinative factors, such as the allowable catch, harvesting capacity, and optimum utilization can all be determined according to the best interests of the coastal State. Moreover, the determinative factors are all within coastal State authority. The subsequent criteria to be used to decide which State can have access are also within coastal State control. 212.  Tsamenyi, supra note 79 at p. 32.  213.  Kelly, supra note 70 at p. 481.  214.  Cass, supra note 104 at p. 94.  215.  Cass, supra note 104 at p. 95.  216.  Cass, supra note 104 at p. 95.  217.  Cass, supra note 104 at p. 95.  217  Hence, stocks such as  52  HMS, although accorded special attention, still fall within the general authority of the coastal State outlined in the major Articles.  218  D . Impact of the E E Z Regime on SPSs  In response to the Port Moresby Declaration on the Law of the Sea, a number of SPSs moved quickly to enact legislation declaring 200 mile E E Z s . Others,  limited themselves  fisheries.  to declaring 200  Papua New Guinea couched  miles exclusive jurisdiction over  its claim in terms of "offshore seas",  seemingly closer to a fishery zone than an E E Z . declared three zones:  (a)  219  Marshall Islands and Palau  a three mile territorial sea;  (b)  a 12 nautical mile  exclusive fisheries zone, with the same sovereign rights over living resources as in the territorial sea; latter  zone,  and  exclusive  (c)  a 200 nautical mile extended fishery zone.  management,  conservation  and  regulatory  In the  authority  is  claimed over all living resources to the extent recognized by international law. Since the adoption of UNCLOS in 1982,  two further SPSs have enacted new  218.  Cass, supra note 104 at p. 95.  219.  Cook Islands - Territorial Sea and Economic Zone A t , 1977;  F i j i . Marine Spaces Act, 1977;  Zealand. Territorial Sea and Exclusive Economic Zone A c t , 1977; Economic  Zone Act,  1978;  Solomon  Islands  Delimitation of Marine Waters Act, 1978;  and  Tonga  New  Niue. Territorial Sea and Exclusive  enacted  legislation  (Solomon  Islands.  Tonga, Territorial Sea and Exclusive Economic Zone Act,  1978). 220.  Australia. Fisheries Amendment Act, 1978; Jurisdiction of F S M ;  Marine Resources Jurisdiction Act, 1978; 7-14;  Federated  Nauru. Marine Resources Act, 1978;  Solomon Islands. Fishery Limits Ordinance, 1977;  Ordinance, 1978.  States of Micronesia, (FSM), Fishery Zone  Kiribati. Proclamation under the Fisheries Ordinance 1977;  Marshall Islands.  Palua, Public Law No. 6-  Tuvalu, Proclamation under the Fisheries  53  legislation transforming their exclusive fisheries zones into EEZs.  The speed  with which they moved to enact appropriate legislation reflects their commitment and belief in the notion that they stood to benefit from UNCLOS. The extension of the coastal State jurisdiction by means of 200 mile E E Z s  222  from what had previously been narrow coastal State limits to encompass areas which had formerly been high seas - areas containing the major proportion of the ocean's resources and being the site of most ocean activities represents a major change in the regulation of and access to ocean activities.  them  223  The impact of the E E Z regime on SPSs was enormous.  The E E Z enabled  to  particularly  claim sovereign  contained therein.  rights  over  the  living  resources,  tuna  As stated above, the development of the tuna resources has  substantially enhanced their prospect for economic self-reliance. However, as Fairbairn points out, the E E Z regime created the need for the development of an effective mechanism for regional cooperation, the need to delimit their respective E E Z boundaries, and moreover, it created the need to raise the necessary capital and technical expertise required for development.  224  They were now confronted with management and conservation issues which most of them had had no previous experience dealing with. their  sovereign  rights,  they  had to  have  adequate  In order to exercise  scientific  and biological  information about the tuna stock in their E E Z , they had to undertake surveillance measures to preclude illegal fishing and moreover, they had to develop local 221.  Kiribati, Marine Zones (Declaration) A c t , 1983;  and Tuvalu, Marine Zones (Declaration) Act, 1984.  222.  Krueger & Nordquist, supra note 156 at pp. 355-372.  223.  Churchill & Lowe, supra note 90 at p. 138.  224.  Fairbairn, supra note 18 at p. 235.  54  expertise. For DWFNs who traditionally fished in the South Pacific region, the major impact of the E E Z has been to increase the cost of catching tuna, in what were previously high seas.  226  DWFNs either lost access to former fishing grounds, or  had to pay access fees to obtain access. the effect of transferring  226  In summary, the E E Z regime has had  significant fish stocks from international common  ownership to national ownership by coastal States.  As shall be seen in the  subsequent part of the paper, the aforementioned factors all contributed to the formation of F F A .  225.  Churchill & Lowe, supra note 90 at pp. 138-139.  226.  Philipson, P . W . , (ed.), The Development of Marine Products Exports:  A Pacific Outlook, the Marketing  of Marine Products from the South Pacific (IPS), (USP), Suva, 1989, at p. 6.  55  C H A P T E R III  MANAGEMENT OF TUNA IN THE SOUTH PACIFIC  As indicated above, Article 56 of UNCLOS confers on coastal States sovereign rights to exploit and explore and manage and conserve the tuna stock in the E E Z . However, needless to say, this was a particularly onerous task for SPSs. They did not have the capability and mechanism to collect pertinent information regarding the fishery on which the sovereign rights, espoused thereunder could be exercised. truly  Moreover, unlike most other species of fish, tuna is highly mobile and  oceanic.  It  migrates  throughout  the  international political boundaries and high seas.  vast 227  ocean,  transcending  both  And therefore because of their  highly migratory nature, tuna poses peculiar management problems for coastal States.  228  However, in the case of the South Pacific, four circumstances make it  particularly difficult to structure a management regime and achieve agreement on it. These are: (1)  the wide range of stock migration; (2)  composition and migration patterns; participants;  and  (4)  (3)  the complexity of stock  the large number of SPSs and DWFN  the fact that many stock components spend considerable  time in the waters of the high seas.  229  Accordingly, tuna is classified as a highly  227.  Joseph J., "The Management of Highly Migratory Species", Marine Policy, Oct. 1977 at pp. 275-282.  228.  V a n Dyke, Jon it Hefler Susan, supra note 85 at p. 6.  229.  Copes, Pariival, "Tuna Fisheries in the Pacific Islands Region", in T u n a Issues and Perspectives in the Pacific Islands Region. Doulman J. David, (ed.) Bastwest Center, Hawaii, 1987 at p. 3.  56  migratory species (HMS) under Annex I of U N C L O S (see Table 4).  3 0  The discussion in this chapter purports to provide a general overview of the institutional arrangements SPSs have formulated to manage tuna in the region. Amongst other things, the international law governing the exploitation of tuna is discussed. the  Furthermore, the discussion also involves highlighting the strengths of  institutional arrangements  now in place,  and  identifying their  inherent  weaknesses.  230.  Gullard, "Some Problems of tire Management of Shared Stocks", F A Q Fisheries Technical Paper No. 206, U N D O D C . F I R M / T 2 0 6 (EN), 1980 at pp. 8-20.  57  T A B L E 4:  Annex I. Highly Migratory Species  1.  Albacore tuna: Thunnus alalunga.  2.  Bluefin tuna: Thunnus thvnnus.  3.  Bigeye tuna: Thunnus obesus.  4.  Skipjack tuna: Katsuwonus pelamis.  5.  Blackfin tuna Thunnus atlanticus.  7.  Little tuna Euthynnus alletteratus: Euthvnnus affinis.  8.  Southern bluefin tuna Thunnus maccovii.  9.  Frigate mackerel: Auxis thazard: Auxis rochei.  10.  Pomfrets: Family Bramidae.  11.  Marlins: Tetrapturus angustirostris: Tetrapturus belone: Tetrapturus pfluegeri; Tetrapturus albidus: Tetrapturus audax: Tetrapturus georgei: Makaira mazara: Makaira indica: Makaira nigricans.  12.  Sail-fishes: Istiophorus platvoterus:  13.  Swordfish: Xiphias gladius.  14.  Sauries: Scomberesox saurus: Scomberesox saurus scombroides.  15.  Dolphin: Coryphaena hippurus Coryphaena eauiselis.  16.  Oceanic sharks: Hexanchus grieus: Cetorhinus maximus: Family Alopiidae: Rhincodon tvpus: Family Carcharhinidae: Family Sphvrnidae: Family Isurida.  17.  Cetaceans: Family Phvseteridae: Family Balaenopteridae: Balaenidae: Family Eschrichtiidae: Family Monodontidae: Ziphiidae; Family Delphinidae  Istiophorus albicans.  Cololabis saira:  Source: U N Convention on the Law of the Sea B159.  Cololabis  adocetus:  Family Family  58  A. Management Goals of SPSs  As a starting point on the discussion of the objectives of tuna management in the region, perhaps it would be useful and helpful to refer to the report on fisheries management by the Working Party of the F A O Advisory Committee on Marine Research which basically summarizes traditional objectives.  231  As in other activities, the establishment of a clearly defined objective or set of objectives, is an essential starting point for fishery management. The declared objectives will govern the detailed nature, scope and content of the management schemes that are adopted, including the requirements for data and research, and they provide the yardstick against which the success or failure of management can be assessed. There has been considerable debate regarding the appropriate definition of a fishery management objective. Discussions on an appropriate objective have intensified with the changing legal regime. Before these changes in effective ownership, marine fisheries were international, based, with few exceptions, on common property resources. The fisheries of the different countries taking part in the overall fishery activity were governed by different social, economic and political climates. As a consequence, and not surprisingly, the objectives of fishery management which became most acceptable to the international fishery community, and which were embodied in international fishery management conventions, were ones defined on the basis of criteria relating to the biological properties of the exploited resources and the catches attainable from them. The most widely used objective was maximum sustainable yield or some variant of it. The merit and attractiveness of maximum sustainable yield was its apparently unambiguous definition, its focus on the maximizing of fish production for food and industrial purposes, and the fact that it could be estimated - at least to a reasonable approximation - with the scientific tools available. It was frequently the upper bound for a range of advocated strategies and 231.  Food and Agriculture Organization ( F A O ) . Report of the A C M R R Working Party on the Scientific Basis of Determining Management Measures. 24 ( F A O Fisheries Report No. 236, 1980), quoted in Burke, W . T . , supra note 159 at pp. 24-25.  59  thus a basis for compromise. When the simplified context of MSY calculations is altered to allow for species interactions, climatic trends, and alternative definitions of benefits, it is no longer a simple matter to define and calculate MSY. Biologically based objectives such as maximum sustainable yield may result in a management system which "works" and achieves benefits to the community in the form of higher sustained fish supplies than would probably be attained in the absence of management, but the biological objectives in themselves do not satisfy specific important socio-economic concerns in fishery management. As has been pointed out by fishery economists for many years, management based on a biological objective such as MSY will inevitably result in overcapacity in the fishery and the dissipation of the potential economic benefits which might be achieved if "optimization" involved socioeconomic objectives with biological constraints. Economists argue that an objective, aimed at maximizing economic yield would be more appropriate than the biologically based one. The result of doing so might be some sacrifice of average physical yield from the particular stock in question, and in the level of direct employment in that fishery, in return for more long-term stability in the fishery and an increase in the contributions made by the fishery to the economies of the participating countries. Many other objectives have been advocated on some fisheries management situations. These include maximization of employment or achieving a target income distribution and maintaining high catch rates for recreational' fisheries. SPS's concerns over the management and development of the tuna resource fall into three major areas. and processing industries.  233  232  Firstly, they wish to develop national tuna fishing  Secondly, they wish to control foreign fishing in their  waters and extract maximum benefits therefrom.  234  Thirdly, they are confronted  with the need to coordinate their policies in the exploitation of tuna with other States in the region and to develop cooperative relationships with DWFNs over the 232.  Clark L . G . , and Slayter, A . J . , "Economic Development and Management of Fisheries in the Exclusive Economic Zones of Pacific Island States", in The Developing Order of the Oceans. Krueger B . Robert and Riesenfeld, A . Stepan, Law of the Sea Institute, 18th Annual Conference, 1984, at p. 609.  233.  Doulman, J. David ic Kearney E . Robert, Domestic T u n a Industries, in The Development of the Tuna Industry in the Pacific Islands Region:  A n Analysis of Options, supra note 72 at pp. 3-31;  see also  Kearney, R . E . , "Fishery Potentials in the Tropical and Western Pacific", S P C Fisheries Newsletter, No. 24, January-March 1983, at pp. 24-28. 234.  Clark and Slayter, supra note 232 at p. 610.  60  management of the resources.  Whilst it is the first of the three goals, that is, the  desire to develop their domestic tuna industry which has immediate priority in the medium term, for purposes of this discussion, their fisheries management objectives shall be taken to encompass the need to control foreign fishing operations in their EEZs and to procure maximum financial benefits from the tuna resource.  The  management of tuna in the region is generally based on scientific, legal, social and economic considerations.  236  Indeed as one commentator asserts, the management of  a fishery consists of manipulation of the system to achieve objectives such as the MSY,  maximum  economic  yield  (MEY),  protection  of  certain  species  from  exploitation, and knowledge of the fishery, all of which are required for effective management of a fishery.  237  Ideally SPSs want to develop their own tuna industry. The reasons for this are  logical.  Nationally-owned tuna  industries  would  provide much needed  employment opportunities for islanders, substantially increase foreign exchange earnings, and moreover, they may enjoy the multiplier effects and the spin-off benefits generally associated with local fishing industries.  However, in order to  achieve this objective, they must contend with certain inherent problems that underlies any development plans towards accomplishing this objective. At the outset they must be prepared to cushion the effects of fluctuations in the abundance of the tuna resource.  238  This stems from the fact that although the  235.  Clark and Slayter, supra note 232 at p. 610.  236.  Swan, supra note 208 at p. 184.  237.  Joseph, James, Some Observations on Fisheries Management in the South Pacific Ocean, a paper presented to the Conference on Management and Development Strategies in South Pacific Fisheries, Honiara, 1989, F F C 17/TM3/3.17, at p.2.  238.  Kearney; R . E . , supra note 233 at p. 27.  61  area of ocean water under their control as a result of the 200 nautical mile E E Z has  increased  substantially,  the  size of  the  tuna  stock  remains  unchanged.  Consequently, some of them may effectively find it difficult to maintain a fleet all year round. The problem however, may be more particularly acute for smaller SPSs because of their lack of coastal ecology which support smaller fish on which surface swimming tuna fish. Secondly, the development of a local tuna industry requires the construction of large expensive vessels which very few of them can a f f o r d . aggravated  239  Moreover, this is  by the fact that most of them do not have adequate docking and  shipping facilities, which automatically limits any plans to develop local tuna industries. fuel.  241  240  An additional problem they also face is the cost and availability of  Fuel is expensive and difficult to obtain in precisely the quantities needed  to supply a small number of vessels which are refuelled on an irregular basis.  242  With the exception of the Solomon Islands and Fiji, most SPSs at least at this stage do not have a sizeable local tuna industry. Nonetheless, a few of them are already  making plans to develop local tuna industries.  243  It is arguable  therefore, that based on this trend their tuna management goals may be necessarily transformed in the future. review  and  redefine  development plans.  their  Consequently, in view of this trend, they will need to management  objectives  to  reflect  their  economic  Furthermore, they may want to decide whether they should  239.  Kearney, R . E . , supra note 233 at p. 28.  240.  Kearney, R . E . , supra note 233 at p. 28.  241.  Pinti,  W.S., "Fuel Use in T u n a  Fishing", A Study Funded by Forum Fisheries Agency, Forum  Secretariat and E S C A P / U N D P Pacific Energy Development Programme. F F A Report 89/52. 242.  P i n t i , W.S. ibid, at p. 3.  243.  Kearney, R . E . , supra note 233 at p. 26.  62  coordinate their efforts in this regard or whether they should pursue the matter according to their respective national interests.  The author believes however, that  this is a subject that they should now be seriously considering.  B. International Law of Fisheries  The international law regulating fisheries falls into two very distinct phases.  244  The first  is the period up to the middle of 1970s, which was  characterized by generally narrow coastal State maritime zones and a considerable amount of international cooperation in fisheries management through a number of international fishery commissions.  245  The second phase is the period since the mid-  1970s when broad coastal State zones in the form of 200 mile EEZs, inspired by the work of U N C L O S and embracing most commercially exploitable fish stocks, have become the norm, while the role of international fishery commissions has been significantly reduced.  246  This discussion basically focuses on the international law  pertaining to the regulation of fisheries, particularly HMS in the E E Z .  2 4 7  Under Article 56(l)(a) of UNCLOS, coastal States have sovereign rights in the E E Z , for purposes of exploring and exploiting, conserving and managing the natural resources whether living or non-living of the waters superjacent to the  244.  Churchill, Si Lowe, supra note 90 at p. 198.  245.  Churchill, Si Lowe, supra note 90 at p. 199..  246.  Churchill, Si Lowe, supra note 90 at p. 199.  247.  F o r a more elaborate discussion on the subject see, Burke, W . T . , Highly Migratory Species (HMS) in the Law of the Sea, 14 Ocean Development and International Law, pp. 273-314.  63  seabed and the subsoil.  Furthermore coastal States also have sovereign rights  with regards to the economic exploitation and exploration of the E E Z in respect to the production of energy from the water, currents and winds.  Article 56(1 )(a) is  quite explicit to the extent that coastal States sovereign rights are specifically for purposes of exploring and exploiting, conserving and managing the area, including all living resources except those subject to the regime of the continental shelf.  249  Burke therefore asserts that the express exclusion of certain category of living resources from the usual authority of the coastal State within the E E Z is strong evidence that otherwise the domain of the coastal State is complete in covering all • living resources  in the E E Z .  In so far as this is applied to HMSs, Burke  2 5 0  contends that: "Accordingly, HMS, including those labelled and defined in the treaty, are subject to coastal authority in the E E Z exactly as are all other species except that coastal States are, in addition, obliged by Article 64 to cooperate with States fishing in the region with a view to ensuring conservation and promoting the objective optimum utilization of such species throughout the region, both within and beyond the E E Z . " (emphasis added). 251  The principle that coastal States have sovereign rights over all living resources, including HMS, in their E E Z is recognized by all coastal States, except 248.  Burke, W . T . , "Impacts of the U N Convention on the Law of the Sea on Tuna Regulation", F A O Legislative Study. No. 26, 1982 at p . l . " U N C L O S provides that the coastal State has sovereign rights in an E E Z extending  200  nautical miles over all living resources of the seabed and subsoil and the superjacent waters. The sovereign rights are for the purpose of exploring and exploiting, conserving and managing the natural resources of the area.  The rights pertain to the living resources of the area with  one exception - the seabed and subsoil rights are to be exercised in accordance provisions of the continental shelf.  with the  This means that any conditions or restrictions affecting  sovereign rights in the E E Z are not applicable to seabed and subsoil resources", Burke, ibid, at pp. 1-2. 249.  Burke, W . T . , ibid, at p. 2.  250.  Burke, W . T . , supra note 247 at p. 275.  251.  Burke, W . T . , supra note 247 at p. 275.  64  the Bahamas,  and the United States of America (US).  The rationale for the  US position is based on the premise that tuna is highly migratory and is not a resident resource of the E E Z .  264  They are only found within any E E Z temporarily  and may migrate far out into the ocean waters beyond.  Therefore, the coastal  State does not have the ability to manage and conserve tuna unilaterally, nor does it have paramount interest in their development.  252.  See, Bahamas Fisheries Resources (Jurisdiction and Conservation) A c t , 1977,  reproduced in United  Nations Legislative Series:  the  National Legislation and Treaties  Relating to  Law of the  sea.  S T / L E G / S E R . B / 1 9 . Section 2(b) any fishing for such stocks; "fishery resources" means [f]ish of any kind found in the sea (other than species of tuna which in the course of their life cycle, spawn and migrate over great distances in waters of the ocean) and includes living organisms belonging to sedentary species, that is to say, organisms which, at the harvest able stage, either are immobile or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil of the continental shelf,  (emphasis  added). 253.  See Public Law 94-265.  Sec. 103.  High Migratory Species:  [T]he exclusive fishery management  authority of the United States shall not include, nor shall be construed to highly migratory species of fish, reprinted in Moore, J . N . , International and United States Documents on Oceans Law and Policy. V o l . 4, William S. Hein & Co., Inc., 1986. 254.  Wolfe, E . E . , "The International Implications of Extended Maritime Jurisdiction in the Pacific", Paper presented to the 21st Annual Conference of the Law of the Sea Institute, August 4, 1987.  He argues that  " T u n a is a highly migratory species, moving and swimming through and across the waters of numerous coastal States.  Because of their highly migratory nature it is impossible for coastal States to adopt  conservation and management  measures unilaterally.  The conservation and management of highly  migratory species may only be done through international cooperation".  65  1. Coastal States do not have Sovereign Rights over H M S  The US bases its arguments on three legal points.  The first argument is  based on Article 63(2) of UNCLOS. It provides: "(2) [w]here the same stock or stock of associated species occur both within the E E Z and in the area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area." The US contend that the separate provisions on high seas/economic zone stocks establishes that these species are not within the purview of coastal State authority in the E E Z .  2 6 6  Therefore, the reference to Article 56 (the basic Article  on coastal authority in the zone) and Articles 61 and 62 (the basic general Articles on living resources) cannot be construed to include H M S .  267  The second argument  is based on Article 64(1) of UNCLOS. It provides: "... [t]hat the coastal State and other States whose nationals fish in the region for highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal States and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. The US argue that Article 64(1) imposes an obligation on coastal States in  255.  Tsamenyi, supra note 79 at p. 35.  256.  Tsamenyi, supra note 79 at p. 35.  257.  Tsamenyi, supra note 79 at p. 35.  66  whose waters (i.e. the EEZ) the tuna swim through, and DWFNs who fish for tuna, to  cooperate  organizations. the  internationally 258  international law. 260  regionally  through  appropriate  regional  Moreover, the US also argue that Article 64(1) is evidence that  obligation to cooperate  unilaterally.  or  259  in the management  of tuna  reflects  customary  Therefore, the coastal State cannot purport to manage tuna  Thirdly, the US argue that Article 56(2)  261  of UNCLOS obliges  coastal States to have due regard to the rights and duties of other States, therefore coastal States do not have an unfettered discretion over living marine resources in the E E Z .  The US adopted a hardline policy which was expressed through two  elaborate domestic legislation, namely, the Fishermen's Protective Act (FPA) of 1954 and the Fisheries Conservation and Management Act (FCMA) of 1976. The  258.  Wolfe, E . E . , supra note 254 at p. 4.  259.  A statement by an official of the US State Department explains the US position, quoted in Burke,  Bupra  note 247 at p. 304. "The rationale behind the US approach is straightforward.  T u n a is not a resident resource of  the E E Z . They are only found within any E E Z temporarily and may migrate far out into the ocean waters beyond.  Therefore, the coastal State does not have the ability to manage and  conserve tuna nor does it have a paramount interest in their development.  Although many  coastal States claim jurisdiction over tuna within 200 nautical miles, none exercise conservation and management  authority through purely domestic measures.  Only through international  agreements have States actually managed effectively the highly migratory tuna species. In fact, the US has led other nations in developing a regime of tuna management through international agreement such as the recent Eastern Pacific Ocean T u n a Fishing Agreement, signed by Costa Rica, Panama and the U S . Accordingly, customary international law precludes the coastal State from establishing sovereign rights over tuna. In the US view, this is evidenced by Article 64 of U N C L O S which requires cooperation between coastal States and D W F N s to manage tuna, both within and outside the E E Z , on a regional basis, through an international organization » 260.  Accordingly, the US define H M S restrictively.  Under Section 3(14) of the Fishery Conservation and  Management Act ( F C M A ) of 1976 [16 U S C 1801-Public Law 94-265] H M S is defined as "|s]pecies of tuna, which in the course of their life cycle, spawn and migrate over great distances in waters of the ocean." 261.  U N C L O S Article 56(2) states:  "In exercising its rights and performing its duties under this Convention  in the Exclusive Economic Zorre, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention".  67  F P A makes provision to compensate US tuna fishermen whose vessels are seized for fishing illegally in the EEZs of other coastal States. The FCMA reinforces the US position by providing for the imposition of an embargo on the importation of fisheries products from any country that seizes a US fishing vessel taking tuna without a licence.  2. Coastal States have Sovereign Rights over HMS  The arguments generally advanced in support of the proposition that coastal States have sovereign rights over tuna in the E E Z is based on Articles 56, 61 and 62 of UNCLOS.  These contain the basic Articles on fisheries.  262  The general  proposition is, these Articles respectively give coastal States sovereign rights to manage, conserve, exploit and explore the living resources of the E E Z .  2 6 3  It is  argued that no distinction is ascertainable in the Articles, either expressly or implicitly to infer that the reference to "living resources" in the E E Z necessarily excludes tuna. The wording in Article 56(1) is quite explicit on this point in that it does not differentiate between the species of living resources.  Article 61  empowers the coastal State to determine the allowable catch and maintain the MSY. Moreover, Article 62 empowers the coastal State to promote catch quotas, and adopt enforcement procedures.  The powers of the coastal State under Articles 61 and 62  both originate from the sovereign rights that arise under Article 56(1).  262.  Oda Shigera, "Fisheries Under the United Nations Convention on the Law of the Sea", American Journal of International Law. V o l . 77, 1983, pp. 706-739.  263.  Dahmani, supra, note 109 at p. 34.  68  3. International Law  The popular interpretation and one that has the support of distinguished lawyers on ocean matters is that the coastal State has sovereign rights over tuna in the E E Z .  2 6 4  In this regard, Burke argues that so far as U N C L O S is concerned, it is  quite clear in providing that the coastal State has sovereign rights within its E E Z over all "living resources" and that includes tuna as well as other HMS listed in Annex 1.  265  Further, it is submitted that it is difficult to accept the US position in  the face of the apparently unambiguous language of Article 62(2), that Article 64(1)  is "in addition to this Part".  266  Burke contends that this form of cross  reference is unique and should be understood as meaning "instead of" or "exclusive of".  267  Moreover, while this cross reference does not appear elsewhere in UNCLOS,  this does not suffice to reverse the otherwise apparent meaning of "in addition to" which obviously assumes  the applicability of other  provisions of Part  v.  2 6 8  Incidentally, Annex I species also include cetaceans, but these are clearly subject to the limitation of Article 65. Therefore, the argument based on Article 64(1) has no legal merit, because it is difficult to read Article 64(1) as excluding tuna from the ambit of any coastal State authority.  264.  Burke, W . T . , supra note 247 at p. 281;  Oda, supra note 262.  265.  Burke, W . T . , " C L O S and Fishing Practises of Non-Signatories with Special Reference to the U S . " , Paper presented at the Conference on Customary International Law Governing Pacific Ocean Activities after the Law of the Sea Convention, 1984, Eastwest Center, Hawaii, p. 23.  266.  Burke, W . T . , supra note 159 at p. 41.  267.  Burke, W . T . , supra note 159 at p. 41.  268.  Burke, W . T . , supra note 159 at p. 42.  69  It is submitted that Article 64(1) contains some language which has not yet crystallised into customary international law, because it has not been incorporated in domestic law, nor considered to be obligatory in international practice.  269  In  this connection, Swan articulates the following considerations pertaining to the language of Article 64(1)  which need to be addressed;  liable to be accorded different interpretations.  (a) the term "region" is  It could refer to a geographic  region (e.g. South Pacific), or that part of the region where most or all of the fishing activity takes place (e.g. Nauru Group); (b) the nature of "cooperation" is not stipulated.  Neither is there an express duty to ensure conservation or achieve  the objective of optimum utilization.  Article 64(1)  only speaks of "cooperation"  with "a view to" ensuring conservation and promoting the objective of optimum utilization. standard  of  It is submitted that the language merely suggests that a minimum cooperation  would  be acceptable;  (c)  Article 64(1)  states that  cooperation is to take place either "directly", which means bilateral cooperation or through "appropriate international organizations". There is nothing in the language of Article 64(1) organization.  to suggest that coastal States are required to be members of the  The following sentence requires the fishing countries to "participate  in the work" of such an organization, which could be interpreted to refer to participation and not membership; 64(1)  270  (d) the reference to the high seas in Article  should be read in conjunction with the preferential status accorded the  coastal State under Article 116;  and; (e)  there is no duty for all coastal States to  agree on conservation measures, since this ultimately remains within the coastal States prerogative under Articles 56, 61 and 62. 269.  Swan, supra note 208 at p. 186.  270.  Swan, supra note 208 at p. 186.  271.  Swan, supra note 208 at p. 186.  271  70  However, Burke concedes that whilst Article 64(1) does require some form of cooperation and therefore limits coastal States action with regards to tuna, what this limitation amounts to in practice  is that the coastal State cannot simply  promulgate the allowable catch and domestic harvesting capacity and terms and conditions of access and specific allocation to fishing States as it is permitted to do for other species of fish in the E E Z .  272  Nonetheless, nothing in the language of  Articles 56, 61 and 62, especially in the light of the provision in Article 64(2) that Article 64(1) applies "in addition to other provisions of Part V, displaces or affect the sovereignty of coastal States over tuna".  273  International law therefore, duly recognizes coastal States competence to manage tuna in their respective E E Z s .  274  Burke further contends that whilst it is  true that Article 63's duty to "seek to agree" applies to measures necessary for conservation outside the E E Z , whereas Article 64(1) calls for "cooperation within and beyond the zone", the duty to cooperate is not incompatible with sovereign rights nor with the recognition that results, or the unilateral action required if cooperation breaks down are in the coastal States' hands.  275  Consequently, the US  interpretation of international law concerning the management of tuna is not legally tenable.  Additionally, O'Connell  276  argues that Annex I lists the species  and envisages cooperation between coastal States and other States whose nationals  272.  Burke, W . T . , supra note 159 at p. 42.  273.  Burke, W . T . , supra note 159 at p. 42.  274.  Burke, W . T . , supra note 175 at p. 108;  Burke, W . T . , "Extended Fisheries Jurisdiction and the New Law  of the Sea", in Global Fisheries supra note 185 at p.7. 275.  Burke, W . T . , supra note 175 at p. 77.  276.  O'Connell, supra note 130 at p. 569.  71  fish  in the region with a view to ensuring conservation and promoting the  objective of optimum utilization of such species both within and beyond the E E Z . However, this gives coastal States no automatic right of access to migratory species within another State's E E Z .  277  SPSs position on the question of sovereign rights over HMSs in the E E Z is unambiguous.  They recognize through legislation and practice that they have  sovereign rights over all living resources, including HMS in the E E Z .  2 7 8  It is  submitted that in practice, the US already recognise their sovereign rights over tuna.  279  This is because since 15 June, 1988, US fishing vessels have been fishing  in their EEZs pursuant to a multilateral fisheries treaty, premised amongst other things on the recognition of their sovereign rights over the fisheries resources including HMS.  There are currently moves within the US Congress to amend US  legislation to bring it into conformity with the international community.  280  It is  hereby suggested that should the US Congress ratify these proposed amendments, it 277.  O'Connell, supra note 130 at p. 569.  278.  F A O Legislative Study, supra note 156 at p. 1. Cook Islands, Section 12 (Part II) of the Territorial Sea and Exclusive Economic Zone A c t No. 16 of 1977;  Fiji, Part III, Marine Spaces A c t No. 18 of 1977;  F S M , Section 101 2(e) Fishery Zones Jurisdiction Title 52;  Kiribati, Section 8(l)(2)(3), Marine Zones  (Declaration) A c t No. 7 of 1983; Marshall Islands Section 8.408(i)(ii)(iii) and Section 8.409, Marshall Islands Marine Resources Jurisdiction Act of 1978; Nauru, Section 7*l)(2)(a) ii (b) and Section 7(3), Marine Resources A c t 1978; Niue, Section 12 Territorial Sea and Exclusive Economic Zone Act, 1978; Palau, Section 6 National Limits of Jurisdiction; Public Law No. 6-7-14 as amended by Public Law No. 6-65-8; P N G , Section 15, Fisheries Act No. 31 of 1974; Solomon Islands, Section 7, The Fisheries Act of 1972;  Tuvalu, Section 5, Tuvalu Fisheries Ordinance 1978; Vanuatu Section 10 Maritime Zone Act No.  23 of 1981; Western Samoa, Section 4, The Fisheries Protection A c t No. 2 of 1972. 279.  V a n Dyke, Jon and Nicol, Carolyn, "US Tuna Policy:  A Reluctant Acceptance of the International  Norm", in T u n a Issues and Perspectives in the Pacific Islands Region, supra note 229 at pp. 105-122. 280.  The U.S. House of Representatives passed Bill No. 396-21 on February 6, 1990, that purports to extend US fishery management to tuna prohibit driftnet fishing in US waters and require negotiation of an international ban on driftnet fishing. tuna has failed to conserve the species.  The proponents of the Bill argue that international regulation of They argue that all States except the U S and Bahamas already  regulate tuna harvesting within their waters.  Solomon Star, February 16, 1990 at p. 5.  72  would remove one of the biggest obstacles and thorn in US and SPSs political relations.  The US's willingness to accomodate changes to its originally hardline  position is indeed worthy of commendation from South Pacific States.  C. Scientific Research in the South Pacific  In order to make management decisions over the fishery, it is necessary to have  sound  and  comprehensive  scientific  information  Unfortunately, practically all SPSs either lack the capacity capacity to undertake scientific research on the fishery.  on  the  fishery.  or have a limited  Consequently, all the  scientific information they need to know about the fishery is undertaken by the South Pacific Commission, one of the principal organizations involved in scientific research in the region. given below.  The history and organizational structure of the SPC is  The scientific analysis carried out by the SPC, is complemented by  F F A which is also discussed below. The discussion in this section basically focuses on the role of the SPC in offshore fisheries research in the region. The SPC's first major study of the tuna stock in the region was carried out in the early 1970s. pole and line fleet skipjack.  281  The study was undertaken in response to the increase in the in the early  1970s which arose out of the demand for  It undertook the study in response to the lack of profound knowledge  pertaining to the skipjack resource, and also the increase in fishing effort. The study, known as the Skipjack Survey and Assessment Programme (SSAP), involved tagging the tuna to ascertain the quantity of the stock.  281.  Swan, supra note 208 at p. 185.  The results of the survey  73  concluded that the standing stock of skipjack was indeed large and that the turnover was very high.  282  The results of the survey indicated that the standing  stock of skipjack in the region is of the order of 3,000,000 tonnes.  283  The  conclusion of this survey implied that catches across the area could be multiplied at least several times over the catches during the study period. The SSAP was succeeded Programme  (TBAP).  preoccupation i s : 1.  285  284  in 1981 by the Tuna and Billfish Assessment  The TBAP has eight current  priorities but its major  286  Collection and valuation of fisheries data and maintenance oceanic fisheries assessment data base.  of regional  Priorities 2 and 3 jointly constitute its second emphasis: 2.  Assessment of interaction between fisheries for oceanic species.  3.  Assessment and monitoring of the levels important tuna and billfish species.  of stocks  of  commercially  The TBAP's objectives are to "conduct scientific research on stocks of tunas and billfish supporting fisheries in the region and on the environmental factors which affect them, in order to help South Pacific States develop, manage and rationally exploit the renewable ocean resources of the region."  287  Its priority  activities "include assessment of interaction between fisheries for economic species,  282.  Swan, supra note 208 at p. 185.  283.  Kearney, R . E . , supra note 233 at p. 24.  284.  Swan, supra note 208 at p. 185.  285.  Herr, R . A . and Curtin, T . B . , "Review of Possible Alternative Institutional Arrangements for the South Pacific Commissions T u n a and Billfish Assessment Programme", ( S P C / C R G A 4 / W P . 7 , 14 August, 1985).  286.  Aikman, C . C . , Island Nations of the South Pacific and Jurisdiction over Highly Migratory Species, 17 Victoria University of Wellington Law Review, 1987, at p. 115.  287.  "Pacific Impact", Quarterly Review of the South Pacific Commission. V o l . 2, No. 2, 1988 at p. 40.  74  assessing and monitoring the levels of exploitation of stocks of commercially important  tuna  and billfish  species, studies on the  biology and ecology of  commercially important tuna, billfish and bait species, provision of fisheries observers and advice on developing of observer programmes and monitoring the use of fish aggravating devices (FADS)".  288  In support of its investigations on fishery interactions,  the TBAP has  embarked on a major large-scale tagging project that will add substantially to existing knowledge of the yellowfin and skipjack stocks in the region. involves tagging the tuna to ascertain their migratory patterns. Project  289  This  The Tuna Tagging  was conducted in response to the need to understand the interaction  between the different methods of fishing, namely pole and line, longlining and purse seining on the fishery. western equatorial area.  The skipjack fishery is highly concentrated in the  There are concerns that interactions between different  fleets fishing in that area could lead to catch rates that are less than optimal.  290  The SPC also has a regional statistical tuna database, which collects data from local fleets and from a standard regional logsheet used by all foreign fleets.  291  However, its limitations result from gaps in collection of data from the high seas and from the fact that some States have been less effective in submitting data than others.  292  The SPC has also broadened cooperation between the TBAP and DWFNs  such as Japan, South Korea and Taiwan, and with neighbouring coastal States such  288.  "Pacific Impact", ibid, at p. 40.  289.  "Island Business", February 1990, at p. 40.  290.  Swan, supra note 208 at p. 187.  291.  Swan, supra note 208 at p. 187.  292.  Swan, supra note 208 at p. 187.  75  as Indonesia, and the Philippines.  In order to facilitate this cooperation, an SPC  Standing  Tuna  Committee  on  Tropical  was  established  with  this  broader  membership. Notwithstanding the gaps that currently exist in the collection of data, the role of the SPC in collecting, researching and analysing the fishery is crucial to the management  of tuna.  Most SPSs do not have the capacity  to undertake the  research and analysis done by the South Pacific Commission. Hence in order for SPSs to manage the fishery, they must have access to basic information on the fishery, in particular an estimate of the stock and yield for the targetted species, the biological and economic impact of a fisheries operation on the fishery and information on the degree of control required over the fishery. Most of them no doubt have benefitted from the scientific work carried out by the SPC at little financial cost to them.  While an understanding of the interaction of the various  species of tuna in the region is imperative to the implementation of their future development plans, the success of the TBAP is largely dependent on the kind of support they accord it.  Consequently, in their own national and regional interest,  they must continue to render the TBAP high priority, and accord it the necessary contributions required to make it an effective and efficacious programme.  D. Management of Tuna Through Access Agreements  The management of tuna by South Pacific States is generally effectuated by access agreements.  294  The access agreements normally spell out the terms and  293.  Swan, supra note 208 at p. 187.  294.  Swan, J., "Fisheries Access Agreements", South Pacific Forum Fisheries Agency. F F A Report 87/31  at p.  76  conditions under which they grant  access to DWFNs to fish  Generally, SPSs enter into an umbrella agreement diplomatic  arrangement  which usually articulates  in their EEZs.  with DWFNs. the  intention  This is a of  the  two  governments to enter into fisheries relations, and recognises amongst other things, their sovereign rights to the fisheries resources.  295  Access into SPSs waters is then  activated by the conclusion of an access agreement fishing association registered in the D W F N .  usually with a commercial  296  In order to have a wider appreciation of the forces behind the establishment of  management  regimes in the region, it would be necessary  initiatives adopted by the Nauru Group.  297  to discuss the  Shortly after the formation of F F A , a  splinter group which generally has the greatest potential stake in the region's tuna fishery, formed a sub-regional alliance based primarily on economic  factors.  The common denominator at that time underlying the seven countries  299  298  that  formed the subregional group was that they all had bilateral fishing access agreements with Japan.  In other words, most of the tuna fishery is generally  found in the waters of these seven countries.  The term "Nauru Group" is taken  from the fact that the Agreement establishing the group was signed in Nauru. Hence, the Nauru Group.  The group recognized that by harmonizing their  1.  295.  Clerk and Slayter, supra note 232 at p. 612.  296.  Ibid.  297.  Doulman, J. David, "Fisheries Cooperation:  The Case of the Nauru Group" in Tuna Issues and  Perspectives in the Pacific Islands Region, supra note 229 at pp. 257-277. 298.  Doulman, ibid, at p. 257.  299.  The members of the Nauru Group are, Federated States of Micronesia ( F S M ) , Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, and Solomon Islands.  77  relations with DWFNs and cooperating on all matters pertaining to tuna, they could  derive  maximum financial returns  from the  exploitation  of  the  tuna  300  resources. The formation of the Nauru Group was construed as potentially weakening regional solidarity and in fact it initially instilled fears of disintegrating FFA. In the  author's  opinion  these  fears  were  perpetrated  by  individuals  who  underestimated and did not have confidence in the resolve of Pacific Islanders, who  knew what was more appropriate for them.  However, the initial fears  instigated by the formation of the Nauru Group did not materialize.  On the  contrary, the Nauru Group has been actively instrumental in devising arrangements for  tuna management  which have been endorsed by the SPF, and are applied  universally throughout the region.  It is submitted that in this regard the Nauru  Group has been the leading force behind F F A , constantly working within the framework of F F A and utilising their various experiences  with DWFNs to the  advantage of the region as a whole.  Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest (Nauru Agreement)  In 1981, the Nauru Group concluded the Nauru Agreement (see Appendix I) which obliges member States to adopt common courses of action with respect to their shared tuna resources  so long as the cooperation  derogating their sovereign rights. 300.  Doulman, supra note 297 at p. 257.  301.  Doulman, supra note 297 at p. 257.  301  benefits them without  The Nauru Agreement is divided into 11  78  Articles.  It  harmonization  specifically that  defines  member  States  the  areas  should  of  fisheries  pursue,  but  cooperation  the  conclusion  implementing arrangements is required to give the Nauru Agreement effect.  and of  302  Article I of the Agreement stipulates its purpose: [T]he Parties shall seek, without derogation of their sovereign rights, to coordinate and harmonize the management of fisheries with regard to common stocks within the fisheries zones for the benefits of their peoples. In this regard, the Parties undertake to seek to establish a "coordinated approach" for the purpose of regulating foreign fishing vessels and the scope of that cooperation is specified in Articles II and III.  The broad principles behind  303  those Articles is to establish "minimum uniform terms and conditions" for access by foreign fishing vessels and to standardize  licensing procedures.  304  The most  important aspect about the Agreement is that it links directly with F F A .  For  instance, the Preamble of the Agreement, pays "regard to the objectives of the F F A Convention,  and  in  particular  the  promotion  of  regional  cooperation  and  coordination of fisheries policies and the need for urgent implementation of these objectives through regional or sub-regional arrangements".  305  Furthermore, Article  VII states that "[njothing contained in this Agreement shall be construed as a derogation of any of the rights and obligations undertaken by any of the Parties under the F F A Convention or any international agreement in effect on the date on which this Agreement enters into force".  In fact, State Parties may not only seek  302.  Doulman, supra note 297 at p. 261.  303.  Sutherland, W . M . , "Coastal State Cooperation in Fisheries:  Emergent Regional Custom in the South  Pacific", International Journal of Estuarine <fc Coastal Law. Vol. 1, No. 1, February 1986 at p. 20. 304.  Sutherland, ibid, at p. 20.  305.  Sutherland, ibid, at p. 20.  79  "the assistance of F F A in establishing procedures and administrative arrangements for the exchange and analysis of various types of statistical and technical data"  306  but also the "secretarial services" of F F A for the purpose of "implementing and coordinating the provisions of the Agreement".  307  Articles VI and VII provide for  fisheries surveillance and enforcement issues, and Articles VIII to XI cover a range of legal and technical issues, among them the relationship between the Nauru Agreement and other regional agreements and the conclusion of implementing arrangements.  308  It is submitted that the Nauru Agreement is important in its own right. However, it is significant in that SPSs have utilized it to develop regimes that are unique, and arguably represent a progressive development of international law where none had previously existed.  309  UNCLOS called for regional or subregional  cooperation in the management of HMS, but it did not specify the modus operandi of cooperation.  In this regard, SPSs have been innovative in the area of regional  cooperation in fisheries management.  Obviously, the main strength of the Nauru  Agreement is its direct linkages with F F A .  This has enabled the implementing  arrangements discussed below to have wider application. In this regard, the Nauru Group  must  continue  to  provide  the  region  with  leadership  in  fisheries  management, particularly tuna to ensure that maximum benefits are continually derived from the resource.  306.  Sutherland, ibid, at p. 20.  307.  Sutherland, ibid, at p. 20.  308.  Doulman, supra note 297 at p. 258.  309.  Sutherland, supra note 303 at p. 28.  80  2. Implementing Arrangements  The Nauru Group's first implementing arrangement was concluded in 1982. It has five Articles which cover two important areas: (1) Fishing Vessels;  and (2)  the Regional Register of  licensing terms and conditions of DWFNs.  The  implementing arrangements were formulated by the Nauru Group in recognition of the need to have some leverage against DWFNs who were playing them off against each other.  In 1983, the SPF endorsed the implementing arrangements and are  consequently used by all SPSs.  2.1  Regional Register  No foreign fishing vessel is licensed to fish in the region unless it has "good standing"  310  on the regional register.  While the Forum Fisheries Committee (FFC)  is responsible for general policy and administrative guidance for the operations of the regional register, its day-to-day operation is the responsibility of the F F A Director. 310.  311  The director confers "good standing" upon receipt of appropriately  Good Standing is implicitly and negatively defined in the following way: (see Procedures para. S). Good Standing may be withdrawn if: (a)  the owner, charter, operator, master or other person responsible for the operation of that vessel (hereinafter referred to as the "Vessel Operator") has been convicted of a serious offence against the fisheries laws or regulations of any of the participating countries and has not complied fully with the judgement of the convicting court;  (b)  evidence exists that the Vessel Operator has committed a serious offence against the fisheries laws or regulations of any of the participating countries and that such evidence would have been sufficient to secure a conviction for that offence had it been possible to bring the vessel operator to trial; or  (c) 311.  the Vessel Operator has failed to comply with the requirements for registration.  Sutherland, supra note 303 at p. 24.  81  completed  application  forms  and  participating States accordingly.  312  notifies  both  the  applicant  The regional register  information pertaining to foreign fishing vessels.  and  all  the  acts as a pool of  If a vessel has been involved in  a serious offence, a member State may request good standing to be withdrawn. However, before making such a request, the alleged infringement must be fully investigated by the State making the request and every effort must be made to obtain an explanation from the vessel operator concerned.  313  The request for  withdrawal of good standing must be made to the F F A Director with supporting documentation, including evidence of the alleged offence, any responses to that evidence by the vessel operator, and record of efforts taken by the State concerned to obtain satisfaction.  314  In order for a request for withdrawal of good standing to  be effectuated, it must have the consent of at least 10 or more participating countries with no dissenting responses.  315  In view of SPSs limited capacity to enforce their sovereign rights, the regional register has become an effective enforcement device.  A vessel that has  good standing withdrawn from it is effectively banned from fishing in the entire 312.  Procedures for the Establishment and Operation of the South Pacific Forum Fisheries Agency Regional Register of Fishing Vessels (hereinafter referred to as Procedures) at para. 1.1.  313.  Procedures, ibid, para 6.1.  314.  The criteria for the withdrawal of good standing require that the evidence gives reasonable cause to believe that the operator has committed a serious offence against the fisheries laws or regulations.  This  would be satisfied by a statement setting out the reasons why the evidence gives reasonable cause to believe that the operator has committed a serious offence. Secondly, the State must show that it has not been possible to bring the operator to trial. This could be met by showing that an attempt had been made to bring the operator to trial.  Applicable legal  procedures should be exhausted, and if there are no applicable legal procedures, informing the operator that blacklisting procedures will commence unless he submits to legal process should be adequate. (Notes on Procedures for Withdrawal of Good Standing: Rules and Criteria.) 315.  Procedures, ibid., para 7.  82  region.  As of July 1989, there were 2300 foreign fishing vessels registered in the  regional register.  So far no foreign fishing vessel has had her good standing  withdrawn from the regional register. past where SPSs have threatened  Although there have been instances in the  to invoke the blacklisting procedures.  It is  suggested that this is a measure of the regional register's success in curtailing incidents of illegal fishing. the criteria  A possible source of difficulty, however, pertains to  for withdrawal of good standing.  Apart from failure to meet  registration requirements, good standing may be withdrawn in consequence of the commital of a serious offence.  316  However, serious offence is not defined nor are  there any guidelines as to what they might be.  317  This apparently leaves the scope  for disagreement wide open. The author is of the opinion that the time is opportune for a review of the guidelines for withdrawal of good standing.  As they are, the procedures are  cumbersome, and unfortunately, not conducive to the procurement of withdrawal of good standing.  It may be argued, however, that since the consequences of  blacklisting are severe and grave for the vessel operator, the quantum of proof should of necessity be of a high standard.  The counter-argument to that is the  application for withdrawal of good standing is in itself evidence that the State seeking the withdrawal of good standing already has the necessary required to procure a satisfaction of its application.  evidence  In other words, there must  have been an act committed by the vessel operator constituting a serious offence against that State's fisheries laws otherwise the State would not have submitted an application in the first place.  316.  Procedures, ibid., para 7.  317.  Sutherland, supra note 303 at p. 26.  83  2.2  Minimum Terms and Conditions  The minimum terms and conditions of access encompasses the following areas;  each foreign fishing vessels must apply for and possess a valid licence or  permit;  each foreign fishing vessels must have good standing on the Regional  Register;  an access fee must be paid;  there must be compliance with applicable  coastal State laws; flag State enforcement measures must be agreed; properly stowed when not fishing; respond to process; vessels;  gear must be  an agent must be appointed to receive and  there must be standardised identification of foreign fishing  there must be a standardised radio frequency for receiving transmissions  and true and complete information must be required all the time. Reporting requirements must be met, including: (a)  timely reporting of entry, exit, periodic reporting while in the zone, before entry into port and other as appropriate;  (b)  standardised logbook form to be maintained on a daily basis, which must be produced at the direction of authorised officers and mailed to the coastal State;  (c)  complete catch and effort data must be supplied for each trip; and  (d)  additional information as supplied.  the  parties  may  determine  must  be  Enforcement and observer requirements must be met, including: (a)  duty of vessels to take on board enforcement officers/observers in accordance with coastal State law; and  (b)  rights of enforcement officers/observers and duties owed them by the master and crew.  The minimum terms and conditions described above are based on Article 62(4) of UNCLOS.  It is arguable based on the adoption of the minimum terms and  84  conditions that the region has contributed and continues to contribute significantly to State practice based on Article 62(4), which points to the evolution of at least regional customary international law.  The advantage of the minimum terms and  conditions pertain to their widespread regional application.  It has assisted them  maintain control over the movement of licensed foreign fishing vessels in their EEZs.  Moreover, more significantly, by shifting the burden of reporting their  entry and exit to and from the E E Z to DWFN, and by imposing an obligation to report on their daily positions, catches, etcetera, they have effectively reduced the administrative and financial costs of reconnaissancing their EEZs for foreign fishing vessels. Although, there have been some shortcomings with the system, it is submitted that given the precarious nature of the fishing industry it is inevitable that operational problems would be experienced. At any rate these problems do not impinge on the basic objectives of the minimum terms and conditions.  They  merely pertain to such matters as the late submission of catch report forms which arguably could be alleviated over time. It is also arguable that through data computerised from daily log sheets, the timely reporting of entry and exit, the completion of catch and data effort, checks on this by surveillance and enforcement through observers, economic assessments may be made on the optimum return for access.  318  The minimum terms and  conditions not only act as a self-enforcement mechanism.  More importantly, it  provides them with much needed information on which they may base future management  decisions.  In this regard, they must continue to work towards  improving the minimum terms and conditions.  An area that could possibly be  explored is by increasing the scope of the minimum terms and conditions to  318.  Swan, supra note 208 at p. 188.  85  encompass "fishing gear" in view of the advances and diversification in fishing technology.  3. Bilateral Access Agreements  Many SPSs have bilateral access agreements with DWFNs such as Japan, Taiwan, South Korea, Philippines and the Soviet Union. are premised on coastal  These access agreements  States sovereign rights over the resource and usually  contain provision acknowledging such rights.  318  The agreements generally have  provision relating to economic and technical cooperation and assistance.  The  minimum terms and conditions discussed above are also incorporated into the agreements.  Although most agreements do not normally specify the total allowable  catch (TAC), due to the scientific considerations noted above, limitations are expressed in terms of vessel numbers and duration of the agreement.  320  The minimum terms and conditions of access help SPSs maintain a measure of control over foreign fishing vessels in their EEZs. Through the timely reporting of entry, exit and the prerequisite to report periodically while in the E E Z , they are able to keep abreast with the number of vessels that actually enter and fish in their respective EEZs.  The catch and effort data which Distant Water Fishing  Nations are required to submit to them also helps them determine the quantity of tuna stock in their EEZs.  Because their EEZs are contiguous, over a sustained  period of time the data deduced from the catch and effort data, may reveal the 319.  Overview of Fishing Activities of Distant Water Fishing Nations in EEzs of F F A Member Countries, 1983 to 1988, F F A Report No. 89/26.  320.  Swan, supra note 208 at p. 187.  86  impact of the various fishing effort, gear and vessel type on the fishery. It could also reveal  the overall impact of fishing effort on the fishery.  subsequently use these statistics to impose TACs,  and determine  They may appropriate  conservation measures whensoever necessary. SPSs objective in managing foreign fleets by access agreement  is quite  explicit - they wish to maximise the overall net gains to their countries from the operations of foreign fishing vessels.  As Swan argues, they have "adopted one of  the most positive attitudes anywhere in the world to non-reciprocal access rights for foreign fishing vessels in their waters, in pursuit of such benefits as access fees, technology transfers, development assistance, employment and information which well managed fishing operations can provide."  322  An interesting question, however, naturally arises concerning the future of bilateral agreements,  due partially to regional cooperation  which is fostered  through F F A , and the multilateral Fisheries treaty with the USA.  Should they  pursue their long term interests through bilateral access agreements or through multilateral access agreements?  The advantage  of bilateral access agreements  pertains to the fact that the minimum terms and conditions can be tailored to domestic needs, and other economic benefits may be pursued to meet domestic requirements.  The author believes that this is a matter which lies within the  purview of individual SPSs to determine.  322.  Swan, supra note 208 at p. 189.  87  4. Multilateral Access Agreements  Tuna is also managed on a multilateral basis in the region.  There are  currently two multilateral agreements, namely the Fisheries Treaty between the governments of certain Pacific Island States and the Government of the United States of America (the Multilateral Fisheries Treaty [MFT]), and the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (the Convention). of  The M F T is currently in force, whereas the Convention at the time  writing is not in force.  The following discussion basically outlines the  important provisions of the M F T and the Convention for management purposes.  4.1 Multilateral Fisheries Treaty  The M F T was signed in April 2, 1987 and entered into force on June 15, 1988.  It sets out the minimum terms and conditions under which the US flag  vessels may fish in the waters of SPSs EEZs.  It also eliminates the prospects of  seizures of US vessels and potential retaliatory  actions by the US under the  Fisheries Conservation and Management Act ( F C M A ) .  322  The US Tuna Industry  pays at least US$2 million annually in return for fishing licences.  In the first year  of operation, the industry paid US$1.75 million in licence fees.  In addition, it  provides US$250,000  in technical  assistance annually.  translates to 35 licences at US$50,000 each.  322.  Swan, supra note 208 at p. 190.  The  US$1.75 million  This was the number of vessels  88  licensed in the first year.  In the successive years, up to five additional licences  may be purchased for US$60,000 each. These are the minimum amounts.  After the  first year of operation, however, licence fees will be indexed to the average price of yellowfin and bigeye tuna. However, the annual base price of a licence will not drop below US$50,000 per vessel.  The US government provides US$10 million  annually for five years in economic support funds.  US$1  million  (Economic  Development Fund [EDF]), is in the form of projects submitted by them through the F F A , and approved by the US Agency for International Development (USAID). 15 percent of the remaining US$9 million is distributed equitably amongst them and 85 percent is apportioned in proportion to where the fish is caught. The M F T contains provisions which are important for management conservation purposes. laws.  US flag vessels are obliged to comply with their national  Moreover, the M F T stipulates control measures pertaining to species,  method of fishing,  328  and  and the areas US fishing vessels may or may not f i s h .  326  the The  minimum terms and conditions discussed above are also incorporated in the M F T . US fishing vessels are obliged to furnish them with information pertaining to the position of the vessel, and the catch on board the vessel. 323.  These have to be done;  M F T Annex I(2)(4): National laws, is defined as [a]ny provision of a law, however, described, of a Pacific Island party which governs the fishing activities of foreign fishing vessels.  (The laws are identified in  Schedule 1) which is not inconsistent with the requirements of the M F T and shall be taken to exclude any provision which imposes a requirement which is also imposed by the M F T (Annex I(l)(l)(a)). 324.  M F T Annex I(3)(S) states; [t]he vessel shall not be used for directed fishing for southern bluefin tuna, or for fish for any kinds of fish other than tunas, except that other kinds of fish may be caught as an incidental by-catch.  325.  M F T Annex I(3)(6) states;  [t)he vessel shall not be used for fishing by any method, except the purse  seine method. 326.  M F T Annex I(3)(7) states;  [t]he vessel shall not be UBed for fishing in any Closed Area. Annex I(3)(9)  states; the vessel shall not be used in any Limited Area, except in accordance with the requirements set out in Schedule 3, which are applicable to that Limited Area.  89  (a) before departure from Port for the purpose of beginning a fishing trip; each Wednesday while within the Licensing Area or a Closed A r e a ;  328  (b)  and (c)  before entry into port for purposes of unloading fish from any trip involving fishing in the Licensing A r e a .  329  The aforementioned information is then sent to  the Administrator for tabulation. US fishing vessels are also obliged to inform then with regards to the position of, and catch on board the vessel;  (a)  at the time of entry into and of  departure from waters, which are subject to their jurisdiction,  330  (b) at least 24  hours prior to the estimated time of entry into any of their ports; where it is required under their national law.  332  331  and (c)  The US fishing vessels are also  required to complete entries of their catch on the catch report form (CRF). are subsequently returned to the Administrator for analysis.  These  In addition, the M F T  makes provision for the placement of observers on board US fishing vessels.  333  The observers have full access to the use of facilities necessary to carry out his duties.  This also includes access to the bridge, fish on board, the vessels records  including  its log and documentation,  fisheries in the Licensing Area.  and any other  information  relating to  The information obtained from the reporting,  observer and port sampling requirement will assist in the long term management of  327.  M F T Annex I(4)(10).  328.  M F T Annex I(4)(10)(a).  329.  M F T Annex I(4)(10)(b).  330.  M F T Annex I(4)(10)(c).  331.  M F T Annex I(4)(ll)(a).  332.  M F T Annex I(4)(ll)(b).  333.  M F T Annex I(4)(ll)(c).  90  the resource. The  M F T is a  development  under  unique access arrangement  international  law.  For  which represents  purposes  of  a novel  management,  the  information supplied by US fishing vessels will enhance their pool of information regarding the fishery.  The M F T is also unique because it has helped to avert the  tuna dispute between the US and SPSs.  334  The main question that remains  however, is what will happen after the five year term of the M F T lapses? Will the US revert to their previous position on tuna?  There is nothing currently wrong  with the M F T , and despite initial operational problems which would be expected from a treaty as complex and sophisticated as the M F T , the M F T is operating smoothly. The author believes that they must continue to support the M F T , and in the interest of long term management of tuna, they should seek an extension of the MFT.  The region is benefitting from the project funds, and technical assistance  under the M F T , and therefore, it would be in their interest to seek its continuation.  4.2 The Convention  The Convention was adopted by SPSs on November 29, 1989.  It will enter  into force on the date of receipt of the fourth instrument of ratification or accession. 334.  The Convention was concluded as a result of their profound concern  335  McLean, O. William and Sucharitul, Sampong, "Fisheries Management and Development in the E E Z : The North, South, and Southwest Pacific Experience", Notre Dame Law Review. V o l . 63, No. 4 at p. 530.  335.  T h e SPSs concerns was affirmed in the Tarawa Declaration adopted at the 20th S P F in July 1989.  The  Tarawa Declaration affirms that driftnet fishing is not consistent with international legal requirements for high seas fisheries conservation and management and environmental protection and preservation.  It  recalls the relevant provisions of U N C L O S , in particular, articles 63, 64, 87, 116, 117, 118 and 119, which regulate the fishing of stocks straddling the E E Z s and adjacent high seas areas of H M S and which provides for the freedom of the high seas and the conservation and management of the living resources of  91  at the damage being done by pelagic driftnet fishing vessels to the albacore tuna resource and to the environment and economy of the region.  336  The Convention purports to prohibit the use of long driftnets in the South Pacific by obliging States Parties to prohibit its nationals and vessels documented under its laws from engaging in driftnet fishing within the region.  337  States  Parties are obliged not to assist or encourage the use of driftnets in the region.  338  Other measures which States Parties may resort to include, inter alia, prohibiting the  use of driftnets  transhipment  within  areas  under  its jurisdiction;  339  prohibit the  of driftnet catches within areas under its jurisdiction;  the landing of driftnet catches within its territory; driftnet catches in facilities under its jurisdiction;  port servicing facilities for driftnet fishing vessels.  prohibit  prohibit the processing of  341  342  340  and restrict port access and 343  The Convention calls on  States Parties and DWFNs and other entities and organizations to cooperate in the development of conservation and management measures for the southern albacore tuna within the South Pacific. the high seas.  344  Simmonds, K . R . , Report  of the Secretary-General  (of the United Nations), U N  D O C . A / 4 4 / 6 5 0 , New Directions in the Law of the Sea, at p. 27. 336.  Eisenbud, Robert, "Problems and Prospects for the Pelagic Driftnet", Boston College Environmental Affairs Law Review. V o l . 12, No. 3, 1985 at p. 477.  337.  Convention Article 1.  338.  Convention Article 2.  339.  Convention Article 3(l)(a).  340.  Convention Article 3(l)(b)(i).  341.  Convention Article 3(l)(b)(ii).  342.  Convention Article 3(7)(2)(a).  343.  Convention Article 3(2)(2)(b)."  344.  Convention Article 3(2)(2)(d).  92  In order  to enhance  the objectives of the Convention, two additional  Protocols namely, Protocol I and Protocol II, plus an associated instrument were also adopted simultaneously.  345  The Protocols and the associated instrument  346  are  intended for any State whose nationals or fishing vessels documented under their laws use driftnets in the South Pacific. The parties to the Protocols are obliged to undertake to prohibit their nationals and vessels from using driftnets in the South Pacific.  It is submitted that management by precluding the use of a certain  method of fishing which inflicts a rapid decline of the stock, will ensure the continual harvesting of the stock by SPSs at sustainable levels of yield. The underlying intent of the Convention is to ban the use of pelagic driftnets in the region.  However, the weakness of the Convention pertains to the  fact that unless the countries principally involved in driftnet fishing namely, Japan, Taiwan and South Korea, become parties to the Convention and Protocols, it would be rather difficult to enforce the various provisions of the Convention. Nonetheless, the author is of the conviction that the Convention duly represents the region's strong political will to prohibit the use of a technology which is overwhelmingly devastating to the living marine resources of the region. concern at the use of pelagic driftnets is largely economic. discriminate nature of pelagic driftnets threaten  SPSs  The inherently  the sustainable yield of the  albacore stock which features in the fisheries development plans of certain SPSs. Unless it is stopped, these countries development plans would almost certainly be incapacitated.  The Convention also reflects their belief that their opposition to  345.  Convention Article 8.  346.  T h e Associated Instrument is a draft exchange of letters between the Director of F F A and the Chairman of the Taiwanese Deepsea T u n a Boat Owners and Exporters Association. This was done to circumvent the diplomatic tangle some SPSs have with regards to the status of Taiwan.  93  pelagic driftnet fishing may be more effective if they confront it collectively as a region. For these reasons, the author strongly advocates that the three main users of pelagic driftnets should accede to the Convention and Protocols.  E. Management by Domestic Legislation  Domestic legislation generally activity in the region.  347  provides a foundation for  all fisheries  The basic elements of their fisheries legislation  348  include, licensing, foreign fishing operations, reporting, enforcement, prohibited acts, seizures and judicial process. consolidated,  particularly  those  As Swan states, these are continually being provisions  that  pertain  operations to enhance the current scope of management. of fisheries legislation basically has three approaches; existing framework provisions,  (b)  349  350  to  foreign  fishing  The review and reform viz,  (a)  strengthening  including provisions which allow scope for  future international or national developments;  and (c)  strengthening evidentiary  provisions, including new technological developments. As the basis of fisheries activity it is imperative that domestic legislation be continually improved to confront the challenges of tuna management. the  framework  areas  of  unrevised  fisheries  legislation  which  In the SPSs, are  being  347.  Swan, supra note 55 at p. 8.  348.  See, "Regional Compendium of Fisheries Legislation (Western Pacific Region)", V o l . 1 & V o l . 2, F A O Legislative Study. No. 35, Rome 1984.  349.  Swan, supra note 55 at p. 8.  350.  Swan, supra note 55 at p. 8.  94  strengthened are, in general, as follows; (a)  Interpretation, which is imperative for sound enforcement is sometimes uneven. Such terms as fish, fishing and fishing gear must have precise and comprehensive definition.  (b)  Licensing provisions should be flexible enough to cover a number of fisheries-related activities which, if they are not a current concern, may become so in future, including: fishing by commercial national vessels, foreign fishing vessels, test fishing and marine scientific research.  (c)  Reporting requirements are crucial to management and enforcement and minimum standards are emerging with flexibility to strengthen the provisions.  (d)  The right of observers and enforcement officers and the duties owed them by the master and crew are being detailed.  (e)  Seizure provisions are being expanded to include such non-traditional concepts as responsibility for the seized vessel as it returns to port and immobilising the vessel.  In addition to the above, they are incorporating provisions to allow scope for  future  developments  arrangements;  352  multilateral fisheries agreements or  licensing by an administrator on a regional or sub-regional basis;  reciprocal enforcement; from  as follows;  marine  regional (non-national) observers;  scientific  research;  regulation  of  coastal State benefits  transfer  of  technology;  admissibility of evidence from outside the jurisdiction, and requiring that certain provisions  must  be  included  in  bilateral  or  multilateral  agreements  or  S53  arrangements. It is submitted that as the foundation of fisheries activity, it is imperative that they enact legislation that is flexible enough to accommodate changes that are 351.  See, generally, Moore Gerald, "Principles of Fisheries Legislation Under the New Law of the Sea", Fisheries Advisory Programme Circular No. 5, F A O , Rome, 1986.  352.  Swan, supra note 55 at pp. 8-9.  353.  Swan, supra note 55 at p. 9.  95  continually being made to the tuna industry.  It is also submitted that in this  regard fisheries legislation in the region are continually being improved. It will be recalled that this was one particular area that was problematic for SPSs. However, through F F A , harmonisation of fisheries legislation is being achieved.  Although  progress is still slow, it is arguable that the common provisions that are being legislated will, if not already, point to the development of a regional practice that could evolve into customary international law.  96  C H A P T E R IV MECHANISMS FOR REGIME BUILDING IN T H E S O U T H PACIFIC  In order  to  appreciate  South  Pacific  States  response  to  the  various  challenges concerning the management of the regions ocean resources, it would be necessary to discuss the different political mechanisms that exist in the region. The discussion in this chapter therefore, purports to explore the history and role of two principal organisations, namely, the South Pacific Commission (SPC), the South Pacific Forum (SPF);  355  and  which have been instrumental in developing  regimes primarily aimed at protecting the ocean environment and marine resources of the region.  The discussion will also make reference to regional arrangements  that have so far been implemented under the auspices of these two regional organisations.  354.  The SPSs that are members of the S P C excluding Australia and New Zealand are:  American Samoa,  Cook Islands, Federated States of Micronesia (FSM), F i j i , G u a m , Kiribati, Palau, Papua New Guinea, New Caledonia, Nauru, Niue, Solomon Islands, Pitcairn Islands, Tokelau, Tonga, Tuvalu, Vanuatu, Wallis and Futuna, Marshall Islands, Northern Marianas, Western Samoa and French Polynesia.  Pacific  Impact Quarterly Review of the South Pacific Commission supra note 287 at p. 38. 355.  The SPSs that are members of the S P F , excluding Australia and New Zealand, are:  Cook Islands, Fiji,  Federated States of Micronesia (FSM), Kiribati, Marshall Islands, Nauru, Niue, Papua New Guinea, Solomon Islands, Tonga, Tuvalu, Vanuatu and Western Samoa. the World. 1988.  Banks, A . , (ed.), Political Handbook of  97  A. Nature of Regional Cooperation in the South Pacific  It will be recalled that SPSs are generally small, and experience certain disadvantages relative to other geographic regions in the world.  Crocombe,  356  said  that the attainment of self-government and political autonomy loosened ties with former colonial powers, but the geographical units so created are the smallest in the world.  They are too small to effectively undertake a whole range of functions  which would be normal in larger nations. population  base  were  formerly  357  undertaken  Functions which require a large by metropolitan  powers.  As a  consequence of these disadvantages SPSs were compelled to explore the advantages of regional cooperation. Neemia functional.  358  describes the nature of regional cooperation amongst SPSs as  359  In other  functional areas.  360  words, regional cooperation  is undertaken  in specific  As stated above, these are in the areas of education, mineral  and petroleum exploration, fisheries management and conservation, shipping, trade and civil aviation. However, this does not purport to be an exhaustive list of areas they are cooperating regionally in. On the contrary, the functional areas are in fact  increasing as they endeavour to formulate common platforms to tackle  356.  Crocombe, supra note 6 at p. 167.  357.  Crocombe, supra note 6 at p. 167.  358.  Crocombe, supra note 6 at p. 167.  359.  Neemia, supra note 5 at p. 15.  360.  See, F r y , G . , "South  Pacific  Regionalism:  The Development of an Indigenous  (unpublished M . A . thesis), Australian National University [ANU], 1979; South Seas:  Commitment",  Herr, R., "Regionalism in the  The Impact of the South Pacific Commission, 1947-1974", (unpublished dissertation, Duke  University, 1976).  98  analogous issues that affect them.  6 1  It is arguable that there will be an increase  in the range of activities they would want to cooperate in, as results of cooperation in other areas become apparent to them.  The author believes however that this  would not necessarily connote an increase in the number of regional organizations in the region.  What is going to happen is a gradual increase in the number and  diversity of activities under the umbrella of the two organisations.  However, like  all other regions, they are finding that regional cooperation, while an ideal they support, can be a difficult and trying process when it comes to coping with practical issues where interests and objectives can legitimately differ.  B. The South Pacific Commission (SPC)  The first major regional organisation of significance established in the region  is  the  South  Pacific  Commission (SPC).  It  is  often  referred  to  euphemistically as the "colonial club" because it was initially established by the six metropolitan 361.  powers, namely, Australia, France,  New Zealand, Netherlands,  362  Fairbairn, I.J.T., "The Exploitation and Development of Pacific Islands Resources", S P C Occasional Paper No. 4. 1977 at p. 8.  He said, "regional cooperation In the development of the region's resources is  embodied in the work of a variety of regional and subregional organisations, not to mention a profusion of international aid and related organisations.  The case for a regional approach in many areas of  resource development is well known. SPSs share many common problems in the resource field including, a shortage of capital and technical expertise.  They have, in common, such forms of resource exploitation  as fisheries development, production of basic foodstuffs, conservation of resources, trade promotion and basic research and survey work on resource potential. species.  A l l share in the exploitation of certain migratory  A joint effort in selected areas of resource development therefore makes good sense in terms of  pooling resources and development experience, and achieving cost savings by economies of scale and by the initiation of regional resource management and conservation.  In certain cases, as for example, tuna  fishing, a lack of cooperation would result in a situation close to chaos and potentially, an enormous loss of income to the region", Fairbairn, ibid at pp. 8-9. 362.  T h e Netherlands  withdrew from the  S P C in 1962  following  the  relinquishment of her colonial  responsibilities over Dutch New Guinea, which is now known as Irian Jaya, or West Irian.  99  United  Kingdom (UK), and the United States of  America ( U S A ) , ' who had  administrative and colonial responsibility over one or more SPS. War II, there was little opportunity for cooperation SPSs.  Prior to World  and consultation  between  There was also little opportunity for cooperation and consultation between  363  SPSs and the metropolitan powers.  This isolation apparently arose as a result of  inadequate transportation and communication. It was also a result of their colonial status. In fact these differences and difficulties were compounded and reinforced by the colonial powers.  364  However, subsequently after the end of World War II, the U K , who had more  colonies  obligations.  in  365  the  region,  Consequently,  was  unable  Australia  to and  fulfill New  some  of  Zealand  her  colonial  proposed  the  establishment of an organisation whose specific objective would be to assist SPSs in their economic and social development. actually  preceded  366  The promulgation of the proposal was  by a series of studies undertaken by W.D. Forsyth of the  Australian Ministry of External  Affairs.  367  In one of these studies, Forsyth  proposed the establishment of a South Pacific Commission with- a "special interest in the economic and social welfare, and health of the inhabitants of the islands of the tropical South Pacific, but with no responsibility for their military security or direct administration".  368  363.  A F A R , V o l . 43, 1972 at p. 42.  364.  A F A R , ibid at p. 42..  365.  U K was in the process of reconstructing her economy following the devastation of World War II, and therefore, was seen to be neglecting her colonies in the South Pacific.  366.  A F A R , supra note 363 at p. 42.  367.  Neemia, supra note 5 at p. 18.  368.  Neemia, supra note 5 at p. 18.  100  In  August  1947,  the governments  of  Australia, France,  Netherlands, U K and the USA signed the Canberra Agreement, SPC.  369  New Zealand, establishing the  The underlying intention of the SPC was to promote the "economic and social  welfare and advancement of the peoples of the non-self governing territories in the South Pacific region administered by them".  370  The membership of the SPC has  grown since 1947 to include 22 independent States and self-governing territories.  1. Structure of the South Pacific Commission  The  following discussion focuses on the general structure of the SPC and its  role in managing the ocean resources of the region. The SPC is made up of three entities. These are the South Pacific Conference, the Committee of Representatives of Governments and Administration (CRGA), and the Secretariat.  2. The South Pacific Conference  The  South Pacific Conference (hereinafter referred to as "the Conference")  is the most important of the three organs of SPC. The Conference is the decision making body of SPC.  It is usually constituted by Ministers of governments of  member States. It meets annually to discuss policy matters affecting the social and economic development of its members, and its decisions are 369.  always taken by  The S P C Agreement is known as the Canberra Agreement because it was signed in Canberra, Australia (hereinafter referred to as the Canberra Agreement) reprinted in Neemia, supra note S at pp. 131-138.  370.  Neemia, supra note 5 at p. 20.  101  consensus. The  functions of the Conferences are laid down in Article IV of the  Canberra Agreement. These include, inter alia; recommendations of the C R G A ;  the responsibility to consider the  to discuss matters of common interest and make  recommendations to member governments;  to examine the draft work programme  of the Secretariat in the light of comments made by the C R G A , and in the light of governments  and  administration  of  administrations the  financial  Secretariat,  adopt  contributions; the  to  administrative  consider budget,  the work  programme, general budget and designated principal officers. However, as noted below, the apparent lack of authority on the part of some delegations  to  Conference.  371  make prompt  decisions inhibits  the  authoritative  role of  the  Nonetheless, the Conference is the only opportunity for all the  independent States, and non-self-governing territories including the metropolitan powers to meet and discuss social and economic issues affecting the region. In this regard, SPSs should continue to render their support to the Conference. Moreover, the Conference is also open to observers, and in this way, it is submitted that the various international organisations, individuals and entities who contribute in one way or the other  to the affairs of the SPC are  able to keep abreast with  developments in the region.  371.  Report of the Eighteenth South Pacific Conference, Noumea, New Caledonia, 7-12th October, 1978 at p. 27.  Para. 30 states: Aware of the unavoidable necessity for delegations at times to refer certain matters  to their respective capitals, the Conference noted the apparent lack of authority on the part of some delegations to make prompt decisions, and therefore, resolved that delegations to future Conferences be led by high-level representatives with the necessary authority to make prompt decisions on behalf of member Governments and Administrations.  102  3. Committee of Representatives of Governments and Administration (CRGA)  Following an "in-house" review of the South Pacific Commission for broader participation by member governments in 1983, the C R G A was formed to replace the Committee of Representatives of Participating Governments and the Planning and Evaluation Committee.  372  A l l member countries of the SPC irrespective of  political status, have equal voice and voting power in the C R G A . senior government representatives of member governments. to four months prior to the meeting of the Conference. considering  and  recommending  the  administrative  3 7 3  It consists of  It normally meets three Its functions include,  budget,  evaluating  the  effectiveness of the preceding year's work programme, examining the draft work programme and budget, and agreeing on a suitable and relevant theme of economic, social and cultural importance to the region for the Conference meetings. Its functions may be described as facilitating the communication vacuum that sometimes exist between the Conference and the member governments. It may also be perceived as linking the Conference and the Secretariat, acting as the intermediary between the two organs. Because its meetings precede the meetings of the Conference, it functions as a filter, scrutinising the activities and programme reports of the Secretariat before they are endorsed by the Conference. 372.  Report of the Twenty-Third South Pacific Conference, Saipan, Northern Mariana Islands, 1-7 October, 1983 at p. 66.  In introducing the Review, the Secretary-General recalled that there exists a genuine and  strong wish in the region to have organisations become more cost-effective and realistic.  He recognised  the constitutional difficulties that some governments might have in accepting the concept of equal status and participation as suggested in the proposed revision of the Canberra Agreement, as contained in the Review, and pointed out that the idea was not a new one but has been voiced at previous S P C Conferences. 373.  Report of the 23rd South Pacific Conference, ibid at pp. 18-22.  103  4. The Secretariat  The Secretariat is the administrative organ of the South Pacific Commission. As such, it is responsible for implementing the work programme approved by the Conference.  The Secretariat is under the overall supervision of a Secretary-  374  General (SG) who is chief executive of the SPC. Conference.  The SG is appointed by the  He is assisted by a Director of Programmes  (DP) who is also  designated by the Conference. The SG and the DP are obliged in the performance of their duties, not to seek or receive instructions from any government or other authority external to the S P C .  376  In other words, they cannot be perceived as  acting in favour of any government. The Secretariat's functions are specified in Article IX of the Canberra Agreement. and  These are to provide technical assistance and training to governments  administrators  development;  377  within the scope rural  technology  statistical development services;  379  374.  Canberra Agreement, Article VIII.  375.  Canberra Agreement Article VIII(25).  376.  Canberra Agreement Article IX(28).  377.  Canberra Agreement Article IX(28)(i).  378.  Canberra Agreement Article IX(28)(ii).  379.  Canberra Agreement Article IX(28)(iii).  380.  Canberra Agreement Article LX(28)(iv).  of  and  the S P C  376  in the  environment;  378  field of;  socio-economic  youth and community development;  380  rural and adhoc  104  expert consultancies;  cultural exchanges;  marine resources and research;  383  assessment and development of  grants-in-aid for unspecified projects of pressing  regional, sub-regional and small Pacific Island countries needs; dissemination relating to developments.  384  and information  385  It may also include in its work programme, projects pertaining to such areas as  food and materials,  community  services,  information services,  marine resources,  socio-economic  rural management  statistical  services,  regional consultation, awards,  and  technology,  education  services,  grants and ecological and  cultural conservation and exchange. Apparently, some SPSs are heavily dependent on the services provided by the Secretariat. national  The services it provides generally complements their respective  programmes.  However,  they  are  not  intended  to  usurp  national  programmes. It is submitted that the region will nonetheless continue to depend on its services.  SPSs have generally benefitted particularly from the various technical  programmes at little financial cost to themselves, since a large portion of the Secretariat's financial budget is received from the metropolitan powers.  These  services are not only provided comparatively cheaply, but they also significantly reduce the administrative burden which they would otherwise have to bear. In this regard, the author believes that SPSs must continue to render their support to it, 381.  Canberra Agreement Article IX(28)(v).  382.  Canberra Agreement Article IX(28)(vi).  383.  Canberra Agreement Article IX(28)(vii).  384.  Canberra Agreement Article IX(28)(viii).  385.  Canberra Agreement Article IX(28)(ix).  386.  Report of the 23rd South Pacific Conference, supra note 372 at p. 70.  105  and the role it plays in promoting social and economic development in the region.  5. Tuna and Billfish Assessment Programme (TBAP)  As indicated above the South Pacific Commission administers the TBAP which  is a vital component  of  their  continuing endeavour  to obtain more  comprehensive information about the status of the tuna stock in the region.  887  The  information obtained from the various programmes and projects undertaken under the T B A P is vital for their developmental plans. develop their own domestic tuna industries.  Most of them are aspiring to  Therefore, an understanding of the  present status of the tuna stock, and the impact of various fish gear used on the fishery  is  crucial  development plans. the programmes  in  determining the  viability  of  their  respective  future  Consequently, they must continue to render their support to  and projects undertaken under the auspices of the TBAP to  produce the desired efficacy.  However, although the SPC has undertaken a  considerable amount of scientific work and research on the tuna stock, there is more work that still needs to be done. For instance, some important areas that still require attention are transit reporting, collection of high seas data, and research and cooperation pertaining to the establishment and cooperation of regional or  387.  Report of the 23rd South Pacific Conference, ibid at p. 72.  The Secretary-General reported that "the  Skipjack Survey and Assessment Program has been hailed as one of the Commission's most successful programmes. This has been affirmed by the A p i a meeting of the Forum Fisheries Agency ( F F A ) . I wish to draw your attention however, to the fact that the T B A P is due for completion in 1984.  Governments  therefore, may need to consider future requirements and whether the Commission has an on-going role to play in this field. I must emphasise that whatever decisions is made on future activities in fisheries, as with all other departments of S P C involvement, (it) must be in concert with the theme of this In-House Review with regard to achieving and maintaining a cost-effective organisation, working within the limits of the available resources in the region".  106  international organizations.  It is suggested that an important area SPC should  also endeavour to concentrate its research effort is on the potential effects of the "green house" phenomena on the fishery. The possible adverse impact of the green house  effect  could have  devastating  consequences  for their  economic plans.  Moreover, worse still, it could possibly lead to the collapse of the fishery which would be disastrous for them.  C. The Growth of Endogenous Organisations  The SPC served reasonably well until 1965 when SPSs became dissatisfied with its orientation.  Richard Herr, in a 1976 study of the region summarized  389  the changes as follows:  390  Island leaders sought with increasing clarity of vision to replace trusteeship with collegial cooperation, non-politicism with political commitment, and technical expertise with direct financial assistance. Underlying this development was a conscious acceptance of the organisation's regionalism value but with a twist not to the likes of some metropoles. In the second half of the 1960's a belief emerged from some quarters of the Pacific that the European states were interlopers within the region and therefore even their continued presence in the [South Pacific Commission] was open to question. Notwithstanding its success in promoting economic and social programmes in  the  region,  the  metropolitan powers.  SPC remained  an  organisation  primarily dominated by  As more SPSs became independent and actively involved in  its affairs, they became frustrated with the dominance of the metropolitan powers. 388.  Swan, supra note 208 at p. 184.  389.  Sain-Cicin and Knecht, supra note 61 at p. 179.  390.  Sain-Cicin and Knecht, supra note 61 at p. 179.  107  Because of the nature of its composition, political discussions were stifled and discouraged.  Neemia stated,  391  as more SPSs became independent there was a  growing expectation amongst them that other territories, particularly those under French colonial subjugation, and US trusteeship  would also be given political  autonomy. However, the metropolitan powers were not interested.  They were more  intent to maintain the status quo - that the SPC should only concentrate on matters pertaining to the social development of the region.  392  Their frustration was best summarized by the Prime Minister of Fiji, Ratu Sir Kamisese Mara. He said: SPC was a child of its era - the colonial era. Its Constitution and methods were devised with the intention that it would advise and help administering governments in the discharge of their responsibilities which they have accepted. It was auxilliary. Limitations were therefore imposed on its scope. 393  It is the author's opinion that it was inevitable that they would eventually become frustrated with the SPC. The attitude of the metropolitan countries was perceived by them as domineering and dictatorial, with crucial decisions often being made in Washington, Paris, London, Wellington and Canberra.  Moreover, it  was only a matter of time before their interests and those of the metropolitan countries diverged. They wanted to play a larger and more dominant role in their own affairs and in the affairs of the region.  And they could not achieve this  while they remained subservient to the metropolitan powers. Inevitably their frustrations and contempt for the SPC culminated in the formation of new regional institutions in which management powers and control 391.  Neemia, supra note 5 at p. 24.  392.  Neemia, supra note 5 at p. 24.  393.  Neemia, supra note 5 at p. 24.  108  w e r e vested i n SPSs. asserting  control  aviation  and  could  have  N e e m i a stated, that i s l a n d leaders p e r c e i v e d this as a w a y of  over  key economic  subsequently, f i s h e r i e s . frank  and  open  areas s u c h as t r a d e , They  3 9 4  discussions  on  also  shipping,  wanted  political  a  issues  tourism,  civil  f o r u m where  they  pertinent  to  island  interests.  1. Pacific Islands Producers Association (PIPA)  In formed  1965,  by  the f i r s t o f the  Fiji,  Tonga  and  endogenous  Western  regional organisations,  Samoa.  It  3 9 5  has  been  the  suggested  PIPA  was  that  the  e s t a b l i s h m e n t o f P I P A was p r i m a r i l y m o t i v a t e d b y the desire o f i s l a n d leaders assert  their  right  generally true, in  fact  the  to  control  regional  affairs.  3 9 6  Whilst  may  the c o m m o n m o t i v a t i o n u n d e r l y i n g the e s t a b l i s h m e n t provision  of  a  commercial  pressure  group.  s p e c i f i c a l l y b y the b a n a n a e x p o r t i n g c o u n t r i e s to negotiate Zealand.  this  It  to  have  been  of P I P A  was  was  established  better terms w i t h N e w  3 9 7  U n f o r t u n a t e l y , P I P A o n l y h a d a l i f e span o f eight years.  It d i d not create  a n y s u b s t a n t i a l i m p a c t , e v e n t h o u g h its m e m b e r s h i p i n c r e a s e d f r o m three to f i v e i n 1968  w i t h the i n c l u s i o n o f the C o o k Islands a n d N i u e , a n d to six i n 1973,  a d d i t i o n o f the G i l b e r t a n d E l l i c e Islands.  394.  Neemia, supra note 5 at p. 24.  395.  Sain-Cicin, and Knecht, supra note 61 at p. 179.  396.  Neemia, supra note 5 at p. 25.  397.  Neemia, supra note 5 at p. 25.  Its terms o f r e f e r e n c e  w i t h the  were increased  to  109  include the establishment of joint ventures, the improvement of regional transport and  of fishing and handicraft industries.  Although it only achieved mediocre  success, Neemia argues that its establishment reflected the SPCs inaction despite its stated economic objectives.  398  Faced with the problem of limited finances, PIPA was unable to achieve the desired  efficacy  demonstrated undertake.  their  its  members  contemplated.  resolve to embark  Neemia,  399  pointed out  Nonetheless,  on initiatives that  two  its  establishment  the SPC was unable  important  lessons  to  in regional  cooperation were derived from the experience with PIPA; "firstly, that continuing membership to island countries would mean a severely limited budget and an association of the weak; with  other  and secondly, it was essential to have working relations  international  organisations,  including  receiving  aid  from  such  organisations to enable regional organisations to carry out their work programmes".  D. The South Pacific Forum (SPF)  The most important development that emanated from their frustrations with the SPC, was the formation of the SPF.  In 1971, under the leadership of Prime  Minister, Ratu Sir Kamisese Mara of F i j i , nations in the region formed the SPF. development at that time.  401  400  the independent and self-governing  This was the most significant regional  The concept of a SPF was initiated by Ratu Sir  398.  Neemia, supra note 5 at p. 25.  399.  Neemia, supra note 5 at p. 25.  400.  Fiji had become independent just at the time the South Pacific Forum was formed.  401.  Sain-Cicin and Knecht, supra note 61 at p. 180.  110  Kamisese Mara, during informal consultation among island leaders during the eleventh South Pacific Conference.  It was contemplated that the SPF would  provide the venue where matters of common political and economic interests would be discussed.  Something which they  were not able to do under the  SPC.  402  Representatives from seven SPSs (Australia, the Cook Islands, Fiji, Nauru, New Zealand, Tonga and Western Samoa)  403  formed the SPF.  The SPF is a rather unusual group. It neither has a formal structure, nor a permanent base.  The SPF meets annually in different capitals throughout the  region, and the assembled heads of government would discuss the issues of the moment and, where possible, adopt coordinated positions. There are no established procedures, no formal process or function, no public records kept, and no observers are allowed in these meetings.  Brief communiques issued after each meeting  provides the only official information regarding what transpired.  404  However, irrespective of its informality, the SPF is the most important organisation in the region. SPF.  There is no higher authority in the region than the  Since it is an assembly of the heads of governments  its mandate is  authoritative.  Its most important characteristic  spontaneously.  This is in contrast to the SPC, whereby delegates normally refer  matters  to  their  respective  governments  for  is its ability to make decisions  a  decision.  In  characteristics, the former Director of SPEC, Dr. Gabriel Gris said:  402.  Neemia, supra note 5 at p. 26.  403.  These were the only countries who were independent in 1971.  404.  Sain-Cicin and Knecht, supra note 61 at p. 180.  describing its  Ill  The most remarkable feature of the SPF is that it has no formal charter or rules to hamper the conduct of its affairs. It is selfregulating. 405  On its success, he said that: The SPF has demonstrated its value by tackling political, economic and social problems facing the region. For instance, on the political front, it has not hesitated to condemn nuclear testing and the dumping of nuclear wastes ... it has and still faces difficult questions of colonialism and independence (Vanuatu in 1980 and New Caledonia) .... In the economic and trade fields, a regional trade and economic cooperation agreement which provides for much improved access of island goods and commodities into Australia and New Zealand; it has set up the Pacific Forum Line and dealt with specific problems ranging from energy to communications. 406  The SPF, whose membership has now grown to fifteen, has evolved into a remarkably  effective  political association  in the region, as measured  regional organisations and activities it has spawned.  407  by the  These include the Forum  Secretariat (formerly the South Pacific Bureau for Economic Corporation (SPF)) which is discussed below, the Pacific Forum Lines (PFL), which is also discussed below, the Forum Fisheries Agency (FFA), which is subsequently discussed in Chapter (ORMP)  Five, 408  and  its  Ocean  Resources  Management  Training  Programme  at the University of the South Pacific (USP). Other important measures  of the SPF's success, are the four regional treaties it has spearheaded.  405.  Two of  Gris, Gabriel, " T e n Years of Regional Cooperation: The Forum Way", Pacific Perspective. V o l . 11, No. 1, 1981, at pp. 28-33.  406.  Gri«, ibid., p. 27.  407.  Sain-Cicin and Knecht supra note 61 at p. 180.  408.  The Ocean Resources Management Programme at the University of the South Pacific was established in 1986 under the auspices of the South Pacific Forum Fisheries Agency and the University of the South Pacific with major funding from the Canadian International Development Agency.  The Programme  provides training and policy and technical assistance to island government leaders on marine resources management.  112  them have been described above. The other two are described below.  1. The Forum Secretariat (FS)  The  FS was established shortly after the SPF was formed to act as its  administrative arm.  It was contemplated at the time that the FS would facilitate  regional cooperation in such matters as trade, economic development, transport and telecommunications.  In recent years the SPF has increased the scope of the FS's  areas of responsibility to include tourism, energy, aviation and fisheries. The FS was established by Agreement.  409  Its purpose as noted above is to  facilitate continuing cooperation between SPSs on trade, economic development, transport, tourism and other related matters. The need for an administrative body such as the FS emanates from the pressing need to have a clearing house for all the SPFs recommendations.  As such, the  FS has an important  role to play in  coordinating the implementation of the recommendations of the SPF and forging regional cooperation amongst the SPSs. The FS is constituted by a Secretariat which is based in Suva, Fiji, and the FS Committee.  The Secretariat consists of the Director who is responsible for the  overall administration of the Secretariat, two Deputy Directors, and such other professional and support staff as are necessary to facilitate its functions.  The FS  Committee consists of one representative of each member State of the SPF.  The  representative is usually a senior government official from a member State.  The  following discussion briefly articulates the various functions of the Committee and 409.  Agreement Establishing the South Pacific Bureau for Economic Cooperation. Suva, 17 April, (hereinafter referred to as the S P E C Agreement) reprinted in Neemia, supra note 5 at pp. 138-143.  1973  113  the Secretariat.  2. Functions of the Committee  The Committee meets at least twice a year to review the work of the Secretariat.  Its main area of concern pertains to the overall administration of  410  the Secretariat, while the SPF makes all policy decisions for the Secretariat.  As  such the Committee has several functions to play. These include; the preparation, in consultation with the Director, of the annual budget for submission to the SPF;  411  the recommendation of any pertinent amendments to the Annex to the  Agreement to the S P F ;  412  the approval of the annual or interim report of the  Director on the operation of the FS and to transmit such report to member governments;  418  making recommendations to member governments;  staff establishment and salary scales;  410.  S P E C Agreement Article V .  411.  S P E C Agreement Article V(2)(a).  412.  S P E C Agreement Article V(2)(b).  413.  S P E C Agreement Article v(2)(c).  414.  S P E C Agreement Article V(2)(d).  415.  S P E C Agreement Article V(2)(e).  416.  S P E C Agreement Article V(2)(f).  416  414  laying down  and giving general directions to the F S .  416  114  3. Functions of the Secretariat  As noted above, the Secretariat was established facilitating  the  administrative  arrangements  for  with the intention of  SPF  meetings,  importantly, to supervise and assist SPSs implement recommendations  and  more  emanating  from the SPF. As such the Secretariat plays a significant role in forging regional cooperation. The functions of the Secretariat are laid out in Article VII of the SPEC Agreement. Its functions include, amongst other things; the preparation of studies in order to identify opportunities for modification of present trade patterns in the South Pacific region, and between the region and other countries, having in mind the objectives of regional trade expansion;  417  carrying out necessary investigations  in connection with development of free trade among SPSs; studies  for  the development  418  preparation of  of plans and policies in an effort  to  promote  cooperation in the region, and investigating the scope for regional development planning aimed, inter alia, at a rationalisation of manufacturing and processing industries  and  enterprises;  419  the  achievement  of  economies  of  scale  in  certain  regional  establishing an advisory service on sources of technical assistance,  aid and investment finance, both official and private;  420  acting as a clearing  house for information on trade, production and economic development in the  417.  S P E C Agreement Article VII(l)(a).  418.  S P E C Agreement Article VII(l)(b).  419.  S P E C Agreement Article VII(l)(c).  420.  S P E C Agreement Article VII(l)(d).  115  region and in areas outside the region which are of interest to SPSs'; studies, reports and working papers;  its  organisations.  work  with  that  preparing  establishing means for the collection,  422  dissemination and exchange of information and statistics; coordinating  421  of  other  423  and cooperating and  international  and  regional  424  It is submitted that the SPC and the FS complement each other. Although there have been calls to amalgamate the two organisations into a single regional organisation (SRO), so far no practical objective.  steps have been taken to achieve this  The main reason for calling for their amalgamation is the generally  held belief that the organisations duplicate each other's functions.  However, the  author believes that there are strong reasons for the continuation of the present status quo. Some of the smaller island countries particularly depend heavily on a great number of services being provided by the SPC and the FS separately, so a merger could in fact cause a major split amongst the island nations of the region. A split to the solidarity and unity of the region would be unfortunate and of no advantage to the region, since their strength lies in being together and not apart and divided.  425  The question of having a SRO holds immense significance because  underlying it all it raises the fundamental question that lies at the heart of all Pacific Islanders - the question of the relationship between all Pacific peoples.  421.  S P E C Agreement Article VII(l)(e).  422.  S P E C Agreement Article VII(l)(f).  423.  S P E C Agreement Article VII(l)(g).  424.  S P E C Agreement Article VII(l)(h).  425.  Report of the 23rd South Pacific Conference, supra note 273 at p. 70.  426.  Report of the 23rd South Pacific Conference, ibid at p. 34.  426  116  However, the author believes that island leaders most cautiously consider the question in the light of the relationship between the Pacific peoples, and also in view of the need to accommodate the generosity and commitment of external allies and friends in a spirit of mutual partnership for the future progress of the region and its peoples. Although their functions may be duplicated in certain respects, the author is of the opinion that their overall mandate is explicitly delineated. is increasing cooperation  and consultation  between  the  In fact, there  two organisations,  as  evidenced by the annual meeting of heads of regional organisations. _ The mainadvantage of the FS as noted above is that its directions originate from the highest and supreme policy making body in the region. having the most potent mandate.  Therefore, it may lay claim to  This advantage that it has obviously gives the FS  more political credibility.  4. Major Activities  The SPF has evolved into a formidable organisation.  The increase over the  years in its membership has correspondingly increased the scope of the FSs major activities.  In pertainment  to trade, the FSs activities have encompassed trade  promotion and development of export-oriented industries.  A study conducted by  the FS on trade relations and industrial development in the region culminated in the conclusion of the South Pacific Regional Trade and Economic Cooperation Agreement (SPARTECA),  with Australia and New Zealand.  SPARTECA  was  intended to stimulate trade between SPSs and Australia and New Zealand, which were invariably in favour of the two latter States.  Under S P A R T E C A , certain  117  items and commodities enjoy preferential access to Australian and New Zealand markets. One of the major achievements of the FS was the establishment of the South Pacific Trade Commission (SPTC).  The SPTC provides South Pacific States with  information pertaining to Australian and New Zealand markets, and promotes the flow of island products to Australian and New Zealand markets. only services the South Pacific States.  The SPTC not  More importantly, it provides potential  investors from Australia and New Zealand with pertinent information regarding foreign investment regulations and other conditions for foreign investment. As mentioned above, the FS has increased its area of responsibility. In the area  of  telecommunications,  the  FS  acts  as  coordinating  agency  for  telecommunications work for the United Nations (UN) and other agencies. The FS also acts as regional coordinator for energy matters.  Recently, the FS was given  the responsibility to coordinate the development and implementation of regional aid projects.  In 1987, the SPF decided that a Pacific Regional Advisory Service  (RAS) should be established under the auspices of the FS. The main functions of the R A S are to maintain a systematic register of skilled personnel in the region which would be able to meet requests from SPSs and facilitate transfers of such personnel.  Recently, the RAS has been increased to encompass  national court  judges. The SPF, through the FS has established ancillary bodies to cater for specific functional areas that require specialized attention.  One such body is the  Pacific Forum Line (PFL) which provides a regional shipping service to SPSs. They generally face local difficulties and disadvantages.  Neemia, pointed out that  the great distances from their export markets and sources of supply meant high freight costs and irregular shipping which in turn affected standards of living  118  resulting in high prices and chronic shortages of consumer  goods.  The  objectives of the PFL are laid down in the Memorandum of Understanding (MOU). These are: To operate a regular and viable shipping service in order to encourage the economic development of the region, recognizing the desirability of containing escalating freight costs; to coordinate the establishment of regular fully rationalised shipping services among ports of the members and among other ports; to provide a shipping service to meet the special requirements of particular areas of essential services on non-commercial routes; to promote and develop trade, particularly export trade of the South Pacific region. The SPF's profound interest in the development of fisheries in the region is represented  by the establishment of F F A .  This is discussed in detail below.  Moreover, a classical illustration to exemplify the SPF's earnest commitment to the rational use and development of the fisheries resources may be inferred from the conclusion of the M F T with the US, and the Convention to Prohibit the Use of Long Driftnets which are discussed above.  The SPF has also played an important  role in protecting the region's environment as evidenced by the conclusion of two regional environmental protection treaties.  These two areas were originally under  the purview of the SPC, and hence when the SPF began to slowly supplant the SPCs role in these areas, it led to a conflict between the two organisations.  The  SPC however, was unable to address the question of coastal States sovereign rights over HMS, because of US membership in the SPC. And moreover, the SPC could not condemn French nuclear testing in the region because France is a powerful member of the SPC. On the other hand, the SPF had political credibility to discuss these issues, and more significantly, it is capable of initiating specific action to alleviate these issues.  427.  Neemia, supra note 5 at p. 29.  119  E. The South Pacific Nuclear Free Zone Treaty "No region on earth has experienced the negative effects of nuclear arms to a greater extent than the Pacific basin. The Japanese cities of Hiroshima and Nagasaki suffered the only wartime use of atomic weapons. Since then the [South Pacific] region has been used repeatedly for nuclear testing. From 1956 to 1983, the United States, France and Britain together tested 213 atmospheric or underground nuclear tests in the Pacific [0]cean. After persistent and loud regional protests, Japan and the United States have shelved plans for dumping and storing low level radioactive materials in the Pacific Ocean. Guam is the permanent and, so far only, central Pacific base for both large nuclear stockpiles and nuclear-armed planes, ships and submarines. Nuclear powered and armed American and other foreign ships crisscross the region. American military ships are accepted at all countries in the South Pacific except Vanuatu and New Zealand. Unarmed US missiles are shot and tracked from Vandenberg Air Force [B]ase in California to Kwajalein [A]toll in the Marshall Islands. The Soviet Union has used an area near the Cook Islands for missile tests ... China uses the international waters east of the Solomon Islands. 428  The idea of a nuclear-free  zone in the region was first introduced by  Australia at the 14th meeting of the SPF held in Canberra in 198 3.  428  The decision  to negotiate a nuclear-free zone treaty was endorsed at the 15th meeting of the SPF held in Tuvalu in 1984. concluded at  The 15th SPF decided that such a treaty should be  the earliest possible opportunity.  The completed South Pacific  Nuclear Free Zone (SPNFZ) Treaty was signed at Ratotonga, August 6, 1985.  428.  430  Cook Islands, on  The Treaty entered into force on December 11, 1986 when  Neater, "The Origin and Development of the South Pacific Nuclear Free Zone Treaty", 3-4 (June  1987)  quoted in Sain-Cicin and Knecht, supra note 61 at p. 194. 429.  Beeby,  C,  and Fyfe, N . , "The South Pacific Nuclear Free Zone Treaty",  Victoria University of  Wellington Law Review. Vol. 17, No. 1, 1987 at p. 33. 430.  South Pacific Nuclear Free Zone (SPNFZ) Treaty, August 6, 1985, Materials. V o l . X X I V , No. 5, September 1985, at pp. 1440-1463.  reprinted in International  Legal  120  Australia became the eighth Pacific nation to ratify it. In many ways, the Treaty reflects their aspiration to enjoy peaceful development, free from the threat of environmental pollution; their  willingness to  their acknowledgement of existing relevant treaties;  undertake  commitments  not  to  acquire  or  test  nuclear  explosions and moreover, their wish that nobody should test, use or station such explosives in the region. Arguable, the Treaty represents the culmination of strong anti-nuclear feelings that had been present in the region since the 1970s.*  31  The Treaty prohibits the testing, manufacture, acquisition and stationing of nuclear weapons in the territory of the parties, as well as the dumping of nuclear wastes at sea by parties.  432  For purposes of testing, manufacture, acquisition and  stationing of nuclear weapons, the Treaty defines "territory" to encompass the land, internal waters, territorial seas, archipelagic waters, seabed and subsoil beneath the land of signing nations.  433  In contrast, the Treaty defines the nuclear free zone  more expansively to include the broader 200-mile zones of the parties and the very extensive areas of the high seas.  However, it is important to note that the  434  Treaty specifically states that nothing in the Treaty is meant to infringe on the freedom of navigation or overflight.  435  The administration of the Treaty is spelt out in Article 8.  The parties are  to "establish a control system for the purpose of verifying compliance with their obligations under this Treaty".  The control system, which is administered by the  431.  Sain-Cicin and Knecht, supra note 61 at p. 194.  432.  S P N F Z Treaty Articles 3, 5, 6-7.  433.  S P N F Z Treaty Article 1(b).  434.  S P N F Z Treaty Article 1(a).  435.  S P N F Z Treaty Article 2(2).  121  Director of the FS, consists of reports, exchanges of information, consultations, the application of safeguards by the International Atomic Energy Agency, and a complaints procedure. To enhance their resolve in a nuclear free Pacific, three Protocols were prepared in association with the Treaty. The Protocols require the nuclear powers (China, France, the United Kingdom, the United States and the USSR) to commit to abide by the Treaty's provisions in their territories in the region;  not to  contribute to violations of the Treaty or to threaten the use of nuclear weapons against the parties; and to refrain from testing nuclear devices in the nuclear free zone.  However, it is also important to note that the Treaty and the Protocols do  436  not disturb existing security arrangements and each party has the right to make its own decision about the visits or passage through its territory of foreign ships and aircraft.  437  Hitherto, only the USSR and China have signed the Protocols appropriate to them.  In  fact,  the  USSR  even went  a step further  and stated  that  the  transportation of nuclear weapons within the zone is inconsistent with the spirit and intent of the Treaty. Protocols.  438  The USA, U K and France have refused to sign the  The US cites amongst other things that the Treaty could undermine its  nuclear deterrent  capability, disrupt the balance of power in the world, and  encourage strategically sensitive areas such as Western Europe, to create their own nuclear free zones.  439  France inevitably will not sign given its strong desire to  436.  Sain-Cicin and Knecht, supra note 61 at p. 196.  437.  S P N F Z Treaty Article 2(2).  438.  Teiwaki, supra note 99 at p. 150.  439.  Sain-Cicin and Knecht, supra note 61 at p. 196.  122  maintain its nuclear testing programme in French Polynesia. The U K stated that it was not necessary for her to sign. Some countries, notably Solomon Islands and Vanuatu, felt that the Treaty was not tough enough because it allowed nuclear ships to continue docking at individual island nations.  These countries argue that by allowing the transit of  aircraft and vessels carrying nuclear weapons, the fundamental purpose of the Treaty, that is, to remove the threat of nuclear war from the region is defeated.  440  Nonetheless, with regard to the prohibition against peaceful nuclear explosions and the ban on dumping of radioactive wastes, the Treaty is stronger than the 1967 Treaty of Tlatelolco, which created a nuclear free zone in Latin America.  441  Arguably, the importance of the Treaty lies in what it represents for the region, and particularly what can be achieved through the SPF. does not imply that the negotiations were easy.  However, that  Some SPSs enjoy closer and  intimate political and economic relations with the super powers than others. Hence, they were sometimes reluctant  to compromise their cordial diplomatic  relations with the super powers. What emerges, however, is evidence of a fervent conviction to protect the environment that in most cases sustains their economic needs.  They have always been traditionally dependent on the environment for  sustaining their economic and physical needs.  The conclusion of the Treaty  therefore is explicit recognition of the vulnerability of their environment to the 440.  Neemia, Uentabo Fakaofo, "Some International Issues in the South Pacific", Pacific Perspective. Vol. 14, No. 1, at p. 9.  441.  Treaty for the Prohibition of Nuclear Weapons in Latin America, February 14, 1967, T . I . A . S . No. 7137, 634 U N T S 281.  22 U . S . T . 762  The S P N F Z Treaty differs from this Treaty in several respects. First,  the S P N F Z Treaty bans all nuclear explosions while the Treaty of Tlatelolco allows detonation for peaceful purposes.  Second, the S P N F Z Treaty prohibits storage and dumping of nuclear wastes in the  region while the Treaty of Tlatelolco does not. Finally, the S P N F Z Treaty does not allow member States to permit nuclear weapons on their territory whereas the Treaty of Tlatelolco does.  123  exploits of radioactive  wastes which would have catastrophic consequences for  their survival, and their fervent conviction to protect their environment within the framework of the international legal order governing uses of the ocean.  F. The Convention f o r the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP Convention)  Underlying the SPREP Convention are the concerns of SPSs about the state of the environment and the fears that the vast Pacific Ocean will be an attractive site for the dumping of civilization's noxious wastes.  442  Another major concern  involves the potential impacts of nuclear activities, especially those emanating from continued testing of nuclear weapons in the region.  443  In addition to the  SPREP Convention, there are two Protocols - one involving pollution emergencies and the other dealing with the prevention of pollution by dumping. Convention  and the Protocols  Caledonia in November 1986.  were opened  for signature  444  The  at Noumea, New  445  The SPREP Convention obliges parties to take appropriate  steps either  442.  Sain-Cicin and Knecht, supra note 61 at p. 190.  443.  F o r a brief history of the events leading to the conclusion of the S P R E P Convention, see Sain-Cicin and Knecht, supra note 61 at pp. 190-191;  South Pacific Bureau for Economic Cooperation & Social  Commission for Asia and the South Pacific. United Nations Environment Programme, Action Plan for Managing the Natural Resources and Environment of the South Pacific. ( U N E P Regional Seas Reports and Studies, No. 29, 1983). 444.  S P R E P Convention reprinted in 26  I . L . M . at p. 38 (I.L.M. Background/Content  Summary of the  Convention). 445.  South Pacific Regional Environmental Programme, Report of the High Level Conference to Adopt a Convention for the Protection of the Natural Resources and Environment of the South Pacific Region  124  jointly or individually to prevent, reduce, and control pollution emanating from vessel discharges, land-based sources, storage of toxic and hazardous wastes arid nuclear testing in the region. damage,  specifically  Also, parties are obliged to prevent environmental  446  coastal  erosion  activities, sand removal and dredging.  caused  by  coastal  engineering,  mining  447  The first Protocol - the Protocol Concerning Cooperation in Combatting Pollution Emergencies national emergency  in the South Pacific Region - mandates the adoption of  plans to be coordinated with the appropriate  subregional contingency  plans.  448  bilateral and  The second. Protocol - the Protocol for the  Prevention of Pollution of the South Pacific by Dumping - creates a regional agreement and establishes lists of substances, the dumping of which is prohibited (Annex 1), and list of substances requiring special or general permits (Annexes 2 and 3).  449  The SPREP Convention Area is defined as comprising the 200-mile  zones of twenty-two self-governing island nations (including Australia's east coast and eastward islands) and island territories, as well as those areas of the high seas that are enclosed by these 200 mile zones. The administration of the SPREP Convention and the Protocols, for the most part, is assigned to the SPC, with a lesser role to the Director of the F S .  450  Amendments to the SPREP Convention and its Protocols can be made with the approval of two-thirds of the parties.  451  446.  S P R E P Convention, Articles 6-12.  447.  S P R E P Convention, Article 13.  448.  Sain-Cicin and Knecht, supra note 61 at p. 191.  449.  Sain-Cicin and Knecht, supra note 61 at p. 191.  450.  S P R E P Convention Articles. 21, 29, 33.  451.  S P R E P Convention Article 24.  The Convention will enter into force 30  125  days after the deposit of at least 10 instruments of ratification, acceptance, approval or accession.  452  As of July 1989, this had not yet occurred.  However, the SPREP Convention was not able to address the question of nuclear testing in the Pacific, because France is a powerful member of the SPC. Nonetheless, it represents the SPSs anxiety about the potential dangers posed to the environment resulting from the uncontrolled use of the environment.  In the  author's opinion, this is the most important aspect of the SPREP Convention and the Protocols.  However, the success of the SPREP Convention and the Protocols  would depend largely on the willingness of SPSs to implement the various legal provisions thereof.  G. Contemporary Perspectives  It has been observed that regional cooperation has resulted in palpable gains for SPSs. The SPC provides them with a fora to discuss social and technical issues affecting them.  The South Pacific Forum, on the other hand, provides them the  fora to discuss political and economic issues of the day, which they are not able to discuss in the SPC.  Both organisations have played a significant role in their  endeavour to achieve economic growth, and more particularly in those spheres of economic concern with regards  to marine oriented activities.  In the author's  opinion, they would not have achieved the success they have so far enjoyed without regional cooperation. to expand.  452.  S P R E P Convention Article 31.  As stated earlier, this trend will no doubt continue  126  Despite the shortcomings of both organisations,  all SPSs have benefitted  tremendously from their programmes at little financial cost to them.  While some  SPSs have threatened to withdraw from the South Pacific Commission, over the issue of the SRO, no one has yet to take the first step towards withdrawal. And probably no one will withdraw.  The disadvantages  to them of withdrawing are  such that it is most unlikely that any one will withdraw from either organisation.  127  CHAPTER  V  T H E FORUM FISHERIES A G E N C Y (FFA)  Hitherto, the discussion has endeavoured to situate the region in terms of U N C L O S by attempting to show that UNCLOS has had a radical impact on the development of South Pacific States. the formation of F F A .  The discussion has also attempted to justify  It is submitted that with the benefit of the discussions  articulated above one is now well placed to fully appreciate and comprehend the various political and economic forces necessitating the formation of F F A . At this juncture, the author would like to mention that certain themselves  writer(s) who availed  to the opportunity to write on F F A soon after its inception were  audacious enough to suggest that F F A was merely a weak service agency rather than anything approaching a management agency.  454  Contrary to those fallacious  beliefs, it is contended that the SPSs can boast of an achievement with regards to the management  of the tuna resource that is unprecedented and perhaps even  unmatched in any region in the world.  An explanation of the reasons for this  dogmatic belief in the fallibility of those writer(s) statements is given below. However, if an observation may be made at this juncture, perhaps it would be suffice to mention that those statements incidentally emanate from nationals of countries who initially opposed the concept of the E E Z , and in particular, were not  454.  Kent, supra note 84 at p. 170.  128  allowed to participate as members of F F A . Naturally, these writer(s) have had a propensity to depict F F A as an ineffective and weak organisation that falls short of  the  necessary prerequisites  of international  law for such  organisations.  455  Needless to say, as argued above, that is a view that only two countries in the world subscribe to, and lacks the support of the international community.'  456  The following discussion sets out to show why F F A has indeed met the needs and aspirations of SPSs.  In order to explore the various reasons why F F A  has been successful, it would be necessary by way of background to review its history, examine its role in developing management regimes, outline its functions, and  identify the legal developments that are pertinent to the development and  crystallisation of certain provisions of UNCLOS into customary international law.  A. History of the FFA  It is interesting to note that most South Pacific States obtained political independence  almost  simultaneously  undertaken.  None of  them,  while negotiations  except for  for  UNCLOS  Australia and New  457  were  Zealand, were  independent during negotiations for the four Geneva Conventions. However, SPSs were well represented at the negotiations for UNCLOS.  Indeed, as Sain-Cicin  Biliana argues, "as a result of this confluence of circumstances, self-government  and extended  the concepts of  maritime jurisdiction were intertwined virtually  455.  Van Dyke, Jon and Heftel, Susan, supra note 85 at p. 38.  456.  Sutherland, supra note 179 at p. 613.  His article, amongst other things, examines and dismisses the  criticism that the F F A does not fully meet the requirements of emerging international law. 457.  10 SPSs obtained political independence between 1960 and 1982.  129  from the beginning".  In Chapter I, the importance of the known fisheries  resources of the South Pacific was highlighted.  The importance of the fisheries  resources not only to the total fisheries production but also to the economy of the region as a whole was indicated.  As a HMS, it is in their best interest to ensure  that the tuna resource is not exploited in such a way as to endanger the stock. The need for a regional fisheries body was indicated in Chapters I, II and III.  Nonetheless, it would still be worthwhile to mention succintly some of the  reasons for a regional fisheries body. Kearney,  459  writing in 1978, gave the reasons  as follows; the need for regional fishery statistics; the highly migratory nature of tuna;  the mobility of the fleets harvesting the resources;  of the resources;  the variable distribution  the dependence of the resources of the region on common  spawning or nursery grounds;  the interaction  between  surface  and longline  fisheries; common interest of developing countries in the region; added power of a common interest block;  minimizing research effort;  and the need to ensure  access to the fishing grounds. The  establishment  of  F F A was intertwined  with  the  international  acceptance of the concept of the E E Z . The idea to establish a regional fisheries agency was first mooted at the seventh South Pacific Forum meeting in Nauru in July, 19 76.  460  The idea originated from discussion papers presented by Papua New  Guinea and Fiji. 488.  Papua New Guinea's paper concentrated  on environmental  Sain-Cicin and Knecht, supra note 61 at p. 184. During the 1970s, F i j i exercised strong leadership role in the region and in U N C L O S .  Even today, the United Nations Special Representative of the Secretary-  General for Ocean Affairs and the Law of the Sea is Ambassador Satya Naudau, Fiji's representative to the T h i r d United Nations Conference on the Law of the Sea. 459.  Kearney, R . E . , supra note 87 at pp. 263-267.  460.  Gubon, Florian, "History and "Role of the Forum Fisheries Agency" in T u n a Issues and Perspectives in the Pacific Islands Region, supra note 229 at p. 246.  130  conservation  in  the  conservation issue.  461  region,  linking  the  fisheries  question  to  the  broader  The paper emphasised the role of SPSs as sovereign nations  and the need for regional cooperation and coordination of activities related to the marine environment and its resources.  462  Fiji's paper, entitled "Law of the Sea",  centered on "substantive issues arising from the Law of the Sea Conference then in progress, and proposed that a meeting of SPF members be held for a broad investigation of regional fisheries cooperation".  463  The seventh SPF meeting agreed  that, given the stage which the Law of the Sea Conference had reached, it would be desirable for them to meet at government level.  464  The objectives of the  subsequent meeting which was held in Suva in October 1976 was to consider the timing and terms of the creation of 200-mile zones; the problems and opportunities associated with them;  the conservation of marine resources;  of a South Pacific fisheries agency;  461.  Gubon, ibid at p. 245.  the possible creation  and the prospects for joint action and regional  "South Pacific Regional Fisheries Organisation - Coastal State Jurisdiction with  Regard to Highly Migratory Species in the 200-Mile Fishing Zone", Working Paper prepared by Papua New Guinea at request of the meeting of S P E C Countries - Suva, M a y 9-11, 1976, S P E C (78) F A - I N F . A . (hereinafter called P N G Discussion Paper). 462.  Gubon, ibid at p. 246.  Para. 2 of the P N G Discussion Paper states: The question is what powers may be  exercised by a coastal State with regard to the living resources of its 200-mile tone with confidence that its action will be consistent with the rights of States at international law. international law is passing through a phase of rapid development. process are:  This is an area in which  The three main elements in this  first, the growing realisation that stocks of living resources are finite and must be carefully  conserved and managed so as to avoid over-exploitation;  secondly, the desire of coastal  States,  especially developing coastal States, to see the resources of their 200-mile zones, used by their own fishermen rather than by distant water fishermen;  thirdly, the attempt being made at the 3rd U N  Conference on the Law of the Sea to resolve the question of extended fisheries jurisdiction in a comprehensive Law of the Sea treaty, an attempt which is by no means certain of success, but which has already triggered action by many individual coastal States to legislate over fisheries within a 200-mile tone. 463.  Doulman, supra note 82 at p. 139.  464.  "Nauru Declaration", 27 July, 1976, Summary of Proceedings of the Seventh Meeting of the South Pacific Forum. (Appendix 4) (hereinafter called Nauru Declaration) at p. 39.  131  cooperation in matters such as surveillance and policing. The  Suva  meeting  Conference, particularly Pacific.  466  reviewed  developments  at  the  Law  those issues that had special relevance  of  the  Sea  to the South  The meeting's declaration underlined their common concern to achieve a  new and comprehensive international Convention on the Law of the Sea which would take account of the interests of the region.  467  The meeting  468  affirmed,  amongst other things, that UNCLOS must confirm the sovereign rights of coastal States over resources in their 200-mile E E Z ;  4 6 9  took note of the broad consensus of  views at the Conference on the Law of the Sea in support of the 200-mile E E Z ;  4 7 0  declared their intention to establish 200-mile EEZs at appropriate times and after consultation with one another;  471  decided to harmonise fisheries policies in the  region, and adopt a coordinated approach in their negotiations with DWFNs;  472  decided in principle to establish a South Pacific fisheries agency to promote the conservation and rationale utilisation of the stocks in the region;  473  and requested  the Director of SPEC to prepare proposals for the next session of the S P F .  474  465.  Nauru Declaration, ibid at p. 39.  466.  T h e meeting was held at the S P E C Headquarters in Suva from 13-14 October, 1976.  467.  A F A R , V o l . 47, 1976 at p. 55.  468.  " T h e Declaration on Law of the Sea Questions" is reproduced in A F A R , ibid at p. 556 (hereinafter called Declaration on L O S ) .  469.  Declaration on L O S , ibid at p. 556.  470.  Declaration on L O S , ibid at p. 556.  471.  Declaration on L O S , ibid at p. 556.  472.  Declaration on L O S , ibid at p. 556.  473.  Declaration on L O S , ibid at p. 556.  474.  Declaration on L O S , ibid at p. 556.  132  An important observation needs to be noted here. Contrary to the view that F F A was supposedly intended to be a management body, it is quite clear from the Suva meeting that its proposed role was to promote the conservation and utilisation of the tuna resource  of the region.  The dichotomy between SPSs over  the  anticipated role of F F A was perpetrated arguably by the participation of DWFNs such as the USA, and Chile, who wanted a broad based organisation. This was also exacerbated in some ways by the fact that some SPSs enjoy more intimate political relations with certain DWFNs than others, and thus wanted to see the participation of DWFNs in a regional fisheries agency. The first signs of disagreement over the nature and role of the proposed regional fisheries agency emerged at the eighth SPF meeting, held in Port Moresby, 29 August, 19 7 7.  476  As noted above, it became apparent at that meeting that the  SPSs were divided over the issue of membership in the proposed agency, and its anticipated role. agency.  476  Western Samoa and Tonga supported DWFN membership in the  They argued that in order to solve the problems they faced, outside  assistance was required.  478  Western Samoa even went as far as questioning the  exclusion of France and the USA. The lack of clear consensus is evidenced by the fact that two different organisations were proposed at the meeting. 475.  The first of  See "South Pacific Forum Communique Adopted on 31st August, 1977", reprinted in A F A R , V o l . . 48, 1977, at p. 466.  476.  See Memorandum to S P E C Director From F D O , Dated 14 July, 1983;  "Evolution of Positions on a  Wider Based Regional Fisheries Body", (hereinafter called Memorandum) (copy with F F A ) . 477.  Memorandum, ibid at p. 2.  478.  Memorandum, ibid at p. 3.  Western Samoa was concerned about the financial aspects of the agency, and  felt that the agency could not function without the participation of D W F N s .  Western Samoa was also  concerned about the need to control potential illegal fishing from US fishing vessels based in Pago Pago. Obviously none of the SPSs wanted French involvement in a regional fisheries agency, because they really did not have any fishing interests in the South Pacific.  133  these two would be based on complementary interests with DWFNs from outside the  region participating as members.  It  was  organisation devoted primarily to conservation  proposed that a broad based would fulfill  Article 64 of the Informal Composite Negotiating Text (ICNT).  479  the mandate of The second type  of organisation envisaged was one where all members, essentially members of the SPF would join together  out of their common interest  policies with which to face DWFNs.  in having coordinated  480  The disagreement over membership in the agency is not surprising because not all SPSs share the same interest in the fishery, particularly the tuna resource. As indicated above, the tuna stock is more abundant in the equatorial waters of the south west Pacific, and inevitably those countries vehemently opposed the participation of DWFNs in the agency.  In the author's opinion, those that  supported the inclusion of DWFNs could not perceive the conflict of interest that could potentially be generated by the inclusion of D W F N s . nothing to lose to DWFNs. 479.  481  Moreover, they had  The attitude of those opposed to a broad based agency  Kent, supra note 84 at p. 167.  In a preparatory report to a subsequent meeting held in Suva in June  1978,  pointed out that  the  Director of S P E C  contemplated:  two rather  different types  of organisations  were  One would aim primarily at ensuring conservation and promoting optimum utilisation of  the living resources throughout the sea in which they occur ....  T h e other would aim primarily at  ensuring maximum benefits for the peoples of the coastal countries in the region and for the region as a whole.  T o be fully effective, the first type of organisation would need participation by all countries in  whose waters the resources occur at various stages of their life cycle as well as by all countries that exploit them. The second type of organisation, on the contrary, would comprise only those countries in the South Pacific with a common interest as coastal States. Ibid at p. 167. 480.  Kent, supra note 84 at p. 167.  481.  Neemia, supra note 5 at p. 35 states, "The SPSs which favoured the US stand argued that the inclusion of U S A would oblige it to control its fishing fleets in the South Pacific.  However, several speculations  might be made about this assumption. Firstly, the exploitation of H M S , particularly tuna, may not be as important to the pro-US countries given the concentration of the species in waters of the nations which opposed the US stand. Secondly, there was the possibility of New Zealand's influence over its two associated States (Cook Islands and Niue).  Thirdly, countries such as Western Samoa and Niue had  little expectation of major benefits from licence fees or royalties, given the relatively small sire of their fisheries zone.  134  was  best summarized by then Prime Minister of Solomon Islands, Sir Peter  Kenilorea. He said,  482  "We do not interfere in the coal mines of America - why should America be able to interfere in the fisheries of the independent Pacific Forum countries? ... we will not sign the Convention unless there is provision to safeguard the immediate concerns of the South Pacific nations. We should have complete say over our fisheries. The eighth SPF nonetheless, adopted a Declaration on the Law of the Sea and the Regional Fisheries Agency,  483  wherein they did amongst other things:  Decide to establish a South Pacific Regional Fisheries Agency and all countries in the South Pacific with coastal State interests in the region who support the sovereign rights of the coastal State to conserve and manage living resources including highly migratory species in its 200-mile zone. 4  The SPF requested the Director of SPEC to convene not later than the end of November 1977, a meeting of officials of all interested coastal States in the region to prepare  a draft convention establishing a South Pacific Regional Fisheries  Agency.  Significantly, the SPF also stipulated the parameters of the proposed  485  agency's functions, which included amongst other things, the collection, analysis 486  and evaluation of statistical and economic information relating to the conservation and  utilisation  of  living  resources  to  assist  482.  New Pacific Magazine. April 1979 at p. 9.  483.  Port Moresby Declaration, supra note 96 at p. 632.  484.  Port Moresby Declaration, ibid, at para. 7.  485.  Port Moresby Declaration, ibid, at para. 8.  486.  Port Moresby Declaration, ibid.at para. 8(1);  member  governments  in  the  the other guidelines include, assistance if requested in  negotiations with D W F N s and other extra-regional interests;  the facilitation, without detriment of the  sovereign rights of coastal countries, of a regional approach to management and to licensing including agreement on generally applicable policies and measures, pooling of information and standardisation of procedures and forms;  the facilitation of collaboration among coastal countries and of cooperation by  others in surveillance and enforcement;  and execution of agreed administrative activities.  135  development of policies aimed at securing maximum benefits for their peoples. In retrospect, perhaps, the controversy surrounding membership of the agency could have been circumvented, if the invitation to participate at the Suva meeting to draft the convention was confined to SPSs.  Unfortunately, the reason why the  invitation was open to "all interested coastal States in the region", which obviously included DWFNs, is not apparent.  However, one possible explanation is that  particular Distant Water Fishing Nations, like the US and Chile had territories in the region, and hence their participation was in respect of their territories.  But,  what became obvious, however, was these countries were, not pushing for the interests of their territories.  They were only advancing their own interests as  DWFNs. A meeting to prepare a draft convention, and to agree on the guidelines for the activities of the agency was held in Suva from 18 to 25 November, 1977.  487  As  mentioned above, it was also attended by the three metropolitan powers in the area (United States, United Kingdom and France) and Chile (in respect of Easter Island).  Observer status was granted to Canada, Japan, and the Republic of Korea  as well as to several interested regional bodies.  Although substantial progress was  made at the meeting with provisional agreement being reached on the text of the draft articles of the convention, there were some outstanding issues including the question of the criteria for membership still unresolved.  488  The draft convention was presented to the ninth SPF which was held in 487.  See, "South Pacific Regional Fisheries Agency", A F A R , V o l . 48, December 1977, at p. 632.  488.  South Pacific Regional Fisheries Agency, ibid  at p. 632.  While most  draft  articles  received  the  provisional approval of the meeting, there were some outstanding issues still to be negotiated, including the question of the criteria for membership.  The meeting was of the view that the outstanding issues  could be resolved and a Convention adopted at a plenipotentiary conference.  It accordingly authorised  S P E C to make arrangements for such a conference at the earliest possible date, ibid at p. 632.  136  Niue from 16 to 20 September, 1978.  Not surprisingly, it rejected the draft. After  a full consideration of their reasons for wanting a fisheries organisation, the SPF "decided that the organisation envisaged in the draft convention was not the organisation which SPF countries wanted in the immediate future".  489  The SPF  accordingly "decided to set up forthwith a South Pacific Forum Fisheries Agency comprising SPF countries and to examine the more broadly based organisation proposed in the draft convention.  Kent noted that the SPF felt that the draft  convention proposed a broadly based Article 64 type organisation, which would be primarily concerned with fisheries conservation. fundamentally  different  from  that  490  originally  Declaration and the Port Moresby Declaration.  An article 64 type body was contemplated  by  the  Nauru  491  The Niue SPF meeting was consequently reminded that it had originally agreed in Port Moresby to establish an organisation that would enable them to group together to present a united front in their negotiations with DWFNs. After intensive debate, the leaders were able to arrive at an agreement.  492  On the  question of the organisation's role, the meeting resolved "that it should be limited to  assisting  member  management rights".  493  governments  in  exercising  their  sovereign  fisheries  On the question of membership, "the case was made that  the proposed organisation must not include DWFNs, and that the United States, in  489.  Press Communique Issued by the South Pacific Bureau for Economic Cooperation ( S P E C ) on the Ninth South Pacific Forum at Niue. For a copy of text see A F A R , V o l . 49, October 1978,  490.  Kent, supra note 84 at p. 167.  491.  Kent, supra note 84 at p. 167.  492.  Kent, supra note 84 at p. 167.  493.  Gubon, supra note 460 at p. 246.  at p. 497.  137  particular, should not be permitted to participate". the US tuna policy.  The underlying problem was  496  The differences  in opinion  epitomizes the different interests  over  the  nature  of  the  they had with DWFNs.  agency, It  arguably  represents  the  changing needs and character of the region due to the emergence of independent nations in the South Pacific, who more than anything else fervently wanted to exert more control over the use of their natural resources.  As independent nations  they wanted to have a larger role to play in the affairs of the region, rather than be dictated by the whims of large metropolitan countries outside the region who were merely interested in satisfying their own economic and political self-interests! Subsequently, after the rejection of the draft convention at the Niue SPF, a revised text was prepared and presented to the tenth SPF which was held in Honiara from 7 to 10 July, 1979.  It unanimously adopted the draft convention,  which according to Gubon, was based on the Nauru Declaration and the Port Moresby Declaration.  496  By adopting the Forum Fisheries Agency Convention,  (hereinafter called F F A Convention, see Appendix II), SPSs recognized the need for immediate and continuing advice concerning the living resources in the region and the ways and means of securing maximum benefits from them as well as for an effective instrument to coordinate policies in the field of fisheries management. F F A consists of a Secretariat, and the Forum Fisheries Committee (FFC) whose functions and responsibilities are discussed below. To oversee the functions of the Secretariat, a Director is appointed by the F F C who is responsible for hiring  404.  Gubon, supra note 460 at p. 246.  495.  Gubon, supra note 460 at p. 246.  496.  Gubon, supra note 460 at p. 246.  138  such  professional  staff  as  are  necessary  to  expedite  its  functions  and  responsibilities.  B. The Role of the FFA in Developing A Regional Tuna Management Regime  The mechanisms for tuna management in the South Pacific are indicated in Chapter III.  In order to explore the role of F F A in developing management  regimes in the region, recourse must be made to the pertinent provisions of the F F A Convention.  The F F A Convention establishes F F A , stipulates the parameters  of its functions and objectives, lays out the format for policy formulation and implementation, and sets out the obligation of member States to assist F F A achieve its stated objectives. The pertinent provisions of the F F A Convention to this discussion are the Preamble, which explicitly expresses their concerns and objectives.  Article IV,  which establishes the Forum Fisheries Committee (hereinafter called FFC), Article V , which defines the scope of FFC's functions and responsibilities, and finally Article VII, which articulates the functions of F F A .  1. The Preamble  An appreciation of the Preamble is essential to a broader comprehension of their underlying concerns and objectives towards the conservation and management of the tuna resource.  As noted in the preceding discussion, the extension of  139  national  jurisdiction up to  200  nautical  miles, dramatically  increased  their  management and conservation obligations. Their concerns and objectives over their newly acquired EEZs is stipulated quite explicitly in the Preamble. amongst other things;  a "common interest" in the conservation and utilisation of  the living marine resources,  in particular tuna;  cooperation" and coordination in fisheries policies; benefits" from the living marine resources; analysis,  evaluation  They had,  and  dissemination  of  a desire to "promote regional a desire to "secure maximum  and to "facilitate" the collection of, relevant  statistical,  scientific  and  economic information. They recognized at the outset that the conservation and rational utilization of living resources, particularly tuna, was of paramount importance.  They also  recognized that in order to secure maximum benefits from the resource they would need to cooperate and coordinate their fisheries policies, which effectively meant increasing their participation in the fishery. increase  As Kearney noted,  497  they had to  their participation in the fisheries of the region so as to control the  direction of the ongoing development of these fisheries, otherwise, not to take on these control functions would render declarations of EEZs meaningless. It is submitted that one can perceive their objectives in establishing F F A by reading through the Preamble.  It is quite explicit from the Preamble that they  clearly intended to promote regional cooperation and coordination of fisheries policies through F F A .  There is also no doubt that they intended to secure  maximum benefits from the living marine resources through the services facilitated by F F A .  Therefore, Kent's view that the F F A is a "weak service agency" rather  than "anything approaching a management agency" is misguided because F F A was  497.  Kearney, R . E . , supra note 87 at p. 280.  140  never contemplated to be a management agency. Preamble  that  they  did  not  intend  to  confer  It is also clear from the on  FFA  any  management  responsibilities. Their common interest in the optimum utilization of the living marine resources, in particular tuna, emanated from the fact that it represented a new hope of achieving economic self-reliance.  However, most of the tuna harvested in  the South Pacific, at least prior to their proclamation of EEZs, were carried out by DWFNs.  In order to effectively negotiate access agreements with DWFNs, they  needed to know;  499  the quantity and quality of their fisheries resources;  much fishing could be permitted while sustaining stocks; fished their stocks;  and the market value of their fish.  how  who had traditionally In other words, not only  did they have to determine the allowable catch as stipulated under Article 61 of U N C L O S , but they also had to adopt laws and regulations stipulated under Article 62 of UNCLOS relating, inter alia, to licensing of fishermen, fishing vessels and equipment, including the payment of fees and other  forms of remuneration,  determining the species which may be caught, and fixing quotas of catch, and regulating seasons and areas of fishing. They maintained that a regional organisation such as F F A would help them obtain the above information.  They also believed that such organisation would  help them develop the necessary institutional arrangements they would require to deal with DWFNs. This information would in turn help them exercise management functions competently, both individually and as a group.  498.  Sutherland, supra note 179 at p. 613.  499.  Gubon, supra note 460 at p. 249.  500.  Gubon, supra note 460 at p. 250.  500  141  In this regard, Doulman has stated that, the major gains for them have been in  the  distant  water  tuna  fishery where  F F A has  provided members with  negotiating support in concluding access agreements with DWFNs.  501  Furthermore,  he said, "by helping redress the information imbalance in access negotiations, they have obtained higher financial returns from their tuna resources and have induced DWFNs to curb their presentation of misleading information about their fishing operations and marketing arrangements".  502  2. The Forum Fisheries Committee  F F C is to F F A , what the SPF is to the region. Article IV of the F F A Convention.  F F C is established under  It consists of member countries, and is  primarily responsible for directing the activities of F F A .  5 0 3  On the question of the  FFC's composition, Gubon states that although Article IV does not specify the composition of the F F C , it may be inferred from the words "each party shall have one vote",  504  that each member is entitled to have at least one representative.  The work of F F C is not restricted exclusively to SPSs.  505  Article IV(5) of the F F A  Convention provides that the Forum Secretariat "[m]ay participate in the work of the Committee". "[S]tates, territories and other international organisations may also  501.  Doulman, supra note 82 at p. 138.  502.  Doulman, supra note 82 at p. 138.  503.  Doulman, supra note 82 at p. 141.  504.  F F A Convention Article IV(2).  505.  Gubon, supra note 460 at p. 249.  142  participate as observers in accordance with such criteria as the Committee may determine". In  recent  years the  number  of  international  participated in the work of F F C has increased.  organisations  who  have  Undoubtedly, this is a measure of  FFA's success and the achievements it has accomplished. It also reflects the respect and confidence  international  organisations  have  of  FFA.  The  international  organisations include, the International Centre for Ocean Development (ICOD), Canadian International Development Agency (CIDA), United Nations Development Programme  (UNDP), Commonwealth Fund  for Technical Cooperation (CFTC),  European Economic Community (EEC), Food and Agriculture Organisation (FAO), and the United States Agency for International Development (USAID). F F C meetings are formally conducted. arrived at by consensus.  However, decisions are normally  As Doulman states, F F C meetings are "characterised by  frank and open discussions, lacking the political intrigue and lobbying that is usually associated  with regional and international organisations".  Much of  506  FFA's success is attributed to this "uncomplicated and direct approach by F F C that enables F F A to carry out its mandate effectively". However, as a regional  organisation,  an  507  inherent  conflict  of  interest  naturally exists within FFA's role as a regional facilitator of regional activities and in assisting SPSs with the promotion of national objectives.  508  This conflict of  interest is more apparent where commercial fisheries considerations are involved. However, these conflicts have rarely divided their solidarity as a regional bloc. 506.  Doulman, supra note 82 at p. 142.  507.  Doulman, supra note 82 at p. 142.  508.  See F F A Doc., "Identification of Issues for Consideration and Direction for the Second Decade: Perspective", F F C 17/TM3/4.1.  FFA  143  They have shown themselves to be a solid and resolute region. countries  believe that  what  might  be good for  the  Whilst some  region generally might  disadvantage them individually, so far no country has withdrawn its support for regional arrangements carried out under the auspices of F F A . The author believes that they must continue to render their unequivocal support to F F A , through F F C . F F C must also continue to provide clear and unambiguous guidelines to F F A .  3. Functions of the Forum Fisheries Committee  As the body responsible for laying down policies for F F A , F F C no doubt has an extremely important function to play in fisheries development in the region. The functions of F F C are Gubon,  509  stipulated in Article V of the F F A Convention.  has described the functions of F F C in the following terms;  to provide  detailed policy and administrative guidance and direction to the F F A ; to provide a forum for parties to consult on matters of fisheries concerns;  and carry out  other functions necessary to give effect to the F F A Convention. Moreover, F F C is obliged to promote regional cooperation in; fisheries management; enforcement;  harmonizing policies with respect to  maintaining relations with DWFNs;  onshore fish processing;  fish marketing;  surveillance and  and cooperating with  respect to fishing access to the EEZs of other member States. Arguably, F F C has achieved a certain  degree  of success in promoting  regional cooperation in respect to harmonizing fisheries policies, as evidenced by the adoption of the Regional Register, and the standardised minimum terms and  509.  Gubon, supra note 460 at p. 249.  144  conditions.  This may also be said with respect to maintaining relations with  DWFNs and surveillance and enforcement.  With the aforementioned developments  having reached a certain degree of maturity, F F C is now shifting its endeavours to onshore fish processing and fish marketing.  However, a major area that is often  ignored is the promotion of intra-regional cooperation.  Although F F C is rather  slow in pushing for intra-regional cooperation, particularly with respect to access to their respective EEZs, it is an area that is growing increasingly important. Some SPSs, like Fiji and, to a certain extent Tuvalu, have developed local tuna industries.  However, they are often handicapped by the lack of a sizeable  tuna fishery, and are invariably compelled to buy fish from the Solomon Islands or as in the case of Tuvalu, enter into commercial arrangements with the Solomon Islands to fish in Solomon Islands Fishery Limits.  In this connection, F F C will  have to define the nature and scope of intra-regional cooperation. spell  out  whether  the  minimum  incorporated fishing vessels.  terms and conditions will  It will have to  apply to locally  Moreover, an important issue that F F C will have to  decide is, should they treat local fishing vessels on an equal level with fishing vessels from DWFNs, and should the same level of access fees apply?  In view of  these developments F F C will need to delineate the parameters of intra-regional cooperation. In addition to promoting regional cooperation, F F C ;  (a)  approves the  Directors' report which normally details the activities undertaken by F F A in the preceding year  and the financial expenses incurred;  and (b)  discusses and  approves the FFA's proposed work programme for the next fiscal year. meetings rotate among member States in alphabetical order.  510.  Doulman, supra note 82 at p. 142.  510  FFC  The chairmanship of  145  the F F C also rotates from country to country.  511  From the foregoing discussion, it is clear that through F F C , SPSs continue to play a role in monitoring and directing FFA's activities.  What this implies is  that F F A is not a management body, because it is clearly subject to the direction of F F C . It may be argued that the relationship between F F C and F F A reflects the Nauru Declaration and the Port Moresby Declaration, to the extent that they wanted an organisation where they would be able to maintain control. This means that F F A programmes and activities may be changed according to the dictates of their fishery needs.  4. Functions of the Forum Fisheries Agency  In light of the foregoing discussion it is apparent that F F A is not charged with any management functions. The management of the tuna fishery is obviously the unfettered discretion of individual SPSs. However, FFA's function is to assist them arrive at those management decisions. the F F C , the main functions of F F A are; disseminate  to  members statistical  As such, subject to the directions of 512  to collect, analyse, evaluate and  and biological information concerning  region's living marine resources, particularly HMSs; members information about management  the  collect and disseminate to  procedures, legislation and agreements  adopted by other countries, both within and beyond the region;  collect and  disseminate to members information about fish prices and shipping, processing and  511.  Doulman, supra note 82 at p. 142.  512.  F F A Convention Article VII.  146  marketing of fish and fish products;  provide to members, as requested technical  advice and information, assistance in developing fisheries policies and negotiations, issuing  fishing  enforcement;  licenses,  collecting  fees  or  maintaining  surveillance  and  seek to establish working programmes with pertinent regional and  international organisations and undertake other functions determined by FFC. An analysis of FFA's functions reveals that F F A has a "facilitative role" in developing management regimes in the South Pacific.  Whilst there is no evidence  to show that F F A is vested with management powers, it is clear that FFA's primary responsibility is to carry out certain functions that are necessary manage the tuna resource.  for them to  It will be recalled that individually, they lacked the  capability to execute these functions. F F A may be described as filling the vacuum that existed in terms of the lack of pertinent information regarding the fishery. However, the ultimate management decision making body is the individual SPS. FFA  merely  provides them  with the  necessary  information they  require to  effectuate the management of the fishery. It is submitted that without the bulk of information and other functions performed by F F A , they would not be in a position to exercise management powers competently. However, they are also obliged to furnish F F A with any available and appropriate information  513  including those pertaining to catch and effort statistics,  relevant laws, regulations and international agreements and relevant biological and statistical data. Their relationship with F F A is therefore, crucial to its success. So far they have been able to forge an intimate working relationship. dependent on information and other data that is supplied by them. they  513.  are  also  dependent  F F A Convention Article IX.  on  FFA's  analysis  of  that  FFA is  Conversely,  information  to  make  147  management decisions regarding the fishery. G u b o n  614  has commented, "that FFA's  effort to collect, analyse and evaluate scientific and other fisheries information and to disseminate it to them have been admirable given FFA's  constraints".  Although F F A has been unable to provide complete information, they have been able to obtain a clear perception of the quantity and quality of fisheries resources within the region and to negotiate better financial deals in access negotiations with DWFNs.  615  SPSs and F F A must continue to work closely together to ensure its  continual success.  C. Major Legal Developments  The F F A work programme derived its mandate at the eleventh SPF in Tarawa in 1980 and was endorsed at the twelfth SPF in Vanuatu in 1981.  The  F F A work programme which is known as the Regional Research Development Programme (RRDP), delineates the activities that are undertaken by F F A and SPC. There are eleven programmes under the RRDP.  These are;  harmonisation and coordination of fisheries regimes; enforcement;  current information systems;  analysis; identification of fishing patterns; fishing vessel register;  resource assessment;  regional surveillance and  tuna fishing development;  economic  fisheries and administrative training;  delineation of fishing and related zones and evaluation of  fisheries support services and facilities. assessment, is undertaken by FFA.  514.  Gubon, supra note 460 at p. 249.  515.  Gubon, supra note 460 at p. 249.  All the programmes, except for resource  In order to evaluate the success of F F A , the  148  major legal developments in the region are articulated in this section. For purposes of this discussion, the legal developments fall into two areas of the RRDP.  These  are harmonisation and coordination of fisheries regimes and regional surveillance and enforcement.  1. Access Negotiations  An extremely vital and significant component of FFA's legal activities is the provision of expert legal advice to SPSs in their access negotiations with Distant Water Fishing Nations. This was an area SPSs were severely handicapped particularly in negotiations with DWFNs.  FFA's legal services not only entails  advising them during the actual negotiation process, it also involves advising them on the provisions of access agreements, their weaknesses and strengths and how they could be improved to bring greater financial returns.  The legal services  provided by the F F A have often strengthened their negotiating positions. F F A was instrumental in providing expert legal advice in their negotiations with the US to conclude the M F T . F F A was also instrumental in providing legal advice in the recently concluded Convention to Ban the Use of Long Driftnets in the South Pacific. The services provided by F F A in their fisheries negotiations is highly commendable. However, whilst these services have been highly commendable, and have attracted tangible benefits, the author believes that SPSs must endeavour to build their own legal expertise.  The legal services  are supposed to have initially  provided a service they lacked.  There is a need however, for them to establish  their own legal advisory service.  The reasons for this are obvious. They cannot  149  develop a perpetual dependence on F F A for its legal services. to achieve progress in this area.  They must attempt  Needless to say, however, this a matter for  individual SPSs to decide. FFA's provision of technical advice and assistance in access arrangements with  DWFNs  has  grown  over  the  years.  Australia/Japan;  Cook Islands/South Korea;  FSM,  Palau/American  Kiribati,  Kiribati/Korea; PNG/Japan;  Kiribati/USSR;  PNG/Taiwan;  Tuvalu, W. Samoa/ATA;  Tuna  Negotiations  it  assisted  Cook Islands/Taiwan;  Association  Marshall  Vanuatu/USSR;  (ATA);  Islands/Japan;  were:  FSM/Japan;  Kiribati/Japan; Palau/Japan;  Cook Islands, New Zealand, Niue,  F F A members/USA and F F A members/Japan.  It is  submitted that since access agreements provide them with the main means of managing tuna, it is essential in their long term interest to develop national legal expertise to complement those provided by F F A .  2. Harmonisation and Coordination  This area of FFA's work programme deals with the harmonisation of access agreements, fisheries, legislation and reporting systems discussed above. been one of its most successful programmes.  This has  The objective of harmonising and  coordinating access agreements in the region is to maximise the benefits from their fisheries resources.  In the executive summary of the achievements of F F A in its  first decade of operation,  516.  516  it is noted that:  Bugotu, Francis, Sitan Peter, Si Tikai, Teekabu, " A Review of the Achievements of the Forum Fisheries Agency in its First Decade of Operations", Consultancy Report prepared for the Seventeenth Meeting of the F F C . F F A Report, No, 89/59, at p. 8 (hereinafter referred to as Consultancy Report).  150  During the review, this programme undoubtedly stood out as being one of the most important activities that the F F A has undertaken. It has achieved excellent performance during the past ten years. Most of the F F A member countries have proclaimed 200 mile EEZs, and therefore access to the resources in the zones of the region is an extremely important issue. Under this programme, many member countries have made significant financial gains. As stated above, the minimum terms and conditions are incorporated in SPSs access agreements.  Recently, F F A coordinated the development of a fisheries K1  7  prosecution manual. element  of fishing  prosecution.  518  It was developed with the objective of describing every and providing procedural  and legal  advice  on fisheries  As indicated above, F F A has also been promoting harmonisation in  fisheries legislation. It is submitted that the concept of minimum terms and conditions is indeed a new innovation in the law of the sea. Its success is measured by the reduction in the incidents of illegal fishing in the region.  Nonetheless, there is scope to  improve the present minimum terms and conditions. terms and conditions,  519  In a review of the minimum  it has been suggested that to improve the effectiveness of  the Regional Register, vessels less than 20 gross registered tonnes (GRT) licensed by SPSs should be required to register.  520  Moreover, an update mechanism should  be devised so that vessels that are decommissioned or sunk are removed from the register 517.  521  and vessels that use driftnet fishing gear lose good standing on the  Swan, J., "Report on Legal Development in F F A Member Countries, 1988/89", prepared for Pacific Island Law Officers Meeting. Canberra, 9-12 August, 1989, F F A Report, No. 89/67, at p. 7.  518.  Swan, J., ibid at p. 7.  519.  F F A , "Review of the Minimum Terms and Conditions for Fisheries Access by D W F N s " , F F A Report, 89/63, at p. 2.  520.  F F A Report, ibid at p. 2.  521.  F F A Report, ibid at p. 2.  151  Regional Register. As a region, SPSs have learnt that by coordinating their fisheries policies and harmonizing their fisheries legislation they have been able to deal effectively with DWFNs.  Moreover, they have also been able to administer their access  agreements in a cost-effective  manner.  Whilst some of the minimum terms and  conditions warrant a review, it is the author's belief that they have nonetheless, been able  to  consolidate  their  fisheries relations  with DWFNs.  Inevitably,  shortcomings will naturally be experienced given the precarious nature of the tuna fishery and industry.  However, the author is of the opinion that this does not  diminish the overall advantage  they have enjoyed since adopting the minimum  terms and conditions. FFA's role in coordinating and harmonizing fisheries legislation and access agreements will continue to develop. As fisheries activities increase in the region, SPSs will be confronted with the need to adapt to the changes and challenges, not only from DWFNs, but also from their own involvement in the fishery. they must continue to render their support to F F A .  Hence,  As coordinator of fisheries  development in the region, FFA's success would depend entirely on the support it receives.  3. Enforcement and Surveillance  The enforcement of fisheries legislation and access agreements was one of the main problems they confronted. However, through the Regional Register noted  522.  F F A Report, ibid at p. 2.  152  above, and various minimum terms and conditions of access indicated above, they are now capable of enforcing their various fisheries management rights. complemented  by  a  fisheries  surveillance  programme  administered  This is by F F A .  Surveillance is carried out by regional observers who are placed on board foreign fishing vessels.  There are also periodic surveillance flights undertaken by the  Royal New Zealand Air Force (RNZAF) and the Royal Australian Air Force (RAAF). However, it has been noted  523  that the primary problems associated with the  surveillance programme is the lack of information which takes a number of forms. First, is the lack of information among senior bureaucrats regarding the role of fisheries surveillance.  524  Second, is the limited information exchange between SPSs  and F F A on DWFNs vessel positions.  526  Third, is the limited communication and  information exchange between SPSs and the R N Z A F and R A A F . Surveillance and enforcement  is a major facet of fisheries  management.  The size of the area that must be covered is indeed exorbitant. practical problems such as the lack of information will be experienced.  Inevitably A major  problem however, pertains to finance. The surveillance programme is expensive to maintain, parameters  and of  therefore, the  the  author  surveillance  believes  programme  in  that  they  terms  of  must  delineate  the  the  economics  of  maintaining the programme at an appropriate level. It is suggested that some issues that the ought to define are, should the surveillance programme encompass the EEZs of all SPSs or should surveillance be heavily concentrated in those countries 523.  See, "The Difficulties in Regional Fisheries Surveillance", Memorandum from Fisheries Surveillance Advisor to F F A Director (copy with F F A ) (hereinafter called Surveillance Memorandum).  524.  Surveillance Memorandum, ibid at p. 1.  525.  Surveillance Memorandum, ibid at p. 1.  153  where most of the tuna resource is found? There is no doubt that the surveillance programme assists in monitoring incidents of illegal fishing in the region.  However, F F A is not in a position to  determine  What is required by F F A are  the  fate of the programme.  clear  guidelines on what sort of surveillance mechanism is appropriate for the region. Obviously, the most cost effective system would be desirable. FFA  facilitate  acceptable  discussions  mechanisms  for  between  SPSs and  surveillance.  DWFNs  New systems  It is suggested that  to  identify mutually  are  currently  being  developed, and perhaps an appropriate technology may be developed for the region.  D. Meeting the Needs of South Pacific States  In assessing the palpable gains accruing to them, it is invariably tempting to enumerate  the benefits in terms of tangible gains acquired as opposed to the  financial costs of being a member of a regional organisation.  One is of course  tempted to enumerate the benefits in terms of what may be perceived by the eye and felt by the hands. Moreover, in terms of their fisheries needs, one would also be inclined to determine the benefits of being an integral part of a regional organisation by pointing to tangible things such as fishermen's outboard engine, or fibreglass canoes, or new fishing equipment brought in as part of a rural fisheries project promoted by the regional organisation.  The danger of perceiving benefits  through the medium described above is the propensity to conclude that one's membership does in fact produce credible gains.  In the author's view, the task of  defining palpable gains in terms of value for money is by no means an easy task and it is not the intention of this discussion to enumerate the benefits of F F A in  154  those terms. F F A was born out of trends that evolved during negotiations for UNCLOS. Therefore,  their  needs and demands did not  eventually  evolved  specifically out  of  the  originate spontaneously. acceptance  by  the  They  international  community of a new regime governing the various uses of the ocean.  It is  suggested that if the regulations governing the uses of the ocean had not been transformed by UNCLOS, they would not have had to respond to the changes that evolved out of UNCLOS and consequently they may not have had to establish an organisation such as F F A . Therefore, their needs as defined by this discussion are a function of the radical changes created by UNCLOS.  The parameters of this  evaluation is therefore confined to the needs that were created by UNCLOS.  1. FFA and Article 56 of UNCLOS  The greatest challenge SPSs faced when they declared their EEZs was the exercise of  their sovereign rights for purposes of managing, conserving and  exploring and exploiting the tuna resources within the E E Z . It is submitted that perhaps the biggest gain they have enjoyed through F F A is the assertion of their sovereign management rights over the living resources particularly tuna in their EEZ.  They were emphatic over the issue of sovereign rights over tuna. This was  clearly demonstrated by the exclusion of DWFNs from F F A particularly the US because of her inconsistent policy on tuna. The evidence to support this assertion may be inferred from the recognition by Distant Water Fishing Nations of their sovereign rights over tuna in their EEZs. A l l DWFNs who fish in the region negotiated access agreements with individual  155  SPSs.  This also includes the US who initially refused to recognize their sovereign  rights over tuna.  Moreover, all access agreements are premised on SPSs sovereign  rights over tuna. They have indeed made substantial progress in this area of UNCLOS.  The  role of F F A in collecting, evaluating information, and coordinating the minimum terms and conditions, has helped them maintain control over the tuna resource. this regard, the functions exercised by F F A are crucial to them.  In  As a facilitator  for fisheries development, many of them would not be able to make management decisions regarding the  tuna without its services.  The recognition of their  sovereign rights in the E E Z has brought about greater financial returns through access agreements. It  is suggested  that legally they  may claim that through F F A , their  proclamation of EEZs and the sovereign rights therein, have not been rendered meaningless by their inability to enforce their sovereign rights. have  proven, by coordinating  and  harmonising their  As a region, they  fisheries  policies and  legislation, they can achieve palpable gains. Furthermore, they have demonstrated greater regional unity through F F A . This is clearly evidenced by the multilateral access agreement they now have with the US. The author believes that they are now more confident and resolute in dealing with DWFNs.  Undoubtedly, F F A has provided the means through which  SPSs have been able to build up their confidence.  With the information supplied  by F F A , and its various other services, they need not feel misled by DWFNs. However, as indicated above, the author is of the opinion that South Pacific States must also endeavour to train their nationals to complement the functions and services provided by F F A . • They should not neglect the development of their national manpower.  While they may rely on the services provided by F F A , they  156  must  also  train  their  nationals  to build on the  services  provided by F F A .  Occasionally, F F A programmes are not carried out effectively because of the lack of  qualified  national  personnel(s)  to  continue  the  implementation of  FFA  programmes at the national level. It  is suggested  that economically, the  recognition by DWFNs of SPSs  sovereign rights over tuna has brought increased financial returns.  These have not  only been expressed in terms of direct finance in return for access. But, they have also benefitted from technical and development assistance which DWFNs provide under access arrangements.  Thus they have also been able to benefit economically  through the services of F F A .  2. FFA and Article 61 of U N C L O S  It is argued that F F A has assisted them meet their obligations under Article 61 of UNCLOS.  As indicated above, Article 61 obliges coastal States to determine  the allowable catch of the living resources in its E E Z . It is submitted that its role in collecting, analysing and evaluating statistical and biological information with respect to tuna has enabled them to determine the allowable catch of tuna in their EEZs. While most of them do not normally specify the allowable catch in their access agreements,  this does not necessarily connote that they are not able to  determine the allowable catch.  Present studies on the status of tuna in the region  indicate that the stock is being harvested at sustainable levels. However, with the information available to them through F F A , they may, if the need arises, adopt conservation and management measures to ensure maintenance of the tuna stock.  157  Whether or not they adopt these measures is entirely their discretion. important however, is they are now able to exercise these measures.  What is  Without F F A ,  they would not be in a position to determine the allowable catch and thereby prescribe the allowable catch. In practise, however, most of them do not specify the allowable catch in their access agreements.  While at present this may not seem to be a problem in the  short term, it would be in their long term economic interest to endeavour to initiate conservation measures with respect to the exploitation of the tuna. may be done in one of several ways;  This  either by specifying the allowable catch,  limiting effort, reducing the number of vessels, limiting the number of fishing days or restricting the type of fishing gear.  While F F A is in a position to assist  them promote the conservation of tuna, the ultimate decision to do so or not to do so rests entirely on them. They should now seriously consider shifting their collective effort towards conserving the tuna stock.  The author is of the opinion that the amount of effort  has increased over the years, and therefore, in view of this fact, the need to at least begin contemplating adopting conservation  measures  may  be warranted.  Although there is currently no evidence to indicate that the tuna stock is being depleted at non-sustainable levels, it would nonetheless be in their long term economic interest to consider rationalising the exploitation of the tuna stock. upsurge in fishing effort is not only coming externally from DWFNs. also developing their internal tuna industries.  The  They are  Inevitably, they will be competing  with DWFNs for the same fishery. They will then be confronted with the need to promote the concept of allowable catch to conserve the tuna at sustainable levels.  158  3. F F A and Article 62 of U N C L O S  An important aspect of FFA's functions builds on Article 62 of UNCLOS. This is evidenced by the coordinating role F F A plays in harmonising fisheries legislation in the region.  It is submitted that while the immediate management  objective of most of them is to control foreign fishing in their EEZs, they have nonetheless therefore,  developed legislation which are  based on Article 62.  Arguably,  they have not only implemented Article 62 through legislation and  regional State practice, but moreover, have even gone a step further by developing their own laws where no appropriate regulations currently exist under UNCLOS. For instance a classical illustration of their innovation towards developing the law of the sea may be inferred from the inception of the Regional Register. Article 62 provides that coastal States shall through "agreements or other appropriate  arrangements"  give other  States access to the tuna stock.  submitted  that FFA's  agreement  negotiations has arguably assisted them comply with the obligations  stipulated thereunder.  role in providing advice and other services  It is  Arguably, it has also helped them contribute  in access  towards  regional State practice with regards to Article 62, which points to the evolution of a regional customary international law. Undoubtedly, F F A has played a significant practice in the region.  role in facilitating State  The region encompasses the largest area of sea in the  world, and therefore, it is submitted that the practice of coastal States in the region and DWFNs who fish in the region, is important in determining whether or not a norm has crystallised into customary international law.  Furthermore, F F A  has not only facilitated compliance with Article 62 through access agreements, but  159  more  importantly, it  has assisted  them draft  and enact fisheries legislation  incorporating the laws and regulations stipulated under Article 62(4). As indicated above, Article 62 is one of the basic articles governing fisheries in the EEZ. In view of FFA's services, it is the opinion of the author that it has assisted them meet the various obligations stipulated under Article 62.  As a result of its services,  they have strengthened their position in access negotiations with DWFNs; increased  revenue  information  as a  result of  this strengthened  base for decision making;  enjoy  position, improved their  have access to professional staff  supplement national capacity in fisheries management and development;  to  and have  alleviated the administrative burden on individual SPSs in areas such as the administration of multilateral access arrangements.  526  It is submitted that F F A has been able to achieve success because of the vigorous support it has so far received from them. In order to maintain its success, it would no doubt continue to depend on their political good-will and the relations it has established with other international organisations. organisation.  F F A is a dynamic  Its work programme depends entirely on what they need.  As  indicated above, they must continue to follow the development of F F A with keen interest, and provide it with the financial and other support necessary to ensure its continual success.  4. FFA and Customary International Law  It is arguable that through time the various measures they have adopted  526.  Consultancy Report, supra note 516 at p. 8.  160  may assume a character Sutherland  6 2 7  approaching customary international  law.  In  this r e g a r d ,  states that, "when set a l o n g s i d e the l e g i s l a t i v e i n n o v a t i o n s a n d other  i n s t a n c e s o f c o o p e r a t i o n , w h a t emerges is a p a t t e r n o f State p r a c t i c e w h i c h p o i n t s to  the  onset  whether  of  or  a regional  not  international  the  law  is  custom significant  legislative indeed  innovations  debatable.  in  legal  have  What  is  consequences".  crystallized  certain  into  however,  However, customary  is  that  state  p r a c t i c e i n the r e g i o n does p o i n t to the onset o f a r e g i o n a l c u s t o m that a l r e a d y has significant  legal  consequences.  At  this  stage  perhaps  it  may  be  doubtful  to  c o n c l u d e that the l e g i s l a t i v e i n n o v a t i o n s a n d i n s t a n c e s o f c o o p e r a t i o n i n the r e g i o n have  achieved  global  customary  universality  in  its  c o n f i n e d to the r e g i o n .  international  law  status,  because  application.  The  legislative  it  has  not  acquired  innovations  are  presently  R e c e n t l y , however, there have been dialogue between F F A  and South East A s i a n countries and L a t i n A m e r i c a n countries.  Significantly,  the  d i s c u s s i o n s h a v e f o c u s s e d on the a d o p t i o n b y S o u t h E a s t A s i a n a n d L a t i n A m e r i c a n countries of  the R e g i o n a l R e g i s t e r , a n d the m i n i m u m  terms a n d conditions.  a r g u a b l e t h a t i f a d o p t e d b y those r e g i o n s , it w o u l d c e r t a i n l y  It  is  e n h a n c e the u n i v e r s a l  a p p l i c a t i o n o f their legislative innovations. Although already  a  it  may  peremptory  not  be  norm  p o s s i b l e at  of  traditional  test to d e t e r m i n e  satisfied.  It  is s u f f i c e  to m e n t i o n  represent  an  emerging  trend  this  customary  whether  which  stage  to  international  conclude law,  that  given  there that  is the  or not a n o r m does i n f a c t e x i s t m a y not be that  the  over  legal  time  developments  could  transform  in  the  into  region rules  do  with  s i g n i f i c a n t l e g a l i m p l i c a t i o n s not o n l y f o r the S o u t h P a c i f i c , b u t f o r o t h e r regions as w e l l .  527.  Sutherland, supra note 303 at p. 28.  161  It is submitted that through F F A , they have arguably contributed towards transforming  UNCLOS  into  customary  international  provisions pertaining to fisheries management.  law,  in  particular,  the  Notwithstanding the fact that  contents of their respective fisheries legislation are not entirely congruous in all respects with UNCLOS,  they are all based on the premise of coastal States  sovereign rights over tuna, and the various rights and duties articulated under UNCLOS.  Incidentally, none of the fisheries legislation digress significantly from  U N C L O S to render them inconsistent and incompatible with UNCLOS. F F A has undoubtedly played a catalytic role in assisting them develop their management capacities.  From a legal point of view, " F F A has been instrumental in  the development of an emergent regional custom which, with time and sufficient State practice, could come to represent a progressive development of the law".  528  Contrary to the skeptical views expressed by certain writers, F F A has emerged as a significant facilitator for fisheries development in the region.  It seems that no  discussion of international fisheries regulation is complete without at least some reference to F F A , and its work in the region. Unfortunately, what these skeptics underestimated was the resolve of Pacific Islanders in what they fervently believed was right for them, and their strong commitment to regional cooperation. It is submitted that F F A and the region's contribution to the evolution of the Law of the Sea, is the development of a unique institutionalised system of fisheries management which they have been able to use effectively against DWFNs. No doubt as changes evolve in the fishery, they will correspondingly be required to respond to them accordingly, and naturally they will obviously depend on F F A to facilitate their response(s). 528.  In this connection, the author is of the opinion that the  Sutherland, supra note 303 at p. 28.  162  future figure of F F A rests entirely on their national needs. Nonetheless, SPSs and F F A have had ten years of significant legal achievements on which the future of F F A is solidly based.  The lessons learnt from F F A and the various institutional  arrangements it has helped spawn are relevant for other regions in the world.  In  view of the biological nature of the tuna resource, the South Pacific region must endeavour to build on the successes of F F A with other regions who also have an interest in the resource.  163  CONCLUSION  The formation of F F A is not a virtue in itself.  It is justified only to the  extent that it is the best option the region could have taken at the time. makes the region unique, however, are three important factors.  What  Firstly, the  extremely small size of SPSs compared to other countries in other regions, and their ultra high level of economic dependence.  Secondly, their recent transition, as a  regional group, to a high degree of political and constitutional autonomy, and thirdly, their strong compulsion to the concept of a regional identity to offset individual weakness.  529  The basis of the formation of F F A was economic. As indicated above, they are small, poor and vulnerable. But as Crocombe  530  argues, their territorial limits  include some significant assets - the region has the largest area of ocean with the richest source of tuna in the world and seabed resources.  The region also has the  highest voting power (relative to population size) in international agencies.  It is  argued that these and other resources lose much of their value unless coordinated and wielded in unison. The emergence of UNCLOS and the concomitant developments associated therewith,  at  the  time  when  most  island  nations  were  obtaining political  independence from their colonial subjugators meant that the concept of self529.  Hughes, Tony, "Independence for Sale", in Foreign Forces in Pacific Politics, supra note 18 at p. 250.  530.  Crocombe, R., "Regional Cooperation: Politics, supra note 18 at p. 178.  Overcoming the Counter-Pulls", in Foreign Forces in Pacific  164  determination intertwined  and  extended  virtually  from  maritime the  jurisdiction  outset.  However,  at  least  their  for  them  inherent  were  economic,  geographic and political difficulties indicated above also meant that the extension of maritime jurisdiction would only add to the burdensome problems they already faced.  The formation of F F A and the regional legal developments it has fostered  points to the onset of a regional law of the sea. Writing on the roles of regional law of the sea, Janis  531  said, "in an  uncomplicated way, regional law of the sea may be no more at times than the coordination and promotion of legal claims of nations within a region. For reasons of  similar  historical  background, shared  geographical  situations,  or  mutual  political, economic or security concerns, States within a region may be in much more of an accord with each other than they are with nations outside the area. By banding together in making international legal claims, regional States not only iron out differences among themselves for the sake of harmony, but for the purpose of facing the world together - acting more effectively as a unit". This is precisely what F F A has done. It has brought about a greater sense of unity amongst SPSs.  Moreover, they have been more effective in dealing with  DWFNs as evidenced by the conclusion of the M F T with the US, and the recent conclusion of the Convention to ban driftnet fishing.  They have developed an  ocean regime built on UNCLOS, and where UNCLOS is silent, they have been innovative in developing regimes such as the regional register. also endeavouring to formulate similar arrangements.  Other regions are  The success of F F A would  not have been possible without the fervent support of SPSs, and it is the author's opinion that the level of support demonstrated 531.  over the last ten years must  Janis, " T h e Roles of Regional Law of the Sea", San Diego Law Review. V o l . 12, 1975 at p. 554.  165  continue to be rendered.  Needless to say, FFA's success is also attributed to its  small size, flexibility, clear mandate from the SPF and its responsiveness to SPSs solicitations for assistance. The region is a fairly cohesive group without destructive rivalries.  More  important, however, is the fact that they all share the perceptions of common interest in the tuna resources and therefore, they were able to agree on the guiding principles of F F A and on its institutional structure.  Recently, there have been  calls for SPSs to reconsider their decision to exclude DWFNs from F F A .  The  common postulation is, the circumstances that led them to exclude DWFNs from F F A have dramatically transformed and therefore, there is no reason to continue to limit F F A to SPSs. While there are merits in admitting DWFNs to F F A , as there has always been from the very beginning, the interests of SPSs and DWFNs have not yet merged to the extent where they will be able to work together.  SPSs still  remain coastal States with substantial interest in controlling DWFNs operations in their  EEZs, and obtaining maximum financial returns  from these operations.  Whereas DWFNs interests are, to obtain access to SPSs waters at the least possible financial cost.  It has been suggested that unless DWFNs are members of F F A , it  would never fulfill the mandate of an Article 64 type organisation.  As argued  above, however, F F A was never contemplated to be an Article 64 type organisation, and therefore, that argument no longer has any substantive relevance. The full value of their membership in F F A is for individual SPSs to determine.  This discussion has endeavoured to articulate FFAs benefits only in  terms of the legal developments it has fostered and coordinated. The needs of SPSs relevant to this discussion were those that arose out of the emergence of the E E Z , and the pertinent provisions, of UNCLOS pertaining to the management of tuna therein.  In this regard, one can clearly ascertain the crystallisation of an ocean  166  management" regime""that "arguably points to the" onset of regional Through F F A , SPSs  have  enhanced  their  customary  international  law.  management  capabilities.  They are able to deal with DWFNs, make management decisions  regarding tuna, and moreover, it has brought about greater financial returns.  It is  doubtful if they would have enjoyed these benefits without F F A . Furthermore, it is also doubtful if they would have achieved the immense success they have accomplished with an organisation other than the type which they established. For a relatively young region with political novices to have achieved within a short span of time the remarkable successes so accomplished is indeed overwhelming. However, Pacific Islanders are unique, and so is the region within which they live. coo  As Kent  said, "approaches for dealing with concrete situations within each of  the territories should be formulated by the people of those territories. individuals and agencies  Outside  may be consulted, but solutions to the problems of  development ultimately should be designed by the people of the Pacific themselves. Only solutions which are essentially their own can be true solutions to their problems". FFA  is a  dynamic  institution.  Its  services  and  directions  may be  transformed in accordance with the dictates and needs of SPSs. The past 10 years has been a period of construction and consolidation. The course it will take over the next 10 years will depend on where SPSs will want to chart its directions. This will require deep thought. The author believes however, that F F A will continue to play an important role in fisheries development in the region. together in the past.  They continue to work together  SPSs have worked  in the present, and  undoubtedly will continue to work in concert with one another in the future. 532.  Kent, supra note 84 at p. 172.  167  S E L E C T E D BIBLIOGRAPHY Aikman, C.C., "Island Nations of the South Pacific and Jurisdiction Over Highly Migratory Species", 17 Victoria University Law Review, 1987, pp. 101124. Akehurst, M , A Modern Introduction to International Law (Sixth Edition), London, 1987. Brownlie, I., Principles of Public International Law, Clarendon Press, Oxford, 1966. Burke,  W.T., "Highly Migratory Species in the Law of Development and International Law, pp. 273-314.  the  Sea",  14  Ocean  Burke, W.T., Fisheries Regulations Under Extended Jurisdiction and International Law, Rome, F A O of the U N Legislative Study No. 26, 1982. 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Doulman, J.D., (ed.), The Development of the Tuna Industry in the Pacific Islands Region: An Analysis of Options, Eastwest Center, 1987. Doulman, J.D., (ed.), Tuna Issues and Perspectives in the Pacific Islands Region, Eastwest Center, 1987. Doulman, J.D., "The Kiribati-Soviet Union Fishing Agreement", Pacific Viewpoint, Vol. 28, No. 1, 1987. Douglas  Norman & Ngaire, Pacific Islands Robertson & Publishers, 1989.  Yearbook,  (16th  Edition), Angus  Eisenbud, R., "Problems and Prospects for the Pelagic Driftnet", Boston College Environmental Affairs Law Review, Vol. 12, No. 3, 1985. Fleischer, C.A., The New Regime of Maritime Fisheries, Recueil Des Cours, Vol. I, 1988. Frederica, M.B. and Cooke, W.M, (eds.), Oceania: A Regional Study, (2nd Edition), III American University (Washington, D.C.), 1985. Freeman, W.O. (ed.), Geography of the Pacific, John Wiley & Sons, Inc., London, 1966. Glantz, M.H., Man, State and Fisheries: An Inquiry Into Some Societal Constraints That Affect Fisheries Management, Ocean Development and International Law, 1986. Greig, D.W., International Law, (2nd Edition), Butterworths, London, 1976. Harris, D.J., Cases and Materials on International Maxwell, London, 1979.  Law, (2nd Edition), Sweet and  Hollick, L.A., The Origins of 200 Mile Offshore Zones, The American Journal of International Law, Vol. 71, 1977.  169  Hooves, D.C., A Case Against International Management of Highly Migratory Fishery Resources: The Atlantic Bluefin Tuna, Boston College Environmental Affairs Law Review, Vol. 11, 1984. Hudson, C , Fishery and Economic Zones as Customary International Law, San Diego Law Review, Vo.. 17, 1980. Jones, G.K., Freedom of Fishing in Decline: The Fishery Conservation and Management Act of 1976 and the Implications for Japan, California Western International Law Journal, Vol. 11, No.l, 1981. Joseph, J., Some Observations on Fisheries Management in the South Pacific Ocean, FFC17/TM3/3.17, 1989. Kearney,  R.E., The Law of the Sea and Regional Fisheries Development and International Law, Vol. 5, 1978. .  Policy, Ocean  Kelly, C.R., Law of the Sea: The Jurisdictional Dispute Over Highly Migratory Species of Tuna, Columbia Journal of Transnational Law, Vol. 26, No. 3, 1988. Kengalu, Kent,  A . M , Embargo: Associates, 1988.  G., The Politics of Colorado, 1980.  The  Jeanette  Pacific  Islands  Diana Affair, Fisheries,  Robert  Westview  Brown and Press/Boulder,  Kinot, J.W., The Law of the Sea: Anadromous and Catadromous fish stocks, sedentary species, and highly migratory species, Syracuse Journal of International Law and Commerce, Vol. 11, 1984. Koers, W.A., The Enforcement of Fisheries Agreements on the High Seas: A Comparative Analysis of International State Practice, Law of the Sea Institute, 1970. Kunatuba, P., Inshore Fisheries Development and Management: The South Pacific Experience: An Overview, South Pacific Commission, 1988. Kurz,  L.J., Continental Shelf and International Law: Confusion and Abuse, American Journal of International Law, Vol. 7, 1956.  MacLean, W.O., and Sucharitkul, S., Fisheries Management and Development in the EEZ: The North, South and Southwest Pacific Experience, Notre Dame Law Review, Vol. 63, 1988. Macrae,  D . M , Approaches to the Resolution of Atlantic and Problems, Ecology Law Quarterly, Vol. 16, 1989.  Pacific Ocean  170  Macrae, M L . , The Fisheries Conservation and Management Act: The States Role in Domestic and International Fishery Management, Dickinson Law Review, Vol. 88, 1984. McNair, Lord, The Law of Treaties, Clarendon Press, Oxford, 1961. Moore, J.N., International and United States Documents on Oceans Law and Policy, William S. Hein & Co., Inc., Vol. 3 & Vol. 4, 1986. Moore, G., Principles of Fisheries Legislation Under the New Law of the Sea, Fisheries Law Advisory Programme Circular No. 5, F A O , Rome, 1986. Neemia, V.F., Cooperation and Conflict: Costs, Benefits and National Interests in Pacific Regional Cooperation, Suva, 1986. Nordquist, M.H., & Krueger, R.B., The Evolution of the 200 Mile Exclusive Economic Zone in the Pacific Basin, Virginia Journal of International Law, Vol. 19, No. 1, 1978. Nordquist, M.H., & Simmonds, K.R., New Directions in the Law of the Sea Documents, Vol. IX, Oceania Publications, Inc., 1980. O'Connell, D.P., The International Law of the Sea, Clarendon Press, Oxford, 1982. Oda, S., Fisheries Under the United Nations Convention on the Law of the Sea, American Journal of International Law, Vol. 77, 1983. Oda, S., International Control of Sea Resources, (2nd Edition), Martinus Nijhoff Publishers, 1989. Oda, S., The International Sijthoff, 1975.  Law of the Ocean Development:  Basic Documents,  Oppenheim, L., International Law: A Treatise, (8th Edition), London, 1955. Philipson, P.W., (ed.), The Marketing of Marine Products from the South Pacific, Suva, 1989. Politics in the Pacific Islands, Foreign Forces in Pacific Politics, Suva, 1983. Ramp, F.L., Regional Law of the Sea: A Proposal for the Pacific, Virginia Journal of International Law, Vol. 18, No. 4, 1978. Rasmussen, N.P., Tuna War: Fishery Jurisdiction in International Law, University of Illinois, Nos. 3-4, 1981. Redigo, I.D., Fisheries Management in the Gulf of Mexico: Impact of Two Tuna Exception to the Fishery Conservation and Management Act of 1976, Louisiana Law Review, Vol. 42, 1982.  171  Reiff, H . , The United States and the Treaty Law of the Sea, University of Minnesota Press, 1959. Rembe, N.S., Africa and the International Law of the Sea: A Study of the Contribution of the African States to the Third United Nations Conference on the Law of the Sea, Sijthoff & Noordhoff Publishers, 1980. Scheiber, H.N., Pacific Ocean Resources, Science and Law of the Sea: Wilbert Chapurau and the Pacific Fisheries, 1945-70, Ecology Law Quarterly, Vol. 13, 1986. Slade N., Forum Fisheries Agency and the Next Decade: 17/TM3/3.7, 1989.  The Legal Aspects, F F C  Slayter, A.J. & Clerk, L.G., Economic Development and Management of Fisheries in the Exclusive Economic Zones of Pacific Island States in the Developing Order of the Oceans, Krueger, R.B., & Riesenfeld, S.A. (ed.), 1984. Sutherland, M.W., Coastal State Cooperation in Fisheries: Emergent Regional Custom in the South Pacific, International Journal of Estuarine and Coastal Law, Vol. 1(1), 1986. Sutherland, M.W., Management, Conservation and Cooperation in the E E Z Fishing: The Law of the Sea Convention and the South Pacific Forum Fisheries Agency, Ocean Development and International Law, Vol. 18, 1987. Swan, J., Highly Migratory Species - The South Pacific Forum Fisheries Agency: Implementation of the Law of the Sea Convention Through International Institutions, 23rd Annual Conference of the Law of the Sea Institute, 1988. Swan, J., Foreign Fishing: The Legal Regime in Small Jurisdictions, F F A Report, No. 89/4. Swan, J., Report on Legal Development in F F A Member Countries, 1988/89, F F A Report No. 89/67. Teiwaki, R., Management of Marine Resources in Kiribati, Suva, 1988. Tsamenyi, B.M., The Jeanette Diana Dispute [Regina v. Jose Francisco Silva Finette and C & F Fishing Limited], Ocean Development and International Law, Vol. 16, 1986. Tsamenyi, B.M., The South Pacific States, the U.S.A. and sovereignty over highly migratory species, Marine Policy, Vol. 10, January 1986. Tsamenyi, B.M., The Treaty- on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of  172  America: The Final Chapter in United States Tuna Policy, Brooklyn Journal of International Law, Vol. 25(2), 1989. Van Dyke, J., & Heftel, S., Tuna Management in the Pacific: A n Analysis of the South Pacific Forum Fisheries Agency, University of Hawaii Law Review, Vol. 3, 1981. Woodworth, D.C., U.S. Tuna: A Proposal for Resource Management in the American Pacific Islands, University of Hawaii Law Review, Vol. 10, 1988.  SOURCE: ~  Tuna, Issues and Perspectives the Pacific Isjands R^Vgrv, Q987)., Eastwest Center  David 0. Doulman^ (ed,)  Honolulu, Hawaii,  :  274  David }. Doulman  ^  APPENDIX Appendix 1. The Nauru Agreement NAURU AGREEMENT CONCERNING CO-OPERATION IN T H E MANAGEMENT OF FISHERIES OF C O M M O N INTEREST  ARTICLE I The Parties shall seek, without any derogation of their respective sovereign rights, to co-ordinate and harmonise the management of fisheries with regard to common stocks within the Fisheries Zones, for the benefit of their peoples. ARTICLE II  The Federated States of Micronesia, the Republic of Kiribati, the Marshall Islands, the Republic of Nauru, the Republic of Palau, Papua New Guinea and Solomon Islands:  The Parties shall seek to establish a co-ordinated approach to the fishing of the common stocks in the Fisheries Zones by foreign fishing vessels and in particular:  TAKING into account the work of the Third United Nations Conference on the Law of the Sea;  (a) shall establish principles for the granting of priority to applications by fishing vessels of the Parties to fish within the Fisheries Zones over other foreign fishing vessels;  NOTING that in accordance with the relevant principles of international law each of the Parties has established an exclusive economic zone or fisheries zone (hereinafter respectively called "the Fisheries Zones") which may extend 200 nautical miles from the baselines from which their respective territorial seas are measured and within which they respectively and separately exercise sovereign rights for the purposes of exploring, exploiting, conserving and managing all living marine resources; HAVING REGARD to the objectives of the South Pacific Forum Fisheries Agency Convention and in particular the promotion of regional co-operation and co-ordination of fisheries policies and the need for the urgent implementation of these objectives through regional or subregional arrangements; CONSCIOUS of the exploitation of the common stocks of fish, both within the Fisheries Zones and in the water adjacent thereto, by the distant water fishing nations; MINDFUL of their dependence, as developing island states, upon the rational development and optimum utilisation of the living resources occurring within the Fisheries Zones and in particular, the common stocks of the fish therein; RECOGNISING that only by co-operation In the management of the Fisheries Zones may their peoples be assured of receiving the maximum benefits from such resources; and DESIROUS of establishing, without prejudice to the sovereign rights of each Party, arrangements by which this may be achieved; HAVE AGREED AS FOLLOWS:  273  (b) shall establish, as a minimum, uniform terms and conditions under which the Parties may licence foreign fishing vessels to fish within the Fisheries Zones regarding: (i)  the requirement that each foreign fishing vessel apply for and possess a licence or permit;  (ii) the placement of observers on foreign fishing vessels; (iii) the requirement that a standardized form of log book be maintained on a day-to-day basis which shall be produced at the direction of the competent authorities; (iv) the timely reporting to the competent authorities of required information concerning the entry, exit and other movement and activities of foreign fishing vessels within the Fisheries Zones; and (v) standardized Identification of foreign fishing vessels; (c) seek to establish other uniform terms and conditions under which the Parties may licence foreign fishing vessels to fish within the Fisheries Zones, including:! (i)  the payment of an access fee, which shall be calculated In accordance with principles established by the Parties;  (ii) the requirement to supply to the competent authorities complete catch and effort data for each voyage; (Hi) the requirement to supply to the competent authorities such additional information as the Parties may determine to be necessary; (iv) the requirement that the flag State of organisations having authority over a foreign fishing vessel take such measures as  Nauru Group 275 are necessary to ensure compliance by such vessel with the relevant fisheries law of the Parties; and (v) such other terms and conditions as the Parties may from time to time consider necessary. ARTICLE III The Parties shall seek to standardize their respective licensing procedures and in particular: (a) seek to establish and adopt uniform measures and procedures relating to the licensing of foreign fishing vessels, including application formats,, licensing formats and other relevant documents; and (b) explore the possibility of establishing, without prejudice to the respective sovereignrightsof the Parties, a centralised licensing system of foreign fishing vessels. ARTICLE IV The Parties shall seek the assistance of the South Pacific Forum Fisheries Agency in establishing procedures and administrative arrangements for the exchange and analysis of:  276 David ). Doulman (a) arranging for the rapid exchange of information collected through national surveillance activities; (b) exploring the feasibility of joint surveillance; and (c) developing other appropriate measures. ARTICLE VII The Parties shall seek to develop co-operative and co-ordinated procedures to facilitate the enforcement of their fisheries laws and shall in particular examine the various means by which a regime of reciprocal enforcement may be established. ARTICLE VIII Nothing contained in this Agreement shall be construed as a derogation of any of the rights and obligations undertaken by any of the Parties under the South Pacific Forum Fisheries Agency Convention or any other international agreement in effect on the date on which this Agreement enters into force. ARTICLE IX  (b) information relating to vessel specifications and fleet composition.  The Parties shall conclude arrangements where necessary to facilitate the implementation of the terms and to attain the objectives of this Agreement. The Parties concluding such arrangements shall lodge copies with the depositary of this Agreement.  ARTICLE V  ARTICLE X  1. The Parties shall seek the assistance of the South Pacific Forum Fisheries Agency in providing secretariat services for implementing and co-ordinating the provisions of this Agreement.  1. This Agreement shall be open for signature by the States named in the preamble hereto and shall be subject to ratification.  (a) statistical data concerning catch and effort by Ashing vessels In the Fisheries Zones relating to the common stocks of fish; and  2. A n annual meeting of the Parties shall be convened preceding or following the regular session of the Forum Fisheries Committee in order to promote the implementation of this Agreement. Additional meetings may be convened at the request of three or more Parties. Such requests shall be communicated to the Director of the Forum Fisheries Agency who will Inform the other Parties. 3. With the concurrence of the Parties, members of the South Pacific Forum Fisheries Agency, not Parties to this Agreement, may attend, as observers, the meetings referred to In this Article. ARTICLE VI The Parties shall, where appropriate, co-operate and co-ordinate the monitoring and surveillance of foreign fishing activities by:  2. This Agreement shall enter into force thirty days following receipt by the depositary of the fifth instrument of ratification. Thereafter it shall enter into force for any signing or acceding State thirty days after receipt by the depositary of an instrument of ratification or accession. 3. This Agreement shall be deposited with the Government of Solomon Islands which shall be responsible for its registration with the United Nations. ; 4. Following entry into force, this Agreement shall be open for accession by other States with the concurrence of all of the Parties to this Agreement. 5. Reservations to this Agreement shall not be permitted.  Nauru Croup 277 ARTICLE XI 1. This Agreement is a binding international agreement concluded among States and is governed by international law. 2. Any Party may withdraw from this Agreement by giving written notice to the depositary. Withdrawal shall take effect one year after receipt of such notice. 3.  Any amendments to this Agreement proposed by a Party shall only be adopted by unanimous decision of the Parties. IN WITNESS WHEREOF the undersigned, duly authorised by their respective Governments, have signed the Agreement. DONE at Nauru this eleventh day of February One Thousand Nine Hundred and Eighty Two.  For the Government of the Federated States of Micronesia  in For the Government of the Republic of Kiribati  For the Government of the Marshall Islands  For the Government of the Republic of Nauru  For the Government of the Republic of Palau  •  For the Government of Papua New Guinea  For the Government of Solomon Islands  i i  SOURCE; George Kent, The Politics of Pacific Island s (1980), Hestview Press, Boulder, Colorado.  T H E POLITICS OP PACIFIC ISLANDS FISHERIES  Article II  The Forum | Fisheries Agency Convention APPENDIX  iij  (Adopted by the South Pacific Forum at Honiara, Solomon Islands in July 1979.)  Membership Membership of the Agency shall be open to: (a) members of the South Pacific Forum; (b) other states or territories in the region on the recommendation of the Committee and with the approval of the Forum.  Article m  1  Recognition of Coastal States' Rights T H E G O V E R N M E N T S COMPRISING T H E S O U T H PACIFIC F O R U M Noting the Declaration on Law of the Sea and a Regional Fisheries Agency adopted at the 8th South Pacific Forum held In Port Moresby in August 1977; Recognising their common Interest in the conservation and optimum utilisation of the living marine resources of the South Pacific region and In particular of the highly migratory species; Desiring to promote regional co-operation and co-ordination In respect of fisheries policies! Bearing In mind recent developments In the law of the seaj Concerned to secure the maximum benefits from the living marine resources of the region for the peoples and for the region as a whole and In particular the developing countries; and Desiring to facilitate the collection, analysis, evaluation and dissemination of relevant statistical scientific and economic Information about the living marine resources of the region, and In particular the highly migratory species;  1. The Parties to this Convention recognise that the coastal state : has sovereign rights, for the purpose of exploring and exploiting, conserving and managing the living marine resources, Including highly • migratory species, within its exclusvie economic zone or fishing zone i;. which may extend 200 nautical miles from the baseline from which the :'•! breadth of its territorial sea Is measured. i 2. Without prejudice to Paragraph (1) of this Article the Parties j j recognise that effective co-operation for the conservation and optimum ; utilisation of the highly migratory species of the region will require the 11 establishment of additional International machinery to provide for ' co-operation between all coastal states In the region and all states | involved in the harvesting of such resources. ;  ;  1  Article IV Committee 1. The Committee shall hold a regular session at least once every year. A special session shall be held at any time at the request of at least four Parties. The Committee shall endeavour to take decisions by consensus.  H A V E A G R E E D AS F O L L O W S : Article I Agency 1. There is hereby established a South Pacific Forum Fisheries Agency. 2. The Agency shall consist of a Forum Fisheries Committee and a Secretariat. 3. The seat of the Agency shall be at Honiara, Solomon Islands. -  171  -  |  J  2. Where consensus Is not possible each Party shall have one vote and decisions shall be taken by a two-thirds majority of the Parties present and voting. 3. T h e Committee shall adopt such rules of procedure and other Internal administrative regulations as It considers necessary. 4. The Committee may establish such sub-committees, Including technical and budget sub-committees as It may consider necessary. 5. The South Pacific Bureau for Economic Co-operation (SPEC) may participate In the work of the Committee. States, territories and other International organisations may participate as observers in accordance with such criteria as the Committee may determine. - 174  -  FORUM FISHERIES AGENCY CONVENTION Article V Functions of the Commtttee The functions of the Committee shall be as follows: (a) to provide detailed policy and administrative guidance and direction to the Agency; (b) to provide a forum for Parties to consult together on matters of common concern in the field of fisheries; (c) to carry out such other functions as may be necessary to give effect to this Convention. 2. ' In particular the Committee shall promote Intra-regional co-ordination and co-operation in the following fields: (a) harmonisation of policies with respect to fisheries management; (b) co-operation in respect of relations with distant water fishing countries;-' (c) co-operation in surveillance and enforcement; (d) co-operation In respect of onshore fbh processing; (e) co-operation In marketing; (f) co-operation In respect of access to the 200 mile zones of other Parties.  THE POLITICS OF PACIFIC ISLANDS FISHERIES  •-"IML  !^ P « "P *° « "mil not exceeding two-thirds of the preceding year's approved budgetary expenditure. t 0  U r  e x  e n d i t u r  1.  Article VI Director, Staff and Budget 1. The Committee shall appoint a Director of the Agency on such conditions as It may determine. 2. The Committee may appoint a Deputy Director of the Agency on such conditions as It may determine. 3. The Director may appoint other staff in accordance with such rules and conditions as the Committee may determine. 4. The Director shall submit to the Committee for approval: (a) an annual report on the activities of the Agency for the preceding year; (b) a draft work programme and budget for the succeeding year. 5. The approved report, budget and work programme shall be submitted to the Forum. 6. The budget shall be financed by contributions according to the shares set out in the Annex to this Convention. The Annex shall be subject to review from time to time by the Committee. 7. The Committee shall adopt financial regulations for the administration of the finances of the Agency. Such regulations may authorise the Agency to accept contributions from private or public sources. 6. All questions concerning the budget of the Agency, Including contributions to the budget, shall be determined by the Committee. 9. In advance of the Committee's approval of the budget, the Agency - 175 -  Article VII Functions of the Agency Subject to direction by the Committee the Agency shall: (a) collect, analyse, evaluate and disseminate to Parties relevant statistical and biological Information with respect to the living marine resources of the region and In particular the highly migratory species; (b) collect and disseminate to Parties relevant Information concerning management procedures, legislation and agreements adopted by other countries both within and beyond the region; (c) collect and disseminate to Parties relevant information on prices, shipping, processing and marketing of fish and fish products; (d) •provide, on request, to any Party technical advice and information, assistance in the development of fisheries policies and negotiations, and assistance In the Issue of licences, the collection of fees or in matters pertaining to surveillance and enforcement; (e) seek to establish working arrangements with relevant regional and International organisations, particularly the South Pacific Commission; and (f) such other functions the Committee may decide.  Article VIP, Legal Status, Privileges and Immunities 1. The Agency shall have legal personality and in particular the capacity to contract, to acquire and dispose of movable and immovable property and to sue and be sued. 2. The Agency shall be Immune from suit and other legal process and Its property shall be Inviolable. 3. Subject to approval; by the Committee the Agency shall promptly conclude an agreement with the Government of the Solomon Islands providing for such privileges and immunities as may be necessary for the proper discharge of the functions of the Agency. ;  - 176 -  FORUM FISHERIES AGENCY CONVENTION  Article IX Information The Parties shall provide the Agency with available and appropriate information Including: (a) catch and effort statistics In respect of fishing operations In waters under their jurisdiction or conducted by vessels under their jurisdiction (b) relevant laws, regulations and International agreements; (c) relevant biological and statistical data; and (d) action with respect to decisions taken by the Committee. Article X Signature, Accession, Entry Into Force 1. This Convention shall be open for signature by members of the South Pacific Forum. 2. This Convention is not subject to ratification and shall enter into force 30 days following the eighth signature. Thereafter it shall enter into force for any signing or acceding state thirty days after signature or the receipt by the depositary of an Instrument of accession. 3. This Convention shall be deposited with the Coverment of the Solomon Islands (herein referred to as the depositary) who shall be responsible for its registration with the United Nations. 4. States or territories admitted to membership of the Agency In accordance with Article n(b) shall deposit an Instrument of accession with the depositary. 5. Reservations to this Convention shall not be permitted. Article XI Withdrawal and Amendment 1. Any Party may withdraw from this Convention by giving written notice to the depositary. Withdrawal shall take effect one year after receipt of such notice. 2. Any party may propose amendments to the Convention for consideration by the Committee. The text of any amendment shall be adopted by a unanimous decision. The Committee may determine the procedures for entry Into force of amendments to this Convention.  - 177 -  

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