The Western and Central Pacific region is home to the world's most important tuna fisheries,2 accounting for approximately 50 per cent of the world's 4-million-tonne annual catch of tuna.3 The primary tuna species in the region – skipjack (Katsuwonus pelamis), yellowfin (Thunnus albacares), bigeye (Thunnus obesus), and albacore (Thunnus alalunga) – are highly migratory, moving between the exclusive economic zones (EEZs) of Pacific island countries and the high seas, making them a shared and transboundary resource.4
The region encompasses 24 States and Territories, including Australia, New Zealand, and the Pacific island countries.5 Pacific island States and Territories have very small terrestrial areas relative to their exclusive economic zones, which extend 200 nautical miles from land and collectively represent a huge area of the Pacific Ocean. Island States in the region also have small populations – only Papua New Guinea has a population greater than 1 million – and face daunting development challenges.6
The sustainable management of tuna resources to ensure conservation of the resource and to maximize economic benefits for developing island states is a key issue for development in the region. The migratory nature of the species, combined with certain political and economic factors, limits the ability of individual countries to achieve optimal conservation and development outcomes within their marine territories. Regional collaboration has been, and will continue to be, crucial for the sustainable management of this rich transboundary resource.
This chapter critically reviews existing legal and institutional arrangements for management of tuna fisheries in the region and explores emerging opportunities for enhanced regional cooperation. In particular, the chapter provides a critical analysis of: a) key resource management challenges; b) the legal framework, including key international and regional agreements; and c) the institutional framework, with an emphasis on the respective roles and achievements of the Forum Fisheries Agency (FFA) and the Western and Central Pacific Fisheries Commission (WCPFC).
Over the last 30 years the States and Territories of the region have made substantial progress in the establishment of an effective legal and institutional framework for the sustainable management of tuna resources. Nonetheless, resource conservation challenges remain, and these will become more urgent as fishing pressures in the region increase. A robust and responsive decision-making framework, together with the political will to adopt and implement effective conservation and management measures, will be essential to the long-term conservation of the resource and the sustainable development of the region.
The Western and Central Pacific is a vast region, covering an area of roughly 30 million square kilometres. The 24 States and Territories in the region are American Samoa, Australia, Cook Islands, Fiji, French Polynesia, Guam, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, New Caledonia, New Zealand, Niue, Northern Mariana Islands, Palau, Papua New Guinea, Pitcairn Islands, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and Wallis and Futuna.
The island States and Territories of the region, with the exception of Papua New Guinea, have very small land areas: 11 of the island countries have a land area of less than 500 square kilometres, and 4 have a land area of less than 30 square kilometres. The land-to-sea ratio of most Pacific island countries is very high. Kiribati, for example, has a land-to-sea ratio of 1:5,000, with 33 small islands, all of which are atolls, and an EEZ covering 3.5 million square kilometres.7 The great majority of the Western and Central Pacific region falls within the EEZs of the Pacific islands States.
The total population of the Pacific islands is approximately 9 million. Papua New Guinea accounts for almost two-thirds of this figure, with a population approaching 6 million. By contrast, Niue and Tokelau each have a population of about 1,500 people.8 Pacific island countries are home to a rich diversity of cultures, languages and traditions relating to the use and conservation of natural resources. For centuries, traditional systems have successfully regulated individual and communal resource use. However, rapid population growth and economic development have placed considerable pressure on natural ecosystems.9
Most countries in the region have a narrow resource base and small domestic markets, resulting in heavy dependence on a small number of export commodities.10 Sustainable natural resource management is central to long-term development prospects in the region:
The development challenges facing the countries of the western and central Pacific ... are daunting, despite substantial in-flows of development assistance. Commonly recognised problems include high rates of unemployment and underemployment, low levels of economic growth, and, in some countries, political unrest and instability. Regional governments generally see themselves as having a limited range of resources and opportunities for sustainable development and consequently place considerable importance on obtaining economic benefits from their natural resources.11
For communities throughout the Pacific islands, ‘the ocean has immense value to their traditional way of life and their hopes for future economic development’.12 Small-scale coastal fisheries play an integral role in local subsistence economies, supporting local livelihoods and village-level food security.13 However, it is large-scale, high-value, offshore fisheries – in particular, tuna fisheries – that have the greatest potential to support long-term economic development in many countries across the region:
Given the limited economic development options available, the importance of tuna resources and their exploitation to the economic security and sustainable development of Pacific island countries are considerable and cannot be overstated.14
As noted, the Western and Central Pacific region is home to four main tuna species: skipjack, yellowfin, bigeye, and albacore. These species are highly migratory, moving between the exclusive economic zones of Pacific island countries and the high seas:15
[S]chools of tuna cross oceans in months and national boundaries in hours. Their migration routes, areas of abundance, and commercial availability vary significantly from year to year, with the only boundaries established by the ocean environment, temperature gradations, and the availability of food. As a transboundary resource, conservation and management on a national or local basis will not guarantee the preservation of the resource at a sustainable level.16
The total annual catch of the four main tuna species in the Western and Central Pacific Ocean remained relatively stable during the early and mid-1990s, at about 1.5 million tonnes. In subsequent years, the catch increased significantly. In 2005, the total tuna catch for the Western and Central Pacific region was estimated at 2,145,367 tonnes, the highest annual catch recorded and an increase of about 5 per cent over the record in 2004.17
The fishery is diverse, ranging from small-scale artisanal fishing in coastal waters to large-scale industrial operations both in the exclusive economic zones of Pacific States and on the high seas.18 Only a small percentage of the region's fishing catch is taken in the high seas, with the EEZs accounting for 80–90 per cent of total fisheries production.
The three main fishing methods used in the region are: purse-seining, which targets skipjack and yellowfin; pole-and-lining, which targets skipjack and to a smaller extent yellowfin; and longlining, which targets yellowfin, bigeye, and albacore.19 The purse-seine fishery accounted for an estimated 71 per cent of the total catch, pole-and-line 10 per cent, and longline 11 per cent, with the remaining 7 per cent taken by troll gear and artisanal gear. The catch was dominated by skipjack (67 per cent), followed by yellowfin (20 per cent), bigeye (8 per cent), and albacore (5 per cent).20
The status of tuna stocks is the subject of significant research effort in the region. In 2005, the Scientific Committee of the Western and Central Pacific Fisheries Commission concluded that skipjack tuna was not overfished, and exploitation levels were considered to be modest relative to the stock's biological potential. However, it was noted that any increases in purse-seine catches of skipjack may result in a corresponding increase in fishing mortality for yellowfin and bigeye tunas.21
Over the last 50 years, the catch per unit of effort for yellowfin tuna has declined by 70 per cent.22 Since 1990, the biomass of yellowfin in the region has steadily declined. Although the stock is not yet in an overfished state, continued fishing at current levels of effort will move the stock to an overfished state. In 2005, the WCPFC Scientific Committee recommended that the catch levels for yellowfin be reduced by 10 per cent and noted that more urgent action may be required in the western equatorial region.23
The 2005 regional assessment for bigeye tuna found that the stock is not yet in an overfished state but that overfishing is occurring. Recent catch levels have been sustained by above average levels of recruitment. Future levels of recruitment are highly uncertain, and a return to long-term average levels of recruitment is predicted to result in a rapid decline in biomass. Based on the results of the assessment, the WCPFC Scientific Committee recommended that catch levels for bigeye tuna be reduced by 25 per cent of recent levels and noted that urgent management actions may be required in the equatorial region. Higher reductions in catch levels would be required to achieve long-term sustainability.24 The 2006 IUCN Red List lists the Pacific stock of bigeye tuna as endangered, based on current abundance and exploitation levels.25
Biomass levels for albacore have declined over the last decade, due to low recruitment. However, in 2005 catch levels were considered to be sustainable, as exploitation was very low relative to the total biomass. The WCPFC Scientific Committee noted that the longline fleet was having a considerably higher impact on albacore age-classes vulnerable to longlining and that any significant increase in longlining would produce only moderate increases in yields.26
By global standards, the tuna fisheries of the Western and Central Pacific are relatively healthy. However, historical experience suggests that it would be prudent to adopt a conservative management approach:
The fisheries literature is replete with examples of failed fisheries management, and the majority of the world's fisheries are being harvested at, or above, the maximum sustainable yield.... It is imperative that governance of the [Western and Central Pacific] fishery is strengthened to prevent continued over-fishing of bigeye tuna, and before the other species start to be over-exploited.27
The importance of tuna fisheries for the economic development of the region should not be underestimated. The landed value of the total tuna catch for the region is approximately US$2.2 billion per annum.28 Scharmann has described tuna as ‘the single most valuable resource available in this vast area’,29 while the South Pacific Forum Fisheries Agency has argued that ‘tuna represents the [region] 's most valuable renewable resource, and, in the long term, probably its most valuable asset overall’.30
Historically, about 90 per cent of the total tuna catch in the Western and Central Pacific has been harvested by four distant-water fishing nations: Japan, Taiwan, South Korea, and the United States of America.31 Effective management of tuna stocks requires recognition of the global reach of the tuna industry:
The tuna industry is itself transboundary: the vertical structure crosses many boundaries from the location of the actual fishing, the registration of the vessel, initial investment in the equipment, transshipment, processing, packaging, marketing and end-product markets. As fishing areas are depleted, the fleets move easily from ocean to another.32
On average, distant-water fishing nations pay access fees amounting to approximately 3–4 per cent of gross revenue, although the percentage varies across distant-water fishing nations.33 Based on current access arrangements, Pacific island countries receive total access fees of about US$60–80 million per annum.34 Low access fees, combined with limited participation in the fishery by coastal States, mean that Pacific island countries receive only a small fraction of the total benefits from the fisheries found in their territories:35
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 island countries represents perhaps their greatest opportunity to achieve economic self-reliance. For some it may represent the only hope of achieving this goal.36
In order to increase economic benefits from their tuna fisheries, Pacific island countries have sought to encourage the development of domestic harvesting or processing operations. These efforts have generally relied on public investment in domestic enterprises and the inclusion of industry development conditions in access agreements with distant-water fishing nations. Unfortunately, these strategies have largely failed,37 prompting some analysts to argue that national governments would secure greater economic benefits by focusing their efforts on negotiating higher access fees for distant-water fishing fleets.38
Even at current levels, tuna access fees form a major component of national revenue for many countries in the region – particularly those with small populations, large marine territories, and rich tuna resources, such as Kiribati and the Federated States of Micronesia.39 As Petersen observes, ‘dependence on tuna is already unmatched elsewhere in the world and is likely to increase, causing the ownership of tuna, and the right to harvest it, to be sensitive political issues in Pacific island countries’.40
The legal framework governing the management of tuna resources in the Western and Central Pacific region comprises a combination of international agreements – including global, regional, and bilateral treaties – and national legislation. This chapter focuses primarily on relevant global and regional treaties, but it is important to note that the primary mechanism for implementing these treaties at the domestic level is national fisheries legislation. The extent to which international agreements have been implemented at a national level varies from country to country, although most countries in the region have at least partially implemented the provisions of relevant treaties in their national fisheries legislation.41
The two key global agreements relevant to the management of tuna resources are the 1982 UN Convention on the Law of the Sea (UNCLOS) and the 1994 UN Fish Stocks Agreement (UNFSA).
United Nations Convention on the Law of the Sea
The 1982 United Nations Convention on the Law of the Sea is a global convention that has had a sweeping impact upon the Western and Central Pacific.42 UNCLOS provides, inter alia, for the establishment of an EEZ extending up to 200 nautical miles from the coastlines of coastal and island States.43 This legal development has had profound implications for the economic and political landscape of the region, allowing each small island State to exercise control over an EEZ many times the size of its terrestrial territory:
Without doubt, the global adoption of the 200-mile-zone regime has created new opportunities. However, it is important to note that while the declaration of an extended fisheries jurisdiction may provide the framework for rational exploitation and development of these resources, to the ultimate benefit of the coastal state, the magnitude of such benefits and the form that accrue to each country will depend not only on the nature and extent of the resources but also on the utilization and development strategy adopted.44
Within its EEZ, each coastal State has the sovereign right to exploit, conserve, and manage living marine resources and an obligation to ensure the conservation of living marine resources.45 Coastal States are empowered to take such measures, including boarding, inspection, arrest, and judicial proceedings, as may be necessary to ensure compliance with laws adopted by it in conformity with the convention.46
UNCLOS requires coastal States to ensure that marine living resources within the EEZ are not endangered by overexploitation and to promote optimum utilization of those resources.47 In order to fulfil these responsibilities, coastal States are empowered to determine and prescribe the total allowable catch within their EEZ, the harvestable resources allocable to the fishing fleets of the coastal State, and foreign fishing fleets' access to the surplus catch.48 The power to control access to fisheries resources within the EEZ is particularly important for small developing States:
For developing states lacking the economic assets to directly and immediately make use of the resources in their EEZ, the effectiveness of their management and control efforts in their fisheries is largely dependent on their ability to strategically allocate their surplus to other foreign countries. Coastal states use their ‘access’ powers to negotiate with those states that possess the economic and technical resources to help them exploit their fisheries.49
UNCLOS encourages State Parties to co-operate, on an international or regional basis, for the protection and preservation of the marine environment, taking into account characteristic regional features.50 The treaty requires State Parties to establish, either directly or through appropriate regional organizations, measures necessary for the conservation and utilization of straddling and highly migratory fish stocks.51 These provisions, which are particularly relevant for the transboundary management of tuna stocks, have been elaborated upon in the 1995 United Nations Fish Stocks Agreement.
United Nations Fish Stocks Agreement52
One of the most contentious problems in fisheries management has been the management of straddling and highly migratory fish stocks.53 The 1995 United Nations Fish Stocks Agreement is a subsidiary agreement under UNCLOS that seeks to implement UNCLOS provisions dealing with conservation and management of straddling and highly migratory fish stocks.
The aim of the agreement is to ensure the long-term conservation and sustainable use of straddling and highly migratory fish species.54 The large majority of Pacific island States and Territories are parties to the agreement.55
The agreement sets out general principles, requiring Parties to, inter alia: adopt measures to ensure the long-term sustainability of straddling and highly migratory fish stocks; ensure that such measures are based on the best available scientific evidence, taking into account the interdependence of stocks; apply the precautionary principle; protect marine biodiversity; take measures to prevent or eliminate overfishing; take into account the interests of artisanal and subsistence fishers; and implement and enforce conservation and management measures through effective monitoring, control, and surveillance.56
The UNFSA provides a framework for international cooperation with particular emphasis on the role of regional fisheries management organizations.57 In each region where a competent fisheries management organization exists, State Parties fishing in that region and relevant coastal States are required to join that organization or, at a minimum, to ensure that their fishing vessels comply with any conservation and management measures adopted by that body.58 State Parties that do not comply with this requirement must not authorize their vessels to fish for stocks covered by regional conservation and management measures.59
In each region where there is no competent regional fisheries management organization, State Parties fishing on the high seas in that region and relevant coastal States are required to co-operate to establish such an organization or enter into other appropriate arrangements to ensure the conservation and management of straddling and highly migratory fish stocks in that region.60
The agreement sets out detailed provisions on the establishment, functions, and membership of fisheries management organizations and provides for international co-operation in compliance and enforcement activities, including the enforcement of regional conservation and management measures.61
Parties to the agreement are required to co-operate to prevent disputes and, where disputes arise, to settle them by peaceful means. The UNFSA adopts the dispute mechanisms established under UNCLOS and encourages parties to resolve technical disputes by establishing an ad hoc expert panel. The establishment of effective decision-making arrangements within regional fisheries management organizations is explicitly identified in the UNFSA as a primary mechanism for the avoidance of disputes.62
The agreement represents a major landmark in international fisheries management and a significant step towards sustainable management of transboundary fisheries resources. Its emphasis on international co-operation via regional fisheries management organizations has had significant implications for the management of tuna resources in the Western and Central Pacific, in particular, by acting as a catalyst for the formation of the Western and Central Pacific Fisheries Commission.
Pacific island countries have a strongly developed practice of regional co-operation across a wide range of areas, including the management of transboundary fishery resources:
Regional cooperation has been firmly established in the South Pacific since the island states began to achieve independence or self-government in the 1970s. In terms of fisheries management, they have made considerable gains through pursuing policies of cooperation.63
Over the last 30 years, the States and Territories of the Western and Central Pacific have made substantial progress in the development of a robust legal and institutional framework for the management of the region's tuna resources.
Regional agreements relevant to management of tuna resources in the Western and Central Pacific include:
1979 South Pacific Forum Fisheries Agency Convention
1982 Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest
1987 Treaty on Fisheries between certain Pacific Island States and the United States of America
1989 Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific
1992 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific
2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean.
The objectives and key features of a number of these agreements are reviewed below. Institutional arrangements for the management of tuna stocks in the region are discussed later in the chapter.
South Pacific Forum Fisheries Agency Convention64
During the Third United Nations Law of the Sea Conference, which ran from 1973 to 1982, an emerging global consensus on the establishment of a 200-nautical-mile EEZ prompted the South Pacific Forum to call for increased regional co-operation in fisheries management via the establishment of a regional fisheries agency for the South Pacific.65
In 1979, the member States of the South Pacific Forum signed the South Pacific Forum Fisheries Agency Convention, establishing the South Pacific Forum Fisheries Agency.66 The objectives of the treaty are to support the conservation and optimum utilization of the living marine resources of the region; to secure maximum benefit from those living marine resources, particularly for the benefit of the developing countries in the region; to promote regional co-operation and co-ordination in respect of fisheries policies; and to facilitate the collection, analysis, evaluation, and dissemination of relevant statistical, scientific, and economic information about the living marine resources of the region.67 The treaty makes specific reference to the importance of regional co-operation in the management of highly migratory fish species,68 reflecting the Parties' paramount concern: effective management of the region's rich tuna resources.
The agency's governing body, the Forum Fisheries Committee, is charged with promoting regional co-operation in relation to, inter alia, harmonization of national fisheries management policies, co-ordination of fisheries surveillance and enforcement, and collective bargaining with distant-water fishing nations.69 Distant-water fishing nations, such as Japan and the United States, were deliberately excluded from the Committee, consistent with the Parties' intention of presenting a common front to such nations seeking access to tuna resources in the Parties' EEZs.70
Subject to direction by the Committee, the FFA Secretariat carries out the following functions for the benefit of member States: monitoring regional fisheries; providing technical advice and information; assisting with the development of fisheries policies; and assisting with licensing, surveillance, and enforcement of national fisheries legislation.71 The FFA functions as a consultative and advisory body rather than a management organization and does not exercise any regulatory powers. Nonetheless, the FFA has made an enormous contribution to the development of fisheries management law and policy in the region, not least through its co-ordinating role in the negotiation of regional and subregional fisheries management agreements.72 The institutional structure of the FFA, and its achievements to date, are discussed in more detail below.
Treaty on Fisheries between certain Pacific Island States and the United States of America
Following the conclusion of UNCLOS, most coastal States – including the Pacific island States – claimed sovereignty over fisheries stocks within their EEZs, including highly migratory species. However, the United States opposed coastal State jurisdiction over highly migratory species, excluding them from its own jurisdiction under national legislation. The rationale for the US position was that because highly migratory species travel through the waters of numerous countries, they would be better managed by an international body. Critics argue, however, that the real reason for the US policy was to justify its position of refusing to recognize the jurisdiction of other coastal States over valuable tuna stocks:73
The aim of the US was to insulate tuna fisheries from coastal state jurisdiction as a means of maintaining the bargaining power of its tuna harvesting industry. This power consisted of provisions of US law which threatened economic sanctions against nations which seize US tuna fishing vessels for violations of their claims to national jurisdiction.74
Consistent with its denial of State sovereignty over highly migratory species, the United States refused to respect the power of Pacific island States to control access to their tuna stocks. The Magnuson-Stevens Fisheries Management and Conservation Act allowed the United States to impose an embargo on the importation of any fisheries products from any country that seizes a US vessel for fishing for highly migratory species without a licence. The Fishermen's Protective Act provided for compensation from the US government to any US tuna fishers whose vessels were seized for illegally fishing in the EEZ of another state. This legislation allowed, if not encouraged, US vessels to blatantly violate the laws of coastal States.75
The continuation of tuna fishing by US vessels within the EEZs of Pacific island States became a significant source of conflict and resulted in boat seizures and sanctions. In 1982, Papua New Guinea seized the US purse seine vessel Danica. This was followed by the Solomon Islands' seizure of the Jeanette Diana in 1984, which resulted in a seven-month embargo on imports of fish products from the Solomon Islands to the United States and a ban on US vessels entering the waters of the Solomon Islands.76 The increasing acrimony encouraged some Pacific island States to enter into fishing agreements with the USSR, fuelling US concerns about increasing Soviet influence in the region.77
In 1987, the FFA member States entered into an agreement with the United States to resolve the escalating conflict. The Treaty on Fisheries between the Governments of certain Pacific Island States and the Government of the United States of America (known as the US Fisheries Treaty) seeks to maximize the benefits flowing from the development of fisheries resources within the fisheries jurisdiction of the Pacific island Parties.78 Key features of the treaty include: an undertaking by the United States to provide technical and economic assistance; establishment of licensing and access fee arrangements for US vessels; acceptance of flag State responsibility by the United States, including an undertaking to enforce the terms of the treaty against US vessels; acknowledgment of the compliance powers of the coastal States; and a procedure for resolving disputes arising under the treaty.79
The licensing fees and assistance packages negotiated under the treaty provide a return of about 9–10 per cent of the value of the landed catch, compared with the 2–4 per cent access fees negotiated by individual Pacific island States in bilateral negotiations with other distant-water fishing nations. Under the treaty, US vessels receive regional licences at a price indexed to the market price of tuna, subject to a minimum base price. Once administrative costs have been met, licence fees are distributed to the coastal State Parties in proportion to the amount of tuna caught in each State's EEZ. The US tuna industry and the federal government contribute to a substantial technical and economic assistance package, which is divided among the Pacific island Parties at predetermined ratios.80 The treaty has been extended twice, in 1993 and 2003, with successive increases in total payments to coastal States and adjustments in the allocation of payments between them.
The US Fisheries Treaty is a testament to the strength of a co-ordinated regional approach to access negotiations: ‘In addition to easing tensions, the Treaty is considered a success for the South Pacific island nations and a model for other international access agreements.’81 Bergin argues that ‘this treaty was undoubtedly the [Pacific island countries] most successful venture into fisheries diplomacy’.82 By working together, with the co-ordinating support of the FFA, Pacific island States were able to secure significantly higher financial returns as well as the implementation of most of the minimum terms and conditions that other distant-water fishing nations were resisting. Furthermore, by agreeing to implement these minimum terms and conditions, the United States strengthened the hand of the Pacific island countries in their negotiations with other distant-water fishing nations.83
Convention on the Conservation and Management of Highly Migratory Fish Stocks
The negotiation of agreements between Pacific island States has played an important role in improving the management of tuna stocks in the Western and Central Pacific. However, these agreements do not entirely fulfil obligations arising under UNCLOS and the UNFSA, which require the establishment of regional fisheries management organizations, comprising both coastal States and distant-water fishing nations, to provide for management of highly migratory species across their entire range, including the high seas.84
The 1979 Forum Fisheries Agency Convention reflects the (then draft) provisions of UNCLOS in relation to highly migratory fish stocks, recognizing that:
effective cooperation for the conservation and optimum utilisation of the highly migratory species of the region will require the establishment of additional international machinery to provide for cooperation between all coastal states in the region and all states involved in the harvesting of such resources.85
This ambition was fulfilled two decades later, with the adoption of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (the WCPO Convention). The convention was opened for signature in September 2000, after four years of complex negotiations between the coastal States of the Western and Central Pacific and States fishing in the region, and it entered into force on 19 June 2004.86 The convention is ‘a remarkable political, diplomatic and legal achievement’, covering the largest area of any fisheries commission in the world and including among its members the largest and most powerful countries in the world as well as the smallest.87
The WCPO Convention aims ‘to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean’.88 To support this aim, it provides for the establishment of the Western and Central Pacific Fisheries Commission (WCPF Commission) – a regional fisheries management organization (RFMO) composed of both coastal States and distant-water fishing nations.89 The Commission is empowered, inter alia, to adopt binding conservation and management measures for highly migratory fish stocks, including setting the total allowable catch or level of fishing effort for highly migratory fish stocks in the convention area.90
The WCPO Convention is the first regional agreement for the management of highly migratory fish stocks to fully reflect the provisions of UNCLOS and the UNFSA.91 The agreement presents an important example for older regional fisheries management organizations – including the Inter-American Tropical Tuna Commission,92 the International Commission for the Conservation of Atlantic Tunas,93 the Commission for the Conservation of Bluefin Tuna,94 and the Indian Ocean Tuna Commission95 – to consider when assessing whether their existing arrangements meet the benchmarks established by the UNFSA.96
The convention sets out a range of conservation and management principles, modelled closely on the principles set out in the UNFSA. In particular, the convention requires Parties to:
Adopt measures to ensure the long-term sustainability of highly migratory fish stocks in the Western and Central Pacific Ocean, and to promote their optimum use;
Ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, taking into account certain environmental and economic factors, including the special needs of developing states;
Apply the precautionary approach, consistent with international standards (including the guidelines annexed to the UNFSA) and based on the best scientific evidence available;
Adopt measures to minimize unnecessary impacts on target and non-target species and to promote the development and use of selective, environmentally safe, and cost-effective fishing gear and techniques;
Adopt measures to prevent or eliminate overfishing and excess fishing capacity and to ensure that levels of fishing effort are consistent with the sustainable use of fisheries resources;
Protect biological diversity in the marine environment;
Take into account the interests of artisanal and subsistence fishers; and
Implement and enforce conservation and management measures through effective monitoring, control, and surveillance.97
The convention requires Parties to co-operate to ensure that conservation and management measures adopted for the high seas and for areas under national jurisdiction are compatible. Furthermore, coastal States are obliged to ensure that measures adopted by them for areas within national jurisdiction do not undermine the effectiveness of measures adopted by the Commission.98
Under the convention, each flag State Party is required to: a) ensure that its fishing vessels comply with the convention and any measures adopted under the convention and do not engage in any activities that undermine the effectiveness of such measures; b) ensure that its fishing vessels refrain from unauthorized fishing activities in waters within the national jurisdiction of the coastal State Parties; c) only authorize its fishing vessels to operate on the high seas if the flag State is able to effectively exercise its responsibilities in relation to those vessels; d) maintain a record of its fishing vessels; and e) ensure that its fishing vessels use satellite-based position transmitters for the purposes of a regional vessel monitoring system.99
The convention allows for enforcement by both flag States and coastal States and encourages co-operation in relation to investigation and prosecution of fisheries offences. To improve monitoring of fishing activities, the convention establishes a regional observer programme and discourages transshipment at sea.100 The convention adopts the dispute resolution procedures set out in UNCLOS and the UNFSA.101 Intergovernmental organizations and non-government organizations are entitled to participate in the Commission and its subsidiary bodies as observers.102 The institutional structure of the Commission, and its achievements to date, are discussed in detail below.
The developments in global and regional fisheries law described above have fundamentally reshaped the context in which fisheries access arrangements are negotiated in the Western and Central Pacific region. Nonetheless, bilateral agreements remain the most common form of such arrangement. Pacific island countries have entered into bilateral agreements with a range of distant-water fishing nations, including Japan, South Korea, the former Soviet Union, Taiwan, the Philippines, and Indonesia.
Bilateral access agreements in the region typically run for a one-year term (rolled over annually), set a limit on the number of vessels entitled to operate in the fishery for that period, and impose minimum terms and conditions of access but do not generally set any limits on catch volumes.103 Overall, the access or licensing fees of the region's bilateral arrangements have averaged around 2 per cent of the value of the total landed catch, although a goal of 4 per cent had been set by the FFA as the minimal rate of return.104
Historically, attempts by coastal states in the region to unilaterally increase access fees have met with limited success. According to Petersen:
In the late 1980s, Papua New Guinea tried to raise the value of access fees to a minimum of six per cent. In reaction, Japan ceased fishing in Papua New Guinea's EEZ, fishing instead in other countries' EEZs at lower cost. This reflects the problems Pacific island countries have when they negotiate bilaterally with distant water fishing nations, competing with one another to provide access. Distant water fishing nations realise this and encourage bilateral treaties. The success of Pacific island countries in attracting higher access fees will depend on their success in working collectively in allocating access rights.105
Bostwick is similarly critical of the widespread use of bilateral access agreements in the region:
Bilateral agreements among powerful distant water fishing nations and individual island states dilute the negotiating strength of the small island states across the region. Japan, for example, has been accused on numerous occasions of playing the South Pacific nations off each other to these nations' detriment. Distant water fishing nations are able to tie fishing access to aid packages in other areas of the islands' public expenditures, further diminishing their bargaining power.
[M]ultilateral negotiations increase the bargaining power of the island states and reduce detrimental competition for agreements among them. The transboundary nature of the tuna resource necessitates regional coordination for the conservation of the resource, which is imperative for sustainable development.... The multilateral approach should be strengthened by a commitment by all FFA members to end bilateral agreement negotiations.106
The challenges faced by Pacific island States in bilateral negotiations highlight the need for institutional structures that support collective bargaining and informed, equitable negotiation of fisheries conservation and management measures.
Regional co-operation is well established in the Western and Central Pacific region. Regional intergovernmental organizations play a key role in political and economic affairs in the region, including the management of fisheries resources. Regional co-operation in fisheries management has been both a strategic political response – ‘the small island nations were quick to realise that their interests ... could best be protected through cooperative and collective effort’ – and a pragmatic response in the face of limited institutional resources – ‘regional co-operation contributes significantly ... through the sharing of expertise, experience, facilities and infrastructure, and the pooling of resources and markets’.107
Two key fisheries management institutions are discussed in detail below – the Forum Fisheries Agency and the Western and Central Pacific Fisheries Commission. However, it is important to note that institutional arrangements for fisheries management in the region are complex and multilayered, involving national governments – of both coastal States and flag States – and a variety of other regional organizations:
The Secretariat of the Pacific Community (SPC) Oceanic Fisheries Programme is a key source of scientific advice on the management of oceanic fisheries, including tuna stocks.
The Secretariat of the Pacific Regional Environment Programme runs training programmes and provides technical assistance to support the conservation of marine biodiversity.
The South Pacific Applied Geoscience Commission provides technical assistance on maritime boundary delimitation and acts as the depository for marine scientific research data.
The University of the South Pacific is the primary source of tertiary education in the fields of fisheries management and marine conservation in the region.108
The Forum Fisheries Agency consists of the Forum Fisheries Committee and a Secretariat, based in Honiara, Solomon Islands. The Committee is charged with promoting regional cooperation in relation to, inter alia, harmonization of national fisheries management policies, co-ordination of fisheries surveillance and enforcement, and collective bargaining with distant-water fishing nations.109 The Committee provides strategic policy direction and administrative guidance to the Secretariat and provides a forum for Parties to consult on matters of common concern in the field of fisheries management.110 The Committee includes one representative from each of the State Parties to the FFA Convention. Decisions of the Committee are usually made by consensus. If consensus is not reached, decisions are taken on a two-thirds majority of the members present and voting. The exclusion of distant-water fishing nations from membership of the Committee has greatly enhanced the capacity of coastal States in the region to develop consensus on key issues and to establish collaborative management initiatives.111
Subject to direction by the Committee, the Secretariat monitors regional fisheries, provides technical advice and information to FFA member States, assists with the development of fisheries policies, and helps with licensing, surveillance, and enforcement of national fisheries legislation.112 The Secretariat employs about 50 professional and support staff and has an annual budget of approximately US$4 million. Key sources of funding include: a) member contributions, prescribed by a formula set by the Committee, which typically provide about 20 per cent of total funding; b) donor support, on a bilateral and multilateral basis, which provides the majority of funding; and c) fees charged by the FFA on a partial cost-recovery basis (for example, vessel registration fees), which provide a very small proportion of total funding.113
The FFA provides a cost-effective mechanism for developing and implementing regional fisheries policy and programmes. According to a recent cost-benefit analysis of the FFA:
Its creation has led to the concentration within it of a critical mass of expertise in many aspects of fisheries management and conservation, as well as effective coordination of their use. This concentration of resources and coordination of effort has yielded obvious economies of scale and scope in terms of securing for member countries a cost-effective dedicated supply of expert information gathering, analysis, advice and support on fisheries issues.114
The FFA has made an enormous contribution to the development of fisheries management law and policy in the region, not least through its co-ordinating role in the negotiation of regional and subregional fisheries management agreements. The involvement of the FFA in bilateral and multilateral negotiations has played a key role in securing improved economic returns from tuna fisheries through increased access fees and in improving management of those fisheries via the imposition of minimum terms and conditions of access. The FFA actively fosters fisheries management expertise amongst its member States. Since its inception, the FFA has provided regional- and national-level training for government officers in a variety of fisheries management disciplines, including workshops on international fisheries law for policy officers and monitoring, surveillance, and compliance training for observers and enforcement officers.
The FFA has played a pivotal role in the development and coordination of regional fisheries monitoring, surveillance, and compliance programmes: ‘Control and effective monitoring of the fisheries is extremely difficult for Pacific island nations. To monitor effectively millions of square miles of ocean is expensive and requires support, equipment, and enforcement strength.’115 In particular, the FFA has been responsible for: a) establishing and maintaining databases covering fisheries agreements, legislation, licences, violations, and prosecutions; b) co-ordinating aerial surveillance by Australia, France, New Zealand, and the United States; and c) establishing and administering a regional register of foreign fishing vessels, a regional observer programme, and a regional vessel monitoring system. The FFA has also worked closely with the government of Australia to facilitate the supply of fisheries patrol boats for Pacific island countries.
The regional register of foreign fishing vessels was established by the FFA in 1984. The register contains comprehensive details for foreign fishing vessels that may wish to apply for licences to fish in the region. Before any foreign fishing vessel may be licensed to fish in the region, it must be in good standing on the regional register. Vessels must apply annually for registration. Good standing is automatically conferred on a vessel upon registration. This status may be withdrawn in certain circumstances, including where a vessel has committed a serious fisheries offence. Once good standing is withdrawn, the vessel is effectively prohibited from fishing in the region.116 The withdrawal of good standing has been rare, but the threat of withdrawal has been used to good effect on a number of occasions.117
In 1998, the FFA established a satellite-based vessel monitoring system (VMS) to provide FFA member countries with real-time information about the position, speed, and direction of registered fishing vessels. The establishment of the VMS presents an opportunity to greatly improve the compliance and enforcement programmes of FFA member States by increasing their capacity to monitor vessel movements over large tracts of ocean. Prior to the establishment of the VMS, member countries were reliant on reports from fisheries observers, which only cover a small portion of licensed fishing fleets, and occasional aerial surveillance reports. Realization of the system's potential requires passage of empowering national legislation and installation and activation of suitable automatic location communicators (ALC) on fishing vessels. Most FFA member States have now enacted legislation requiring vessels to fit an ALC as a condition of their fishing licence, and vessels are now required to install an ALC as a condition of entry on the regional register. The number of vessels registered on the VMS has grown substantially, from only two in the first year of its operation, to more than 1,000 vessels by 2007.
The contribution of the FFA to management of tuna resources in the Western and Central Pacific is indisputable. Collaboration between coastal States, to the exclusion of distant-water fishing nations, has provided an efficient and effective mechanism for developing and implementing innovative fisheries policies and programmes and has led to significant improvements in the management of tuna harvesting operations within the jurisdiction of its member states. However, as Cordonnery notes:
Despite some impressive achievements, it is important to recognise the limitations of the FFA insofar as conservation and management of tuna stocks is concerned. The limitations of the FFA arise from its functions being administrative, facilitative and advisory, rather than decision-making, which prevents it from becoming a management agency.118
The FFA is subject to a further, more fundamental, limitation: ‘It does not adequately address the fact that because tuna are subject to harvest in both EEZs and the high seas, single coastal states cannot exercise sufficient control over the industry to properly manage tuna populations.’119
The establishment of the WCPF Commission in June 2004 marked a new chapter in the management and conservation of tuna resources in the region. The functions of the Commission include: a) adopting conservation and management measures and recommendations for highly migratory fish stocks, including setting total allowable catch and level of fishing effort; b) promoting co-ordination among Commission members to ensure that conservation and management measures for highly migratory fish stocks within national jurisdiction and the high seas are compatible; c) adopting conservation and management measures and recommendations for non-target species and species dependent on or associated with target stocks; d) establishing appropriate co-operative mechanisms for effective monitoring, control, surveillance, and enforcement, including a vessel monitoring system; e) adopting standards for collection, verification, exchange, and reporting of data; and f) promoting the peaceful settlement of disputes.120
The decision-making processes of the Commission reflect a delicate compromise between the interests of the coastal States and those of distant-water fishing nations. Generally, decision making in the Commission is by consensus. In certain cases – for example, setting total allowable catch or total level of fishing effort – this is a mandatory requirement. In other cases, the decision may be put to a vote if all efforts to reach consensus have been exhausted. If a decision of substance is put to a vote, parties are divided into two chambers, consisting of FFA members and FFA non-members respectively. The decision must be adopted by a three-quarters majority of the Commission and a three-quarters majority in each chamber. No proposal may be defeated by two or fewer votes in either chamber. The Convention establishes a conciliation and review process and adopts the dispute resolution process established under UNCLOS and the UNFSA.121
The Commission is supported by a Secretariat and two subsidiary bodies: a Scientific Committee and a Technical and Compliance Committee. The Scientific Committee is responsible for ensuring that the Commission obtains for its consideration the best available scientific information.122 The Technical and Compliance Committee is charged with providing technical advice and recommendations to the Commission on implementation of, and compliance with, conservation and management measures.123 Intergovernmental and nongovernment organizations may also play a constructive role as observers to the Commission's deliberations, by enhancing transparency, engaging the broader community in regional fisheries management, and providing input on key technical issues.124
Commission members are required to ensure that conservation and management measures are based on the best scientific evidence available and to adopt the precautionary approach when making conservation and management decisions.125 The establishment of the Scientific Committee, combined with the ongoing involvement of the FFA and SPC Oceanic Fisheries Programme, provides a robust basis for data collection, research, and stock assessment.126 However, the Commission's responses to the recommendations of its own Scientific Committee have tended to reflect short-term political and economic considerations rather than a commitment to long-term sustainable management of the region's tuna stocks.
In August 2005, the first regular meeting of the Scientific Committee concluded that it was likely that bigeye and yellowfin tuna were both subject to overfishing and recommended a reduction in fishing mortality for both species to avoid moving the species into an overfished state.127 In December 2005, the second session of the Commission adopted a conservation and management measure for bigeye and yellowfin tuna requiring members to not increase total catch effort beyond current levels.128 The decision to adopt this measure represents a missed opportunity for decisive action, based on sound scientific advice, to reduce fishing effort for bigeye and yellowfin tuna. At the conclusion of the meeting, the Commission Chair acknowledged that: ‘scientists have stated that yellowfin and bigeye tuna stocks cannot sustain this level of fishing and there is a need for a reduction in both effort and catch’.129
In August 2006, the second regular meeting of the Scientific Committee found that there was a high probability (>99 per cent) that bigeye tuna was subject to overfishing. In order to maintain the stock at a level capable of producing the maximum sustainable yield (BMSY), the Scientific Committee recommended a 25 per cent reduction in fishing mortality from the average levels for 2001–2004. The Scientific Committee also found that it was likely (73 per cent) that yellowfin tuna was subject to overfishing and recommended a 10 per cent reduction in fishing mortality from the average levels for 2001–2004 in order to maintain the stock at a level capable of producing the maximum sustainable yield (BMSY). For both species, the Committee noted that further reductions would be required to maintain equilibrium average biomass above BMSY.130 Despite these strong findings, the third session of the Commission adopted a conservation and management measure that failed to require any reduction in the level of effort or catch for bigeye or yellowfin tuna from 2001–2004 levels.131
To its credit, the Commission has adopted a number of conservation and management measures aimed at reducing the environmental impact of fishing operations in the region –including measures dealing with non-target fish species, sea turtles, sea birds, swordfish, striped marlin, and sharks. The Commission has also adopted measures to support monitoring, control, and surveillance – including measures establishing a regional vessel monitoring system, a regional observer programme, boarding and inspection procedures, and an illegal, unregulated, and unreported fishing vessel register. However, the unwillingness of Commission members to adopt binding targets for reduction in effort and catch for bigeye and yellowfin tuna reflects a disturbing failure to fulfil the primary objectives of its governing convention.
Regional fisheries management organizations around the world have been strongly criticized for their failure to prevent overexploitation of highly migratory fish stocks:
RFMOs have generally failed to prevent over-exploitation of straddling and highly migratory fish stocks, to rebuild overexploited stocks and to prevent degradation of the marine ecosystems in which fishing occurs. Not only have broader, international expectations not been met but RFMOs have also largely failed to meet the objectives of their own governing conventions, generally characterized as conservation and sustainable utilization of target stocks under their mandate. It is difficult to identify examples of sustainable management of target stocks by RFMOs.132
Establishment of a regional fisheries management organization for the Western and Central Pacific is a necessary precondition for the sustainable management of the region's highly migratory tuna resources but is not sufficient in its own right. Sadly, the first three years of the Commission's operation have mirrored the experience of other regional fisheries management organizations, in which short-term political and economic expediency has taken precedence over scientifically sound fisheries management. By deferring decisive management action, Commission members are reducing the range of options available for future management of regional tuna resources:
[T]he WCPFC is at a watershed. In common with most other RFMOs, the WCPFC is now faced with overcapacity and overfishing. Other than the recently agreed conservation and management measures, comprehensive management, including allocation, appears to be some way off. Faced with increasingly strong warnings about the biological status of the stock from scientific advisors, as well as continuing investment and increasing capacity, the window of opportunity to take effective action is closing fast.133
The relative health of the region's tuna stocks to date has largely been a product of the robustness of the resource rather than sound management. Until recently, there has been little pressure on States to limit fishing effort or to clearly allocate fishing rights. Experience worldwide, however, has shown that uncontrolled fishing inevitably results in overfishing. There is an urgent need for the Commission to rise to this challenge: ‘With so much at stake, it must quickly begin to work. The Commission has the best opportunity of all the world's regional fisheries management organizations to successfully manage its fish stocks; it must not fail.’134
Pacific island countries, due to their dependence on tuna fisheries, have a strong incentive to ensure the long-term viability of the stocks by reducing total allowable catch. According to Willock and Cartwright, FFA member States may hold the key to a successful conservation and management outcome: ‘One of the major features of the region is the FFA group, which, if choosing to display cohesion and strength and adopt its often advocated stewardship role, could be the factor that turns the tide in the Commission.’135
The sustainable management of tuna resources, to ensure conservation of the resource and to maximize economic benefits for developing island States, is a key issue for development in the Western and Central Pacific region. The migratory nature of the species, combined with certain political and economic factors, have limited the ability of individual countries to achieve optimal conservation and development outcomes within their marine territories. Regional collaboration has been, and will continue to be, crucial for the sustainable management of this rich transboundary resource.
Over the last 30 years, the States and Territories of the region have made substantial progress in the establishment of an effective legal and institutional framework for the sustainable management of tuna resources. Nonetheless, resource conservation challenges remain and will become more urgent as fishing pressures in the region increase. A robust and responsive decision-making framework, together with the political will to adopt and implement effective conservation and management measures, will be essential to the long-term conservation of the resource and the sustainable development of the region.
The Forum Fisheries Agency has played a central role in the development of fisheries management across the region. The contribution of the FFA is indisputable. Collaboration between coastal States, to the exclusion of distant-water fishing nations, has provided an efficient and effective mechanism for developing and implementing innovative fisheries policies and programmes and has led to significant improvements in the management of tuna resources within the jurisdiction of its member States.
The establishment of the Western and Central Pacific Fisheries Commission presents an important opportunity for sustainable transboundary management of tuna resources in the region. The Commission provides a forum for coastal States and distant-water fishing nations to enter into multilateral negotiations for the purpose of adopting binding conservation and management measures for highly migratory fish stocks, including setting the total allowable catch or level of fishing effort in the Convention area.
The first three years of the Commission's operation have revealed a lack of political will to adopt binding measures to prevent continued overfishing of bigeye and yellowfin tuna, despite increasingly urgent warnings from the Commission's own Scientific Committee. The working relationship developed between FFA member States in recent decades may present the best hope of advancing the collective interest of the coastal states in the sustainable and equitable management of the region's rich tuna resources.
Regional management of tuna resources in the Western and Central Pacific Ocean is a living example of transboundary resource management in evolution. The stakes are high, but the countries concerned have made substantial progress in the development of a legal and institutional framework to support rational and equitable use of the resources in future decades. The actions of these nations over the next few years will determine, in large part, the future of this vast and precious resource.
1 Legal Advisor, IUCN Regional Office for Oceania, Suva, Fiji.
2 E. H. Petersen (ed.), Institutional Economics and Fisheries Management: The Case of Pacific Tuna Cheltenham, UK: Edward Elgar Publishing, 2006), p. 25; G. Munro, The Management of Tropical Tuna Resources in the Western Pacific: Trans-Regional Cooperation and Second Tier Diplomacy, in G. Blake et al. (eds.), The Peaceful Management of Transboundary Resources (London: Graham & Trotman, 1995), p. 475.
3 A. Langley, P. Williams, and J. Hampton, The Western and Central Pacific Tuna Fishery 2005: Overview and Status of Stocks (Noumea, New Caledonia: Oceanic Fisheries Programme, Secretariat of the Pacific Community, 2006).
4 H. Parris and R.Q. Grafton, Can Tuna Promote Sustainable Development in the Pacific? The Journal of Environment and Development, vol. 15, no. 3 (2006), pp. 270–272. [Link]
5 American Samoa, Australia, Cook Islands, Fiji, French Polynesia, Guam, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, New Caledonia, New Zealand, Niue, Northern Mariana Islands, Palau, Papua New Guinea, Pitcairn Islands, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and Wallis and Futuna.
6 Parris and Grafton, supra note 4, p. 270.
7 B. Boer, Environmental Law and the South Pacific: Law of the Sea Issues, in J. Crawford and D.R. Rothwell (eds.), The Law of the Sea in the Asian Pacific Region (Dordrecht, Netherlands: Nijhoff, 1994), p. 67.
8 Secretariat of the Pacific Community, Pacific Island Populations 2004, at www.spc.int/demog/en/index.html, accessed 22 February 2007.
9 B. Richardson, A Study of the Response of Transnational Environmental Law and Policy to the Environmental Problems of East Asia and the South Pacific, Environmental and Planning Law Journal, vol. 7, no. 3 (1990), p. 219.
10 Petersen, supra note 2, p. 37.
11 Parris and Grafton, supra note 4, p. 269.
12 L.K. Bostwick, Empowering South Pacific Fishmongers: A New Framework for Preferential Access Agreements in the South Pacific Tuna Industry, Law and Policy in International Business, vol. 26, no. 3 (1995), p. 897.
13 I. Novaczek (ed.), Pacific Voices: Equity and Sustainability in Pacific Island Fisheries (Suva, Fiji: Institute of Pacific Studies, University of the South Pacific, 2005); Bostwick, supra note 12, p. 907.
14 L. Cordonnery, L., Implementing the Pacific Islands Regional Ocean Policy: How Difficult Is It Going to Be? Victoria University of Wellington Law Review, no. 32 (2005).
15 Parris and Grafton, supra note 4, pp. 270–272.
16 Bostwick, supra note 12, p. 903. The total annual catch of the four main tuna species in the Western and Central Pacific Ocean remained relatively stable during the early and mid-1990s, at about 1.5 million tonnes. In subsequent years, the catch increased significantly. In 2005, the total tuna catch for the Western and Central Pacific region was estimated at 2,145,367 tonnes, the highest annual catch recorded and an increase of about 5 per cent over the record in 2004.17
17 Langley, Williams, and Hampton, supra note 3.
19 Petersen, supra note 2, p. 27.
20 Langley, Williams, and Hampton, supra note 3.
22 Parris and Grafton, supra note 4, pp. 272–273.
23 Langley, Williams, and Hampton, supra note 3. Note: Overfishing occurs when fishing mortality rates exceed the overfishing benchmark. A stock is considered overfished when its biomass falls below the relevant overfishing benchmark.
24 Langley, Williams, and Hampton, supra note 3.
25 Y. Uozumi, Thunnus obesus (Pacific stock), 1996, in World Conservation Union–IUCN, 2006 IUCN Red List of Threatened Species, at www.iucnredlist.org, downloaded 23 February 2007.
26 Langley, Williams, and Hampton, supra note 3.
27 Petersen, supra note 2, p. 30.
28 Ibid., p. 31.
29 L. Scharmann, The UN Convention on the Law of the Sea and Its Implications for Third World Countries: The Case of the Tuna Fishery in South Pacific Countries, 17 Ocean & Shoreline Management, no. 309 (1991), p. 312.
30 Forum Fisheries Agency, Sustainable Development and the Ocean Environment: The Role of the Forum Fisheries Agency and the Need for Institutional Reform in the South Pacific, FFA Report 92/5 (Honiara, Solomon Islands: 1992), p. 4.
31 Petersen, supra note 2, p. 26.
32 Bostwick, supra note 12, p. 904. See also, Greenpeace International, In the Race for Tuna, Dolphins Aren't the Only Sacrifice: The Impact of Commercial Tuna Fishing on Oceans, Marine Life and Human Communities. (Amsterdam: 1993).
33 Petersen, supra note 2, p. 31.
34 R. Gillett et al., Tuna: A Key Economic Resource in the Pacific (Manila, Philippines: Asian Development Bank, 2001). [Link]
35 Parris and Grafton, supra note 4, p. 273.
36 Forum Fisheries Agency, supra note 30, p. 4.
37 Parris and Grafton, supra note 4, pp. 275–276. See also, S.G. Chand, R.Q. Grafton, and E. Petersen, Multilateral Governance of Fisheries: Management and Cooperation in the Western and Central Pacific Tuna Fisheries, Marine Resource Economics, vol. 18, no. 4 (2003), p. 329; E.H. Petersen, Economic Policy, Institutions and Fisheries Development in the Pacific, Marine Policy, vol. 26, no. 5 (2002), p. 315; R.A. Schurmann, Tuna Dreams: Resource Nationalism and the Pacific Islands' Tuna Industry, Development and Change, vol. 29, no. 1 (1998), p. 107.
38 Gillett, Preston and Associates, A Financial and Economic Review of the PNG Tuna Fishery, Fisheries Development Project, ADB Loan No. 1656-PNG, 2000: ‘Quite often high access fees paid by foreign fishng fleets deliver a higher level of domestic value added at less risk to an economy than costly attempts to establish a local fleet’. See also Petersen, supra note 2; G. van Santen et al., Working Apart or Together: The Case for a Common Approach to Management of Tuna Resources in Exclusive Economic Zones of Pacific Island Countries (Washington DC: World Bank, 2000).
39 Parris and Grafton, supra note 4, p. 270.
40 Petersen, supra note 2, p. 37.
41 For example: Fisheries Act (Marshall Islands), Fisheries Act (Fiji), Fisheries Act 1988 (Samoa), Fisheries Act 1997 (Nauru), Fisheries Act 2005 (Vanuatu), Fisheries Management Act 1998 (Papua New Guinea), Fisheries Management Act 2002 (Tonga), Fisheries Ordinance (Kiribati), Fisheries Ordinance (Tuvalu), Marine Resources Act 1989 (Cook Islands), Marine Resources Act 2002 (Federated States of Micronesia).
42 B. Boer, R. Ramsay, and D. Rothwell, Regional Environment Issues and Responses, in International Environmental Law in the Asia-Pacific (London: Kluwer Law International, 1998), p. 58. Regional membership of the Convention, as of 5 March 2007, included Australia, Cook Islands, Fiji, France, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. Source: www.un.org/Depts/los/reference_files/status2006.pdf
43 United Nations Convention on the Law of the Sea, Art. 55–75.
44 Scharmann, supra note 29, p. 313.
45 United Nations Convention on the Law of the Sea, Art. 56, 61–2.
46 Ibid., Art. 73.
47 Ibid., Art. 61–2.
48 M.J. Picard, International Law of Fisheries and Small Developing States: A Call for the Recognition of Regional Hegemony, Texas International Law Journal, vol. 31, no. 2 (1996), p. 323.
50 United Nations Convention on the Law of the Sea, Art. 197.
51 Ibid., Art. 63–4.
52 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 December 1995, UN Doc. A/CONF. 164/33 (1995) 34 International Legal Materials 1542.
53 K. Hopfl, Go Fish! Individual Transferable Quotas and International Possibilities in the South Pacific, Colorado Journal of International Environmental Law and Policy, vol. 8, no. 1 (1997), p. 155.
54 UN Fish Stocks Agreement, Art. 2.
55 Regional membership of the agreement, as at 24 April 2008, included Australia, Cook Islands, Fiji, France, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga. See www.un.org/depts/los/reference_files/status2008.pdf. Tuvalu and Vanuatu had not yet ratified the agreement.
56 UN Fish Stocks Agreement, Art. 5.
57 Ibid., Art. 8. See Picard, supra note 48, p. 340.
58 UN Fish Stocks Agreement, Art. 8.
59 Ibid., Art. 17.
60 Ibid., Art. 8.
61 Ibid., Art. 9–12, 17, 19–23.
62 Ibid., Art. 27–30.
63 M. Lodge, New Approaches to Fisheries Enforcement, Review of European Community and International Environmental Law, vol. 2, no. 3 (1993), p. 278.
64 Opened for signature 10 July 1979 in Honiara, Solomon Islands. Entered into force 9 August 1979.
65 Declaration on the Law of the Sea and a Regional Fisheries Agency, 8th South Pacific Forum, Port Moresby, August 1977. The South Pacific Forum comprises the Heads of Government of the independent states in the South Pacific. Membership of the Forum has expanded from 12 to 17 since its establishment in 1971 and now includes Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, and Vanuatu.
66 F. Gubon, History and Role of the Forum Fisheries Agency, in D.J. Doulman (ed.), Tuna Issues and Perspectives in the Pacific Islands Region (Honolulu: East-West Centre, 1987).
67 South Pacific Forum Fisheries Agency Convention, Preamble.
68 Ibid., Preamble, Art. III, VII.
69 Ibid., Art. V.
70 Hopfl, supra note 53, p. 156; C. Hedley, Forum Fisheries Agency, Guide to International Fisheries Law, 2001, at www.oceanlaw.net/orgs/ffa.htm, accessed 28 February 2007.
71 South Pacific Forum Fisheries Agency Convention, Art. VII. For information about the Forum Fisheries Agency, see www.ffa.int
72 Lodge, supra note 63, p. 278.
73 Hopfl, supra note 53, p. 157. See also B.M. Tsamenyi, The South Pacific States, the USA and Sovereignty Over Highly Migratory Species, Marine Policy, vol. 10, no. 1 (1986), p. 30.
74 W. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond, Oxford Monographs in International Law (New York: Oxford University Press USA, 1994), p. 205.
75 Hopfl, supra note 53, p. 157.
76 G. Waugh, Development, Economics and Fishing Rights in the South Pacific Tuna Fishery, in P. Neher, R. Arnason, and N. Mollet (eds.), Rights Based Fishing (New York: Springer-Verlag, 1989), p. 323. The Federated States of Micronesia also seized two US vessels, the Ocean Pearl and Pracilla M.
77 Hopfl, supra note 53, p. 157.
78 US Fisheries Treaty, Preamble.
79 Ibid., Arts. 2–6.
80 Bostwick, supra note 12, pp. 911–912.
81 Ibid., p. 911. See also: Forum Fisheries Agency, Pacific Islands Treaty on Fisheries with USA, South Pacific Forum Fisheries Agency News Digest, May-June 1992, p. 1.
82 A. Bergin, Political and Legal Control over Marine Living Resources – Recent Developments in South Pacific Distant Water Fishing, The International Journal of Marine and Coastal Law, vol. 9, no. 3 (1994), pp. 297–298.
83 Ibid., pp. 297–298.
84 T. Aqorau, Tuna Fisheries Management in the Western and Central Pacific Ocean: A Critical Analysis of the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean and Its Implications for the Pacific Island States, The International Journal of Marine and Coastal Law, vol. 16, no. 3 (2001), p. 397; United Nations Convention on the Law of the Sea, Art. 63–4; UN Fish Stocks Agreement, Art. 8.
85 South Pacific Forum Fisheries Agency Convention, Art. III.
86 Internet Guide to International Fisheries Law, www.intfish.net/treaties/summaries/3141.htm, accessed 5 January 2007. See also: L. Cordonnery, A Note on the 2000 Convention for the Conservation and Management of Tuna in the Western and Central Pacific Ocean, Ocean Development and International Law, vol. 33, no. 1 (2002), pp. 3–4.
87 M. Lodge, The Practice of Fishing Entities in Regional Fisheries Management Organizations: The Case of the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Ocean Development and International Law, vol. 37, no. 2 (2006), p. 186.
88 WCPO Convention, Art. 2.
89 As at 18 November 2005, state parties included Australia, Canada, China, Cook Islands, European Community, Federated States of Micronesia, Fiji, France (inc. French Polynesia, New Caledonia, and Wallis and Futuna), Indonesia, Japan, Kiribati, South Korea, Marshall Islands, Nauru, New Zealand (inc. Tokelau), Niue, Palau, Papua New Guinea, Philippines, Samoa, Tonga, Tuvalu, United Kingdom (inc. Pitcairn Island), the United States, and Vanuatu. Taiwan entered into the agreement as a ‘participating fishing entity’ at the insistence of China. Indonesia is involved as a co-operating non-party.
90 WCPO Convention, Art. 10. The functions of the Commission are discussed in more detail below.
91 Lodge, supra note 87, p.196. See also: WCPF Convention, Art. 2, 4.
92 Convention for the Establishment of an Inter-American Tropical Tuna Commission, 31 May 1949. In force 3 March 1950.
93 International Convention for the Conservation and Management of Atlantic Tunas, 14 May 1966. In force 21 March 1969.
94 Convention for the Conservation of Southern Bluefin Tuna, 10 May 1993. In force 20 May 1994.
95 Agreement for the Establishment of the Indian Ocean Tuna Commission, 20 November 1993. In force 27 March 1996.
96 Lodge, supra note 87, p. 186.
97 WCPO Convention, Art. 5. See also Art. 6 re application of precautionary approach.
98 Ibid., Art. 8.
99 Ibid., Art. 24.
100 Ibid., Art. 25, 28, 29.
101 Ibid., Art. 31.
102 Ibid., Art. 21. See also Rule 36, Western and Central Pacific Fisheries Commission (WCPFC) Rules of Procedure.
103 M. Hyndman, South Pacific Forum Fisheries Agency: Benefits and Costs, Working Paper No. 4, in R. Grynberg et al., Toward a New Pacific Regionalism (Manila, Philippines: Asian Development Bank-Commonwealth Secretariat, 2005), p. 5.
104 Bostwick, supra note 12, p. 910.
105 Petersen, supra note 2, pp. 133–134.
106 Bostwick, supra note 12, pp. 910, 912–913.
107 J. Veitayaki, The Peaceful Management of Transboundary Resources in the South Pacific, in Blake et al., supra note 2, p. 497.
108 Cordonnery, supra note 14. See also SPC Web site, at www.spc.int; SPREP Web site, at www.sprep.org; SOPAC Web site, at www.sopac.org; and USP Web site, at www.usp.ac.fj
109 South Pacific Forum Fisheries Agency Convention, Art. V.
110 Aqorau, supra note 84, p. 396.
111 Bostwick, supra note 12, p. 903.
112 South Pacific Forum Fisheries Agency Convention, Art. VII. See also: Forum Fisheries Agency website, www.ffa.int
113 Hyndman, supra note 103, p. 3.
114 Ibid., p. 4.
115 Bostwick, supra note 12, p. 908.
116 Lodge, supra note 63, p. 280.
117 Bergin, supra note 82, p. 304. For example, 12 vessels from Japan, South Korea, and Taiwan were removed from the register in 1992, and two Japanese longliners were suspended at the request of Australia, pending the outcome of court proceedings. In the same year, Nauru received a US$1 million settlement from a Korean firm to reinstate six Korean vessels and US$150,000 to reinstate two Taiwanese vessels, all observed fishing unlawfully within Nauru's EEZ.
118 Cordonnery, supra note 86, p. 3.
119 Hopfl, supra note 53, p. 143.
120 Ibid., Art. 10.
121 Ibid., Art. 20, 31
122 Ibid., Art. 12.
123 Ibid., Art. 14.
124 Q. Hanich, Western and Central Pacific Fisheries Commission: Roles, Functions, Committees, Working Groups and Observers, NGO and Civil Society Workshop on Oceanic Fisheries Management, Suva, Fiji, 24–25 April 2007.
125 WCPO Convention, Art. 5.
126 P. Ward et al., Science Arrangements for the Regional Management of Tuna Fisheries, Marine Policy, vol. 24, no. 2 (2000), p. 93.
127 WCPFC, Report of the First Regular Session of the Scientific Committee, Noumea, New Caledonia, 8–19 August 2005, pp. 33–34.
128 WCPFC, Conservation and Management Measures for Bigeye and Yellowfin Tuna, 2005, CCM 2005-01.
129 WCPFC, Press Release: Major Tuna Conference Concludes in Pohnpei, 16 December 2005, at www.wcpfc.int/press/Comm2_press_release.pdf
130 WCPFC, Report of the Second Regular Session of the Scientific Committee, Manila, Philippines, 7–18 August 2006, pp. 3,7. Maintaining biomass above BMSY would be consistent with the Commission members' obligation to apply the precautionary approach to conservation and management decisions: WCPO Convention, Art. 5.
131 WCPFC, supra note 128.
132 A. Willock and M. Lack, Follow the Leader: Learning from Experience and Best Practice in Regional Fisheries Management Organizations (Gland, Switzerland, and Sydney, Australia: WWF International and TRAFFIC International, 2006). [Link]
133 A. Willock and I. Cartwright, Conservation Implications of Allocation under the Western and Central Pacific Fisheries Commission (Sydney, Australia: WWF Australia and TRAFFIC Oceania, 2006), p. 8. [Link]
134 WCPFC, supra note 129.
135 Willock and Cartwright, supra note 133, p. 8.
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