APPENDIX I

The Implementation of the 1995 FAO Code of Conduct for Responsible Fisheries in the Pacific Islands

Barbara Hanchard^[53]

ABSTRACT

The development of the 1995 FAO Code of Conduct for Responsible Fisheries was fundamentally a global response to the progressively failing state of many of fisheries the world over. The Code provides the global community with a framework of principles, goals and elements for action with which to implement responsible fisheries policies and legislation based on conservation, management and development of living marine resources, taking into account the ecosystem and biodiversity. The Code covers principles and standards not only for the conservation and management of fisheries per se but also all aspects of fisheries including capture, processing and trade of fish and fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management.

This paper is divided into two sections. The first provides a brief overview of the Code itself and its development. The second section presents the developments in fisheries management in the western and central Pacific, which give effect to the Code of Conduct for Responsible Fisheries and other international fisheries agreements that provide principles and international standards for the conservation, management and development of living aquatic resources in the region. This section focuses on the fisheries management initiatives in the region which have been developed consistent with the principles that the Code of Conduct, and other international instruments but does not include comment on other provisions in the Code such as those relating to aquaculture development, integration of fisheries into coastal area management, post harvest practices and trade and fisheries research.

OVERVIEW OF THE DEVELOPMENT OF THE CODE OF CONDUCT

Fisheries activities have since early times been a major food source for the world's population and have provided employment and economic benefits to fishers worldwide. In recent years it has become clear that while fisheries resources are considered renewable, they are not infinite and need to be responsibly managed if future generations are to benefit in a similar manner as those today enjoy.

Clear signs of over-exploitation of major fish stocks, modifications to ecosystems, significant economic losses, and international conflicts on management and fish trade, have up until the late 1980s significantly threatened the long-term sustainability of fisheries and the contribution of fisheries to food supply. Many of the worlds fisheries are considered fully exploited, over-exploited, depleted or in need of recovery and are affected by environmental degradation.

At the beginning of the 1990s it was recognized that new approaches to fisheries management needed to be urgently developed which would take into consideration conservation, and environmental, as well as social and economic aspects of fisheries. This included the recognition that fisheries on the high seas also presented a challenge for effective fisheries management. The nineteenth session of the FAO Committee on Fisheries (COFI) held in March 1991 called for new concepts that would lead to responsible fisheries and the development of a Code of Conduct to foster its application. The International Conference on Responsible Fisheries held in Cancun, Mexico in 1992 reinforced the need to develop an international Code of Conduct for Responsible Fisheries and resulted in a Declaration^[54] that expressed among other things:

• The vital need for fishing to continue and develop within a comprehensive and balanced system under the concept of "responsible fishing"; and

• That this concept encompasses the sustainable utilization of fisheries resources in harmony with the environment...........".

The Cancun meeting resulted in the agreement that FAO would be responsible for drafting an international Code of Conduct, which took into account all the matters on responsible fishing expressed in the resulting Declaration. Subsequently, the outcomes from the Cancun meeting, including the Declaration, provided an important contribution to the 1992 United Nations Conference on Environment and Development (UNCED), otherwise known as the "Earth Summit" held in Rio de Janeiro, Brazil.

From the Earth Summit, Agenda 21^[55] of the Rio Declaration provides a comprehensive global plan of action and sets out the principles for sustainable management, with the underpinning premise that, environmental protection constitutes an integral part of the development process for the use of renewable resources. Importantly for fisheries management, Chapter 17 of the plan of action (Agenda 21),

"sets forth rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources."

The programme of action in Chapter 17 and in other sections of Agenda 21 provides the basis for long-term sustainable management, including the precautionary approach^[56]. This agenda is responsible for the inclusion of these concepts in a number of other international instruments.

The Rio Declaration also takes into account the special needs and environmental vulnerability of developing countries and least developed countries. In according them special priority, the global community recognized that the ability of developing countries to fulfill the objectives set out in the plan of action is dependent upon their capabilities, including financial, scientific and technological means at their disposal. Further the Declaration specifies that support will be needed to enhance developing countries capacities to participate effectively in the conservation and sustainable use of marine living resources, both under their jurisdictions and on the high seas.

Over the last two decades a number of developments in fisheries have resulted in outcomes, which reflect common agreements about the sustainable use of the worlds aquatic marine resources. Some of which are mentioned above. Figure 1 depicts a time sequence of significant developments relating to responsible fisheries, including the 1995 FAO Code of Conduct.

WHAT THE CODE IS TRYING TO ACHIEVE

The overall objective^[57] of the 1995 FAO Code of Conduct for Responsible Fisheries is "responsible fisheries" and those considered responsible are all those concerned with the fisheries sector such as governments, fishers, processors, consumers and other stakeholders.^[58] The Code reinforces the moral obligation of those engaged in fisheries to behave in a responsible manner. This ensures effective conservation and management of living aquatic resources. Fisheries stakeholders must now be answerable and accountable not only for the biological aspects of fisheries but also the technological, economic, social, environmental and commercial aspects as well.

Although the Code is not binding in international law, it has become an important reference point for giving practical application to the concept of responsible fishing. Therefore it still is to be interpreted and applied in a manner consistent with relevant rules of international law such as the United Nations Convention on the Law of the Sea of 10 December 1982 (LOSC). Also some parts are replicated in legal binding instruments such as the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993 and more specifically the Agreement for the Implementation of the Provisions of the United Nations Convention on Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement).

Similar to the Rio Declaration, the Code recognizes the limitations of developing countries to implement effective conservation and management schemes consistent with the Code's objectives and principles. Article 5 of the Code makes provision for relevant established organizations and institutions to,

"give full recognition to the special circumstances and requirements of developing States, including in particular the least developed among them, and small island developing countries."

Further, Article 5 also provides that,

"States, relevant intergovernmental and non-governmental organizations and financial institutions should work for the adoption of measures to address the needs of developing countries, especially in the areas of financial and technical assistance, technology transfer, training and scientific cooperation and in enhancing their ability to develop their own fisheries as well as to participate in high seas fisheries, including access to such fisheries."

The core principles of the Code aim to promote responsible fishing in a broad manner by seeking to:

• maintain the quality, diversity and availability of fishery resources for present and future generations;

• prevent overfishing and excess fishing capacity;

• ensure the conservation of not only target species but also associated and dependent species belonging to the same ecosystem;

• prevent the degradation of fisheries habitats in marine and fresh water ecosystems with attention to the integration in coastal zone management;

• ensure that in the absence of best scientific information, the application of the precautionary approach is imperative;

• eliminate the use of non-selective and environmentally unsound fishing gear;

• promote the research and the collection of data in order to improve fisheries knowledge;

• encourage States to employ effective control over vessels that fly their flag;

• facilitate effective participation by all stakeholders in decision-making in relation to determining conservation and management policies and laws;

• make the trade of fish and fisheries products consistent with relevant international agreements, including the World Trade Organisation Agreement and should not result in environmental degradation or negative social impacts;

• maintain safe and healthy fisheries work environments and food quality controls in the processing and distribution of fisheries products; and

• consider aquaculture and culture-based fisheries with minimal environmental impacts as a diversification for income and diet.

FAO has also produced a series of technical guides with which to facilitate the practical application of the principles of the Code and a number of International Plans of Action addressing specific issues of fisheries management concerns: on illegal, unreported and unregulated (IUU) fishing, incidental catch of seabirds in the longline fishery, fishing capacity and the conservation and management of sharks. The plans of action are for all intents and purposes considered part and parcel of the Code in that they serve to ensure responsible fisheries on fisheries specific issues.

Article 7 of the Code outlines the principles and concepts of fisheries management. It requires States and all those involved in fisheries management to establish appropriate policy, legal and institutional frameworks with which to put in place measures which will ensure the long term sustainable use of the fisheries resources. These measures must be based on the best scientific advice so that optimum utilization occurs, at the same time the resources are maintained for present and future generations.

The following section discusses the selective application in the western and central Pacific of fisheries management initiatives and arrangements that are consistent with the principles set out in the Code. While the Code encompasses responsible fishing with regard to all living marine resources, the remaining discussion in the context of the western and central Pacific relates mainly to the measures and arrangements both currently in place and in the process of being developed for the region's tuna resources.

THE APPLICATION OF CONCEPTS FOR RESPONSIBLE FISHING IN THE WESTERN AND CENTRAL PACIFIC

The Code of Conduct is a complex and comprehensive approach to fishing that will be challenging to implement for many involved in the world's fisheries. The principles of the Code are the new norms of responsible fishing and because of their complexity and the varying capacity amongst States, comprehensive application cannot be expected to be simultaneous. The implementation of the measures to promote responsible fishing is a major challenge for most countries and in the western and central Pacific this is particularly so for the small island developing States for which resources and capacity are limited. However, a significant advantage in the Pacific region is that, not withstanding national interests, regional cooperation in the fisheries sector is well developed.

This is evident in the establishment and participation of a number of regional organizations that work collectively on fisheries resource issues for Pacific member countries. For this purpose, the Secretariat for the Pacific Community (SPC), Forum Fisheries Agency (FFA) and South Pacific Regional Environment Programme (SPREP) work in partnership with their membership to strengthen the capacity of Pacific Island members to manage their own fisheries resources and marine environments. Well developed cooperation and coordination in the fisheries sector is also evident in the number of regional and sub-regional fisheries management agreements that are in place in the Pacific region, details of which will be discussed later in this section.

Tuna resources of the Western and Central Pacific

It is widely recognized that fish and fishing, particularly the tuna fishery, are very important to the people of the Pacific islands, certainly in terms of nutrition, culture, national revenues and employment.

Tuna resources in the western and central Pacific are considered to support the largest sustainable tuna fishery in the world with a landed catch averaging over a million metric tonnes per annum and the most significant fishery economically in the Pacific region. The Pacific region tuna fishery supplies a third of the all the world's tuna and 60 per cent of all canned tuna. The key commercial tuna stocks are skipjack (Katsuwonus pelamis), yellowfin (Thunnus albacares), bigeye (Thunnus obesus) and South Pacific albacore (Thunnus alalunga). With the exception of bigeye and yellowfin for which there is some doubt, the stocks are considered to be healthy. The annual value of the catch is currently estimated to be US $1.9 billion (Gillet, McCoy, Rodwell and Tamate, 2001). Fees for foreign access to fish for tuna in the EEZs of Pacific island countries was estimated in 1999 to be US $60.3 million.

These returns are often crucial components of government revenues, particularly for the smaller countries such as Kiribati and Tuvalu, which have few natural resources other than tuna.

Tuna has both significant economic and nutritional importance to the region. The dependence of Pacific countries on the tuna resources as food supply is notable, with tuna making up a substantial proportion of all fish consumed in the region. It forms a substantial part of artisanal and subsistence fisheries, and in terms of volume is the most important fish taken in small scale fisheries in the Pacific according to Gillett et al. (2001). The contribution of tuna to the food security of the region is enormous. Another important economic benefit from the tuna resources to Pacific island countries is the fact that most formal employment in Pacific fisheries is tuna related^[59].

Fisheries management in the Western and Central Pacific

The Convention that established the FFA^[60] was concluded in July 1979 and was a response by Pacific Island sovereign States to challenges faced as a result of the extension of the maritime jurisdictions under LOS. The extension of the maritime zone to 200 miles placed management and conservation obligations on Pacific Island States and required them to manage the tuna resources in these zones in a responsible manner. Although Pacific Island countries decided at the time of formation to confine membership of the FFA to members of the South Pacific Forum and other territories in the region on approval, they have always recognised the requirement to cooperate with distant water fishing nations (DWFNs) operating in the region^[61], either directly or through an appropriate international organization as an obligation required by the LOS; an obligation which has also since been reinforced in the UN Fish Stock Agreement.

By establishing the FFA, Pacific Island States have long since recognised their obligations to ensure the conservation of living marine resources in zones under their jurisdiction and their sovereign rights to manage, explore and exploit those resources. The role and work of the FFA supports responsible fisheries. The objectives of the FFA as a whole works towards consultation and coordination with regards to harmonising policies on fisheries management, relations with foreign fishing partners, surveillance and enforcement, onshore fish processing, marketing and cooperation in respect of access to the EEZs of other Parties.

The FFA Convention places significant emphasis on science and information based management in that there is a requirement to:

(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; and

(e) seek to establish working arrangements with relevant regional and international organizations, particularly the South Pacific Commission.

The industrial harvest of the tuna resources in the Pacific region is dominated by the fleets of DWFNs that, fish both on the high seas and in the exclusive economic zones (EEZs) of Pacific Island countries under access agreements. Over the years developing States in the Pacific region have been able to coordinate and harmonize fairly successfully their access arrangements with DWFNs that target tuna in their EEZs.

There are varying degrees of tuna related fishing activity across the Pacific region and the industrial catch is traditionally taken by the fishing methods of purse seining, longlining and to a lesser degree by pole-and-line vessels. The purse seine fishery is concentrated in the western part of the Pacific region and occurs mainly in the EEZs of a number of Pacific countries, which have formalized their association as a sub regional group resulting in the Nauru Agreement. The Parties to the Nauru Agreement^[62], and the founding instrument itself, is exemplary of efforts in the Pacific region to coordinate and harmonize the management of common fisheries with elements of responsible fishing.

There are also a number of other regional adopted instruments that, one, display the level of coordination in fisheries management across the Pacific region exists, and two, implement significant aspects of the Code of Conduct in the Pacific region. Generally, the purposes of these instruments are to strengthen the conservation and management of shared fisheries in the region and to facilitate the development of arrangements that ensure long-term sustainable fisheries.

Regional instruments for the management of shared fisheries^[63]

Nauru Agreement

The Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest (the Nauru Agreement) was signed in February 1982. The signatories to this agreement are commonly known as PNA (Parties to the Nauru Agreement) and the membership includes, Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands and Tuvalu.

In the collective EEZs of this sub group of FFA members, a large proportion of the region's tuna stocks^[64] can be found and historically these countries recognised the need to consolidate their approaches to arrangements with their DWFNs partners. The PNA has for the past two decades sought to coordinate management measures with regard to common fisheries stocks for greater economic benefit. In this way regional cooperation has been able to facilitate reasonable financial returns from their access agreements with DWFN partners for the PNA countries. Through their agreement, the PNA countries have established Harmonised Terms and Conditions for access by DWFNs to their zones and granted preferential access to vessels of the Parties so as to encourage domestic fishing industries.

Policies and approaches developed within the PNA group such as the Minimum Terms and Conditions (MTCs)^[65] for access have gained over the years broader acceptance and endorsement in the region by the total FFA membership. The regional Harmonised Terms and Conditions for Foreign Fishing Vessel Access are on occasion amended by the Forum Fisheries Committee (FFC) to take into account developments in management measures in the region.

The Code of Conduct reaffirms the use of the best scientific evidence available when making decisions about conservation and management measures for fishery resources and calls for the timely, complete and reliable collection of statistics on catch and fishing effort (Article 7.4.4). Tsamenyi (2002) concludes that the Nauru Agreement and its implementing Arrangements provide a framework to generate information and implement procedures in support of science-based responsible fishing. The Agreement also establishes procedures for the exchange and analysis of information relating to vessel specifications and fleet composition in addition to catch and effort by fishing vessels.^[66]

In a recent review of the Nauru Agreement, the Parties have decided to take steps towards improving the robustness of the instrument. The Parties now seek to develop and adopt an additional implementing arrangement with which to establish new terms and conditions for access by fishing States as a way of ensuring compliance with the new more sophisticated Western and Central Pacific Tuna Convention (this will be discussed in full later in the paper) and also be applicable to domestic vessels. By extending the existing minimum terms and conditions of access to domestic vessels, an attempt is being made to ensure compatibility (especially in catch reporting) within the convention area. While the aims and principles of the Nauru Agreement are still pertinent, consideration is being given to amending this Agreement to reflect broader management objectives including issues related to conservation and resource sustainability.

Wellington Convention

This regional Convention came into effect when large-scale pelagic driftnet fishing by the fleets of Japan, Korea and Taiwan in the mid to late 1980s became an issue and at the same time responded to international concern about the impact of these types of nets. The regional fleets concerned would fish with driftnets of up to 60 km in some instances, in a non-selective manner and with an unknown impact on both the marine environment and the fish stocks. By giving effect to this Convention, the region recognized the need to exercise precaution and the ban on the use of driftnets. This can be considered an early example of the precautionary approach to fishing as advocated in the Code of Conduct and other international instruments.

The 1991 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (Wellington Convention) was signed in November 1989 and came into force in May 1991 binding its signatories into placing a moratorium on the use of driftnets in the Convention area defined in the instrument. Parties to this agreement undertook to:

• prevent their nationals and vessels from using driftnets,
• prevent drift netting in areas under their jurisdiction;
• prohibit the transhipment, landing, processing, importation of catch caught with driftnets;
• prohibit the possession of driftnets in their jurisdictions and
• restrict port access and facilities to driftnet vessels.

The Convention has two supporting protocols. These also provide for procedures that are consistent with responsible fishing, including the development of conservation and management measures for South Pacific albacore tuna within the Convention area^[67]

Niue Treaty

The 1992 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (Niue Treaty) was opened for signature in July 1992 and entered into force in May 1993.

Although it has no direct reference to science based aspects of responsible fishing, the Niue Treaty does promote intra regional coordination and cooperation in fisheries surveillance and law enforcement and represents international best practice with respect to monitoring control and surveillance.

The purpose of the Treaty is to coordinate and cooperate in matters of monitoring, control and surveillance. Parties to this Treaty have agreed to develop regionally agreed procedures for the conduct of fisheries surveillance and law enforcement and cooperate in the enforcement of their fisheries laws and regulations. In this regard the Parties to this Treaty have agreed to:

• general cooperation and consultation;
• cooperate in the implementation of the regional Harmonised Minimum Terms and Conditions;
• exchange information relevant to the Treaty (e.g. foreign fishing vessel details);
• cooperate in fisheries surveillance and law enforcement; and
• cooperate in prosecution and enforcement of penalties;

Of note, within this Treaty is the provision (Article VII) by Subsidiary Agreement for Parties to exchange physical platforms (personnel and the use of vessels and aircrafts) for effective law enforcement. Provided a Subsidiary Agreement is in place, illegal fishing in EEZ of one Party can be pursued into the EEZ of another and the offending vessel operators prosecuted in the legal systems of the reciprocal Parties to the Subsidiary Agreement.

The Treaty provides a great opportunity for small Pacific island States to pool resources to improve MCS in the region, reduce illegal fishing and exchange information to make control measures effective. However, to date only one Subsidiary Agreement has been signed, that between the Federated States of Micronesia, Marshall Islands and Palau.

Palau Arrangement

Having entered into force in November 1995, the 1992 Palau Arrangement for the Management of Purse Seine Fisheries in the Western Pacific (Palau Arrangement) was first opened for signature in October 1992. The entry into force of the Palau Arrangement was dependent upon the signatures of Federated States of Micronesia, Papua New Guinea and Kiribati, along with two others. This was because a large proportion of the purse seine activity and catch occurs in the EEZs of these three countries. This is still relevant today, as mentioned before in 1999, 98 per cent of the tuna caught in the region was in the EEZs of PNA countries. Of this 70 per cent was taken in the EEZs of Federated States of Micronesia, Papua New Guinea and Kiribati (Gillet et al, 2001). Other Parties to this Arrangement also include Nauru, Palau, Marshall Islands, Solomon Islands and Tuvalu.

The Arrangement provides for the needs of PNA and is principally to facilitate formal cooperation relating to the number of licenses issued to purse seine vessels by individual fleet that are allowed to fish in the EEZs of PNA countries. It is a prescriptive means to restrict the number of purse seiners operating in the region and currently imposes a ceiling of 205 vessels. Substantial progress is being made to amend the Arrangement to implement a system of allocating total fishing days to the Parties so each Party will be free to licence whom they wish within a limit of the total days available. This mechanism will help regulate the amount of effort as measured by fishing days applied to the purse seine fishery.

The substantive provisions of this Arrangement are to do with licensing allocations and monitoring control and surveillance arrangements consistent with responsible fisheries. However, the Arrangement focuses more on allocating resources between and amongst the Parties and according to recent studies, the Arrangement should use science and information based approaches. With this in mind there is no reference in the Agreement to the use of science and information based methods. Despite this aspect of the Agreement the broad principles of responsible fishing are enshrined in the preamble as follows:

"RECOGNIZING that in order to ensure sustained conservation of living resources both within and beyond the exclusive economic zone, fisheries management regimes must effectively maintain the ecological relationship between dependent and associated populations, prevent any decrease in the size of the harvested populations below those necessary to ensure their stable recruitment, and avoid adverse impacts upon the marine environment and further recognizing that in order to ensure conservation and promote optimum utilization of living resources fishing must be carried out only on the basis of ecologically sound practices, effectively monitored and enforced;"

Federated States of Micronesia Arrangement

The 1994 Federated States of Micronesia Arrangement for Regional Access commonly known as the FSM Arrangement, entered into force in September 1995 thirty days after receipt of the final signatures of Federated States of Micronesia, Papua New Guinea and Kiribati. The Arrangement was opened for signature in November 1994. The Parties to this Arrangement also include Marshall Islands, Nauru, Solomon Islands and Palau.

The Arrangement allows preferential access to the EEZs of the Parties for genuine domestic vessels of the Parties. The administrator, which is the Director of FFA, keeps a Register of Eligible Fishing Vessels and once vessels are on the register they are entitled to make an application for a FSM Arrangement fishing licence. This entitles the licence holder to be able to fish in the Arrangement area, which is defined as the EEZs or fisheries zones of the Parties but excludes specified closed areas.

The primary objective of the FSM Arrangement is to secure maximum sustainable economic benefits from the tuna resources for the Parties. It also encourages greater participation by nationals of the Parties in the fishery, and the development of domestic fishing industries. A comprehensive licensing regime is employed in this Arrangement, which also sets out criteria for eligibility based on a minimum points system that vessels must comply with. Eligibility criteria are based on equity, local operations involved, vessel flagging, local purchases, onshore investment, and nationals of the Parties employed either on fishing vessels or in the local enterprise.

Science based information for management purposes are not explicit in the FSM Arrangement but there is scope for its inclusion in future review processes. Tuna is the only fish that can be taken using these licences, but allowances are made for incidental by-catch associated with the fishery. Although there is an absence of science based management instructions, the FSM Arrangement does provide a well-tailored system of control for the eligible vessels and in this regard supports responsible fishing. Links within the FSM Arrangement are made with both features of the MTCs as stated in the Nauru Agreement and the possibility of joint surveillance as prescribed in the Niue Treaty. An important feature of this system of control is the provision made for Port State Enforcement in which port inspections of documents and catch can be carried out.

In recent years, the Arrangement has become an attractive means of securing a licence for those vessels that cannot be licensed within the framework of the Palau Arrangement. This has posed a number of problems regarding the genuineness of the vessels that are using the FSM Arrangement licences as a means to seek preferential access. To help combat this a task force review strongly supported the use of a process of an independent review of vessels where there is some doubt as to whether the criteria for eligibility are being met or not.

Western and Central Pacific Fisheries Convention

In legal terms the 2000 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Tuna Convention) can be characterised as part of the process of progressive development of international law within the framework of the 1982 LOSC and its implementing agreement the 1995 UN Fish Stock Agreement. According to Aqorau (2001), the Western and Central Pacific Fisheries Convention (WCPTC) represents a new threshold in international tuna management as it builds on the principles in the Fish Stocks Agreement.

One of the last major fisheries^[68] not subject to international regulation, is the tuna fishery in the western and central Pacific. This will change now that the WCPTC has been concluded and arrangements become fully operational. The coastal FFA States initiated in 1994 the Multilateral High Level Conferences (MHLC^[69]), which were a process of negotiation with other States that have an interest in the region's tuna fishery and cumulated in the conclusion of the WCPTC in September 2000 at Hawaii. New Zealand is the depository for this Convention and to date all FFA members are signatories with the exception of Kiribati, Papua New Guinea and Tokelau^[70], although Papua New Guinea has ratified the Convention with four other FFA members.

The Western and Central Pacific Tuna Convention's objective is to ensure, through effective management, the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean in accordance with the 1982 LOSC and the UN Fish Stocks Agreement. The major principles and measures^[71] of the WCPT Convention include:

• adoption of measures to ensure long-term sustainability of highly migratory fish stocks in the Convention Area and promote their optimum utilization;

• ensuring 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, as qualified by relevant environmental and economic factors. This includes the special requirements of developing States in the Convention Area, particularly small island developing States, and takes into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;

• application of the precautionary approach in accordance with the Convention and all relevant internationally agreed standards and recommended practices and procedures;

• assessing the impacts of fishing, other human activities and environmental factors on target stocks, non-targeted species, the species belonging to the same eco-system or dependent upon or associated with the target stocks;

• adopting measures to minimize waste, discards, catch by lost or abandoned gear, pollution originating from fishing vessels, catch of non-target species and non-fish species, (hereinafter referred to as "non-target species") and impacts on associated or dependent species, in particular endangered species, and development of selective, environmentally safe and cost effective fishing gear and techniques;

• protection of the biodiversity of the marine environment.

• take measures to prevent or eliminate over-fishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources;

• take into account the interests of artisanal and subsistence fishers;

• collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species and fishing effort, as well as information from national and international research programmes; and

• implement and enforce conservation and management measures through effective monitoring, control and surveillance.

The WCPTC obligates parties to the Convention to apply the guidelines for the precautionary approach as set out in the UN Fish Stocks Agreement but places the onus on the Parties to the Convention rather than the Commission^[72] to apply the principles of the precautionary approach.

Participation in the WCPTC presents many challenges for Pacific Island coastal States. This Convention and other relevant international instruments recognise that the responsibilities that come with responsible fishing are extremely great and that in many cases may be beyond the capacities of the Pacific Island States acting alone. The WCPTC has application to all species of highly migratory fish stocks (except sauries) across their range, which takes into account both the high seas areas and those under national jurisdiction. However, there are areas of the WCPTC, which are open to interpretation including the competence that the Commission will have in regulating EEZs at the moment. This will have implications for the implementation of allocation measures for total allowable catches, particularly if you consider the principle that coastal States have the sovereign right over fisheries resources in their EEZs. This issue and other areas of ambiguity will no doubt be addressed as the mechanism for the fisheries management arrangement in the western and central Pacific becomes fully operational. As acknowledged by Aqorau (2001), "the conclusion of the WCPTC is only the beginning of new challenges for Pacific Island States. Its implementation, however, should augur well for the health of the tuna resources in the region."

Other considerations, including compliance mechanisms in the Western and Central Pacific in support of responsible fisheries

A number of other considerations in place in the western and central Pacific lend weight to the emerging concepts of responsible fisheries. The previously mentioned, regionally accepted MTCs have on occasion been updated, as recently as May 2003, to better reflect current operating conditions and requirements imposed by Pacific coastal States on DWFNs. Recent improvements include the requirement for foreign fishing vessels seeking access to the EEZs of FFA members to be in good standing on both the Regional Register of Foreign Fishing Vessels and the FFA member's Vessel Monitoring System (FFA VMS) Register, both of which are administered by the FFA Secretariat. Other amendments include:

• an updated by-catch definition;

• vessel reporting requirements and the need to provide landing and out-turn documentation;

• in relation to observers, the requirement for licensing countries to achieve no less than 20 per cent coverage of foreign vessels fishing in their zones;

• the requirement to take measures through legislation and regulation to exercise Port State enforcement;

• further provide the requirement to clearly mark and identify fish aggregating devices and determine where it is deployed; and

• the issuing of fishing licences dependent upon compulsory pre-fishing inspections.

These regionally accepted standards for access are on the whole implemented and used in all access agreements that FFA countries enter into.

The Code of Conduct in Article 7.1.7 of the general provision for fisheries management provides that "States should establish, within their respective competences and capacities effective mechanisms for fisheries monitoring, surveillance, control and enforcement to ensure compliance with their conservation and management measures......." A number of regional compliance arrangements have long been established in the western and central Pacific with some success. It remains to be seen the degree of which the existing arrangements will be absorbed by the broader management arrangements required for the new Commission and the high seas areas under its management. The following are descriptions of registers and observer programmes operating in the region.

Regional Register of fishing vessels

The South Pacific Forum Fisheries Agency Regional Register of Foreign Fishing Vessels has been in place since 1983. The registration of all fishing vessels has served the region as an effective way to ensure compliance with fisheries laws and regulations of FFA member. The threat of being black listed and the risk of not being able to be licensed in any FFA member's EEZs appears to be an effective deterrent to illegal fishing activity. There were 1,233 vessels of all types on good standing on the Regional Register at the end of the 2002/2003 period. Non-confidential information of vessel listings on the Regional Register is available on request.

Vessel monitoring system (VMS)

The members of FFA operate and maintain a regional vessel monitoring system (VMS) in which members are able to download, on demand, data on the position speed and direction of foreign fishing vessels active inside their respective EEZs. The FFA VMS operates on a cost-recovery model of a projected 1,000 vessels. The number of vessels of all types in good standing on the FFA VMS register at the end of 2002/2003 period was 945, which falls short of the number required for the system to recover its costs. The discrepancy between the number of vessels on the Regional Register of Foreign Fishing Vessels and the VMS Register was caused by the non-insistence of FFA member countries on the universal carriage of the FFA VMS Automatic Location Communicators (ALC) on longliners. However, this anomaly has been addressed recently with the requirement that vessels be listed on both registers as of the current registration period, which commenced on 1 September 2003.

Observer programmes

A regional observer programme is coordinated by FFA Secretariat, which has a targeted coverage of 20 per cent of the US Treaty and Federated States of Micronesia Arrangement vessels fishing in the region. Information collected from the FFA regional observer programmes are held in a database at the FFA Secretariat. This enables fisheries managers from regional organisations or FFA member to access data for their differing scientific or compliance purposes. Nationals from all FFA member countries participate as observers in the regional programme.

Additionally a number of FFA members run their own observer programmes, most of which have been assisted in training and establishment by the FFA Secretariat and SPC. These countries include Federated States of Micronesia, Solomon Islands, Papua New Guinea, Cook Islands, Marshall Islands, Kiribati and Fiji.

Fisheries management plans and rights based management.

With assistance from the FFA Secretariat a large number of FFA members have developed and implemented tuna management development plans. These plans have been developed with an emphasis on the establishment of rights at a national level, and focus on domestic industry development. Reference to the Code of Conduct and its principles are incorporated into all regional tuna fisheries management plans and the following example is taken from the current Tongan Tuna Management and Development Plan:

The principles established in the FAO Code of Conduct for Responsible Fisheries will be used to guide the design and implementation of strategies under the Tuna Plan. These principles relate to, among other things:

• ensuring the effective conservation and management of the living marine resources;

• promoting management measures that ensure conservation of species belonging to the same ecosystem or associated with or dependent upon the target species;

• applying the precautionary approach to the conservation and management of the fishery;

• ensuring that harvesting, handling, processing and distribution of fish and fishery products be carried out in a manner that will maintain the nutritional value, quality and safety of the products, reduce waste and minimise negative impacts on the environment; and

• encouraging bilateral and multilateral cooperation in research and management for species that are highly migratory in nature;

With the soon to be established WCPT Commission, the impetus for coastal Pacific States to strengthen their sovereign rights over the management and exploitation of the region's tuna resources is gaining greater significance. The Commission will be empowered to impose limits on tuna catches and each Pacific Island coastal State will be allocated a quota. The challenge for Pacific Island States will be to maximize their share of the total allowable catch and develop their tuna resources. To assist FFA members' efforts have begun to create a greater awareness of the concept of rights-based management options in regard to the tuna fishery. Rights-based management will introduce limits and allocations of the tuna resource for FFA member and they will have clearly defined rights to catch or fishing effort that can be passed onto nationals in a powerful and exclusive way.

Acceptance versus implementation of management measures

At a regional level the cooperation and coordination between coastal Pacific States to adopt legal instruments and policies, that are underpinned by the need to conserve and manage fisheries responsibly, and for their own economic benefit, is well advanced. It is another matter at national levels and recent studies suggest that the management and protection of the oceans in the Pacific region is relatively underdeveloped at a national level. The implementation of the principles and concepts of the Code of Conduct and indeed other international and regional legal fisheries instruments, presents many challenges that will not always be overcome in the near future, particularly by developing countries.

Constant monitoring will be required at all levels of implementing fisheries management measures to ensure that progress is being made towards the higher goals of responsible fishing. By monitoring progress those responsible for fisheries will be able to identify where resources are best allocated to achieve the objectives of acceptable fisheries management measures, particularly if resources are limited. Also important in the process of implementing fisheries management goals are the concepts of communication, awareness and understanding of management measures. The Code of Conduct requires those involved in fisheries management to ensure that due publicity is given to conservation and management measures, laws and regulations and other legal rules, to facilitate their application and gain support for their implementation but they must first understand and be familiar with the principles of the Code on a working basis. This remains the challenge for small island developing States fisheries administrations in the region.

CONCLUSION

Along with the rights to conserve, manage and exploit the tuna and other living marine resources afforded to coastal States under international laws such as LOSC, comes the obligation to do so in responsible manner. The FAO Code of Conduct provides general principles of responsible fishing and along with comprehensive technical guides and plans of actions, provides a framework for the global fishing community to conserve, manage and develop fisheries accordingly. The Code declares, "States and all those engaged in fisheries management should through an appropriate policy, legal and institutional framework, adopt measures for long-term conservation and sustainable use of fisheries resources...."^[73].

Recognition is given to the limitations of developing countries, and in the case of the Pacific region small island developing coastal States, to implement effective conservation and management schemes as proposed by the international agreed standards enshrined in international and regional conservation and fisheries instruments. The FAO Code of Conduct articulates special requirements for developing countries, which include taking into account assistance in the areas of financial and technical assistance, technology transfer, training and scientific cooperation, as well as their right to develop their own fisheries.

The fisheries sector in the western and central Pacific region is well developed compared to other regions in which developing States are prevalent. For the past quarter of a century certain Pacific Island countries have developed, through regional cooperation, a number of arrangements that formalize their commitment to manage and develop the highly migratory tuna resources in the region. These include monitoring, control and surveillance mechanisms to insure compliance with national fisheries regulations and laws. The regional cooperation extends to participation in the newly established management process, which takes into account the migratory nature of tuna and the non-coverage of areas of high seas. The adoption of the WCPT Convention has brought together interested parties engaged in the tuna fishery in the region. It pits the strength and capacity of larger developed fishing States against the determination of Pacific coastal States to assert their sovereign rights to conserve, manage and develop the tuna fishery for their economic and long-term sustainable benefit.

References

Agenda 21, Chapter 17 (United Nations Conference on Environment and Development, UNCED). 1992.

Aqorau, T. 2001. 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, pp. 379 - 431.

Doulman, D. Code of Conduct for Responsible Fisheries: Development and Implementation Considerations, July 2000 http://www.fao.org/fi/agreem/codecond/tonga.asp (accessed 24 August 2003)

FFA 2002. Report of the Rights Based Management Workshop, 24 - 26 June 2002, Nadi Fiji. Pasifika Publications, Fiji.

FAO 1995. Code of Conduct for Responsible Fisheries. Rome, FAO.

FAO 1997 Fisheries Management. FAO Technical Guidelines for Responsible Fisheries. No. 4. Rome.

http://www.fao.org/fi/body/rbf/index.htm

http://www.oceanlaw.net - accessed 26 August 2003

http://www.un.org/esa/sustdev/agenda21.htm - accessed 25 August 2003

Gillett, R., McCoy, M., Rodwell, L. and Tamate, J. 2001 Tuna: A Key Economic Resource in the Pacific. Manila: Pacific Studies Series, Asian Development Bank.

Gillett, R. & Lightfoot, C. 2001, The Contribution of Fisheries to the Economies of Pacific island Countries. Manila: Pacific Studies Series, Asian Development Bank.

Tsamenyi, M and McIlgorm, A. 1999 International Environmental Instruments - their effects on the fishing industry. 2^nd edition. FRDC 97/149.

Annex 1

List of Relevant International Law, Soft Law and Regional Legal Instruments

Annex 2

THE STATUS OF VARIOUS INTERNATIONAL AND REGIONAL AGREEMENTS AMONGST FFA MEMBER COUNTRIES

1) REGIONAL ARRANGEMENTS

The Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific

STATUS OF THE WCPFC CONVENTION AS SIGNED AND RATIFIED BY FFA MEMBERS AS AT JUNE 2003

Source: New Zealand Ministry of Foreign Affairs

Forum Fisheries Agency Convention

STATUS OF THE FFA CONVENTION AS AT 31 DECEMBER 2002

Source: Forum Fisheries Agency

The Treaty on Fisheries between the Governments of Certain Pacific island States and the United States of America

The Treaty on Fisheries between the Governments of certain Pacific Island States and the United States was signed in April 1987 and entered into force on 14 June 1988. This Treaty became necessary as the United States, at that time did not recognise the sovereign rights of coastal states over highly migratory fish stocks in the EEZ and as such no bilateral access agreement could be entered into between the United States and the FFA member countries unless there was in place a regional agreement regulating tuna management to which it was a party.

Under the current Treaty arrangements, up to fifty US purse seine vessels could be licensed to fish in the region. This brings in US$18 million into the region. The Treaty imposes on the US obligations to enforce the provisions of the Treaty in regards to US vessels having access to the licensing area under the Treaty. The provisions on Flag State responsibility are the most comprehensive that can be found in any international instrument.

The Treaty will be extended for another 10 years from 15 June 2003. From 15 June 2003, US$21 million will be available for distribution amongst the Parties in exchange for 40 licences.

The Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific

STATUS OF THE WELLINGTON CONVENTION AND PROTOCOL I AND II

Source: New Zealand Ministry of Foreign Affairs

The Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region

STATUS OF THE NIUE TREATY ON COOPERATION IN FISHERIES SURVEILLANCE AND LAW ENFORCEMENT IN THE SOUTH PACIFIC REGION AS AT DECEMBER 2002

Source: Government of Niue

2) SUBREGIONAL ARRANGEMENTS

Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest

STATUS OF THE NAURU AGREEMENT AS AT DECEMBER 2002

Source: Forum Fisheries Agency

The Federated States of Micronesia Arrangement for Regional Fisheries Access

STATUS OF THE FSM ARRANGEMENT AS AT DECEMBER 2002

Source: Forum Fisheries Agency

The Palau Arrangement for the Management of the Western Pacific Purse Seine Fishery

STATUS OF RATIFICATION OF THE PALAU ARRANGEMENT AS AT DECEMBER 2002

Source: Forum Fisheries Agency

3) INTERNATIONAL ARRANGEMENTS

STATUS OF RATIFICATIONS OF THE LOSC BY FFA MEMBERS AT DECEMBER 2002

Source: UN Oceans and Law of the Sea Office (Division for Ocean Affairs and the Law of the Sea)
http://www.un.org/Depts/los/Fish-status.htm

The 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 (UN Fish Stocks Agreement)

STATUS OF RATIFICATIONS OF THE UNFS AGREEMENT BY FFA MEMBERS AS AT DECEMBER 2002

Source: Oceans and Law of the Sea: Division for Ocean Affairs and the Law of the Sea,
http://www.un.org/Depts/los/Fish-Status.htm

Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Compliance Agreement)

The FAO Compliance Agreement (the "Compliance Agreement") is an agreement concluded to deal specifically with some of the principles of the LOSC and the UN Fish Stocks Agreement. Although only a low number of States have ratified it, and in spite of the almost lack of FFA members who have ratified it, the Compliance Agreement has slowly been gaining increasing acceptance especially through the process of the development of International Plans of Actions to address various aspects of fisheries management including IUU fishing. The Compliance Agreement provides a mechanism to deal with the enforcement of international conservation and management measures on the high seas, this being recognised as one of the biggest failures in international fisheries management.

There are presently 27 States who have ratified the Compliance Agreement. The Compliance Agreement requires twenty-five ratification's to enter into force. It is instructive to note that Japan, United States, Canada, the European Union and Mexico have ratified the Compliance Agreement.

UN Food and Agriculture Organization Code of Conduct for Responsible Fishing

The Code of Conduct for Responsible Fishing provides guidelines for the conduct of responsible fisheries. The Code is voluntary and is intended to help countries improve the management of their fisheries resources. While the Code is voluntary, certain parts of the Code are based on relevant international law, including the UN Fish Stocks Agreement and the Compliance Agreement. The principles stipulated in the Code and the technical guidelines are intended to ensure effective conservation and management measures are applied to fisheries management.

Article 2 sets out the objectives of the Code. These include the following-

• establish principles, in accordance with the relevant rules of international law for responsible fishing and fisheries activities, taking into account all their relevant biological, technological, economic, social, environmental and commercial aspects;

• establish principles and criteria for the elaboration and implementation of national policies for responsible conservation of fisheries resources and fisheries management and development;

• serve as an instrument of reference to help States to establish or to improve the legal and institutional framework required for the exercise of responsible fisheries and in the formulation and implementation of appropriate measures; and

• provide guidance which may be used where appropriate in the formulation/implementation of international agreements and other legal instruments, both binding and voluntary.

In addition, a number of technical guidelines have been developed to support the implementation of the Code. These are the technical guidelines on Fishing Operations, the Vessel Monitoring System, Precautionary Approach to Capture Fisheries and Species Introduction, Integration of Fisheries into Coastal Area Management, Fisheries Management, Aquaculture Development, Inland Fisheries, Responsible Fish Utilization, and Indicators for Sustainable Development of Marine Fisheries.

International Plans of Actions (IPOA) have been developed to address aspects of specific fisheries, which, from a management and conservation context, are considered to be a problem. Some of the specific plans, which have been developed in this regard are-

• International Management Plans on the Management of Fishing Capacity;
• Shark Fisheries;
• Incidental Catch of Seabirds in Longline Fisheries;
• Management of Fishing Capacity; and
• Illegal, Unreported and Unregulated Fishing.