The South West Pacific is a region of immense biological and ecological diversity integral to the economy, diverse cultures and food security of Pacific Island Countries and Territories (
The Report of the Preparatory Committee established by General Assembly Resolution 69/292 reflected the broad convergence between delegations at the Preparatory Committee that the
promote greater coherence with and complement existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies (…) [and] be interpreted and applied in a manner which would not undermine these instruments, frameworks and bodies.6
According to the Pacific Small Island Developing States (
should contribute to improving the cooperation and coordination among States and relevant and competent organizations (…) [and] therefore, complement the existing patchwork of instruments and frameworks and aim to facilitate coordination and cooperation among the many different actors.8
Between delegations, however, was a fundamental lack of consensus as to the understanding of what was meant by “not undermining”.9 The
In this article, the existing South West Pacific regional framework for
The Role of Regional Oceans Governance
The requirement for the development of the
As an Implementing Agreement under the
In the context of regional protection of the marine environment, however, a region does not have to be defined on an ecological basis. Birnie and Boyle outline political, geographic or common interests as the basis for existing regional arrangements under the
Since 1947 the
The development of these arrangements represents hard-won political authority in a region with significant colonial powers and external interests in their marine resources, particularly fishery resources.27 Political integration and concerted efforts to deepen regionalism play important roles in strengthening the integration of oceans governance in the South West Pacific.28
The territorial integrity of any region will depend on the delimitation of state boundaries, in accordance with the
Institutional Arrangements under an
The Report of the Preparatory Committee established by
The relationship of an
The Chair’s overview of the third Preparatory Committee proposed a summary of three models on how an
Existing Institutional Arrangements in the South-West Pacific
Cooperation has been described as the “Achilles heel” of the existing international governance arrangements in
The overarching framework for regional oceans governance in the South West Pacific has established strong coordination mechanisms to integrate between its composite regional organisations (see Fig. 2).40 Coordination and collaboration between regional organisations is established through the unique overarching regional oceans policy,41 shared oceans governance objectives set by Leaders at the Pacific Island Forum (
The following discussion introduces the regional institutions and constitutive instruments unique to the South West Pacific, including Regional Fisheries Management Organisations (
The South West Pacific region contains a diversity of area based management tools with high standards for biodiversity conservation
Pacific Islands Forum (
Council for Regional Organisations in the Pacific (
Marine Sector Working Group (
Pacific Islands Regional Ocean Policy (
In 2002, the leaders of the
the extent of the region includes not only the area within the 200 nautical miles Exclusive Economic Zone (
eez) boundaries circumscribing these island countries, but also the ocean and coastal areas that encompass the extent of the marine ecosystems that support the region.52
Framework for a Pacific Oceanscape (
Office of the Pacific Ocean Commissioner (
Secretariat of the Pacific Regional Environment Programme (
The 1993 Agreement Establishing the South Pacific Regional Environment Programme formalised
The 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Nouméa Convention) was among the first instruments adopted under the Regional Seas Programme (
Forum Fisheries Agency (
It is important to note with regard to the living resources of
Since the ratification of the
Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
The Western Central Pacific Fisheries Commission (
Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest
Secretariat of the Pacific Community (
In 1947 the Pacific Community (formerly the South Pacific Commission until 1997 and retaining the acronym
Ensuring Existing South West Pacific Institutional Arrangements Are Not Undermined
To prevent an
The competence of regional organisations is first established in the context of the duty under Article 197 of the
Prominent among these competent international organisations at the regional scale are the
The functional interdependence created by the integration and collaboration between existing regional arrangements (with their subsidiary instruments, policies and frameworks) demands an inclusive and encompassing description under an
Outstanding questions will remain for the intergovernmental conference regarding the competence of regional organisations and legitimacy of existing instruments, frameworks and policies.
Fostering Coherence with an
ilbi: A Role for Oceans Governance Principles
Implementation of the
Existing regional coordination mechanisms, especially those of the
A principles-based approach is considered of value to provide a consolidating framework to build consensus for coherence of the disparate elements of the package deal in the development of the
An analysis of the coherence of the existing law and policy framework in the South West Pacific against a set of the
iucn principles for high seas governance are reflected in a diverse range of South West Pacific Regional Organisations, instruments, frameworks and policies
Notes: Regional instruments: Agreement Establishing the Pacific Islands Forum (
Principles: (a) Conditional freedom of activity on the high seas; (b) Protection and preservation of the marine environment; (c) International cooperation; (d) Science-based approach to management; (e) Public availability of information; (f) Transparent and open decision making processes; (g) Precautionary approach; (h) Ecosystem approach; (i) Sustainable and equitable use; (j) Responsibility of States as stewards of the global marine environment.
The diverse instruments and institutions governing the South West Pacific create a dense regional oceans governance framework. The
In the South West Pacific, an integrated approach is a regional priority for biodiversity conservation and sustainable use. This is underscored by the
The inclusion of the integrated approach under the general principles and approaches in the Report of the Preparatory Committee creates a substantial opportunity to achieve coherence between an
Note throughout the article, that the acronyms Pacific Island Countries (
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994), 1833
Ambassador Marlene Moses, Permanent Representative of Nauru and Chair, Pacific Small Island Developing States, ‘Statement at the
Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (advance, unedited version),
Ibid., at p. 9.
See, e.g., E Druel, R Pascale, J Rochette and C Martinez, ‘Governance of marine biodiversity in areas beyond national jurisdiction at the regional level: filling the gaps and strengthening the framework for action’ (2012) 12(4) Institute for Sustainable Development and International Relations (IDDRI) Studies 1–102; R Warner, K Gjerde, and D Freestone, ‘Regional governance for fisheries and biodiversity’ in SM Garcia, J Rice and A Charles (eds.), Governance of Marine Fisheries and Biodiversity Conservation: Interaction and Coevolution(Wiley-Blackwell, Chichester, 2014) 211–224; J Rochette, R Billé, EJ Molenaar, P Drankier and L Chabason, ‘Regional oceans governance mechanisms: A review’ (2015) 60 Marine Policy at pp. 9–19.
Ibid.; see generally J Balsiger and M Prys, ‘Regional agreements in international environmental politics’ (2016) 16(2) International Environmental Agreements: Politics, Law and Economics at pp. 239–260.
R Mahon, L Fanning, KM Gjerde, O Young, M Reid and S Douglas, ‘Transboundary Waters Assessment Programme (
Report of the Secretary-General, Protection and preservation of the marine environment,
E Franckx, ‘Regional Marine Environment Protection Regimes in the Context of UNCLOS’ (1998) 13 International Journal of Marine and Coastal Law at pp. 311–312.
A Boyle, ‘Further development of the Law of the Sea Convention: Mechanisms for change’ (2005) 54(3) International and Comparative Law Quarterly at p. 576.
T Stephens, ‘Section 2 Global and Regional Cooperation—Article 197 Cooperation on a global or regional basis’ in A Proelss (ed), The United Nations Convention on the Law of the Sea—A Commentary (Hart Publishing, London, 2017).
PA Birnie and AE Boyle, International Law and the Environment (2nd ed., Oxford University Press, Oxford, 2002) 354–355.
LA Kimball, ‘DOALAS/UNITAR Briefing on Developing in Ocean Affairs and The Law of the Sea Twenty Years after the Conclusion of the
See, e.g., J Vince, E Brierley, S Stevenson and P Dunstan, ‘Ocean governance in the South Pacific region: Progress and plans for action’ (2017) 79 Marine Policy 40–45; A Wright, N Stacey, and P Holland, ‘The cooperative framework for ocean and coastal management in the Pacific Islands: Effectiveness, constraints and future direction (2006) 49(9) Ocean & Coastal Management 739–763.
See Section on ‘Existing regional oceans governance arrangements’.
Pacific Islands Forum Secretariat, ‘Pacific Plan Review (2013): Report to Pacific Leaders’ (Suva, Pacific Islands Forum Secretariat, 2013); Pacific Island Forum Secretariat, Framework for Pacific Regionalism (Pacific Island Forum Secretariat, Suva, 2014) 1–12.
Dame Meg Taylor, ‘Pacific Ocean Commissioner says World Oceans Day is a Call to Action!’ Island Life, 8 June 2015.
Report of the Preparatory Committee (n 5).
Ambassador Duarte, ‘Chair’s overview of the third session of the Preparatory Committee—Appendix 5 Informal working groups on cross-cutting issues’; available at http://www.un.org/depts/los/biodiversity/prepcom_files/Chair_Overview.pdf; accessed 12 August 2017, p. 27.
C Goodman, ‘The Cooperative use of Coastal State jurisdiction with respect to Highly Migratory Stocks: Insights from the Western and Central Pacific region’ in L Martin, C Salonidis and C Hioureas (eds), Natural Resources and The Law of the Sea: Exploration, Allocation, Exploitation of Natural Resources (Jurisnet, New York, 2017), at p. 216.
Ibid., p. 8.
See generally P Drankier and AG Oude Elferink ‘Summary of discussions at the symposium’ (2012) 27(2) International Journal of Marine and Coastal Law (
JA Ardron, R Rayfuse, K Gjerde, and R Warner, ‘The sustainable use and conservation of biodiversity in
Mahon et al. (n 14).
Hon. Tuilaepa Lupesoliai Sailele Malielegaoi, ‘Our Values and identity as stewards of the world’s largest oceanic continent—The Blue Pacific ’
M Power and A Solofa, ‘The Pacific Islands Regional Ocean Policy and the Framework for a Pacific Oceanscape “many islands—one ocean”’ in B Cicin-Sain, D Vanderzwaag and CM Balgos (eds) Routledge Handbook of National and Regional Ocean Policies (Routledge, New York, 2015) 504–521.
‘Pacific Island Regional Ocean Policy (
See ‘Pacific Island Forum Communiqués’ available at http://www.forumsec.org/pages.cfm/about-us/secretariat/walk-down-memory-lane/; accessed 12 August 2017.
Wright et al. (n 24) at pp.754–755. “Several
Wright et al. (n 24), at p. 754.
South Pacific Forum, ‘Final Joint Communiqué’, 1st South Pacific Forum (Wellington, South Pacific Forum, 5–7 August 1971), 5; available at http://www.forumsec.org/resources/uploads/attachments/documents/1971%20Communique-Wellington%205–7%20Aug.pdf; accessed 1 September 2017. It was originally named the South Pacific Forum.
‘Agreement Establishing the Pacific Islands Forum 1993’ available at http://www.forumsec.org/resources/uploads/attachments/documents/Agreement%20Establishing%20the%20PIFS,%202005.pdf ; accessed 1 March 2017, Arts. ii, viii 3(a).
‘Council of Regional Organisations of the Pacific Charter 2004’; available at http://gsd.spc.int/sopac/docs/RIF/CROP%20Charter_2004.pdf; accessed 1 March 2017, paras 1, 3, 6, 8(c).
Ibid., at para. 7.
Pacific Island Forum Secretariat, ‘Forum Communiqué’, 33rd Pacific Islands Forum (Suva, Pacific Island Forum Secretariat, 15–17 August 2002) p. 4, para. 23; available at http://www.forumsec.org/resources/uploads/attachments/documents/2002%20Communique-Fiji%2015–17%20Aug.pdf; accessed 1 September 2017.
BM Tsamenyi and J Jit, ‘Evaluation of the Pacific Oceanscape to manage the Pacific islands and ocean environment’ Proceedings of 2nd International Seminar on Islands and Oceans’ (Tokyo, Ocean Policy Research Foundation, 29 Nov-1 Dec 2010), 115–129, at p. 118.
Ibid., at para. 38.
Ibid., at para. 24.
Ibid., at pp. 60–61, Action 3(c).
Ibid., at pp. 54, 59.
Power and Solofa (n 40), at p. 515.
Ibid., at p. 55.
Ibid., at pp. 59–64, Actions 2(a)-(c), 2(b)-(c), 3(c), 4(b), 6(b).
Ibid., at p. 59, Action 2(a).
Agreement Establishing the South Pacific Regional Environment Programme (
The Convention on Conservation of Nature in the South Pacific 1976 (Apia Convention) (Apia, 12 July 1976, in force 25 June 1990)
‘Whale and Dolphin Action Plan 2013–2017’ in 3rd Meeting of the Signatories to the Memorandum of Understanding for the Conservation of Cetaceans and Their Habitats in the Pacific Islands Region, Nouméa (New Caledonia,
‘Pacific Islands Regional Plan of Action for Sharks: Guidance for Pacific Island Countries and Territories on the Conservation and Management of Sharks’ available at https://www.sprep.org/att/publication/000853_RPOA_Sharks.pdf; accessed 1 March 2017.
Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Nouméa Convention) (Nouméa, 24 November 1986, in force 22 August 1990)
Nouméa Convention Art. 2.
Ibid., at Art. 14.
Ibid., at Art. 16.
Ibid., at Art. 2(a)(ii).
Druel et al. (n 12), at p. 75.
South Pacific Forum Fisheries Agency Convention (Honiara, 10 July 1979; in force 9 August 1979)
Ibid., at Art. iii.
Goodman (n 33), at p. 218.
‘Regional Roadmap for Sustainable Pacific Fisheries’ available at https://www.ffa.int/system/files/Roadmap_web_0.pdf; accessed 1 March 2017.
The United Nations 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 (New York, 4 August 1995, in force 11 December 2001) 2167
Convention on the Conservation and Management of High Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention) (Honolulu, 5 September 2000 in force 19 June 2004) Art. 3.
Conservation and Management Measure (
Nauru Agreement Concerning Cooperation in the management of fisheries of common interest (Nauru, 11 February, 1982) available at http://www.pnatuna.com/sites/default/files/Nauru%20Agreement_0.pdf; accessed 2 March 2017;
Palau Arrangement for the management of the Western Pacific Fishery as amended management scheme (Purse Seine Fishing Vessel Day Scheme) (amended 27 April 2012) available at http://www.pnatuna.com/sites/default/files/Palau%20Arrangement%20Purse%20Seine%20VDS_0.pdf; accessed 2 March 2017.
T Aqorau, ‘Recent developments in Pacific tuna fisheries: the Palau Arrangement and the vessel day scheme’ (2009) 24(3) The International Journal of Marine and Coastal Law 557–581, at pp. 565–569.
A Third Arrangement Implementing the Nauru Agreement Setting Forth Additional Terms and Conditions of Access to the Fisheries Zones of the Parties (Koror, 16 May 2008) available at http://www.pnatuna.com/sites/default/files/3rd%20Implementing%20Arrangement%20(Amended%20-%2011September%202010).pdf; accessed 2 March 2017, Art 1(3).
A Ride, ‘PNA Announces Date For Closure Of 4.5 Million Sq Km High Seas Areas To Purse Seine Fishing’
Conservation and Management Measure (
Canberra Agreement (Agreement establishing the South Pacific Commission) (Canberra, 6 February 1947, in force 29 July 1948)
Ibid., at Arts. iv, xv.
Secretariat of the Pacific Community, ‘Pacific Community Strategic Plan 2016–2020’ (Nouméa, Pacific Community, 2015) 1–12, at pp. 5–7.
Report of the Preparatory Committee (n 5).
See generally G Shaffer and MA Pollack, ‘Hard and Soft Law’, in JL Dunoff and MA Pollack (eds), International Law and International Relations: Introducing an Interdisciplinary Dialogue (Cambridge University Press, Cambridge, 2012) 197–198.
MH Nordquist (ed), United Nations Convention on the Law of the Sea 1982. A Commentary (Volume iv, Martinus Nijhoff Publishers, London, 1991) 78–79, at p. 16.
L Hinds, ‘Oceans governance and the implementation gap’ (2003) 27(4) Marine Policy 349–356, at p. 349.
Nordquist (n 96), at pp. 422–426.
Ibid., at p. 2.
Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (2015)
K Houghton, ‘Identifying new pathways for ocean governance: the role of legal principles in areas beyond national jurisdiction’ (2014) 49 Marine Policy 118–126, at p. 121.
Declaration of the United Nations Conference on the Human Environment 1972,
G Rose and B Milligan, ‘Law for the Management of Antarctic Marine Living Resources: From Normative Conflicts towards Integrated Governance?’ (2010) 20(1) Yearbook of International Environmental Law 41–87, at p. 42.
Y Tanaka, ‘Principles of international marine environmental law’ in R Rayfuse (ed) Research Handbook on International Marine Environmental Law (Edward Elgar Publishing, Cheltenham, 2015) 32–56, at p. 32.
D Freestone, ‘Principles Applicable to Modern Oceans Governance’ (2008) 23 International Journal of Marine and Coastal Law 385–391; D Freestone, ‘Modern Principles of High Seas Governance: The Legal Underpinnings (2009) 39(1) International Environmental Policy and Law 44–49; See generally R Churchill, ‘The
AG Oude Elferink, ‘Governance principles for areas beyond national jurisdiction’ (2012) 27(2) The International Journal of Marine and Coastal Law 205–259, at p. 254; D Freestone, International governance, responsibility and management of Areas beyond National Jurisdiction (2012) 27 The International Journal of Marine and Coastal Law 191–204, at p. 204; RA Barnes, ‘The Proposed
Ibid.; see also Freestone, 2009 (n 108); Oude Elferink (n 109); RA Barnes, ‘Consolidating governance principles for areas beyond national jurisdiction’ (2012) 27(2) The International Journal of Marine and Coastal Law 261–290; Barnes (n 109) at pp. 583–619.
The analysis of the principles for high seas governance undertaken on the instruments and policies listed in Table 2 is preliminary in that it did not extend to an analysis of the development of the principles by subsequent practice.
See for example Houghton (n 104), at p. 122.
But see Barnes (n 111), at p. 285.
Barnes (n 109), at p. 595.
Report of the Preparatory Committee (n 5), at pp. 20–21.