Jon M Van Dyke, Sherry Broder
- Exclusive fishery zone — Exclusive economic zone — Islands and artificial islands — Territorial sea
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 The Pacific, the world’s largest ocean, contains many of the world’s largest fish stocks and its smallest countries. Most of these isolated islands were under colonial domination from the mid-19th century or earlier until about the 1970s, when most became independent. New Zealand (Aotearoa) and Australia participate in many Pacific regional organizations and activities and are generally viewed as partners, but they play separate and distinct roles in the region because of their larger size and differences in culture and history.
2 Regionalism in the Pacific is complex (see also Regional Cooperation and Organization: Pacific Region), not only because of the vast geography and cultural diversity of the islands, but also because a number of the Pacific Islands are still non-self-governing. American Samoa, the Commonwealth of the Northern Mariana Islands, and Guam remain, for instance, under the sovereignty of the United States. American Samoa and Guam are ‘unincorporated territories’ without an indigenously created governing document and without the ability to make final decisions for themselves, or to participate effectively in decisions reached in Washington, DC, ie, their residents cannot vote for voting-members of the US Congress or for the US President. The Commonwealth of the Northern Marianas has a Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America which establishes its relationship with the US, but it also has no voting representation in Washington, and the extent to which it has any real autonomy from federal oversight is disputed and unresolved. French Polynesia, Wallis and Futuna, and New Caledonia are overseas territories of France. They have voting representation in the French parliament and limited self-government, but decisions regarding foreign relations and ocean resources are made in Paris (see also Overseas Territories, Australia, France, Netherlands, New Zealand, United Kingdom, United States of America).
3 These island communities are generally not allowed to take seats at regional meetings on their own; they sometimes enter as part of the delegations of the US or France, or as ‘associate members’ or ‘observers’, or are excluded altogether. Tiny Pitcairn, where the descendants of the Bounty mutiny from 1789 still live, is governed as a British Overseas Territory by the United Kingdom. Tokelau remains under the direct sovereignty of New Zealand.
4 To add further complications the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau are ‘freely associated States’ with the US, while the Cook Islands and Niue (population of less than 2,000) are freely associated States with New Zealand. These island communities are viewed as essentially independent, with the right to conduct their own foreign affairs. They belong to the United Nations and are able to participate in regional organizations in their own right, but they still maintain close links with their larger partner countries. Hawai‘i is generally not involved in the regional organizations of the Pacific because, as one of the 50 US states, it is an integral part of the US and is thus viewed by the rest of the Pacific, perhaps with some suspicion, as separate and distinct. Many Native Hawaiians also continuously assert their sovereignty apart from the US, citing the 1893 overthrow of the Hawaiian Kingdom (see Van Dyke ). Hawai‘i is frequently used as a convenient meeting spot for regional meetings.
B. Regional Organizations and Agreements in the Pacific
1. Secretariat of the Pacific Community (Formerly the South Pacific Commission)
5 The South Pacific Commission (‘SPC’) was formed in 1947 by the nations with colonies in the Pacific in order to maintain the stability of the region and assist with education, health, and economic development in their colonies. In the 1960s, the island members worked to change the SPC’s form and mission, moving to ‘replace trusteeship with collegial cooperation … and technical expertise with direct financial assistance’ (Cicin-Sain and Knecht 179). The movement towards independence in the South Pacific led to the formation of the first purely indigenous regional organization, the Pacific Island Producers’ Association (‘PIPA’) in 1965, followed soon by the South Pacific Forum. Today, the SPC is no longer viewed as the colonial body it once was. It now has 26 members, including territories as full members (American Samoa, Australia, Cook Islands, Fiji, France, the Federated States of Micronesia, French Polynesia, Guam, Kiribati, the Marshall Islands, Nauru, New Caledonia, Niue, New Zealand, the Northern Marianas Islands, Palau, Papua New Guinea, the Pitcairn Islands, Samoa, the Solomon Islands, the United States, Tokelau, Tonga, Tuvalu, Vanuatu, and Wallis and Futuna, see Secretariat of the Pacific Community ‘Members of the South Pacific Community’ [20 August 2017]; the same as the Secretariat of the Pacific Regional Environment Programme (‘SPREP’) (formerly South Pacific Regional Environment Programme [‘SPREP’]) and has recently been renamed the Secretariat of the Pacific Community to acknowledge its Northern Pacific members and to move away from the colonialism implied in the word ‘commission’ (see Secretariat of the Pacific Community ‘History of the South Pacific Community’ [21 August 2005]; Flags of the World ‘Pacific Community: South Pacific Commission’ [26 June 2008]; see also Decolonization: British Territories; Decolonization: French Territories).
2. The Pacific Islands Forum
6 Largely to counter the SPC’s domination by larger, more powerful countries, the independent and self-governing island countries in the Pacific created the South Pacific Forum in 1971, which is now called the Pacific Islands Forum (PIF). Each newly independent nation has been invited to join the PIF, and it now contains 16 members: Australia, the Cook Islands, the Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa (formerly ‘Western Samoa’), the Solomon Islands, Tonga, Tuvalu, and Vanuatu. The leaders of these countries meet annually, and establish a broad political agenda for the members to pursue. Because of the military takeover of its government, Fiji had been suspended from its membership in the PIF in 2009, and this was an awkward development since the Pacific Islands Forum Secretariat is located in Suva, Fiji. The Forum lifted the suspension of Fiji on 22 October 2014.
3. The Convention on the Conservation of Nature in the South Pacific
7 The Convention on the Conservation of Nature in the South Pacific was adopted in Apia, Samoa on 12 June 1976, and came into force in the 1990s (sometimes called the Apia Convention). Its purpose was to take action for the conservation, utilization, creation, and development of natural resources of the region through careful planning and management. At the Eighth Meeting of the Parties in 2006, however, its operation was suspended until further notice.
4. The South Pacific Nuclear Free Zone Treaty (SPNFZ)
8 In 1985, under the auspices of the PIF, the nations of the South Pacific adopted the South Pacific Nuclear Free Zone Treaty (‘SPNFZ’) (the treaty came into force in 1986 when Australia became the eighth nation to ratify it; see generally Van Dyke Alexander and Morgan [eds] 352–72), creating a unique nuclear-free zone in the Pacific. Thirteen full member nations have ratified the SPNFZ: Australia, the Cook Islands, Fiji, Kiribati, Kauru, New Zealand, Niue, Papua New Guinea, Samoa, the Solomon Islands, Tonga, Tuvalu, and Vanuatu. The nuclear weapons states of the United Kingdom and France are parties to all three protocols, and Russia and China have ratified SPNFZ protocols two and three. The US signed all three protocols in 1996 but has not ratified any (see Stockinger and ors). The parties to the SPNFZ agreed to prevent testing, stationing, manufacturing, and dumping of nuclear weapons and devices within their territories and to discourage the use of the region for nuclear testing and waste disposal (Gubon 125–26).
5. The Secretariat of the Pacific Regional Environment Programme (SPREP) (Formerly the South Pacific Regional Environment Programme)
9 SPREP’s members include 21 Pacific island member countries and territories (American Samoa, the Cook Islands, the Federated States of Micronesia, Fiji, French Polynesia, Guam, Kiribati, the Marshall Islands, Nauru, New Caledonia, Niue, the Northern Marianas, Palau, Papua New Guinea, Samoa, the Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and Wallis and Futuna) and five developed countries (Australia, France, New Zealand, the United Kingdom, and the United States) with direct interests in the region. SPREP follows the same model which allows all political entities to participate in their activities, whether they are independent or not (see South Pacific Regional Environmental Programme [August 1996] at 7). In its Strategic Plan for 2011–2015, SPREP established four strategic priorities: Climate Change; Biodiversity and Ecosystem Management; Waste Management and Pollution Control; and Environmental Monitoring and Governance. The Plan recognizes climate change issues as the most important:
Foremost among the threats is climate change, a deeply troubling issue for the environmental, economic, and social viability of Pacific Island Countries and Territories (PICTs). No longer an abstract concept, climate change is already having very real impacts on coastal and forest ecosystems, our oceans, fresh water supplies, biodiversity, and indeed all aspects of life on Pacific islands—particularly on communities in small, low-lying countries where sea level rise and changing weather patterns are creating social and economic disruption (at Foreword).
6. South Pacific Applied Geosciences Commission (SOPAC)
10 The Pacific Island nations have worked together since 1972 to coordinate research on deep seabed minerals through an organization first called the Committee for coordination of Joint Prospecting for Mineral Resources in the South Pacific Offshore Areas (‘CCOP/SOPAC’). CCOP/SOPAC later became known as the South Pacific Applied Geosciences Commission (‘SOPAC’). This organization, based in Suva, Fiji, coordinated research on the geology of the coastal areas and the sea floor in the Pacific, focusing on mineral, hydrocarbon, geothermal, and wave resources, and helped to build national capacity in the geosciences (Tsamenyi 130, 132). It was dedicated to providing services to promote sustainable development in the countries it served. American Samoa, French Polynesia, and Guam participated in this organization, along with the 16 independent and freely associated countries that are members of the PIF. In 2010, SOPAC’s functions were transferred to the SPC and SPREP. Today, SOPAC no longer exists as a separate organization and is a division of the SPC with its main office in Suva, Fiji.
C. Fishery Organizations and Agreements in the Pacific
1. The Pacific Islands Forum Fisheries Agency
11 In 1979, the twelve countries that were then members of the PIF established the Pacific Islands Forum Fisheries Agency (‘FFA’) to coordinate regional fishing concerns the in light of the international recognition (in the drafts that eventually became the UN Convention on the Law of the Sea [1833 UNTS 397]) of the 200-nautical mile exclusive economic zone (‘EEZ’) (see generally Van Dyke and Heftel). FFA’s members are now the same 16 countries that are members of the PIF, plus Tokelau, which joined on its own in 2002, at the urging of New Zealand. Its main functions are to coordinate and harmonize national policies for fishing in the South Pacific Region, promote sustainable management techniques, and assist in negotiating agreements through its staff based in Honiara, Solomon Islands with fishing companies that wish to fish in the EEZs of its members.
2. The Wellington Driftnet Convention
12 One example of swift collective action taken by Pacific Islanders was their adoption of the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific in 1989, often called the ‘Wellington Convention’ or the ‘South Pacific Driftnet Convention’. This treaty was quickly negotiated because of the concern that large amounts of juvenile albacore tuna were being harvested through the high-seas drift netting utilized by the Japanese, Koreans, and Taiwanese. The Wellington Convention prohibited the landing or transshipment of drift-net catches in the ports of the contracting parties, the importation of any fish or fish product caught with a drift net, and the possession of any drift net on board any vessel within the fisheries jurisdiction of the contracting parties (see generally Gubon 126–27). It has not been ratified by France, the Marshall Islands, Tuvalu, or Vanuatu. Papua New Guinea reported that the prohibitions of the Convention had been included when Papua New Guinea enacted its Fisheries Act 1994. After adopting their own treaty, the Pacific Islanders worked effectively together to promote the adoption by the United Nations General Assembly in 1989 (UNGA Res 44/225 [22 December 1989] GAOR 44th Session Supp 49 vol 1, 147), and again in 1991 (UNGA Res 46/215 [20 December 1991] GAOR 46th Session Supp 49 vol 1, 147; see generally Hunter Salzman Zaelke 721–31), of resolutions supporting global restrictions and calling upon countries to ban the use of high seas drift-nets entirely (see also Fisheries, High Seas).
3. The 1995 Straddling and Migratory Fish Stocks Agreement
13 On 4 December 1995, the nations of the world settled on the text of an important document with the cumbersome title of 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 (2167 UNTS 3; see generally Van Dyke  9–15; Van Dyke ). The goal of this document was to stop the dramatic overfishing that has decimated the fish stocks in many parts of the world. It built on existing provisions in the UN Convention on the Law of the Sea (Arts 56, 61–66, 69–70, 118–20), but it also introduced a number of new strategies that will require the fishing industry to change its mode of operation in significant ways. It also required that coastal, island, and distant-water fishing nations cooperate to manage straddling and migratory fish stocks (Straddling and Highly Migratory Fish Stocks) through regional fishery management organizations, which led to the creation of the Western and Central Pacific Fishery Commission, described in the next section.
4. The Honolulu Convention
14 The Pacific Island and Pacific Rim nations met every six months for several years in Honolulu in the late 1990s to draft an important and ambitious treaty governing the migratory fish stocks of the Pacific Ocean. At the final negotiating session in September 2000, the treaty was signed by most of the negotiating parties, and now almost all the relevant countries are contracting parties. Formally called the Convention on the Conservation and Management of the Highly Migratory Fish Stocks of the Western and Central Pacific Ocean (2000 WTS 3; see generally Botet), this treaty created the regional organization anticipated by Art. 64 UN Convention on the Law of the Sea (see generally Van Dyke and Heftel 11–17) and by the 1995 Straddling and Migratory Fish Stocks Agreement.
15 The Honolulu Convention is huge in geographical scope, covering much of the vast Pacific Ocean and governing territorial seas (Territorial Sea) and exclusive economic zones as well as high seas areas. It creates a Commission with authority to set catch limits and allocate catch quotas to fishing nations both within and outside the exclusive economic zones of coastal and island nations. The Commission can also regulate vessel types, fish size, and gear, and establish area and time limitations. Decision-making is by consensus for some issues and by chambered voting on others, with the interests of the distant-water fishing nations and the island nations both carefully protected. Its headquarters is at Pohnpei, Federated States of Micronesia.
D. Hazardous and Radioactive Wastes—The Treaty of Waigani
16 The Pacific Island countries adopted the Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (‘Waigani Convention’) in September 1995 to regulate the movement of hazardous and radioactive wastes. The Waigani Convention requires contracting parties to prohibit the import of hazardous and radioactive wastes, and it establishes mandatory notification procedures for transboundary movements of nonradioactive hazardous waste (see also Hazardous Wastes, Transboundary Impacts). The Waigani Convention came into force on 21 October 2001, when the 10th country ratified it.
17 Current challenges for the Pacific include protecting the many low-lying islands from the threats created by climate change and sea-level rise (see also Climate, International Protection), the implementation of the ambitious provisions of the Honolulu Convention, the decision regarding whether a whale sanctuary should be established in the South Pacific, the development of legal regimes to regulate the sea transport of ultra-hazardous radioactive materials (see Van Dyke  and ) and the use of low frequency active sonar by navies (see eg Van Dyke Gardner Morgan), and the resolution of numerous maritime boundary disputes (see Van Dyke  166–76). Pacific Islanders have created functioning regional organizations that played important roles in allowing the small islands to speak with a more uniform and louder voice when talking to the larger powers. Political conflicts within some of the countries, particularly Fiji, have caused the regional organizations to be less effective than they might otherwise have been, and the fact that many countries in the region are dependent on outside aid makes them less able to criticize the activities of those countries that give them aid.
18 SPREP has established a sound agenda and provided leadership on environmental protection in the region. In recent years, climate change has become the priority for the Pacific Islands. In order to increase the Pacific Islands’ impact in international negotiations and decision-making, there is a necessity for strong regional cooperation. SPREP is the leading regional inter-governmental environmental organization and the largest climate change adaptation initiative in the region. In the Pacific way, SPREP has focused on consensus- and capacity-building rather than confrontation. A good beginning has been made towards regionalism in the Pacific, but how effective these initiatives will be in the dealing with global challenges, especially climate change, remains to be determined.
- R Herr Regionalism in the South Seas: The Impact of the South Pacific Commission 1947–1974 (Duke University 1976).
- JM Van Dyke and S Heftel ‘Tuna Management in the Pacific: An Analysis of the South Pacific Forum Fisheries Agency’ (1981) 3 University of Hawaii Law Review 1–65.
- JM Van Dyke LM Alexander and JK Morgan (eds) International Navigation: Rocks and Shoals Ahead? (Law of the Sea Institute, University of Hawaii Honolulu 1988).
- B Cicin-Sain and RW Knecht ‘The Emergence of a Regional Ocean Regime in the South Pacific’ (1989) 16 Ecology Law Quarterly 171–215.
- JM Van Dyke ‘The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands’ (1992) 14 University of Hawaii Law Review 445–517.
- F Gubon ‘Steps Taken by South Pacific Island States to Preserve and Protect Ocean Resources for Future Generations’ in JM Van Dyke D Zaelke and G Hewison (eds) Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (Island Press Washington DC 1993) 121–30.
- JM Van Dyke ‘Sea Shipment of Japanese Plutonium under International Law’ (1993) 24 Ocean Dev & Intl L 399–430.
- JM Van Dyke D Zaelke and G Hewison (eds) Freedom for the Seas in the 21st Century: Ocean Governance and Environmental Harmony (Island Press Washington DC 1993).
- JM Van Dyke ‘The Straddling and Migratory Stocks Agreement and the Pacific’ (1996) 11 IJMCL 406–15.
- D Hunter J Salzman and D Zaelke International Environmental Law and Policy (Foundation New York 1998).
- JM Van Dyke ‘Sharing Ocean Resources: In a Time of Scarcity and Selfishness’ in HN Scheiber (ed) Law of the Sea: The Common Heritage and Emerging Challenges (Kluwer The Hague 2000) 3–36.
- V Botet ‘Filling in One of the Last Pieces of the Ocean: Regulating Tuna in the Western and Central Pacific Ocean’ (2001) 41 VaJIntl L 787–813.
- M Tsamenyi ‘Maritime Cooperation in the South Pacific: Trends and Opportunities’ in DM Johnston and A Sirivivatnanon (eds) Ocean Governance and Sustainable Development in the Pacific Region (Southeast Asian Programme on Ocean Law, Policy and Management Bangkok 2002) 127–36.
- JM Van Dyke ‘The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials’ (2002) 33 OceanDev&IntlL 77–108.
- JM Van Dyke ‘Regionalism, Fisheries, and Environmental Challenges in the Pacific’ (2004) 6 San Diego International Law Journal 143–78.
- JM Van Dyke EA Gardner and JR Morgan ‘Whales, Submarines, and Active Sonar’ (2004) 18 Ocean Yearbook 330–63.
- H Stockinger JM Van Dyke M Geistlinger SK Fussek and P Machart (eds) Updating International Nuclear Law (Intersentia Cambridge 2007).
- JM Van Dyke Who Owns the Crown Lands of Hawai‘i? (Univ of Hawai‘i Press Honolulu 2008).
- JM Van Dyke ‘Disputes Over Islands and Maritime Boundaries in East Asia’ in JM Van Dyke and SY Hong (eds) Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Nijhoff Leiden 2009) 39–75.
- JM Van Dyke ‘The Romania-Ukraine Decision and Its Effects on East Asian Maritime Delimitations’ in JM Van Dyke SP Broder S Lee and JH Paik (eds) Governing Ocean Resources: New Challenges and Emerging Regimes: A Tribute to Judge Choon-Ho Park (Nijhoff Leiden 2013).
- Agreement Establishing the South Pacific Commission (signed 6 February 1947, entered into force 29 July 1948) 97 UNTS 228.
- Agreement Establishing the South Pacific Forum Secretariat (with Annex) (signed 29 July 1991, entered into force 23 April 1993) 1720 UNTS 95.
- Agreement Establishing the South Pacific Regional Environment Program (SPREP) (with Final Act) (signed 16 June 1993, entered into force 31 August 1995) 1982 UNTS 3.
- Constitution Establishing the Pacific Islands Producers’ Association (done 12 June 1970, entered into force 14 January 1971) 940 UNTS 84.
- Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (done 24 November 1989, entered into force 17 May 1991) 1899 UNTS 3.
- Convention on Conservation of Nature in the South Pacific (signed 12 June 1976, entered into force 26 June 1990)  ATS No 41.
- Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (adopted 16 September 1995, entered into force October 2001) 2161 UNTS 93 (Waigani Convention).
- Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (signed 15 February 1975, entered into force 24 March 1976) (1976) 15 ILM 651.
- Flags of the World ‘Pacific Community: South Pacific Commission’ (26 June 2008).
- Secretariat of the Pacific Community ‘History of the South Pacific Community’ (21 August 2005).
- Secretariat of the Pacific Community ‘Members of the South Pacific Community’ (20 August 2005).
- Secretariat of the Pacific Regional Environment Programme ‘Strategic Plan 2011–2015’ (2011).
- Secretariat of the Pacific Regional Environment Programme ‘Strategic Plan 2017–2026’ (2017).
- South Pacific Forum Fisheries Agency Convention (signed 10 July 1979, entered into force 9 August 1979) 1579 UNTS 308.
- South Pacific Nuclear Free Zone Treaty (concluded 6 August 1985, entered into force 11 December 1988) 1445 UNTS 177.
- South Pacific Regional Environmental Programme ‘Action Plan for Managing the Environment of the South Pacific Region 1997–2000’ (April 1997).
- South Pacific Regional Environmental Programme ‘1995/96 Annual Report’ (August 1996).