fiji: implimenting multilateral environmental agreements...

FIJI:

IMPLIMENTING MULTILATERAL ENVIRONMENTAL AGREEMENTS

(CHALLENGES & OPPORTUNITIES)

By

Sainivalati S. Navoti

A Supervised Thesis submitted in fulfillment of the requirement of the

Degree in Masters of Science (Climate Change)

Copyright@2012 by Sainivalati S. Navoti

Pacific Centre for Environment and Sustainable Development School of Geography, Earth Science and Environment

Faculty of Science, Technology and Environment University of the South Pacific

September, 2012

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DECLARATION OF ORIGINALITY

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Acknowledgement

It all began on a beautiful sunny day in the picturesque resort town of Cancun, Mexico, December, 2010,

whereat, whilst endeavoring my utmost, as a Climate Negotiator, to advance Fiji’s and the Alliance of

Small Island States (AOSIS)’s position during negotiations at the 16th Session of the Conference of the

Parties (COP 16) to the United Nations Framework Convention on Climate Change (UNFCCC), I met

Professor Murari Lal, the Director, of the Pacific Center for Environment and Sustainable Development,

Faculty of Science, Technology & Environment, at the University of the South Pacific.

Professor Lal was the Technical Advisor to the Fiji Delegation at COP 16. He warmly encouraged me to

write this Paper, focusing primarily on how Fiji has been fairing in its implementation of the various

Multi lateral Environmental Agreements to which it is a party. I was then the Director of the Political and

Treaties Division of the Ministry of Foreign Affairs and International Cooperation of the Government of

Fiji and the Lead Climate Change Negotiator.

Information contained in this paper, the structure and its findings is attributed primarily to Professor Lal’s

guidance and advice. I wish therefore to acknowledge the good Professor for his encouragement, patience

and supervisory counsel.

Debt of my gratitude is also owed to the Director of the Department of the Environment of the

Government of Fiji, Mr. Jope Davetanivalu. Jope freely gave his advice and thoughts on how he saw

environmental issues are being addressed in Fiji and how it could be improved. Mr. Davetanivalu assisted

me tremendously as the Alternate Representative for Fiji in the Global Climate Negotiations. The

assistance of staff members of the Department of Environment is also hereby acknowledged.

Ms. Cassie Flynn, UNDP Climate Change Policy Specialist was instrumental in giving guidance on the

mechanics for the setting up of Climate Funds. Her expert suggestions and technical advice coupled with

the guide contained in her published work “Blending Climate Finance through National Climate Funds”

assisted me greatly in concluding Chapter Six of this paper. Vinaka Cassie.

Last but my no means least, I wish to acknowledge the support, encouragement and understanding of my

family, especially, my wife, Mrs. Asenaca R. B. Navoti who kindly proof read my work in addition to all

other household chores I threw her way. Also, a vina du rikhi to my eldest son, Ratu Selema K. Navoti

(Naqase), only daughter, Adisovanatabua U. K. Navoti (Nau) and youngest son, Ratu Delano Vitusaiva

K. Navoti (Boy) for being there for me. Mum & Dad of cause for all that is me. May God continue to

bless you all – always!

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Abstract

Implementing any kind of agreement to a mutually satisfactory level is in itself an arduous task.

Faithfully implementing obligations from a multitude of agreements is almost an impossible undertaking.

This Paper attempts to examine how the Republic of Fiji has been fairing in the implementation of her

obligations under the various Multi-lateral Environmental Agreements (MEAs) to which she is a party.

In doing so, the paper provides background information of the relevant environmental treaties, accounts

the various obligations contained in each of them and then analyses Fiji’s implementation efforts. In such

analysis, the paper highlights some of the programmes, policies and legislative initiatives that the Fiji

Government has put in place over the years as measures towards implementation of Fiji’s treaty

obligations. This Paper also highlights some of the major challenges confronting Fiji and suggests certain

reform initiatives which in the Author’s assessment could provide opportunities, not only for better

implementation, but also secure, a sustainable long term development and implementation agenda,

suitable for a Small Island Developing State, like Fiji.

Since the 1972 Stockholm Conference on the Human Environment, the world has seen the proliferation of

environmental agreements both at a global and regional level. Many factors have been attributed to this

influx, there are two rationale being advance in this paper as reasons for the proliferation; the first being

historical development, or evolution of issues, i.e. the shift of emphasis from a purely environment

conservation perspective to a combined environmental conservation and sustainable development

emphasis. The second is the complexity of the issues themselves. Environmental issues are multi faceted

and the current international legislative environment has been found not conducive to the development of

coordinated, or synergistic, approaches to collective environmental – and sustainable development -

problem solving.

Given such a plethora of MEAs, Fiji, a Small Island Developing State, in the middle of the vast Pacific

Ocean, has ratified a total of twenty five (25) MEAs. Of these, fifteen (15) Agreements are of Global

nature, ten (10) are Regional Instruments. Analysis of the obligations in each of these MEAs reveals that

Fiji is duty bound to observe and implement a little over seven hundred (700) specific mandatory

obligations; immense burden for such a small nation.

Despite the revelation of the enormity of the duties to be fulfilled, this Paper reveals genuine attempts,

deliberate efforts and purposeful endeavors, by a Small Island State, eager to play her part in the

international arena. No such effort shall be deemed unimportant when one assesses the contribution it

makes in the attainment of the overall goal of world conservation.

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Overall, Fiji’s implementation of its MEAs obligations paints a mixed picture, when ranked, would range

from a “not so good” to a “good enough” effort. The picture certainly does not reflect a Rembrandt or

Leonardo Da Vinci type performance. Nevertheless, when one examines the contributory factors for such

a performance, one will appreciate, that like other developing countries, Fiji suffers from serious lack of

capacity, which has over the years been confounded by uncoordinated institutional arrangements and

inhibited by legislative boundaries in need of serious updating. Fiji’s picture does indeed suggests that a

lot more could be done to strengthen and improve Fiji’s implementation efforts. The Government of Fiji

has the onerous responsibility to ensure that Fiji’s Flag flies high within the community of nations and

one way to ensure this, is through self-assessment. It is all very well to join the bandwagon of treaty

ratification; it is the implementation of treaty obligations that defines the ride.

Systemic, institutional, and attitudinal reforms will assist Fiji to better implement her treaty obligations.

Innovative lateral thinking, identification, training and retention of qualified personnel and a deliberate

attempt at improving institutional capacity through empowerment of all stakeholders will also contribute

positively to this endeavor. Coordination and channeling of resources to identified appropriate objectives

also would assist.

To address the challenges identified, this Paper offers some suggestions at institutional reforms. These

include the revisiting of the role and authority of the Fiji Environmental Council. Suggestions are offered

to elevate the Council to be the highest environmental authority in Fiji to be serviced by a duly

constituted Ministry of Environment, supported by an autonomous Environment Protection Agency and

supervised by an independent Environmental Court. This Paper also suggests the establishment of a

National Green Fund to replace the ad hoc Trust Fund arrangements under the various environmental

legislative regimes currently in force in Fiji today.

Fiji still has a fair way to go, she is not isolated or alone, there are others (countries) that suffer from the

same predicaments. This paper reveals that in some treaties, Fiji has done tremendously well, so well in

fact, to receive International Awards for recognition of good work. There are no doubts, that such effort

can be replicated to other treaties. As a sovereign and an independent State, wishing to hold her place

among the community of nations, and if the maxim “Pacta Sunt Servanda” (Agreements must be kept) is

to have any relevance whatsoever, the onus is simply on Fiji to ensure replication of such good efforts, to

other MEAs.

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List of Acronyms

1 ACP African Caribbean Pacific

2 ALTA Agriculture Landlord and Tenant Act 1976.

3 AOSIS Alliance of Small Island States

4 AUSAID Australian Agency for International Development

5 AWGKP Ad Hoc Working Group on Kyoto Protocol

6 AWGLTC Ad Hoc Working Group on Long Term Cooperation

7 CCS Convention on the Continental Shelf

8 CITES Convention on International Trade in Endangered Species

9 CLCS Commission on the Limits of the Continental Shelf

10 CSD Commission on Sustainable Development

11 CTCN Climate Technology Center and Network

12 EEZ Exclusive Economic Zone

13 FAO Food and Agriculture Organization

14 FFA Forum Fisheries Agencies

15 FFC Forum Fisheries Committee

16 FLP Fiji Labour Party

17 GDP Gross Domestic Product

18 GEF Global Environmental Facility

19 GMO Genetic Modified Organisms

20 ICJ International Court of Justice

21 IMF International Monetary Fund

22 ITTA International Tropical Timber Agreement

23 IUCN International Union on the Conservation of Nature

24 JICA Japan International Cooperation Agency

25 LMO Living Modified Organisms

26 LULUCF Land- Use, Land- Use Change and Forestry

27 MARPOL International Convention for the Prevention of Pollution from Ships

28 MEA Multilateral Environmental Agreement

29 MRV Measurement, Reporting and Verification

30 NAMA Nationally Appropriate Mitigation Action

31 NGO Non-Governmental Organization

32 NOU Fiji National Ozone Unit

33 NPT Nuclear Non-Proliferation Treaty

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34 NWS Nuclear Weapon States

35 NZAID New Zealand Agency for International Development

36 ODS Ozone Depleting Substances

37 PACD Plan of Action to Combat Desertification

38 PIC Pacific Island Countries

39 POP Persistent Organic Pollutants

40 REDD United Nations Collaborative Programme on Reducing Emissions from

Deforestation and Forest Degradation in Developing Countries

41 RFMO Regional Fisheries Management Organization

42 SDL Soqosoqo Duavata ni Lewanivanua

43 SIDS Small Island Developing State

44 SOPAC Secretariat of the Pacific Community Applied Geosciences and Technology

Division

45 SPNFZ South Pacific Nuclear Free Zone

46 SPREP Secretariat of the Pacific Regional Environment Programme

47 UNCBD Convention on Biological Diversity

48 UNCCD United Nations Convention to Combat Desertification

49 UNCED United Nations Conference on Environment and Development

50 UNCHE United nations Conference on the Human Environment

51 UNCLOS United Nations Convention on the Law of the Sea

52 UNCOD United Nations Conference of Desertification

53 UNCTAD United Nations Conference on Trade and Development

54 UNDP United Nations Development Programme

55 UNEP United Nations Environment Programme

56 UNESCO United Nations Educational, Scientific and Cultural Organization

57 UNGA United Nations General Assembly

58 VMS Vessel Monitory System

59 WCO World Custom Organization

60 WCPFC Western and Central Pacific Fisheries Commission

61 WHO World Health Organization

62 WMO World Meteorological Organization

63 WTO World Trade Organization

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�� Declaration of Originality ........................................................................................................................... 2

Acknowledgement ......................................................................................................................................... 3

Abstract ......................................................................................................................................................... 4

List of Acronyms ........................................................................................................................................... 6

Chapter One: Introduction & Methodology .......................................................................................... 11

1.1 Introduction .................................................................................................................................... 11

1.2 Methodology .................................................................................................................................. 14

1.3 Fiji .................................................................................................................................................. 15

1.3.1 Location & Topography .................................................................................................... 15

1.3.2 Climate .............................................................................................................................. 17

1.3.3 History and Political Situation .......................................................................................... 19

1.3.4 The Economy .................................................................................................................... 21

1.3.5 Population .......................................................................................................................... 23

1.3.6 Environmental Challenges ................................................................................................ 24

1.3.7 Environment Legislation ................................................................................................... 26

Chapter Two: Multilateral Environmental Agreements ................................................................. 36

2.1 Introduction .................................................................................................................................... 36

2.2 Definition ....................................................................................................................................... 36

2.3 History............................................................................................................................................ 38

2.4 Pre Stockholm ................................................................................................................................ 38

2.5 The Stockholm Conference ............................................................................................................ 38

2.6 The Rio Conference ....................................................................................................................... 41

2.7 Proliferation of MEAs .................................................................................................................... 43

2.8 Types of MEAs .............................................................................................................................. 48

2.9 MEAs and Fiji ................................................................................................................................ 49

Chapter Three: Fiji Global MEAs Implementation Analysis ......................................................... 53

3.1 Introduction .................................................................................................................................... 53

3.2 Nature Conservation/Biodiversity – Related MEAs ................................................................. 54

3.2.1 Convention on Biological Diversity (UNCBD) ................................................................ 56

3.2.2 United Nations Convention to Combat Desertification in those Countries Experiencing

Serious Drought and/or Desertification, Particularly in Africa (UNCCD) ....................... 73

3.2.3 Convention on International Trade in Endangered Species of Wild Flora and Fauna 1973

(CITES) ............................................................................................................................. 95

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3.2.4 The Convention on Wetlands (The Ramsar Convention) ............................................... 111

3.2.5 International Tropical Timber Agreement 2006 ............................................................ 120

3.2.6 International Treaty on Plant Genetic Resources for Food and Agriculture .................. 126

3.2.7 Convention Concerning the Protection of the World Cultural and Natural Heritage .... 141

3.3 Hazardous Materials/Wastes and Chemical – Related MEAs .............................................. 151

3.3.1 Cartagena Protocol on Bio-safety to the Convention on Biological Diversity .............. 151

3.3.2 Stockholm Convention on Persistent Organic Pollutants (POPs) .................................. 160

3.4 Climate Change/Atmosphere – Related MEAs ....................................................................... 179

3.4.1 Vienna Convention for the Protection of the Ozone Layer 1985 .................................... 180

3.4.2 Montreal Protocol on Substances that Deplete the Ozone Layer 1987 ........................... 184

3.4.3 United Nations Framework Convention on Climate Change 1992 ................................. 189

3.4.4 Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997

………………… ............................................................................................................. 194

3.5 Marine and Freshwater- Related MEAs .................................................................................. 200

3.5.1 United Nations Convention on the Law of the Sea 1982(UNCLOS) ............................. 201

3.5.2 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 1995 ..................................................................................................................... 214

Chapter Four: Fiji’s Regional MEAs Implementation Analysis ................................................... 228

4.1 Introduction Regional MEAs ....................................................................................................... 228

4.2 Ocean Governance & Fisheries ................................................................................................ 229

4.2.1 1979 South Pacific Forum Fisheries Agency Convention ............................................. 229

4.2.2 1990 Convention for the Prohibition of Fishing with Long Driftnets in the South

Pacific……….. .............................................................................................................. 234

4.2.3 The Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South

Pacific Region 1992 (“The Niue Treaty”) ..................................................................... 236

4.2.4 2000 Convention on the Conservation and Management of Highly Migratory Fish stocks

in the Western and Central Pacific Ocean ..................................................................... 241

4.2.5 Fiji and the Ocean& Fisheries Related MEAs .............................................................. 249

4.3 Chemicals, Hazardous Wastes, and Marine Pollution ........................................................... 256

4.3.1 1985 South Pacific Nuclear Free Zone Treaty (Treaty of Raratonga) .......................... 256

4.3.2 1986 SPREP Protocol for the Prevention of Pollution of the South Pacific Region by

Dumping (SPREP Dumping Protocol) .......................................................................... 259

4.3.3 1990 SPREP Protocol Concerning Cooperation in Combating Pollution Emergencies in

the South Pacific Region (SPREP Pollution Emergencies Protocol) ........................... 263

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4.3.4 1995 Waigani Convention to Ban the Importation into Forum Island Countries of

Hazardous and Radioactive Wastes and to Control the Tran boundary Movements and

Management of Hazardous Wastes within the South Pacific Region (Waigani

Convention) ................................................................................................................... 267

4.4 Biodiversity ............................................................................................................................. 279

4.4.1 1976 Convention on the Conservation of Nature in the South Pacific (Apia Convention)

...................................................................................................................................... 279

4.5 Land and Marine Resources ................................................................................................. 282

4.5.1 Convention for the Protection of the Natural Resources and Environment of the South

Pacific Region 1986 (Noumea Convention) ................................................................. 282

Chapter Five: Implementation Challenges ..................................................................................... 288

5.1 Capacity ....................................................................................................................................... 288

5.1.1 Systemic Capacity Constrains ........................................................................................ 288

5.1.2 Institutional Level Capacity Constrains ......................................................................... 290

5.1.3 Individual Level Capacity Constraints ........................................................................... 291

5.2 Funding Constraints .................................................................................................................... 292

5.3 Research and Data Management ................................................................................................. 293

Chapter Six: Opportunities ................................................................................................................... 294

6.1 Attitudinal Reform ....................................................................................................................... 294

6.2 The Fiji National Environment Framework ................................................................................. 295

6.3 The National Environment Council ............................................................................................. 297

6.4 The Ministry of the Environment ................................................................................................ 300

6.5 The National Environment Protection Authority of Fiji .............................................................. 303

6.6 The National Green Fund of Fiji .................................................................................................. 305

6.7 The Environment Court ............................................................................................................... 311

Chapter Seven: Conclusion ................................................................................................................... 314

7.1 Conclusion ................................................................................................................................... 314

Bibliography ............................................................................................................................................ 317

List of Figures .......................................................................................................................................... 327

List of Tables ............................................................................................................................................ 328

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Chapter One: Introduction & Methodology

“We now possess the knowledge that our actions do have a real impact on the environment. Ignorance is no excuse for inaction. With knowledge comes the

moral responsibility to act carefully in regards to the environment, on a global, domestic, and local scale.”1

1.1 Introduction

General

The human race has transformed and is continuing to transform the earth drastically in pursuit of

development. Human beings, in their search for comfort and luxury, have explored, threatened

and in many cases destroyed the equilibrium of nature and the ecosystem. Adjusting the

relationship between humans and nature is one of the most fundamental issues we face and must

deal with today. With the increasing deterioration of ecological systems on which human beings

rely and the aggravation of the environmental crisis, human beings must realize that they cannot

rely on economic and judicial methods alone to solve the problems of environmental pollution

and ecological imbalances; they must also appeal to human beings’ limitless internal ethical

resources and boundless opportunities for cooperation.

The 1960s and 1970s witnessed an ecological crisis brought about by industrial civilization2.

This crisis was composed of environmental pollution (such as air, water, soil, toxic chemical and

solid waste pollution), resource shortages (such as shortages of energy, cultivated land, minerals

and fresh water) and ecological imbalances (such as the rapid decrease of forest and biodiversity,

the rapid growth of population and the desertification of land the world over).

The environmental problems of most developed countries had been well dealt with by the

beginning of the 1980s3. However, environmental pollution and ecological crisis have spread

rapidly across the world. The environmental situations in developing countries have become

worse and worse, and the shadow of resource shortage and nuclear waste hangs over the world.

��1 Michael I. Jeffery QC, “Environmental Governance: Comparative Analysis of Public Participation and Access to Justice” Journal of South Pacific Law, Vol. 9, 2005, Issue 2 p.1. See also: http://www.paclii.org/journals/fJSPL/vol09no2/2.shtml 2 Tongjin Wang “Towards an Egalitarian Global Environmental Ethics” in UNESCO’s Henk A. edited Ethic Series: Environmental Ethics and International Policy, 2010 p. 25 3 Ibid�

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The population boom is threatening earth’s carrying capacity. The rapid disappearance of species

and forests is undermining life, both human and non-human. The ozone hole and global warming

are becoming a nightmare4.

Faced with such a worrying situation, all human beings, without exception, and their respective

governments share a grave and an inescapable responsibility to protect the environment. In the

global scheme of things and with benefit of hindsight, the Native Americans perhaps were right

when they said: "We do not inherit the Earth from our ancestors: we borrow it from our

children."5 Former Secretary General of the United Nations, Mr. Boutros Boutros Ghali, in

closing the Rio “Earth Summit” confirmed that “It is not enough for man to love his neighbor; he

must also learn to love his world'…..’ He went further to say: “We must now conclude an ethical

and political contract with nature, with this Earth to which we owe our very existence and which

gives us life'6

Thesis

This paper is about the protection of the environment. Generally, this thesis attempts to illustrate

and assess how a Small Island Developing State (SIDS), the Republic of Fiji, is endeavoring to

protect, conserve and preserve its fragile island environment and ecosystems through the

implementations of the various obligations contained in a number of global and regional

Multilateral Environmental Agreements (MEAs) to which it is a party.

Specifically, this paper discusses the legal obligations contained in each of the MEAs applicable

to Fiji and highlights some of the challenges encountered and opportunities for improvement in

Fiji’s quest for implementation. This paper also provide a brief account of some of the activities,

programmes and legislative measures that have been or are being carried out or put in place by

the Government of Fiji and by individual groups and organizations within Fiji as direct response

or attempts to fulfill Fiji’s environmental treaties obligations.

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Structure

There are seven (7) chapters in this paper. The first carries a general introduction and a

discussion of the research methodology employed in the gathering of relevant and appropriate

information contained in this thesis. It also contains background information about the Republic

of Fiji including a discussion on some of the major environmental challenges frequently

encountered by the island nation and a list of legislations relating to the protection and

regulations of the environment and related matters.

Chapter Two carries a general discussion of MEAs. It is necessary to have such a section at the

commencement of the paper in order to put into proper perspective from the outset the historical

development and reasons for the global proliferation of MEAs. This will in turn explain the

volume and extent of Fiji’s responsibilities and the need and reasons for vigilance. Analysis in

this chapter includes discussion on the history, purposes and types of MEAs. An examination is

also made on the reasons for the proliferation of MEAs and why countries sign up to some of

these treaties in such large numbers.

Chapter Three and Four are considered as the main body of this paper. Chapter Three carries a

discussion of the “Global” MEAs to which Fiji is a party while Chapter Four discusses the

“Regional” MEAs. Analysis in these chapters includes the purpose of the MEA concerned, its

history and the legal obligation it bestows on Fiji.

Examples of activities, programmes, legislations and other initiatives put in place by Fiji in

response to or as means of implementing these Agreements, in some sections of these two

Chapters will be discussed at the end of each thematic cluster7. The author has adopted this

approach to avoid duplication and or the regurgitation of examples of initiatives, programmes

and activities since there are bound to be overlaps in some sections, where one initiative could be

applicable to and relevant for two or more MEAs within such cluster.

For clarity, MEAs discussed in Chapters Three and Four have been divided into four specific

headings, each reflecting the following broad environmental thematic groups.

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For global MEAs, relevant treaties and conventions are clustered under these broad themes:

i) Nature Conservation

ii) Hazardous Materials

iii) Atmosphere

iv) Marine & Freshwater

Regional MEAs are clustered as follows:

i) Ocean Governance & Fisheries

ii) Chemicals, Hazardous Wastes & Marine Pollution;

iii) Biodiversity; and

iv) Land and Marine Resources

The Author wishes to convey that as it has been alluded to above, discussion of Fiji’s

implementation of the obligations under the thematic cluster “Marine & Freshwater” (Global

MEAS) will be made following the completion of the discussion of the obligations under the

thematic cluster “Ocean Governance & Fisheries”(Regional MEAs). Issues covered in the

MEAs discussed under these two clusters are identical, hence, the combined discussion.

Chapter Five identifies and discusses some of the challenges faced by Fiji in implementing

MEAs and highlights some of Fiji’s efforts in addressing them.

Chapter Six contains a discussion of an opportunity for reform which could be adopted to assist

Fiji better implement her Treaty obligations and efficiently govern the management, protection

and well being of its environment for the interest of its citizens and more importantly for the

interest and benefit of its the future generations.

Chapter Seven carries the conclusion to this paper.

1.2 Methodology

In collating, deciphering and arranging the appropriate and relevant information to be included in

this paper, the author relied on information contained in publications publically available in

books, articles and abstract forms. Substantial information were also gathered from various

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websites quoted within this paper and from personal interviews with identified Fiji Government

Officials. Good amounts of information were also collated from the various reports and

assessments that have been submitted by the Government of Fiji to the various international

environmental treaty bodies requiring submissions of such reports or assessments.

While the above mentioned sources is also true for most of the information contained in Chapter

Six of this paper, the portion relating to institutional reform is substantially of the author’s own

design.

1.3 Fiji

There are seven (7) sub-sections under this part (1.3. i.e.). Each of the topics covered herein are

meant to provide general information only, they are not intended to be a detailed discussion of

the issues under consideration, though it must be clarified, that a substantial effort has been

exerted to identify and discuss the major documented “environmental challenges” confronting

the Fiji Islands (see: Paragraph 1.3.7 below) and to list and summarize the roles and objectives of

relevant environmental legislations currently in force in Fiji (see: paragraph 1.3.8 below).

1.3.1 Location & Topography

Fiji is an independent island republic, a Small Island Developing State (SIDS) in the South

Pacific. The Republic of Fiji is situated between latitudes 15° South and 21° South and

straddling the 180th meridian from 177° West to 175° East8. The 320 or so islands form a

complex group of high islands of volcanic origin, with barrier reefs, atolls, sand cays and raised

coral islands9.

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Figure One: The Map of Fiji

Source: Fiji Island Bureau of Statistic “Fiji Facts & Figures as at 1st July 2010” p.1

The two largest islands, Viti Levu (10,386 sq.km) and Vanua Levu (5,535 sq.km), together

comprise 87% of the total land area. Two smaller islands, Taveuni (435 sq.km) and Kadavu (408

sq.km), account for a further 4.6% of the land area, and most of the remaining islands are very

small.

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Both Viti Levu and Vanua Levu have mountainous interiors, with peaks rising to 1,323 m and

1,032 m respectively. The uplands of both islands were formerly covered in tropical rainforest,

but much of this has now been replaced with secondary forest and grassland on the lower slopes.

Farmland occupies most flattish lowland, and large areas on both islands are under cultivation

for sugar cane. Mangrove forest occurs widely along the coastline and at river mouths. Coral

cays tend to be dominated by palms, panda -pits and casuarinas.

The large number of islands, their differing geological origins, the large size of some of the

islands, the varying climates and their isolation from other islands have all contributed to provide

Fiji with a large number of different ecosystems and habitat types with a very rich diversity of

flora and fauna.

1.3.2 Climate10

Fiji enjoys a tropical maritime climate without great extremes of heat or cold. At all seasons the

predominant winds over Fiji are the trade winds from the east to southeast. On the coast of the

two main islands, Viti Levu and Vanua Levu, day-time sea breezes blow across with great

regularity. Winds over Fiji are generally light or moderate; strong winds are far less common and

are most likely to occur in the period June to November when the trade winds are most

persistent. However, tropical cyclones and depressions can cause high winds, especially from

November to April.

Temperatures at the lower levels around Fiji are fairly uniform. In the lee of the mountains,

however, the daytime temperatures often rise 1 to 2 °C above those on the windward sides or on

the smaller islands. Also, the humidity on the lee side tends to be somewhat lower.

Due to the influence of the surrounding ocean, the changes in the temperature from day to day

and season to season are relatively small. The average temperatures change only about 2 to 4 °C

between the coolest months (July and August) and the warmest months (January to February).

Around the coast, the average nighttime temperatures can be as low as 18 °C and the average

daytime temperatures can be as high as 32 °C. In the central parts of the main islands, average

night-time temperatures can be as low as 15 ºC. Past records, however, show extreme

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temperatures as low as 8 ºC and as high as 39.4 ºC have been recorded in Fiji11. Southeastern

coastal areas and the high interior often experience persistent cloudy and humid weather.

Rainfall is highly variable and mainly orographic (influenced by the island topography and the

prevailing south-east trades). The southeast trade winds are often saturated with moisture,

causing any high landmass lying in their path to receive much of the precipitation. The

mountains of Viti Levu and Vanua Levu create wet climatic zones on their windward sides and

dry climatic zones on their leeward sides; hence, the main islands have pronounced dry and wet

zones. Little climatic differentiation occurs on the smaller islands.

Fiji experiences a distinct wet season (November to April) and a dry season, controlled largely

by the north and south movements of the South Pacific Convergence Zone, the main rainfall

producing system for the region. Much of the Fiji’s rain however falls in heavy, brief local

showers.

Rainfall is usually abundant during the wet season (November-April), especially over the larger

islands, and it is often deficient during the rest of the year, particularly in the "dry zone" on the

northwestern sides of the main islands. Annual rainfall in the dry zones averages around

2000mm, whereas in the wet zones, it ranges from 3000mm around the coast to 6000mm on the

mountainous sites. The smaller islands receive various amounts according to their location and

size, ranging from around 1500mm to 3500mm12.

The southeastern parts of the main islands, generally receive monthly total rainfall of 150mm

during the dry season, and 400mm during the wettest months. These parts of the islands have

rain on about six out of ten days for the dry season, and about eight out of ten days for the wet

season. The northwestern parts of these islands are in the rain shadow and receive generally less

than 100mm per month during the dry period. The variation in the monthly totals between the

two zones during the wet season is little. The wettest month is usually March and the driest

month is almost always July. During the wet season, brief heavy afternoon showers and

thunderstorms are common in the lee of the main islands.

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Fiji lies in the area occasionally traversed by tropical cyclones. They are mostly confined to the

period November to April, with greatest frequency around January and February. On average,

some ten to fifteen cyclones per decade affect some part of Fiji; and two to four inflict severe

damage13. Specific locations may not be directly affected for several years but the dominant

northwest to southeast tracks gives some increased risk of damage in the outlying northwest

island groups14.

Large-scale flooding in Fiji is mostly associated with the passage of a tropical cyclone or

depression that result in prolonged heavy rainfall. Normally urban centers situated near the

mouth of the four main rivers on the main island are affected the most. Localized flash flooding

during the wet season (November to April) is quite common. Storm tides and heavy swells can

also result in flooding of low-lying coastal areas during the pass of a severe cyclone15.

Droughts in Fiji can be closely linked to the ENSO (El Niño-Southern Oscillation) phenomenon,

which results in generally below average rainfall for Fiji. A strong ENSO episode is likely to

result in a major drought over the country, as happened during 1982/83 and 1997/98 ENSO

events16. Otherwise, even in a normal year the rainfall in the "dry zones" of the country is so low

during the Dry Season that an incident of below average rainfall for a few months can cause a

drought effect.

1.3.3 History and Political Situation

The original people of Fiji are believed to have arrived on the islands several thousand years

ago17. Dutch Explorer, Abel Tasman in 1643 was the first European to sight, chart and name the

group of Islands “Feejee”. Captain James Cook passed through in 1774 during his second

expedition to the South Seas. Lieutenant William Bligh navigated through Fiji in 1789 and again

in 1792 and is credited with charting many islands in the group.

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In 1874 Ratu Seru Epenisa Cakobau, “Tui Viti”, together with other High Chiefs of Fiji signed

the Deed of Cession on 10 October and ceded Fiji to Great Britain. Cession marked the

commencement of a 96-year period of colonial rule and saw the arrival into Fiji of other races.

Fiji gained independence from Great Britain on 10 October 1970.

In 1987, Lt. Col. Sitiveni Rabuka, staged a military coup d'état and abrogated the 1970

Constitution. Fiji was declared a Republic and later (in 1990) promulgated the 1990 Constitution.

In 1997, a new Constitution (Constitution Amendment Act 1997) was passed by the Fiji

Parliament. The Fiji Labour Party (FLP) won the general elections in 1999 and led a Coalition

Government under the Prime Ministership of Mr. Mahendra Pal Chaudhary for a year before

they were overthrown and taken hostage by a George Speight led civilian takeover in 2000. This

was followed by the purported abrogation of the 1997 Constitution. However, the Courts later

declared that the 1997 Constitution remained the supreme law. In 2001 General Elections saw

Fiji’s subsequent return to parliamentary democracy under the Prime Ministership of Mr.

Laisenia Qarase in a Soqoqsoqo Duavata Lewenivanua (SDL) led Government.

The SDL government was returned to office in the 2006 General Elections. Based on the 1997

Constitution a multi- Party Cabinet, including the FLP was formed. On 5 December, 2006 H.E

the President dissolved parliament and appointed a caretaker Government. On 10 April 2009,

following a Court of Appeal decision overturning the previous High Court decision legalizing

the actions of the President, the 1997 Constitution was abrogated. A new legal order was

established with the aim of creating a new Constitution and elections under a non-racial, equal

suffrage electoral system no later than 2014.

Fiji’s international relations policy recognizes the important role Small Island Developing States

(SIDS) like Fiji play in the international political/economic arena and seeks to build upon the

positive relationships which Fiji enjoys with a wide range of nations in the world. It also testifies

to the political, cultural and economic values Fiji attaches to the political relations it is now

forging with Asia in its Look North Policy and the traditional relationship it has enjoyed with the

Pacific Forum States, North America, ACP/European Union and the British Commonwealth.

The Republic of the Fiji is a member of the United Nations and its specialized agencies such as

the ILO, FAO, WHO, UNDP, UNEP and WMO. It is also a member of a number of international

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and regional organizations such as the Pacific Community, the Pacific Island Forum (currently a

suspended member), the South Pacific Applied Geosciences Commission (SOPAC), the Pacific

Regional Environmental Programmed (SPREP) and the African, Caribbean and Pacific (ACP)

Group, WTO, WCO, and the IMF. The Ministry of Foreign Affairs and International

Cooperation is responsible for the overall co-ordination of Fiji’s membership of these

organizations, Fiji’s participation in the appropriate international fora and in the supervision of

the implementation of international treaties obligation.

1.3.4 The Economy

The performance of the Fiji economy has remained relatively weak for the last 10 years. The

economy on an average grew by only 0.9 percent from 2000 to 2009. In the last 10 years, the

domestic economy experienced two political coups (2000 and 2006) and poor performances in

most of the sectors of the economy. Additionally, the recent global financial crisis severely

affected our trading partner economies, suppressing visitor arrivals and causing poor

performance in most of the tourism related sectors on the domestic front. The other major

contributors to the sluggish growth rate have been the underperforming exports, lower

remittances, reduced investment levels and increasing imports18.

In 2010, the global economic and financial environment had seemingly recovered from the worst

recession in 60 years. The upturn estimated by the International Monetary Fund (IMF) at 5.1

percent was largely on the strength of rebounding exports as well as accommodative fiscal

stimulus, unconventional monetary policies and measures to support the financial system19.

Over the same period, the Fiji economy continued to face many challenges as it pulled itself back

from an extremely difficult year in 2009 - a year highlighted by a fall in global demand and low

commodity prices. In 2010, Fiji’s economy was estimated to have grown by 0.6 percent20, after a

contraction of 3.0 percent in 2009. In line with subdued economic activity, overall labour

conditions remained weak except for the tourism and tourism-related sectors.

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The trend for investment also continued to be weak. The level of foreign reserves as at 30

November 2011 was around $1,461.4 million, equivalent to 4.8 months of retained imports of

goods and non-factor services. 21. As a small open economy, there is no denying that Fiji is a part

of the global economy where containing inflation is becoming a big challenge. Inflation peaked

at 10.5 percent in April 2010, the highest in 22 years, due to the impact of the 20.0 percent

devaluation in 2009 and tropical cyclones Mick and Tomas22. Inflation, however, did ease over

the remainder of the year, as temporary effects fell out, to stand at 5.0 percent in December. The

underlying inflation, measured by the trimmed mean method, was 0.6 percent23.

Investment remained subdued in 2010 and was estimated at about 14.0 percent of Fiji’s Gross

Domestic Product (GDP), the same level as 200924. While partial indicators for investment, such

as imports of investment goods, value of work put-in place in the construction sector and lending

for investment purposes, grew during 2010, overall investment remained low. The weighted

average lending rate of commercial banks fell to 7.42 percent in 2010 from 7.52 percent in

200925.

Under the Fiji Roadmap for Democracy and Sustainable Socio-Economic Development26, the

current Bainimarama Fiji Led Government sets out six (6) strategic priorities for economic

development for Fiji for the period 2009 to 2014. These priorities include27:

a. Maintaining Macroeconomic Stability;

b. Export Promotion

c. Import Substitution

d. Raising Investment

e. Making More Land Available for Productive and Social Purposes; and

f. Enhancing Global Integration and International Relations

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1.3.5 Population

Fiji is a country with people from a large variety of ethnic backgrounds and has a total

population of around 837,217 after the census in 2007. Of this total 475,379 are Fijians; 313,798

are Indians and 47,734 are classed as others28.

Figure Two: Fiji Population Graph29

The total population of Fiji in 2007 was estimated at 837,000, with the natural growth rate

between 1996 and 2007 of 1.8% per annum. While migration levels had stabilized over the

1990s, political turmoil in 1987, 2000 and 2006 have created upsurges in migration, primarily of

educated, skilled citizens, and particularly of the Indian population. People aged over 65 years

comprised 4.6 % of the population in 2007, compared to 2.4% in 1976. Over the same period, the

number of people aged less than 15 years had declined from 41% to 29 %. The proportion of

population living in rural areas has been declining, decreasing from 53% in 1996 to 49% in

200730.

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1.3.6 Environmental Challenges

Many who make Fiji their home count themselves quite fortunate to be living on an island

paradise that is, isolated, uncongested, bountiful and in the main, peaceful. A good number of

Fiji’s citizens today would probably assert or even defend that their way of life has not deviated

much from the routine of breathing fresh oceanic air, drinking pristine fresh natural spring water,

and eating tasty coconut creamed-lemon scented reef cods. However, nowadays, perhaps more

than any other preceding generation before them, Fijians are now becoming more and more

aware of the vulnerability of their fragile island ecosystem. Even more consoling is their

realization of the dire need to conserve and preserve whatever is there of their environment

today, for the enjoyment of their grandchildren’s children.

However, before one could claim absolute solace in a utopian silhouette of exotic existence

painted above, one must first swallow the reality pill that Fiji confronts a number of serious

environmental challenges that must be addressed now before the damage caused are herded into

the realm of irretrievability. Scores of Research and more than half a dozen Official Reports,

spanning a good part of the past two decades have documented those challenges31. This sub-

section recounts these environmental challenges.

In its State of the Environment Report32 submitted to the United Nations Conference on the

Environment and Development (UNCED) in 1992, the following were identified to be Fiji’s

major environmental concerns33:

i) urbanization - with subsequent waste disposal problems and pressure on peri-urban

marginal

ii) agricultural land;

iii) the potential effects of global warming;

iv) soil erosion caused by increased planting on steep slopes and logging;

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v) land conversion for agricultural and non-agricultural uses;

vi) lack of long-term land tenure;

vii) significant use of pesticides with little surveillance;

viii) poor sewage disposal from septic tanks;

ix) problems with solid waste disposal and littering in urban areas;

x) lack of recycling;

xi) moderate deforestation due to large commercial agriculture/rural development projects;

xii) potential hazards from gold, sand, and coral mining;

xiii) production of toxic chemicals and other wastes by the sugar industry; and

xiv) spread of settlements, urbanization, and related infrastructure.

In 2007, the Australian Foundation, a not for profit Organization, after seven months of research,

interviews with 67 informants and from deciphering available reports and other literature

concluded that “there is a biodiversity crisis in Fiji”34. This Report states that the most critical

issue facing terrestrial biodiversity conservation in Fiji is forest degradation through agricultural

clearance, plantation establishment, and destructive and unsustainable logging that is continuing

through large areas of the remaining tropical rainforests of Fiji35. The Report also found that poor

logging practices have resulted in serious soil erosion; river, stream and reef sedimentation; and

increased flooding events36.

In the marine ecosystems, the Report concluded that the situation is no better37. Over-harvesting

combined with pollution, soil erosion, and land run-off has led to a crisis in Fijian fisheries. The

Report went on to say that “Overfishing is prevalent for both the near-shore and deep water

fisheries. Nesting turtle numbers have dramatically declined, two species of giant clams are

extinct, and large inshore fish species are now uncommon. The bump head parrotfish

(Bolbometopon muricatum), the world’s largest parrotfish, is locally extinct at most locations”.

Fiji is recorded as being the sixth largest global exporter of ornamental fish and the second

largest exporter of live coral. There is no government-imposed quota for in-shore fisheries. There �� 60&2�&I� 4-/� 4-4M�� 3B� B�1�<� (3-&024��3-� &(�30;� 4"� ��)� B�")�� )+� ��+� �� "� ��")�� )��*�B�)��Y�� Y��=/BY��M��DM�� .�� 3� ��+�� E��4�� " �� +�D��-97��9��9�7��#�B��3)��)��C� �� >��'T��U % ?��

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are no formal limits to the numbers of fishing licenses or for fish take. Fisheries monitoring by

Fisheries officers is weak and ineffective. Even where communities engage in some degree of

fisheries management (estimated to be now in 30% of Fiji’s coastal areas), poaching is rife. Few

communities have the resources to monitor their reefs against poaching and to pursue the illegal

fishers. One locally managed marine area has reported a death as a result of fighting over

poaching38.

So, given such a revealing snippet of reality, the paradise we now think exists in Fiji may not be

as permanent or prominent as it seems. The threat of it disappearing is a few steps away – the

saddest and perhaps the most inexcusable truth about this doomed reality is that Fijians

themselves, either deliberately or unintentionally, are contributing or exacerbating the problem.

Even sadder is the fact that their government, despite all its good intension and best attempts,

still has a fair way to go, to devise a remedial formula of countering and addressing the identified

and now well documented environmental challenges.

1.3.7 Environment Legislation

From a political perspective, one is correct to assert that Fiji’s constitutional history has been one

of recurring turbulence. In the four (4) decades of its young independent sovereign existence, Fiji

has formulated, torn and discarded three (3) Constitutions and will soon be embarking on

formulating a fourth. Taking a glance past these post independence supreme laws, history also

reveals that even as early as during the time of Cession and indeed in the 1800s39, the

conservation of the environment has been in one form or another been recognized in Fiji.

Since the enactment of the Rivers and Streams Ordinance in 1880, Fiji has continued to enact

legislations relating to the environment, including the protection of its biodiversity. This

sections attempts to identify and list some of the legislations that are currently in place in Fiji.

The Author however wishes to clarify that the research made and the information contained in

this section is not presented or meant to be an exhaustive attempt to examine or analyze each of

the environment related legislations currently enforced in Fiji today but are presented

nevertheless to provide an idea of the extent to which Fiji has attempt to regulate human

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behaviors and other activities that may directly or indirectly affect the preservation or protection

of the environment.

A study of existing Fiji Environmental Legislations conducted by the South Pacific Regional

Environmental Programme (SPREP) concluded that:

“Most legislation governing natural resources in Fiji is very old and outdated, and very little attention is given to

environmental issues in these statutes. The absence of a legislative environmental policy results in an absence of

statutes with an express or implied environmental mandate, while laws governing resource development fail to

recognize the environmental basis of natural resources. As a result, legislation provides little in the way of capacity to

protect the environment from the impacts of development activities. There is certainly no mandate or legislative

capacity to pursue the goal of sustainable development.”40

Existing legislation has been categorized around five policy areas, as outlined below. Under each

category, the relevant legislation is described in terms of its substantive provisions, followed by a

commentary. The features of all the legislation reviewed are summarized, with some thematic

development.

The five categories of legislation are:

i. Tenure and jurisdiction over land and sea areas;

ii. Major infrastructure and land use planning laws;

iii. Legislation designed to protect the environment;

iv. Resources development legislation; and

v. Law relevant to biodiversity conservation.

Table 1: Fiji’s current Legislations on Tenure & Jurisdiction over Land & Sea

a. Tenure and Jurisdiction

Legislations on Tenure and jurisdiction over land and sea areas Srl. Legislation Purpose Comment

1. State Lands (Cap 132)

Parts III and IV of the State Lands Act deal with the sale and leasing of state land, respectively. Regulations (R) under §41 of the State Lands Act create nine categories of leases: agricultural, residential, commercial, grazing, industrial, dairying, tramway, quarry, and special. The State Lands Act also provides for the compulsorily

The sale of any state land does not confer on the purchaser the right to minerals found in, on or under the land; moreover, the State retains mineral exploitation rights on any land it has sold

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acquisition of land for public purposes pursuant to the State Acquisition of Lands Act. Public purposes include defense, town and country planning, and general public benefit.

2. Native Lands (Cap

133)41

The purpose of this Act is to identify native lands, after which these are administered under the terms of the Native Lands Trust Act

The Act has been amended recently to further clarify some aspects of native land administration.

3. Native Lands Trust

(Cap 134)

To be read in conjunction with the Native Lands Act It is perhaps wrong to assume that the communal ownership of land equates necessarily to a sustainability or stewardship ethic. The mere existence of native land does not suggest that it is being used any more sustainably than other land, or that it should be included in or subject to environmental reforms.

4. Marine Spaces

(Cap 158A)

The Marine Spaces Act is a curiosity in that it establishes the nature and extent of Fiji’s offshore jurisdiction but is also an instrument for regulating fishing the Marine Spaces Act is cast in terms very consistent with the United Nations Convention on the Law of the Sea (UNCLOS). In particular, establishment of Fiji’s offshore zones — internal and archipelagic waters, territorial sea, and exclusive economic zone (EEZ) — relies very faithfully on the enabling provisions of the UNCLOS

The Marine Spaces Act is a solid framework for administering Fiji’s adjacent maritime zones, especially insofar as foreign fishing is concerned

5. Continental Shelf

Act (Cap 149)

The purpose of the Continental Shelf Act is to extend the application of other legislation offshore. Such an approach is necessary to ensure that development of the continental shelf does not occur in a legal vacuum. Rights over the continental shelf flow from international conventions (Convention on the Continental Shelf [CCS] and UNCLOS).

The Continental Shelf Act departs from the parent convention in one main respect: by applying only to designated areas rather than to the continental shelf in entirety. The Convention on the Continental Shelf has unqualified application, so the approach of the Fiji legislation may be unnecessary.

Table 2: Fiji’s current Legislations on Major Infrastructures and Land Use Laws

b. Major infrastructure and land use planning laws

Major infrastructure and land use planning laws

Srl Legislation Purpose Comment 6. Town Planning

(Cap 139) The general approach adopted under the Town Planning Act in Fiji is fairly typical of land use planning as practiced elsewhere. A scheme defining land uses is prepared for an area of land with which all subsequent developments must be consistent. In the case of Fiji, the system is driven by town planning areas constituted by ministerial order upon application by the Director of Town and Country Planning or a local authority.

The approach to planning for land use is generally sound. However, the Town Planning Act is beset with problems related to both its policy intent and actual construction. Probably the most disturbing aspect is the absence of a basis for decision-making under the Act. The only commonly employed guidance is expediency, where either the local authority or Director considers it expedient to decide upon something.

7. Subdivision of

Land (Cap 140)

Controls over planning and development outside of towns are found in the Subdivision of Land Act. The Act applies to areas as gazette by the Minister, but excludes un leased State land, urban areas under the Local Government Act, and native reserves under the Native Trust Land Act

The Act does not stipulate timeframes for either applying for approval to subdivide nor for the treatment of such applications. Similarly, no detail is given in terms of the considerations for approving or refusing an application. The only guidance is the Director’s opinion that development is “undesirable” or “unsuitable”.

8. Local Government Essentially, the purpose of the Act is to create units around which communities can be organized, which are

The Local Government Act is an administrative tool, not one for actively

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(Cap 125) then given limited powers relating generally to maintaining order in terms of traffic, buildings, and other local facilities. Included within local council remit are powers to ensure that the area remains clean and inhabitable, which are exercised as by-laws that cover issues such as the frequency of garbage collection

planning the use of an area (this is the purpose of the Town and Country Planning Act). Additionally, the Act is not at all engaged with environmental issues. The existence of by-laws protecting against excessive noise or accessing public parks, for example, is concerned only with human amenity value. By-laws are intended to facilitate the peace, good order and government of local areas.

9. Roads (Cap 175) The Roads Act enables the construction of public roads, and provides the government with fairly broad powers to this end. The rights of adjoining land users clearly yield to the State, as a few examples illustrate.

The permanent secretary may possess land for both opening and widening roads, on a compensable basis (§4). Similarly, material may be forcibly extracted from any land proximate to a public road for the purpose of roadwork (§s7, 8). Excavated material and roadwork debris may be dumped on lands adjacent to roadwork (§10). In terms of both governance and environmental issues, the Roads Act is anachronistic and should be replaced.

10. Water Supply (Cap

144)

The legislation governing the supply of water in Fiji The Commissioner of Water Supply is widely empowered to lay, repair and alter main pipelines to ensure continuity of supply (§s5 and 9).

11. Sewerage (Cap 128)

The Sewerage Act provides for the construction and maintenance of infrastructure for the treatment of sewage. Powers to this end are shared between local councils and the Government.

The Sewerage Act does not evidence an awareness of environmental considerations. Neither the construction nor operation of sewerage facilities is subjected to any constraints or controls to protect the environment, or to attain an environmental goal. The Act is a product of its

12. Factories (Cap 99) The Factories Act intended is to ensure the health, safety and welfare of employees working in innately hazardous factories

Factories Act is not concerned with establishing or ensuring the environmental performance of factories in terms of the generation of waste, emission of pollution, or energy efficiencies. The Act certainly doesn’t apply to the sitting, design and construction of factories. It has been repealed and replaced by new occupational Safety legislation.

Table 3: Fiji’s current Legislations designed to Protect the Environment

c. Legislation designed to protect the environment

Legislation designed to Protect the Environment

Srl. Legislation Purpose Comment 13. Traffic Regulations

1974

Air pollution is not addressed except in a regulation outlawing the use of a motor vehicle that emits visibly polluting exhaust causing nuisance or property damage.

This approach lacks any meaningful basis such as identifying emissions and attempting to meet environmental goals. Airshed management is completely neglected and a framework for ensuring air quality is sorely needed.

14. Public Health (Cap 111)

The Public Health Act is of slight relevance to environmental protection through the concept of nuisance. A common law principle, nuisance has been codified and given a statutory basis to protect public health. Polluted water bodies (harbors, ponds, rivers, foreshores) are deemed to be a public nuisance (§s57–59). The local authority has powers to compel an owner or occupier to abate the nuisance and to seek a court order in

The Public Health Act has very limited utility in terms of environmental protection. The Act provides a few remedies for compelling the abatement of nuisance events that may impinge human health (pollution of internal waterways, particulate smoke emissions). Clearly, the Act is not an instrument for regulating and controlling pollution or waste,

� ��

the event of non-compliance although it may provide a means for intervening in limited situations, in the absence of other means.

15. Ports Authority of Fiji (Cap 181)

Under this legislation, port services are maintained by a statutory authority on behalf of the government. The related regulations establish some controls over pollution (pursuant to §63). The discharge of oil, waste, sewage and contaminated ballast into the waters of a port is prohibited unless authorized by the Authority.

The 1990 Regulations provide some framework for marine pollution control within the limits of ports and in terms of effluent and direct discharge.

Table 4: Fiji’s current Legislations on Resources Development

�V Resources development legislations

Resources Development Legislations

Srl. Legislation Purpose Comment 16. Agricultural Land

and Tenant (Cap 270)

The relationship between the tenant farmer and the owner of the holding is governed under the Agricultural Land and Tenant Act. Very little other than the roles of the two parties and how they relate is covered. In this context, the only reference as to how the land is to be used is found in provisions relating to extensions of tenant contracts.

The legislation conspicuously does not address limits to the use of farmland. Issues such as retaining remnant vegetation, preserving groundwater quality, soil compaction, and enrichment of surface water are all neglected in the Act. While the purpose of making land available for farming is fundamental to any leasing system, this must be promoted on the basis of an appreciation of environmental sustainability.

17. Irrigation (Cap 144A)

The Irrigation Act is concerned with improving agricultural productivity through the optimal use of impounded water. The application of measures to this end under the Irrigation Act revolves around irrigation areas

The Irrigation Act is an instrument designed to optimize agricultural production; environmental needs are unsurprisingly non-existent. Indeed, under the legislation farmers can be compelled to remove vegetation from their land, a policy that has contributed to massive environmental degradation in many countries. No support for protecting the environment is found in the legislation. Even the single provision to protect against pollution is miscast: it is an offence to pollute irrigation works rather than the water.

18. Drainage (Cap 143)

The Drainage Act works by first establishing drainage areas under the jurisdiction of a local Drainage Board, which in turn is enabled to carry out particular works with respect to that drainage area. Drainage works are designed to prevent or mitigate flooding or erosion by: physically altering watercourses; installing pumps and associated machinery; and constructing or reinforcing defensive barriers. Watercourses include most natural and artificial bodies of water.

Considerable capacity for the government to intervene in the use of private land exists under the Drainage Act. The provisions relating to process attempt to put in place a transparent regime, but are very understated. The Act is silent regarding the grounds on which an objection can be made and decided upon. Nor is there any requirement for the objector to be informed by the controlling Authority or Minister regarding the response to their objection.

19. Land Conservation and Improvement (Cap 141)

The Land Conservation and Improvement Act provide the statutory basis for the government to act in anticipation of these types of farming-related impacts.

The Land Conservation and Improvement Act is one of the more enlightened statutes relevant to protecting the environment in Fiji. Its purpose is to ensure the integrity of land and water resources that sustain agricultural productivity. As such, the basic scheme of the legislation is sound and in need of only minimal refinement.

20. Animal Importation (Cap 159)

The Animal Importation Act controls the importation of animals into the country through a Prohibition and permission scheme operating at the border. There are two key elements of the scheme: the importation of animals and derivatives

The Animals Importation Act is designed to protect the animal husbandry sector from the potential exotic diseases and pest hazards that may emanate from introducing livestock and poultry to Fiji. These hazards represent a

� ��

requires permission (§4), and a standing ban exists with respect to certain listed species (§5). The specific requirements of importation are detailed in regulations, such as quarantine, transportation, standards, and fees.

threat to agricultural productivity rather than to the environment or resources, so the scheme is of marginal utility in terms of environmental protection. The introduction of diseases or pests such as ticks represents a negligible environmental threat as these tend to associate with or are particular to the host and unlikely to become established on populations of native species. The small number of native animal species further suggests any impacts of this type are unlikely. An environmental issue not anticipated under legislation is land degradation caused by feral animals. The legislation doesn’t provide for intervention to remove or destroy livestock that has escaped or been released, multiplied in the wild and now impacts upon water and soil resources through erosion, compaction, and pollution. Even some capacity to control stocking relative to carrying capacity would be a useful mechanism at the disposal of government.

21. Plant Quarantine (Cap 156)

The Plant Quarantine Act is designed to anticipate and enable action in response to plant pests, or species that are injurious. These actions may be exercised both at the border and in relation to plants already in Fiji. A regime of restricting the importation of plants subject to ministerial permission is established with commensurate inspection and related powers (§5–28). Under the Plant Quarantine Act, inspectors have a very crude power to instruct the owner or possessor of infected or infested plants to eradicate or control the pests and destroy or treat the plant (§29). Subsidiary legislation exists elaborating the Plant Quarantine Act. This detail relates to the inspection and movement of vessels, eradication of noxious weeds, quarantine areas, and prohibited weeds

The Plant Quarantine Act is very much oriented towards protecting primary industries from infestation by noxious plants. In this regard it does offer a basic set of provisions in so far as border control is concerned Equally, it is worth emphasizing that the legislation is concerned only with plant pests, not pest plants. Non-native plants that are pests to either the environment or agriculture are not controlled under the Plant Quarantine Act, unless these are noxious or infected with a pest. Many countries are laboring to eradicate or remove pest species that have crossed their borders illegally, or because no controls apply to the translocation of exotic species. The absence of such controls portends as a similar potential problem for Fiji.

22. Pesticides (Cap 157)

Control over pesticides is achieved through a registration scheme under the Pesticides Act, which requires pesticides to be registered before being made available for sale. Regulations specify the type of information needed for registration and labeling

Registration is a common method for controlling pesticides and other hazardous chemicals. In Fiji, this control relates only to the availability of pesticides but not to their use, although regulations may be made under the Pesticides Act with respect to the latter.

23. Forest (Cap 150) Until recently, forestry in Fiji was governed under the Forest Act. Different types of forestry areas were defined under the Forest Act, and corresponding requirements for the licensing of forest-related activities were described. Little definition of forest types was provided in the Act, however, with the Minister essentially defining these through declaration. The categories of forest comprised: • reserved forest (unalienated State land and land leased to the State); • silvicultural area (reserved forest not being a nature reserve); • native reserve (reserved forest not being a silvicultural area); and • protected forest (native land not being reserved forest).

The Forest Act is very outdated, revolving around prohibitions and offences rather than the active management of forest resources. A more enlightened statute would detail how the various forest types are defined and created, and provide for legislature oversight of these processes. In particular, forests should be managed according to explicit and publicized principles, preferably under an instrument such as a management plan. This approach would ensure that the resource is being managed transparently in an agreed manner, over a prescribed period.

24. Forest Decree 1992 (No. 31 of 1992)

The Forests Act was repealed and replaced by Presidential Decree in 1992. The general scheme remains similar to that under the Forests Act but some attempts to clarify and broaden the forestry agenda have been added. A Forestry Board is constituted to advise the Minister

The Forest Decree provides a more elaborate framework for undertaking forestry than existed under the previous legislation. The approach remains very much based upon an offence regime, though, notwithstanding the

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with respect to forestry policy. Membership of the Forestry Board reflects key stakeholders’ interests in forestry, including government officials, forest owners, industry and the public

addition of some management-related provisions. A very useful inclusion in the Forest Decree is the concept of a national forestry plan. Unfortunately, though, no elaboration of the Plan is provided; indeed, the only reference to the National Forestry Plan is as a task for the Forestry Board. Developing a National Forestry Plan should be a mandated obligation of the Forest Decree

25. Mining (Cap 146) All land in Fiji is essentially open for mining under the Mining Act, with some qualifications. Minerals are the property of the State regardless of the status of the land on which they are located The Mining Act does contain provisions relating to damages and compensation. Tenement holders are required to compensate for surficial damage as a result of prospecting or mining. If the parties cannot agree as to the level of compensation the Director determines the amount (§40). There is a requirement to restore land by filling extraction damage and removing marking posts (§43). Lengthy regulations specify the technical and administrative details of mining operations.

The Mining Act is fairly typical of legislation in other Commonwealth jurisdictions. The principal decision maker under the legislation is the Director rather than the Minister. This approach is unusual insofar as decisions about accessing minerals would tend to repose with elected ministers rather than officials. In practice, these powers may often be delegated to agency heads but the Mining Act doesn’t give the Minister this option, as the Director is the responsible person.

26. Quarries (Cap 147)

The Quarries Act complements the Mining Act, and applies to the extraction of minerals not covered by the latter statute. The orientation of the Quarries Act is very much towards safety in the quarry workplace. It is an extremely brief statute, comprising only four sections.

In fact, the Quarries Act simply enables the making of regulations, and this is where the substance of the legislation is found. The regulations under the Quarries Act are considerable, being concerned with maintaining a safe working quarry site. Some specifications address health and sanitation but the environmental impacts of quarrying are not anticipated at all.

27. Petroleum (Exploration and Exploitation) (Cap 148)

The legislation governing petroleum development borrows heavily from the comparable Australian legislation. Indeed, many provisions of the Petroleum (Exploration and Exploitation) [P(EE)] Act are direct extracts from that other legislation. It is therefore not surprising that the petroleum regime evidences a clear and mature structure and drafting precision, given its origins.

The P(EE) Act excludes from the licensing regime pipelines constructed by the State. As custodian and protector of the public’s interest the State should apply the same regulatory rigor to itself as it applies to other operators. Applying the P(EE) Act only to designated areas — rather than throughout the country — is odd The provisions relating to the renewal of exploration licenses were amended, and a new concept of an appraisal area introduced. The purpose of appraisal areas is to enable the discoverer to undertake further evaluation work with a guaranteed continuity of tenure

28. Petroleum (Cap 190)

The Petroleum Act is concerned with the laying of pipelines (development is administered under the P(EE) Act). Under the Petroleum Act, the Minister has largely unfettered power to permit the construction of pipelines for conveying petroleum in, on or under any public or private land, and imposing conditions thereupon (§9). Under regulations, the release of oil from vessels and associated infrastructure into the sea is prohibited (R6). In terms of onshore oil pollution, a $100 fine applies with respect to the escape of petroleum which may percolate to the sea, stream or river (R50)

The ministerial power to lay pipelines is worrying, as the statute provides no framework for decision making, especially in terms of avenues for redress or other recourse by landowners or occupiers. A logical approach would be to specify the expectations of pipeline laying in an MOU with the Department of Environment. On the other hand, the impact of pipelines is very localized and there is no potential for further expansion of this infrastructure in Fiji, so the matter is not pressing.

29. Fisheries (Cap

158)

The regulation of domestic fisheries in Fiji is based upon an offence and permissions scheme maintained under the Fisheries Act Customary fishing rights are important under the Fisheries Act. A Native Fisheries Commission is established to inquire into and decide upon the existence of customary fishing rights (§s14–16). Once determined, the details of qoliqolis are formally registered and preserved in perpetuity (§19). Rules of procedures for determining native fishing have been prepared under subsidiary legislation.

The Fisheries Act is similar to the Forest Act is merely providing for the creation of offences under a minimal licensing regime. There is little capacity under the legislation to actively manage fisheries resources for a societal objective. Indeed, the long title is "An Act to make provision for the regulation of fishing." More contemporary legislation should compel the determination of fisheries and the preparation of fishery-specific management

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plans. The process of management planning should follow prescribed timelines and consultation requirements. Management plans would in turn be disallowable instruments, ensuring parliamentary oversight of natural resources management.

30. Marine Spaces (Cap 158A)

As discussed earlier, jurisdiction over offshore areas derives from the Marine Spaces Act. This statute also regulates foreign fishing in the EEZ (§12). There is again a high degree of fidelity to UNCLOS in terms of access to Fiji waters and the conditions which may be applied to foreign fishing vessels. These include: fishing times and areas; fishing gear; entry into port; catch and effort statistics; observer and research programmes; and transfer of technology

The regulations addressing foreign fishing pertain to the administration of licensing rather than to the management of fisheries. Moreover, the provisions supporting a DWFN fishing plan are essentially voluntary. Therefore, while the structure and general flavour of the foreign fishing requirements appears adequate, considerable more active management on the part of government is needed.

Table 5: Fiji’s current Legislations relevant to Biodiversity Conservation

V Law relevant to biodiversity conservation.

Law relevant to biodiversity conservation. Srl. Legislation Purpose Comment

31. Forest (Cap 150) No comprehensive legislation exists enabling the establishment and maintenance of protected areas. Capacity to this end is therefore found in provisions of other statutes. As described earlier, the Forest Act previously regulated forestry activities. This regime also provides for the non-extractive use of forests reserves. Once designated as a forest reserve, and thus within the forestry regime, the Minister may declare any such area — in whole or part — as a nature reserve. Nature reserves are therefore nested within reserved forests The 1992 Forest Decree maintains nature reserves, so the Forest Act system needs to be described.

The Forests Act enabled reserves to be set-aside for the ostensible purpose of nature conservation, although this is not explicit and must be construed. Herein is one major deficiency with the legislation: the conservation of nature is not an object or purpose. It is therefore not obvious as to how the Forests Act should be administered in this regard. Problems may also be encountered if the validity of a ministerial declaration is cha

32. Rivers and Streams (Cap 136)

The Rivers and Streams Act is a brief statute enshrining the rights of the public to have access to riparian water bodies. An easement exists along all riverbanks for public access, except where controls under the Town Planning Act have altered the status to another use (§3). Residents living adjacent to rivers and streams may apply for additional rights to extract water for consumptive purposes (§7). Similarly, these classes of people may seek to build on riverbanks and encroach upon or impede public access thereto (§10). The Director of Lands is the responsible decision-maker on these matters. Under the Act, any person opposing an application may object within 30 days of the application and objectors may appeal to the Minister if dissatisfied with the Director’s decision (§11).

The Rivers and Streams Act is noteworthy for the advocating of the public interest and the standing it gives to the community. Comparable provisions are uncommon in other legislation in Fiji. The Act could be broadened to capture other aspects of riverine management, such as preserving water quality and better controlling extraction by adjacent land users. Additions of this nature would shape the Act as much more of a management tool than it currently is.

33. Birds and Game Protection (Cap 170)

Birds are protected from injury or take by the Birds and Game Protection Act, except for those species specified under schedules as not protected or treated as game (§2–3). The former category includes non-native species such as the Malay turtledove and mynahs. The Fijian wood and fruit pigeons are defined as game under the second schedule. In fact, these two species are the only defined game in Fiji. To take any game listed in the second schedule requires a license issued under the Act (§7, 4). Closed seasons can be declared in the third schedule; the open season for the two game species is one month,

Wildlife is virtually unprotected in Fiji. The Birds and Game Protection Act is designed to facilitate hunting rather than to protect wildlife from intentional or accidental harm. Because of Fiji’s very poor complement of wildlife, the Act may be adequate in this regard. However, the marine situation is rather different, as Fiji's near shore and offshore waters sustain an abundance of marine species. It may be worth including marine species such as turtles and corals under conservation rather than fisheries

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beginning 15 May. The Minister may alter schedules without constraint.

laws.

Table 1-5 above has attempted to summarize the purposes and highlight the weaknesses in some

of the existing environmental laws of Fiji. As stated earlier, such an observation ought not be

deemed to be an exhaustive analysis of the individual laws concerned neither should it be viewed

as a comprehensive legalistic review. They have been offered simply to provide a snippet of

what that could be improved upon by the Government in its future legislative and policy-making

initiatives.

Targeted Laws

Despite some of the findings stipulated above, as is to be expected from any nation, Fiji has also,

in the intervening period, promulgated other newer pieces of legislations. These new laws are

referred to in this section by the Author as “Targeted Laws”, purely because of the specificity of

their purposes. However, since there will be further opportunities later in the Thesis for their

detailed elaboration, it would suffice to assert at this stage, that based on the various literatures

available on this theme, two obvious characteristics emerges when one conducts a thorough

analysis of the nature, purposes and formats of existing legislations governing natural resources

and the environment in Fiji.

The first is the clear distinction between the older statutes existing as Chapters in the Laws of

Fiji (First Generation Statutes) and the legislation recently enacted (Second Generation Statutes)

by the government42. Second generation legislations are distinguished by their cognition of

environmental issues and the necessity of managing natural resources for sustainability. It is in

that sense; the second generations’ statutes are more targeted in their approach, hence the term

“targeted”.

A second obvious defect with the legislative framework is the marginal right of the public to

contribute to decision-making43. Public involvement is basic in any environment-related regime,

but Fiji’s first generation laws are seen to be grossly inadequate in this regard. Refreshingly, the

marginalization of stakeholders evident in those first generation statutes are being rectified in the ��"��)��

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newer legislations which are being formulated specifically to facilitate the implementation of the

various obligations contained in the MEAs which were subsequently ratified in later years, by

Fiji.

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Chapter Two: Multilateral Environmental Agreements

“[T]he gap between the burgeoning hundreds of international environmental laws and the actual condition of the environment – [is] perhaps one of the largest contradictions of our time.”44

2.1 Introduction

Unlike other international policy fields such as trade, labor or health, where international

institutions are streamlined, environmental problem solving is centered around a multiple

number of Multilateral Environmental Agreements (MEAs) and their institutions (Secretariat and

Conference of the parties)45.

This Chapter contains a general discussion of MEAs, their history, purpose, types, their success

and failures. Portion of the discussion will focus on the reasons for the proliferation of MEAs

and also the rationale behind why such a high number of States sign up to these treaties.

2.2 Definition

Narratives on this subject reveal that there exists two possible approaches to defining MEAs.

Depending on the context; one could adopt a general or broader interpretation, on the other hand,

one could employ a more restrictive approach46.

According to Mitchell47, an MEA is defined as:

“….an intergovernmental document intended as legally binding with a primary stated

purpose of preventing or managing human impacts on natural resources”48.

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Mitchell’s broad interpretation makes a general reference to documents of “intergovernmental

nature” which may include: Treaties, Accords, Resolutions, Conventions, Pacts, Decisions,

Agreements, Charters, Declarations, Protocols, Recommendations and or their respective

Amendments. This approach is supported by reference in the definition to mere “intension” to be

legally binding” rather than being legally binding49.

This Paper adopts a restrictive approach and employs a definition used by UNEP50 to define

MEAs which states: “An MEA is a legally binding instrument between two or more nation states

that deals with some aspect of the environment.”

Aside from the requirement that MEAs deal with some aspect of the environment, two elements

of the definition are very important to understand:

1) Legally binding:

MEAs are legal instruments binding countries that have agreed to become parties through

ratification or accession. For the countries which have only signed and not as yet ratified, they

are nonetheless not expected to do anything that will affect the aims and purposes of the MEA.

They are not declarations of intention or avowals; they are rules of law. As such, they are a

powerful tool for the implementation of policies with environmental protection and sustainable

development goals.

2) Between two or more nation states:

The better-known environmental agreements are multilateral in the sense that they involve many

nations and deal with broad aspects of environment (climate, biodiversity, etc.). However, an

MEA can be any treaty between two or more nation-states if and when this instrument deals with

direct environmental objectives.

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2.3 History

The first multilateral treaty on an environmental issue was agreed in 1868 (Convention on the

Rhine)51. Since then, the number of MEAs has increased considerably. The high number of

multilateral environmental agreements (“MEAs”) negotiated by the international community is

impressive52.

2.4 Pre Stockholm

Many of the earlier MEAs were restricted in scope to specific subject areas and were regional in

focus. The largest cluster of pre-1972 agreements, albeit a very disjointed one; was made up of

biodiversity related or species-related agreements53. Four global agreements which continue to

be of major relevance to Governments today are:

1) The International Convention for the Regulation of Whaling (1946);

2) The International Plant Protection Convention (1951 - revised in 1979 and 1997);

3) The Convention on Fishing and Conservation of the Living Resources of the High Seas

(1958); and

4) The Convention on Wetlands (1971)

2.5 The Stockholm Conference

While environmental treaties date back to the end of the 19th Century, twice in the 20th century,

the international community has felt the need to discuss and consider, in a global forum,

problems encompassing both the environment and development54. In 1972, there was the United

Nations Conference on the Human Environment (UNCHE) (“the Stockholm Conference”).

Twenty years later, the international community convened the United Nations Conference on

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Environment and Development (UNCED). This second Conference culminated in The Rio Earth

Summit (“the Rio Conference”).

The Stockholm Conference saw the establishment of UNEP55, the creation of an Environmental

Fund56, the formulation of an Action Plan and the adoption of the Stockholm Declaration57. The

Stockholm Declaration was adopted by all 113 States 58 present at the Conference; this

Declaration was the first universal document of importance on environmental matters.

The Stockholm Declaration placed environmental issues squarely on the international scene. Its

26 Principles gave prominence to a number of concepts that would later find their place in

MEAs, namely:

1) “the interest of present and future generations” (Principle 1);

2) “renewable versus non-renewable resources”(Principles 2 to 5);

3) “ecosystems” (Principles 2 and 6);

4) “serious or irreversible damage” (Principle 6);

5) “economic and social development” (Principle 8);

6) “transfer of financial and technological assistance to developing countries as well as the

need for capacity building” (Principles 9 and 12);

7) “the integration of development and the environment” (Principles 13 and 14) and the

8) “need for international cooperation” (Principles 24 and 25)59.

The best-known principle of the Stockholm Declaration is Principle 2160 declaring that:

“States have, in accordance with the Charter of the United Nations and the principles of

international law, the sovereign right to exploit their own resources pursuant to their own

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environmental policies, and the responsibility to ensure that activities within their

jurisdiction or control do not cause damage to the environment of other States or of areas

beyond the limits of national jurisdiction.”

The International Court of Justice (ICJ)61 confirmed that this Principle has attained the status of

customary International law.

“The Court recognizes that the environment is under daily threat and that the use of

nuclear weapons could constitute a catastrophe for the environment. The Court also

recognizes that the environment is not an abstraction but represents the living space, the

quality of life and the very health of human beings, including generations unborn. The

existence of the general obligation of States to ensure that activities within their

jurisdiction and control respect the environment of other States or of areas beyond national

control is now part of the corpus of international law relating to the environment.”62

Taking its cue from Principle 24 of the Stockholm Declaration (“need for international

cooperation”)63, which encouraged governments to negotiate and conclude treaties in the

environmental field, the international community began working in earnest towards this end.

Many governments soon began concluding treaties that established international frameworks for

dealing with environmental problems, however, some notable MEAs of a global nature that

deserve a special mention are64:

1) The Convention on the Prevention of Marine Pollution by Dumping of Wastes and other

Matter (known as the London Dumping Convention – adopted in 1972);

2) The Convention on International Trade in Endangered Species (CITES);

3) The International Convention for the Prevention of Pollution by Ships, 1973, as modified

by the Protocol of 1978 relating thereto (known as MARPOL 73/78 – adopted in 1973

and 1978);

4) The Convention on the Conservation of Migratory Species of Wild Animals (known as the

Bonn Convention - adopted in 1979);

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5) The United Nations Convention on the Law of the Sea (known as UNCLOS – adopted in

1982);65

6) The Convention on the Protection of the Ozone Layer (adopted in 1985);

7) Montreal Protocol on Substances that Deplete the Ozone Layer (known as the Montreal

Protocol – adopted in 1987); and

8) The Convention on the Control of Trans boundary Movements of Hazardous Wastes and

their Disposal (known as the Basel Convention – adopted in 1989);

2.6 The Rio Conference

In 1983, the United Nations General Assembly66 (“UNGA”) set up the World Commission on

Environment and Development, known as the Brundtland Commission after its chairperson,

Norwegian Prime Minister Gro Harlem Brundtland. Its aim was to link environmental issues to

the findings of the 1980 Brandt report on North-South relations. The Brundtland report,

published in 1987 as Our Common Future,67 declared that the time had come for a marriage

between the environment and the economy and used the term "sustainable development" as the

way to ensure that economic development would not endanger the ability of future generations to

enjoy the fruits of the earth.68

On the twentieth anniversary of the Stockholm Conference, representatives from 17869 nations,

non-governmental agencies (NGOs) and other interested parties (approximately 30,000 in total

including members of the media), met in Rio de Janeiro to discuss global environmental issues

that would become central to policy implementation. The conference sought agreement on

concrete measures to reconcile economic activities with protection of the planet to ensure a

sustainable future for all people70.

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The Rio Conference was this first UN Conference on Environment and Development (UNCED

for short), but better known as the "Earth Summit" after its final three days71 was the culmination

of two and one half years of worldwide consultation that demonstrates the best intentions of the

human race to live responsibly. The results of the Rio Conference were numerous and included:

1) the adoption of the United Nations Framework Convention on Climate Change (known

as UNFCCC);

2) the adoption of the Convention on Biological Diversity (known as CBD);

3) the decision to negotiate the Convention to Combat Desertification;

4) an Action plan called ”Agenda 21 ” (in reference to the 21st century)

5) the decision to establish the Commission on Sustainable Development (CSD); and

6) The Rio Declaration.

The Rio Declaration composed of 27 Principles, many of which have, as in the case of the

Stockholm Declaration – and possibly to an even greater extent – influenced the subsequent

development of international and national environmental law and policy. While many of these

Principles deal with issues already touched upon in the Stockholm Declaration, the Rio

Declaration gave prominence not only to the concept of sustainable development but also to a

number of other issues, such as:

1) “common but differentiated responsibilities72” (Principle 7);

2) “public information and participation” (Principle 10);

3) “precaution” (Principle 15);

4) “polluter pays principle” (Principle 16);

5) “environmental impact assessment” (Principle 17); and

6) “States to cooperate in the further development of international law in the field of

sustainable development” (Principle 27).

Since Rio, in addition to the Framework Convention on Climate Change and the Convention on

Biological Diversity, many other MEAs have been adopted, including the following:

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1) The United Nations Convention to Combat Desertification in those Countries

Experiencing Serious Drought and/or Desertification, particularly in Africa (known as

the Desertification Convention – adopted in 1994);

2) The Protocol to the London Dumping Convention (adopted in 1996);

3) the Kyoto Protocol to the United Nations Framework Convention on Climate Change

(known as the Kyoto Protocol – adopted in 1997);

4) The Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous

Chemicals and Pesticides in International Trade (known as the Rotterdam Convention –

adopted in 1998);

5) The Protocol to the Basel Convention on Liability and Compensation for Damage

Resulting from the Trans-boundary Movements of Hazardous Wastes (adopted in 1999);

and

6) The Cartagena Protocol on Biosafety to the Convention on Biological Diversity (known

as the Biosafety Protocol – adopted in 2000).

2.7 Proliferation of MEAs

Varying methodologies used for interpreting and counting MEAs have resulted in different

numbers but many researchers and analysts agree that there is a proliferation of MEAs. The

summary of statistics for Environmental Agreements currently held in the IEA Database73

records a startling total of 1542 Bilateral Environmental Agreements, 1102 Multilateral

Environmental Agreements, and 259 Other (non-multi, non-bi) Environmental Agreements in

existence globally to date74. In addition, 212 Bilateral, 209 Multilateral and 100 other (non-multi,

non-bi) Environmental Non-binding Instruments e.g. Declarations, Memoranda of

Understanding are also on the IEA record75.

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The Ecolex project 76 sponsored by UNEP, FAO and IUCN recognizes in total - 519

environmental treaties77. Other research identifies more than 500 MEAs registered with the UN,

including 61 on atmosphere, 155 on biodiversity, 179 on chemicals, hazardous substances and

waste, 46 land conventions, and 197 on water issues78.

With such high number of MEAs, the obvious question one would justifiably ask is why?

Proliferation of MEAs can largely be attributed to two factors. One is the historical development

of environmental institutions, and the second is the very nature and complexity of environmental

problems.

Historical Development

When the institutionalization of international environmental policymaking really began in

197279, the issues focused mainly on the conservation and management of natural resources, both

living and nonliving80. No one could have predicted, or even imagined at that time, the severity

or variety of problems that would arise by the Twenty First Century, including such previously

unrecognized threats as stratospheric ozone depletion and the trade in hazardous wastes. The

manner in which environmental institutions have developed in response to these problems has

largely been ad hoc and fragmented81.

Unlike the post-war financial and commercial regimes, which have been organized around a

small number of formal institutions with fairly clearly demarcated norms and rules,

environmental governance has evolved incrementally over the last 35 years, and now

encompasses a wide array of international institutions, laws, and regimes. Collectively, these

institutions serve as a reflection of the muddled hierarchy of real-world issues that compete for

global attention82.

Apart from the multitude of MEAs and a plethora of international organizations, doing the best

they can to respond to environmental challenges that range from climate change to persistent ��&(3M&)�� >��)��>�,-&=+�B43��)��,(-��.��)*� �� )��.+�*��"��

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organic pollutants, new planning doctrines have emerged concerning critical loads, integrated

assessment, and public participation and are being applied to multilateral management efforts.

More importantly, environmental issues are now viewed within the framework of sustainable

development83.

The concept of Sustainable Development calls for simultaneous and concerted efforts to deal

with pollution, economic development, unequal distribution of economic resources, and poverty

reduction. It contends that most social ills are non-decomposable, and that environmental

degradation cannot be addressed without confronting those human activities that give rise to it.

Sustainable Development dramatically expanded the international agenda by stressing that these

issues need to be simultaneously addressed and that policies should seek to focus on the

interactive effects between them84.

One of the sources of the current debate on environmental governance reform stems from the gap

between the historical development of environmental institutions and the new institutional

requirements posed by the transition from mere environmental protection to sustainable

development. MEAs are, of course, no exception in facing these challenges.85

The core of the new sustainable development agenda reflects new thinking among the

environmental and the developmental communities about the linkages between key issues on the

international agenda. Some critics contend that this new agenda threatens to divert attention from

the fundamental goals of fighting poverty, reducing military expenditure, increasing respect for

human rights, and promoting democracy.

Conversely, though, the broad agenda offers the prospect of strategic linkages between small

policy networks in the international environmental and developmental communities which

previously lacked sufficient autonomous influence to be able to shape agendas or policies. In this

sense, the new agenda of sustainable development provides opportunities as well86.

Sustainable development has two core components. The first is substantive, as discussed above,

stressing the need for an integrative approach to economic development that includes ��?��%�?��?��?��

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environmental protection along with other goals of growth, social equity, and, according to some

advocates, democratization. Accordingly, the MEA system, which has evolved incrementally on

a somewhat ad-hoc basis over the last years in a rather narrow-scoped issue specific manner, is

now facing a new challenge that requires adjustments87.

The second is procedural. Sustainable Development and Agenda 21 call for a radically broader

participation in decision-making. Sustainable development is no longer the pure domain of

national sovereignty. Agenda 21 calls for multiple stakeholder participation, or “major groups,”

at multiple levels of international discussions, including NGOs, scientists, business/industry,

farmers, workers/trade unions, local authorities, as well as indigenous people, women, and youth

and children. The MEA system is also facing these substantive and procedural challenges88.

Issue Complexity

The other major factor contributing to the proliferation of MEAs arises from the very nature and

complexity of the problems itself. Environmental processes are governed by laws of nature that

are not susceptible to conventional bargaining within the domestic or international policy making

processes. Environmental policy makers have to struggle, from the outset, with the issue of

“scientific uncertainty” as well as the incompatibilities between the ethical and political

ramifications of the precautionary principle89.

In many ways, the current international legislative environment is not conducive to the

development of coordinated, or synergistic, approaches to collective environmental – and

sustainable development - problem solving. Particular international agreements are often

negotiated by way of “specific” regimes that are considered in relative isolation. Each agreement

is tackled, more or less, by artificially decomposing the causative complexities involved for the

sake of practical “manageability.” Agreements are negotiated by specialized ministries, or

functional organizations, within forums that are detached from the negotiating arenas of other

international agreements90.

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Furthermore, the process of consensus building within the context of non-cooperative attitudes,

which are characteristic of global multilateral treaty making, involves a great deal of ad-hoc log

rolling. This, all too often, obscures the interconnectedness of the goals to be shared among

different issue-specific regimes. The treaty making process is also extremely time-consuming. It

typically takes over a decade to advance from the agenda setting stage, via a framework

agreement, to the negotiation of the first operational protocol for collective action. Even after

reaching agreement, ratification of the protocol requires governments to create consensus at the

domestic level91.

In case a government turns out to be unwilling to ratify the protocol – thus politically increasing

scientific uncertainty again - there always remains the possibility that the whole negotiation

process can unexpectedly be brought back to an earlier stage, causing considerable time delays92.

To date, international environmental policy-making has generally been segregated on the basis of

topic, sector, or territory. The result is the negotiation of treaties that often overlap and conflict

with one another. This engenders unnecessary complications at the national level as signatories

struggle to meet their reporting obligations under multiple agreements. At the international level,

some coordination exists between environmental institutions through mechanisms such as the

Inter-agency Coordination Committee and the Commission for Sustainable Development, but

these institutions are far too weak to effectively coordinate MEAs, and to integrate the various

dimensions of sustainable development. These mechanisms seem to function more as a pooling

regime than as an effective coordination regime. And yet there is progress93.

Many MEAs have actually been effective at improving the environment by inducing states to

change policies in a manner conducive to a cleaner environment. Stratospheric ozone pollution

has been reduced. European acid rain is greatly reduced. Oil spills in the oceans are down in

number and volume. Considering the pace with which economies have grown in the last 30

years, these should be recognized as considerable accomplishments. But the challenge still

remains to do better, and to progress from environmental protection to sustainable development.

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2.8 Types of MEAs

While there can be many ways of classifying MEAs, literatures on the subject generally agree94

that MEAs can be classed into the following five (5) broad categories95:

i) Global;

ii) Bilateral;

iii) Regional;

iv) Frameworks; and

v) Appendix Driven

A Global or Multilateral MEA is an agreement negotiated by member’s states of the United

Nations or by members of an international body, organizations or arrangement that have been

signed, ratified and adopted by the majority of world’s States. Examples of global MEA include

the Convention on Biological Diversity (CBD) and the Desertification Convention (UNCCD)96.

A Bilateral MEA is an agreement between two countries concerning an aspect of environmental

management. An example is the Treaty between Argentina and Chile on the Environment

(1991)97.

Regional MEAs are restricted to a specific geographical region. For example, the Bamako

Convention on the Ban of the Import into Africa and the Control of Trans-boundary Movement

and Management of Hazardous Waste within Africa (1991) or the 1995 Waigani Convention to

Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to

Control the Tran boundary Movements and Management of Hazardous Wastes within the South

Pacific Region (Waigani Convention)98.

Framework MEAs require further agreements usually in the form of protocols to provide the

necessary standards, procedures and other requirements to implement the MEA effectively. An

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example is the United Nations Framework Convention on Climate Change (UNFCCC) and its

Kyoto Protocol99.

Appendix-driven MEAs rely heavily on appendices for their operation. The Convention on

International Trade in Endangered Species of Wild Flora and Fauna 1973 (CITES) is an example

of Appendix Driven Treaty. Appendix I of CITES includes species under threat of extinction, so

international trade in these species is permitted only in Exceptional circumstances. Appendix II

of CITES includes species not necessarily threatened by extinction, but whose trade must be

controlled in order to avoid utilization incompatible with their survival. Appendix III of CITES

includes species protected in at least one State, which has requested other CITES Parties for

assistance in controlling the trade100.

2.9 MEAs and Fiji

From the preceding discussions, one could deduce that there exist numerous reasons why a

country signs and ratify MEAs. Prominent in the reasoning behind the drive to join multilateral

instruments is the realization by nation states of the importance of the issues concerned and an

awareness of the increased appreciation by their respective citizens of the vulnerability of their

ecosystems and of the potential detrimental effects to their health and sources of life if

imbalances occurs in their natural environment.

For Fiji, (in addition to the reasoning highlighted in the immediate preceding paragraph), joining

multi-lateral arrangements is deemed to be a visible exhibition, a manifestation and an

acknowledgement of her sovereign independent existence. Ever since attaining independence

from Great Britain on 10 October, 1970, Fiji has continued to exert deliberate efforts and has

participated engagingly in the negotiations and debates involving a plethora of items in the

international agenda101. Fiji’s involvement in the Law of the Sea negotiations for instance102,

may have assisted in the fertilization of the idea that when the will to engage exists, and when

proper appreciation of the issue under consideration are methodically exhibited and advanced,

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appreciative effects of engagement at the global stage can truly be visible, irrespective of the

minuscule origins of the proponent of such an idea.

Multilateral and Regional Instruments provides a link between domestic and international

policy103. This sentiment is indeed true when viewed from a policy formulation perspective.

Most of Fiji’s national environment policies for instances can be attributed directly to the global

and regional guidance provided by the multitude of MEAs which Fiji has ratified to date. A few

of Fiji’s Laws104 for instance, and a number of its National Plans for Implementation, were

devised specifically as a means of response to the requirements contained in these multilateral

instruments hence evidencing the link between global and domestic policy aspirations.

Another motivating factor behind Fiji’s desire to sign on to multilateral instruments is the

realization of the capacity such engagement could offer in the construction and maintenance of

its sovereign significance and relevance. Maintaining sovereign significance and relevance is a

tool of political power which is often exhibited in multilateral settings through the exercise of

votes. By being party to an International Agreement or Treaty, Fiji usually inherits from the

agreed texts of that Treaty “a right to vote” which when weighed, has exactly the same equal

gravity with every other votes inherited by parties to that instrument. Therefore, despite its

economic, political or geographical peculiarities, when states parties are call upon to cast their

votes, Fiji’s vote, (despite its representation of a population of less that 1 million people and of

an island economy classified to be small and developing) yields exactly the same significance

and relevance with a vote from India, China, the United States of America or even its closest

metropolitan neighbors, Australia and New Zealand. So, during a procedural moment, that is,

from the time of “explanation of votes before the vote” to the falling of the gavel following the

last of the “explanation of votes after the vote” Fiji will be yielding a tool of political power

(equal to any other country in the world) conferred to her by the significance and relevance of

her sovereignty.

Thirdly, and perhaps one that has a more practical motivational effect is the fact that signing up

to MEAs can bring to Fiji the much needed financial assistance required to implement activities,

programmes and initiatives considered as priority and necessary for the reduction of

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environmental degradation and increased capacity building. A number of MEAs have their own

sources of Funding and these funds have been made available and have proven track record of

visible on the ground assistance.

MEAs with funding mechanism which Fiji is a Party includes the following105:

i) Montreal Protocol on Substances that Deplete the Ozone Layer 1987

ii) UN Framework Convention on Climate Change 1992;

iii) UN Convention on Biological Diversity;

iv) UN Convention to Combat Desertification 1994;

v) Kyoto Protocol to the UN Framework Convention on Climate Change 1997;

vi) Cartagena Protocol on Biosafety 2000; and

vii) Stockholm Convention on Persistent Organic Pollutants 2001.

During the thirty-year period commencing in 1979106, Fiji has signed and ratified a total of 25

global and regional environment related Treaties. These treaties obviously make up a good

portion of the overall international instruments to which Fiji is a party. While it is comforting to

note that, as citizens, our Government is doing its part and is committed to play an engaging and

cooperative role with other nations of world, in the advancement of international laws, customs

and norm settings, it is the implementation of treaties obligations that will testify the extent of

our sincerity.

Tabulated below is the list of global and regional MEAs to which Fiji is a party. The next two

chapters contains analysis of each of the listed treaties.

Table. 6 GLOBAL & REGIONAL MEAS TO WHICH FIJI IS A PARTY

Srl. MULTILATERAL ENVIRONMENTAL AGREEMENT (MEA) Ratification/Accession

GLOBAL MEAS NATURE CONSERVATION/BIODIVERSITY-RELATED MEAs

1. Convention on Biological Diversity (CBD) 25 February 1993(R)

2. Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or

Desertification, Particularly in Africa (UNCCD)

26 August 1998 (A)

3. Convention on International Trade in Endangered Species of Wild Flora and Fauna 1973 (CITES) 30 September 1997(A)

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4. The Convention on Wetlands 11 September 2006 (R)

5. International Tropical Timber Agreement 2006 23 April 2010

6. International Treaty on Plant Genetic Resources for Food and Agriculture 9 Jul 2008 (A)

7. Convention Concerning the Protection of the World Cultural and Natural Heritage 21 Nov 1990

HAZARDOUS MATERIALS/WASTE AND CHEMICAL – RELATED MEAS

8. Cartagena Protocol on Bio-safety to the Convention on Biological Diversity 5 June 2001(R)

9. Stockholm Convention on Persistent Organic Pollutants 20 June 2001(R)

CLIMATE CHANGE/ATMOSPHERE – RELATED MEAs

10. Vienna Convention for the Protection of the Ozone Layer 1985 23 October 1989 (A)

11. Montreal Protocol on Substances that Deplete the Ozone Layer 1987 3 October 1989 (A)

12. United Nations Framework Convention on Climate Change 1992(UNFCCC) 25 February 1993 (R)

13. Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997 (Kyoto) 17 September 1998 (R)

MARINE AND FRESHWATER- RELATED MEAs

14. United Nations Convention On The Law Of The Sea 1982 (UNCLOS) 10 December 1982 (R)

15. 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 1995

12 December 1996 (R)

REGIONAL MEAS OCEAN GOVERNANCE & FISHERIES

16. 1979 South Pacific Forum Fisheries Agency Convention 10 July 1979

17. 1990 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific 18 January 1994

18. 1992 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South

Pacific Region

5 March 1996

19. 2000 Convention on the Conservation and Management of Highly Migratory Fish stocks in the

Western and Central Pacific Ocean

13 March 2001

CHEMICALS, HAZZARDOUS WASTES AND MARINE POLLUTION

20. 1985 South Pacific Nuclear Free Zone Treaty (Treaty of Raratonga) 4 April 1985

21. 1986 SPREP Protocol for the Prevention of Pollution of the South Pacific Region by Dumping

(SPREP Dumping Protocol)

18 Sept 1989

22. 1990 SPREP Protocol Concerning Cooperation in Combating Pollution Emergencies in the South

Pacific Region (SPREP Pollution Emergencies Protocol)

18 Sept 1989

23. Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive

Wastes and to Control the Tran boundary Movements and Management of Hazardous Wastes within

the South Pacific Region 1995(Waigani Convention)

18 April 1996

BIODIVERSITY

24. 1976 Convention on the Conservation of Nature in the South Pacific (Apia Convention) 8 September 1989

LAND AND MARINE REASOURCES

25. 1986 SPREP (Noumea) Convention for the Protection of the Natural Resources and Environment of

the South Pacific Region (SPREP Convention)

18 September 1989

Source: Sainivalati S. Navoti 2011

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Chapter Three: Fiji Global MEAs Implementation Analysis

“Make fair agreements and stick by them”

Confucius

3.1 Introduction

Chapters Three and Four of this Paper (as alluded to earlier) are considered to be the main part of

this Thesis. These two Chapters include detailed discussions and analysis of each of the MEAs to

which Fiji is a Party, their history and the various obligations they bestow upon Fiji. Discussions

will also highlight Fiji’s effort in implementation and attempts will be made to identify the

variety of challenges encountered in the implementation process and factors which could be

strengthened to assist Fiji play its role as equal partner at the global stage.

It is to be clarified that Chapter Three of this paper will exclusively carry analysis and

discussions of “Global” MEAs to which Fiji is a party. Chapter Four will carry the discussion of

regional MEAs. To assist in the avoidance of duplication and repetition, discussions of Fiji’s

implementation under some thematic themes will be amalgamated.

Information on MEAs

The Author wishes to acknowledge at the outset the abundance of intellects that are to be found

in the volumes of publically available resources regarding the environment and environment

related Agreements. There exists a healthy reservoir of intellectual resources, body of knowledge

and stream of information regarding MEAs (both in hard and electronic versions). The Author

also wishes to confirm that in his endeavor to construct this Thesis, he discovered what was in

his assessment, the existence of a sizeable bank of materials specifically addressing Fiji’s

implementation of MEAs. Therefore, a good portion of information to be found in this paper

reflects these sources. Painstaking efforts have been exerted to ensure proper acknowledgement

of all these good works is made in footnotes and bibliography of this paper.

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In addition to information gathered from interviews and discussions with relevant Government

officials, most of the information contained in chapter three and four; especially those

specifically highlighting Fiji’s effort were gathered from reports, assessments and research

article publically available in the internet.

Clustering of MEAs

To assist in the methodical analysis, MEAs have been clustered in Chapter Three under the

following five common major thematic themes:

i) Nature Conservation

ii) Hazardous Materials

iii) Atmosphere

iv) Marine

3.2 Nature Conservation/Biodiversity – Related MEAs

This Section of the Paper (Section 3.2); carries the discussion of Nature Conservation and

Biodiversity related “global” MEAs to which Fiji is party. The first MEA to be discussed is the

United Nations Convention on Biodiversity (UNCBD). This will be followed by the United

Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought

and/or Desertification, Particularly in Africa (UNCCD), then the Convention on International

Trade in Endangered Species of Wild Flora and Fauna 1973 (CITES), followed by the

Convention on Wetlands (The Ramsar Convention). The International Tropical Timber

Agreement is next, to be followed by the International Treaty on Plant Genetic Resources for

Food and Agriculture. The final nature related MEA to be dissected in this section is the

Convention Concerning the Protection of World Cultural and Natural Heritage.

Environmental protection or nature conservation refers to any activity to maintain or restore the

quality of environmental through preventing the emission of pollutants or reducing the presence

of polluting substances in the ecosystem. It may consist of: 107

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(a) changes in characteristics of goods and services,

(b) changes in consumption patterns,

(c) changes in production techniques,

(d) treatment or disposal of residuals in separate environmental protection facilities,

(e) recycling, and

(f) prevention of degradation of the landscape and ecosystems.

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3.2.1 Convention on Biological Diversity (UNCBD)108

“What an extraordinary time to be alive. We’re the first people on our planet to have real choice: we can continue killing each other, wiping out other species,

spoiling our nest. Yet on every continent a revolution in human dignity is emerging. It is re-knitting community and our ties to the earth. So we do have a

choice. We can choose death; or we can choose life."

Frances Moore Lappe109

Introduction

Biological diversity—or biodiversity—is the term given to the variety of life on Earth, including

plants, animals and microorganisms, as well as the ecosystems of which they are part110.

Biodiversity includes genetic differences within species, the diversity of species and the variety

of ecosystems. It is the result of the interaction of species, including humans, with one another

and with the air, water and soil around them. This combination of life forms—ecosystems,

species and genetic varieties— has made Earth a uniquely habitable place and provides the goods

and services that sustain our lives, such as clean air and water, food and medicine, fuel, fiber, and

material for construction. Our cultures are founded upon the different environments in which

they have developed111.

This section discusses Fiji’s Implementation of the UN CBD. Discussion will involve the

following areas:

a. History of CBD;

b. Obligations

c. Fiji implementation.

d. Challenges

e. Conclusion

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History of the UN CBD

The origin of the negotiations for the Convention on Biological Diversity lies in the 1987

Governing Council decision 14/26 of the United Nations Environment Programme (UNEP),

which called upon UNEP to convene an Ad Hoc Working Group of Experts on Biological

Diversity for the harmonization of existing conventions related to biological diversity112.

At its first meeting, the Group of Experts agreed on the need to elaborate an internationally

binding instrument on biological diversity. In May 1989, another Ad Hoc Working Group of

Experts on Biological Diversity was established to prepare an international legal instrument for

the conservation and sustainable use of biological diversity, taking into account ‘the need to

share costs and benefits between developed and developing countries and the ways and means to

support innovation by local people.’ 113

The Ad Hoc Working Group, which in February 1991 became the Intergovernmental

Negotiating Committee (INC), held seven working sessions (five negotiating) which culminated

in the adoption of an agreed text of the Convention on Biological Diversity through the Nairobi

Final Act of the Conference for the Adoption of the Agreed Text of the Convention on

Biological Diversity114.

The UNCBD Treaty

On 22 May 1992, in Nairobi, Kenya, the nations of the world adopted a global Convention on

Biological Diversity. Later, on 5 June 1992, at the UN Conference on Environment and

Development in Rio de Janeiro, a record number of over 150 States signed it. Approximately 18

months later, on 29 December 1993, the UN CBD Convention entered into force115.

The treaty is a landmark in the environment and development field, as it takes for the first time a

comprehensive rather than a sectoral approach to conservation of the Earth's biodiversity and

sustainable use of biological resources. It implicitly accepts the telling point that the �� ,-&=�D��E�*59��Q/��7��(� �7��!��89��/� ��7��8��7��(9�79��9�=�78��!��9�7�"��&��,-&=�="�� )��0"1��+�(�)��=��))�� $��+�M+�7�9�V �D %%�E�*4�$��7�7��(� �7��!��89��/� ��7�" ��,(-+�$��)��)��(��*��)��) �)*�

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environmental impact which future generations may most regret about our time is the loss of

biodiversity, in part because most of it—for example loss of species— cannot be reversed116.

The Convention, goes beyond the conservation of biodiversity per se and the sustainable use of

biological resources, to encompass such issues as access to genetic resources, sharing of benefits

from the use of genetic material and access to technology, including biotechnology.117

UN CBD Obligations

a. The Objective of the UNCDB

The principal objectives of the Convention on Biological Diversity are the conservation and

sustainable use of biological diversity, and the fair and equitable sharing of benefits arising from

its utilization. The Convention recognizes that the key to maintaining biological diversity

depends upon using this diversity.

Article 1 of the UNCBD reads as follows: “The objectives of this Convention, to be pursued in accordance with its relevant

provisions, are the conservation of biological diversity, the sustainable use of its

components and the fair and equitable sharing of the benefits arising out of the utilization

of genetic resources, including by appropriate access to genetic resources and by

appropriate transfer of relevant technologies, taking into account all rights over those

resources and to technologies, and by appropriate funding.”

[Underline is by the Author for emphasis]

This article states the objectives of the UN CBD Convention and covers its main themes. It sets

out the objectives and each state’s obligations toward the attainment of those objectives as:

(i) the conservation of biological diversity – to be found in (articles 6-9, 11 and 14);

(ii) the sustainable use of its components – to be found in (articles 6, 10 and 14); and

(iii) the fair and equitable sharing of the benefits arising from the use of genetic

resources, including by appropriate

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(a) access to genetic resources (article 15), taking into account all rights over those

resources;

(b) transfer of relevant technologies (articles 16 and 19), taking into account all

rights to technologies; and

(c) funding (articles 20 & 21).118

Article 3 of the UNCBD recognized and reproduced in verbatim Principle 21 of the Stockholm

Declaration, recognizing that States have the sovereign right to exploit their own resources

pursuant to their own environmental policies. Article 15, on access to genetic resources, again

recalls the sovereign rights of States over their natural resources as a basis for the authority to

determine access to genetic resources. However, this emphasis on national sovereignty is

balanced by duties deriving both from sovereignty itself and from the fact that the conservation

of biodiversity is a common concern to the entire international community119.

b. Obligations under UN CBD

As stated above, the Convention translates its guiding objectives of conservation, sustainable use

and equitable sharing of benefits into binding commitments in its substantive provisions

contained in Articles 6 to 20. These articles contain key provisions on, among others: measures

for the conservation of biological diversity, both in situ120 and ex situ;121 incentives for the

conservation and sustainable use of biological diversity122; research and training123; public

awareness and education124; assessing the impacts of projects upon biological diversity125;

regulating access to genetic resources126; access to and transfer of technology127; and the

provision of financial resources128.

In addition to its substantive provisions, the Convention establishes institutional arrangements

which provide a mechanism for the further development of, and for monitoring the

�� ?�"��)�� %�� ,-�(!/�4� ��?� � ��,-�(!/!�4� ��%� ��,-(!/�4� �� A� � ��,-�(!/�4� �� ,-�(!/�4� �� ,-�(!/�4� �� ,-�(!/�4� �� ,-�(!/�4� �� ?��,-�(!/�4� ��

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implementation of, the Convention through meetings, work programmes, reviews and

negotiations. Three institutions are established by the Convention: the Conference of the Parties

(COP), the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) and

the Secretariat129.

Further, the Convention establishes a financial mechanism for the provision of financial

resources to developing country Parties, and provides for the establishment of a clearing-house

mechanism (CHM) for scientific and technical cooperation. Further, the Convention enables the

COP to establish additional subsidiary bodies as it deems necessary for the implementation of the

Convention130.

Table of obligations

The Author has attempted (for ease of reference) in the discussion of each of the MEAs in this

paper, to include within the main text of each relevant sections, a Table reflecting specific

obligations contained in that specific Convention under consideration. A point of caution must be

made nevertheless- in highlighting the obligations, attempts was deliberately made to include

only the “mandatory” obligations, i.e. those employing phrases such as “….Parties shall….or

members must” etc. Obligations containing notions of volunteerism have not been included.

Example of these would be “ States may…etc”.

Assessing the Text of the UN CBD Convention, one could summarize the obligations of the

parties to include the following:

a) Cooperation between parties to the Convention;

b) Developing national strategies, plans or programmes for the conservation and

sustainable use of biological diversity and adapt for this purpose existing strategies,

plans or programmes which shall reflect, inter alia, the measures set out in this

Convention relevant to the Contracting Parties concerned,

c) Integrate, as far as possible and as appropriate, the conservation and sustainable use of

biological diversity into relevant sectoral or cross-sectoral plans, programmes and

policies

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d) Identify components of biological diversity important for its conservation and sustainable

use, monitor them, and identify any activities that may adversely affect those components;

e) Develop a system of protected areas, together with guidelines for their development and

management;

f) Promote the protection of ecosystems, natural habitats and the maintenance of viable

populations of species in natural surroundings;

g) Promote sustainable sound developments;

h) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened

species, inter alia, through the development and implementation of plans or other

management strategies;

i) Establish or maintain means to regulate, manage or control the risks associated with the

use and release of living modified organisms resulting from biotechnology;

j) Prevent the introduction of, to control and eradicate, those alien species which threaten

ecosystems, habitats or species;

k) Respect, preserve and maintain knowledge, innovations and practices of indigenous and

local Communities, embodying traditional lifestyles relevant for the conservation and

sustainable use of biological diversity;

l) Develop or maintain necessary legislation and/or other regulatory provisions for the

protection of threatened species and populations; and

m) Cooperate in providing financial and other support for in-site conservation.

Tabulated below is the list of obligations bestowed by the UNCBD on Fiji.

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Table 7 Table of Fiji’s Obligation in the United Nations Convention on Biological Diversity (UNCBD)

Srl. Article Fiji’s CBD Duties & Obligations Cooperation

1. Article 5 Cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity.

Measures for Conservation and Sustainable Use 2. Article 6 Develop national strategies, plans or programmes for the conservation and sustainable use of biological

diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

Identification and Monitoring 3. Article 7 Identify components of biological diversity important for its conservation and sustainable use having regard

to the indicative list of categories set down in Annex I; Monitor, through sampling and other techniques, the components of biological diversity identified pursuant to subparagraph (a) above, paying particular attention to those requiring urgent conservation measures and those which offer the greatest potential for sustainable use; Identify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques; Maintain and organize, by any mechanism data, derived from identification and monitoring activities pursuant to subparagraphs (a), (b) and (c) above.

In situ Conservation 4. Article 8 Establish a system of protected areas or areas where special measures need to be taken to conserve biological

diversity; Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity; Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas; Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies; Establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health; Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components; Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations; Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities; and Cooperate in providing financial and other support for in situ conservation outlined in subparagraphs (a) to (l) above, particularly to developing countries.

Ex Situ Conservation 5 Article 9 Adopt measures for the ex-situ conservation of components of biological diversity, preferably in the country of

origin of such components; Establish and maintain facilities for ex-situ conservation of and research on plants, animals and micro-organisms, preferably in the country of origin of genetic resources;

� ��

their natural habitats under appropriate conditions; Regulate and manage collection of biological resources from natural habitats for ex-situ conservation purposes so as not to threaten ecosystems and in-situ populations of species, except where special temporary ex-situ measures are required under subparagraph (c) above; and Cooperate in providing financial and other support for ex-situ conservation outlined in subparagraphs (a) to (d) above and in the establishment and maintenance of ex-situ conservation facilities in developing countries.

Sustainable Use of Components of Biodiversity 6 Article 10 Integrate consideration of the conservation and sustainable use of biological resources into national decision-

making; Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity; Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements; Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced; Encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources.

Incentive Measures 7. Article 11 Adopt economically and socially sound measures that act as incentives for the conservation and sustainable

use of components of biological diversity. Research and Training

8. Article 12 Establish and maintain programmes for scientific and technical education and training in measures for the identification, conservation and sustainable use of biological diversity and its components and provide support for such education and training for the specific needs of developing countries Promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, inter alia, in accordance with decisions of the Conference of the Parties taken in consequence of recommendations of the Subsidiary Body on Scientific, Technical and Technological Advice; In keeping with the provisions of Articles 16, 18 and 20, promote and cooperate in the use of scientific advances in biological diversity research in developing methods for conservation and sustainable use of biological resources.

Public Education and Awareness 9. Article 13 Promote and encourage understanding of the importance of, and the measures required for, the conservation

of biological diversity, as well as its propagation through media, and the inclusion of these topics in educational programmes. Cooperate, as appropriate, with other States and international organizations in developing educational and public awareness programmes, with respect to conservation and sustainable use of biological diversity.

Impact Assessment and Minimizing Adverse Impacts 10. Article 14 Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that

are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures; Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account; Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate; In the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological diversity within the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or minimize such danger or damage; Promote national arrangements for emergency responses to activities or events, whether caused naturally or otherwise, which present a grave and imminent danger to biological diversity and encourage international cooperation to supplement such national efforts and, where appropriate and agreed by the States or regional economic integration organizations concerned, to establish joint contingency plans.

Access to Genetic Resources 11. Article 15 Endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by

other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention. Endeavour to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties. Take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources.

Access to Transfer of Technology

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12 Article 16 Undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment. Take legislative, administrative or policy measures, as appropriate, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 and in accordance with international law ………. Take legislative, administrative or policy measures, as appropriate, with the aim that the private sector facilitates access to, joint development and transfer of technology referred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developing countries …………. Recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.

Exchange of Information 13 Article 17 Facilitate the exchange of information, from all publicly available sources, relevant to the conservation and

sustainable use of biological diversity, taking into account the special needs of developing countries. Technical and Scientific Cooperation

14 Article 18 Promote international technical and scientific cooperation in the field of conservation and sustainable use of biological diversity, where necessary, through the appropriate international and national institutions. Promote technical and scientific cooperation with other Contracting Parties, in particular developing countries, in implementing this Convention, inter alia, through the development and implementation of national policies. In promoting such cooperation, special attention should be given to the development and strengthening of national capabilities, by means of human resources development and institution building. …….in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention. For this purpose, the Contracting Parties shall also promote cooperation in the training of personnel and exchange of experts. …… subject to mutual agreement, promote the establishment of joint research programmes and joint ventures for the development of technologies relevant to the objectives of this Convention.

Handling of Biotechnology and Distribution of its Benefits 15. Article 19 …….. take legislative, administrative or policy measures, as appropriate, to provide for the effective

participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties. …… take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms. ……. consider the need for and modalities of a protocol setting out appropriate procedures, including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity. ……… directly or by requiring any natural or legal person under its jurisdiction providing the organisms referred to in paragraph 3 above, provide any available information about the use and safety regulations required by that Contracting Party in handling such organisms, as well as any available information on the potential adverse impact of the specific organisms concerned to the Contracting Party into which those organisms are to be introduced.

Financial Resources 16 Article 20 ….. undertakes to provide, in accordance with its capabilities, financial support and incentives in respect of

those national activities which are intended to achieve the objectives of this Convention, in accordance with its national plans, priorities and programmes. ….. take full account of the specific needs and special situation of least developed countries in their actions with regard to funding and transfer of technology. …… also take into consideration the special conditions resulting from the dependence on, distribution and location of, biological diversity within developing country Parties, in particular small island States. Consideration shall also be given to the special situation of developing countries, including those that are most environmentally vulnerable, such as those with arid and semi-arid zones, coastal and mountainous areas.

Financial Mechanism 17. Article 21 ……..shall consider strengthening existing financial institutions to provide financial resources for the

conservation and sustainable use of biological diversity. Relationship with other International Conventions

18. Article 22 …….shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.

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Source: Mr. Sainivalati S. Navoti 2011

Fiji and the UNCBD

Fiji was among those who travelled to Rio in 1992, for the Earth Summit, armed with a golden

pen, full of enthusiasm, anticipating a momentous occasion wherein she will join over one

hundred other States in declaring their commitment to the preservation, protection and

sustainable exploitation of their environment. Why not? One must ask, after all, 20 years prior,

Fiji was the lone country from the Pacific to have participated in a similar type global

environmental event- the Stockholm Conference131.

History shows that the lime light in Rio focused attention firmly on the big powers of the world,

however, Fiji was among those, who in the words of Boutros Ghali was concluding “an ethical

and political contract with nature”132 when on 9 October, 1992133, it signed the UN CBD in the

margins of the Rio Summit.

Fiji’s instrument of ratification to the UNCBD was deposited on 25 February 1995. Since

ratification, Fiji there has been a good number of progresses made to implement Fiji’s

commitment to the Convention. �� "��)��?��.� ��"��)��.� ��,-(!/�I�� ) ��).) ��)��

Reports 19. Article 26 …….. at intervals to be determined by the Conference of the Parties, present to the Conference of the Parties,

reports on measures which it has taken for the implementation of the provisions of this Convention and their effectiveness in meeting the objectives of this Convention.

Settlement of Disputes 20 Article 27 In the event of a dispute between Contracting Parties concerning the interpretation or application of this

Convention, the parties concerned shall seek solution by negotiation. When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a State or regional economic integration organization may declare in writing to the Depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory: Arbitration in accordance with the procedure laid down in Part 1 of Annex II; Submission of the dispute to the International Court of Justice.

Adoption of Protocols 21 Article 28 ….. shall cooperate in the formulation and adoption of protocols to this Convention.

Amendments to the Convention or Protocols 22 Article 29 The Parties shall make every effort to reach agreement on any proposed amendment to this Convention or to

any protocol by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a two-third majority vote of the Parties to the instrument in question present and voting at the meeting, and shall be submitted by the Depositary to all Parties for ratification, acceptance or approval.

The Right to Vote 23 Article 31 …..each Contracting Party to this Convention or any protocol shall have one vote

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Reporting

Article 26 of the UNCBD states:

“…….. at intervals to be determined by the Conference of the Parties, present to the

Conference of the Parties, reports on measures which it has taken for the

implementation of the provisions of this Convention and their effectiveness in meeting

the objectives of this Convention.”

The 2nd UNCBD’s Conference of the Parties (COP2) decided134 that the first national reports by

Parties focuses on the measures taken for the implementation of Article 6 of the Convention,

"General Measures for Conservation and Sustainable Use.". COP2 also decided that the first

national reports were to be submitted at the fourth meeting of the Conference of the Parties in

1997 and at that (it’s fourth) meeting in 1997 (COP4), the Conference of the Parties will

determine the intervals and form of subsequent national reports. COP4 via its Decision

Fiji submitted its First National UNCBD Report during COP 4135 on 31st December 1997136 .

This report was based largely on Fiji’s State of the Environment Report, `Environment Fiji – the

National State of the Environment Report’ (1992) 137 but was updated where there were

additional information. The Report summarizes the current state of knowledge in respect of Fiji’s

biodiversity, its status and conservation management.

Fiji’s Second national report to the CBD was submitted on15 May 2001138 with the full text now

publically available on the CBD website at www.cbd.int/reports/search/Fiji. This report was

prepared following a format provided by the UNCBD Secretariat.

The format asks various questions – e.g. how important is fresh water and marine biodiversity

research in your country [answer = ‘high’] but what are your resources to achieve that [answer =

‘limited’]. To many questions the answer is the same: ‘high’ importance but limited resources.

Interestingly, the report says that Fiji has completely assessed its taxonomic needs, has a national �� ,-&=�(!/�(3=�/&(�� -�.�� %%�� 1�� +� �! �� -�.�� %%�+� ,-(!/#(3=� /��)� � ��

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taxonomic plan and is committed to taxonomic training and institutions – in hindsight, quite

erroneous139. The responses to questions on invasive species are more guarded. Attention to

traditional knowledge and culture is classed as ‘high’ – but ground truth does not support that

statement140.

There are no records available to confirm the submission of Fiji’s third national report. The

Department of Environment has no record of it, nor does the CBD website141. Nevertheless,

Fiji’s fourth national has been submitted.

National Biodiversity Strategic Action Plan (NBSAPs)

Section 6(a) of the UNCBD Convention states:

“Each Contracting Party shall, in accordance with its particular conditions and

capabilities:

(a) Develop national strategies, plans or programmes for the conservation

and sustainable use `of biological diversity or adapt for this purpose

existing strategies, plans or programmes which shall reflect, inter alia, the

measures set out in this Convention relevant to the Contracting Party

concerned;”

Consistent with its obligations under the CBD as stipulated above, the Government of Fiji has

developed published and distributed its National Strategy and Action Plan titled “Fiji Islands –

Challenging Fiji’s Future in Every Way”142. The Plan was developed under the guidance of a

multi-sectoral National Biodiversity Steering Committee with implementation and funding from

the United Nations Development Programme-Global Environment Facility (UNDP-GEF). It was

executed by the Fiji Department of Environment and completed and published in September

2007. Its contents include:

▪ An overview of Fiji’s biodiversity and its benefits towards sustainable

development;

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▪ The major gaps and challenges affecting the conservation and sustainable use of

Fiji’s

Biodiversity;

▪ A national strategy and action plan;

▪ Project profiles and briefs;

▪ Relevant appendixes; and

▪ Priority issues identified at the national level.

Other Policies and initiatives as measures of implementation of the UNCBD Obligations

Fiji has in the intervening period also formulated, adopted and implement various policies

regarding biodiversity concerns and drafted and promulgated several legislations in response to

the requirements of MEAs to which it is a party.

In terms of policy formulation, the Government has adopted the following policies and plans143:

� Mangrove Management Plan, 1984 and 1987

� National Policy Plan for Fijian Mangroves 1986

� National Plan for Natural Disaster Management, 1998

� Watershed Management Master Plan, 1998

� National Environment Strategy, 1993

� Integrated Coastal Resources Management programme, 2002

� National Rural Land Use Policy and Plan, 2005

� Forest Policy, 2007

� Tourism Development Plan, 2007

� Climate Change Policy, 2011

Fiji activities under the CBD have been and are being performed by several stakeholders:

Government, non-government organizations, academic institutions, community-based

organizations, statutory bodies, private enterprises, regional nongovernment organizations, and

some civil organizations and international donors. Due to word limits constraints, a detailed

elaboration of these at this juncture will be prohibitive. The Author invites readers to refer to the

Paper at Footnote 136 in pages 31 to 44 for a detailed elaboration on all of these initiatives.

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Legislation

A major legislative reform initiative by Government of Fiji to address environmental challenges

and enhance protection of biodiversity was the promulgation of the Fiji Environmental

Management Act 2005 (the “Act”). The Act represents an overdue updating of the

environmental credentials of the government and an upgrading of its ability to protect the

environment. It radically altered the basis of environmental and natural resource policy in Fiji

and introduced new statutory processes and imposed upon decision makers new obligations

designed to protect the environment and sustain the use of natural resources. The most profound

of these was the introduction of environmental impact assessment. Also introduced were

requirements to plan for natural resources use and report upon the status of the environment.

The Act received Presidential assent on 17 March 2005 and is the slimmed down version of the

Sustainable Development Act Fiji’s previous attempt to introduce environmental legislation,

which was eventually rejected as being too ambitious and costly. Although the Act is drastically

reduced in size it still has a significant impact on the way business is done in Fiji.

The object of the Act is to protect the natural resources, control and manage developments and

provide for waste management and pollution control.

The National Environment Council

The Act creates a statutory body, the National Environment Council144; tasked with the job of

ensuring the Act is complied with by monitoring and implementing the National Environment

Strategy. The Council also has responsibility for ensuring that Government commitments made

at international and regional fora on the environment and development are met145. The council

must report annually on its activities to Parliament146. The Act makes it mandatory that a

National State of the Environment Report must be produced every five years.

The Department of Environment

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Under the Act the Department of Environment is responsible to the National Council and will

carry out a number of specified tasks including formulating and implementing the National

Environment Strategy and the National Resource Management Plan. The department is given

power to inspect and instigate prosecutions for the purposes of enforcing the Act. Located within

the department, this unit is responsible for examining and processing every development

proposal referred to it or which comes to its attention as having “significant environmental or

resource management impact” or which in the opinion of the Minister is likely to cause public

concern147.

Environment Impact Assessment

Every approving authority must carry out an Environmental Impact Assessment (EIA) 148for each

development proposal it receives that it determines is likely to cause “significant environmental

or resource management impact”. The Act schedules the different types of proposals and EIA

processes to be followed for those differing proposals. Reports are now required for all

development proposals. The detailed process is set out at part 4 of the Act. An applicant has a

right to a public hearing on its development proposal.

Off Shore

Fiji’s Exclusive Economic Zone as defined in the Marine Spaces Act is included within the

provisions of this Act and so the Act also catches offshore developments.

Waste Management

Part 5 of the Act covers Waste Management and Pollution Control. It sets up a system of permits

for the discharge, handling, production and activities that may have an adverse impact on human

health or the environment.

Offences and Penalties

Offences and Penalties are contained in Part 6 of the Act. It is an offence to undertake a

development activity without an approved EIA and a fine of $750,000 can be imposed. Pollution

offences149 introduce fine s of up to $250, 000 for first time offenders and $750,000 for

subsequent offenders. An offence of creating a pollution incident with willful or reckless

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disregard is created for which the maximum fine is $1,000,000 and companies can be fined up to

five times that amount.

Restorative orders150 and stop work orders can also be issued by a court along with assets seizure

and items used n the commission of the offence. The Act also introduces personal liability for

directors; regardless of whether or not the company is convicted.

Tribunal and Trust Fund

The Act establishes a Tribunal to hear appeals under the Act or any other environmental law and

a Trust Fund.

Challenges/Constrain151

The proliferation of international agreements has greatly increased the demands placed on the

administrative machinery of the government, and some demands are highly technical in nature.

These factors have been identified as major challenges and constraints in the implementation of

the UNCBD Convention in Fiji. Further analysis of these factors will be made in Chapter Five.

a. Systemic Capacity

• Old legislation requiring urgent updating and implementation

• Need more stringent guidelines for and monitoring EIAs

• Lack of coordination, integration, implementation and reporting amongst the three

conventions.

b. Institutional Capacity

• Inefficient communication between stakeholder related to coordination, strategizing &

implementing

• Weak institutional capacity and infrastructure (DOE, Forestry, Fisheries & Land use)

• Unclear mandates and definitions for implementation for government and non-

government stakeholders.

• Relevant information tending to be centralized

• Unsustainable funding mechanism

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• Lack of funding of relevant activities undertaken by Agriculture, Forestry, and fisheries

c. Individual Capacity

• Lack of accountability on international conventions reporting

• Lack of capacity building and professional training of relevant stakeholders including

DOE staff

• Lack of effective public awareness

• Lack of relevant information and limited scientific research

• Lack of career paths and incentives and relatively low salaries

Analysis

In assessing Fiji’s performance, in as far as it relates to the implementation of the UNCBD

Convention obligations, one must first be aware and be appreciative of the capacity available.

Fiji is a Small Island Developing State with all the natural limitations usually accompanying

such reality. However, when one analyses what has been done to date, the cooperation between

the major stakeholders of Fiji, including the Government, Civil Societies and International and

Regional Organizations, it can be confidently concluded that by becoming a party to the

UNCBD, Fiji has gained quite tremendously.

Despite the above, Fiji cannot claim just yet to be ranked in the satisfactory list of implementers.

A lot remains to be done. Institutional reforms, change of mind set, a coordinated effort and a

conscious participatory approach by all of Fiji’s citizens are what that is required. For the time

being, simple and rudimentary improvements such as observing reporting deadlines, submitting

more accurate information and channeling of scarce resources into most appropriate projects or

venture should be a good start.

Legislative reforms, new policy formulations and implementation of various programmes and

initiatives by non-governmental organizations and interest groups all points to the fact that at the

very least, Fiji and her citizens; more importantly, their environment are not been left to neglect.

Definitely, the pandemic constraints of lack capacity and coordination still leave room for a

much-needed in-depth national self-assessment to map out a ways for future improvement.

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3.2.2 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD)

“Desertification is not a problem susceptible to quick solutions, but it is already urgent in many areas…. To see precisely what happens when desertification occurs, attention should be focused on that shallow meeting place between soil and atmosphere, where

plants thrive and where a balance is maintained between incoming and outgoing energy and between water received and lost.”152

Introduction

The international community has long recognized that desertification is a major economic, social

and environmental problem of concern to many countries in all regions of the world153. It is

estimated that over 250 million peoples are affected directly by it and with over one billion

people are at a risk from it154. Desertification results from complex interactions among physical,

chemical, biological, socio-economic and political problems which are local, national and global

in nature155. The Convention (UNCCD) defines desertification as the degradation of land in arid,

semi-arid, and dry sub-humid areas (collectively known as dry lands)156. While the causes of

desertification are varied and complex, the Convention has generally attribute it to a combination

of climatic variations and human activities157 that tax the land's ability to support vegetation.

History

While desertification has been a concern for all human societies established in arid and semi arid

areas from antiquity, recent formal expression of global concern on desertification commences in

the seventies. It was the Sahelian Drought of 1968-1973158 and its tragic effects on the peoples of

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the region that drew worldwide attention to the chronic problems of human survival and

development in dry lands, particularly on the desert margins159.

The unremitting effect of the Sahelian Drought and the seriousness of the situation was

recognized in the Stockholm Conference in 1972 and led to the establishment the following year

of the United Nations Sudano-Sahelian Office (UNSO), which was given the mandate of

coordinating recovery, and rehabilitation efforts in drought affected regions160.

In May 1974, the United Nations General Assembly, by resolution 3202 (s-vi)161 recommended

that the International Community undertake concrete and speedy measures to arrest

desertification and assist the economic development of affected areas to combat the spread of

desert conditions162. To give impetus to international action, the General Assembly, on 17

December, 1974,via Resolution 3337 (xxix) decided to convene a United Nations Conference on

Desertification (UNCOD), between 29 August and 9 September 1977, in Nairobi, Kenya which

was intended to produce an effective, comprehensive and coordinated Plan of Action to Combat

Desertification (the PACD).163

UNCOD

The UNCOD was the first major international meeting addressing specifically land

degradation164. It was preceded by extensive global, regional and local studies and consultations

involving numerous scientists, decision and policy makers and relevant institutions all over the

world165. On the basis of carefully collected and analysed available data, the UNCOD noted the

progressive diminution of biological productivity and decline of human living conditions in

many arid regions of the world. This process, according to the Conference, was evidently due

primarily to inappropriate land use, although accentuated by recurrent droughts166.

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It was also evident during UNCOD that desertification threatens the well- being and socio-

economic development of peoples in large areas of the world, particularly in developing

countries of Africa, Central, South and South-West Asia as well as Latin America, while at the

same time occurring in Australia, North America and in certain parts of Europe167. UNCOD

concluded that desertification was of global magnitude and affected adversely large areas and

populations in all continents, and adopted the Plan of Action to Combat Desertification (PACD),

which was endorsed by the UN General Assembly that same year as one of the major world

programmes168.

PACD

The main result of the UNCOD was the adoption of the PACD169. The immediate intended goal

of the PACD was to prevent and to arrest the advance of desertification and, where possible, to

reclaim desertified land for productive use170. The ultimate objective was to sustain and promote,

within ecological limits, the productivity of arid, semi-arid, sub-humid and other areas

vulnerable to desertification in order to improve the quality of life of their inhabitants171.

The PACD contained 28 recommendations for initiating and sustaining cooperative efforts to

combat desertification. It was divided into three main areas: The first focused on national and

regional action, including desertification evaluation and land management, corrective anti

desertification measures, underlying socio-economic aspect, and on the strengthening of national

science and technological capacities172. The second section focused on international action and in

particular the role of the UN and other international agencies173. The third focused on measures

to be taken to implement the PACD174.

The Governing Council and the Executive Director of the United Nations Environment

Programme were entrusted with the task of following-up and co-ordinating the implementation

of the PACD and assisting Governments in their efforts to implement the PACD at national

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level175. However, despite this and other efforts, progress was modest176. UNEP concluded in

1991 that the problem of land degradation in arid, semi-arid and dry sub-humid areas continued

and in fact had intensified177.

The principal causes of failure to implement the PACD in full were considered at several global

and regional international fora with the conclusion that178:

a) priority was not given to the programmes for combating desertification by

implementing and funding agencies, both nationally and internationally, with the result

that not enough funds were made available for the implementation of the PACD;

b) developing countries affected by desertification were unable to cope with the problem

without major external financial and technical assistance, but the needed assistance was

not forthcoming;

c) desertification control programmes were not fully integrated in programmes of socio-

economic development and were considered as measures to amend environmental

damage only;

d) affected populations were not fully involved in the planning and implementation of

programmes for combating desertification;

e) technical means were often sought to solve the problem, while the solutions rested in

the socio-political and socio-economic mechanisms.

UNCED

The failure of the PACD to promote effective action against land degradation led some countries

to demand further action in this field179. At the United Nations Conference on Environment and

Development (UNCED), (the “Earth Summit”), held in Rio de Janeiro in 1992, there was a call

for a new, integrated approach to the problem, emphasizing the need for action to promote

sustainable development at the community level. It called on the United Nations General

Assembly to establish an Intergovernmental Negotiating Committee to prepare, by June 1994, a

Convention to Combat Desertification, particularly in Africa180.

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The UNCCD was in more ways than one a direct product of the UNCED181. On the one hand, its

negotiation was part of the deal struck during the preparation for the 1992 Earth Summit. On the

other hand, the fact that it was not negotiated in the Rio framework was a reflection of the lesser

importance attributed to desertification by some countries as an international environmental

issue182.

The Convention

The Convention was adopted in Paris on June 17, 1994 and opened for signature on 14-15

October 1994. The Convention entered into force on December 26, 1996. The objective of the

treaty is:

"…to combat desertification and mitigate the effects of drought in countries

experiencing serious drought and/or desertification, particularly in Africa,

through effective action at all levels, supported by international cooperation and

partnership arrangements, in the framework of an integrated approach which is

consistent with Agenda 21, with a view to contributing to the achievement of

sustainable development in affected areas." 183

Parties are to give priority to African countries, in light of persistent and severe problems there,

while also assisting other nations184.

The Treaty emphasizes local programs supported by international partnerships, and coordination

and cooperation in combating desertification, research, technology transfer, capacity building,

creating awareness, and mobilization of funds. It seeks to avoid past problems by incorporating a

bottom-up approach involving the full participation of local people. In recognition of the critical

role of financing, it asks all parties to help mobilize financial resources and to direct them to the

local level.

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Different categories of obligations are outlined, depending on whether they apply to:

1) all Parties,

2) affected country Parties, both developing and developed, and

3) developed country Parties.

All Parties obligations

The obligations of all Parties185 relate to international cooperation, especially regarding "the

collection, analysis and exchange of information, research, technology transfer, capacity building

and awareness building, the promotion of an integrated approach in developing national

strategies to combat desertification, and assistance in ensuring that adequate financial resources

are available for programmes to combat desertification and mitigate the effects of drought.

Affected Parties Obligations

Developing country Parties 186 affected by desertification are committed to develop and

implement national, sub-regional, and regional action programs. The purpose of the programs is

to identify factors contributing to desertification and measures necessary to combat both

desertification and drought. Other affected countries, such as the United States, may choose to

prepare action programs, or, more generally, to establish strategies and priorities for combating

desertification.

Action programs187 are to be developed in consultations among affected countries, donors, and

intergovernmental and non-governmental organizations. The Treaty identifies items that must be,

and others that might be, incorporated in action programs. For example, action programs must

include long-term strategies, provide for effective participation of local populations and non-

governmental organizations, emphasize preventive measures, and be flexible and modified as

needed. Criteria for developing these programs, in accordance with particular regional

conditions, are detailed in four "regional implementation annexes" for Africa, Asia, Latin

American and the Caribbean, and the Northern Mediterranean. The annexes also provide a

framework for cooperation among Parties in these regions.

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Developed Country Parties Obligations

Developed country Parties188 undertake to support affected countries, particularly developing

ones. The support includes providing financial resources, promoting the mobilization of funding,

and facilitating access to technology, knowledge, and technical skill.

Conference of the Parties (COP)

The Treaty creates a Conference of the Parties (COP)189 comprised of all ratifying countries. A

primary function of the COP is to review reports of the Parties on Treaty compliance, and make

related recommendations. The Treaty establishes entities to support the COP. It creates a

Permanent Secretariat190 to handle various administrative functions, such as arranging meetings,

preparing documents, and transmitting information. At its first session, the COP decided to

locate the Secretariat in Bonn, Germany. In addition, a Committee on Science and Technology191

is established to provide the COP with information and advice on scientific and technological

matters. The Committee is expected to evaluate existing bodies working on desertification, then

promote a worldwide network to support the Treaty. The COP also may establish ad hoc panels

to advice on particular issues.

Obligations

Tabulated below is a summary of obligations under the UNCCD Treaty.

TABLE 8: OBLIGATIONS UNDER THE UN CONVENTION TO COMBAT DESERTIFICATION

Srl . Article Obligations Principles

1. Article 3(a)-(d) In order to achieve the objective of this Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following: (a) the Parties should ensure that decisions on the design and implementation of programmes to combat desertification and/or mitigate the effects of drought are taken with the participation of populations and local communities and that an enabling environment is created at higher levels to facilitate action at national and local levels; (b) the Parties should, in a spirit of international solidarity and partnership, improve cooperation and coordination at sub regional, regional and international levels, and better focus financial, human, organizational and technical resources where they are needed; (c) the Parties should develop, in a spirit of partnership, cooperation among all levels of government, communities, non-governmental organizations and landholders to establish a better understanding of the nature and value of land and scarce water resources in affected areas and to work towards their sustainable use; and

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(d) the Parties should take into full consideration the special needs and circumstances of affected developing country Parties, particularly the least developed among them.

General Obligations

2. Article 4(1),

(2)(a)-(h) & (3)

1. The Parties shall implement their obligations under this Convention, individually or jointly, either through existing or prospective bilateral and multilateral arrangements or a combination thereof, as appropriate, emphasizing the need to coordinate efforts and develop a coherent long-term strategy at all levels. 2. In pursuing the objective of this Convention, the Parties shall: (a) adopt an integrated approach addressing the physical, biological and socio-economic aspects of the processes of desertification and drought; (b) give due attention, within the relevant international and regional bodies, to the situation of affected developing country Parties with regard to international trade, marketing arrangements and debt with a view to establishing an enabling international economic environment conducive to the promotion of sustainable development; (c) integrate strategies for poverty eradication into efforts to combat desertification and mitigate the effects of drought; (d) promote cooperation among affected country Parties in the fields of environmental protection and the conservation of land and water resources, as they relate to desertification and drought; (e) strengthen sub-regional, regional and international cooperation; (f) cooperate within relevant intergovernmental organizations; (g) determine institutional mechanisms, if appropriate, keeping in mind the need to avoid duplication; and (h) promote the use of existing bilateral and multilateral financial mechanisms and arrangements that mobilize and channel substantial financial resources to affected developing country Parties in combating desertification and mitigating the effects of drought. 3. Affected developing country Parties are eligible for assistance in the implementation of the Convention.

Obligations of affected country Parties 3. Article 5(a)-(e) In addition to their obligations pursuant to article 4, affected country Parties undertake to:

(a) give due priority to combating desertification and mitigating the effects of drought, and allocate adequate resources in accordance with their circumstances and capabilities; (b) establish strategies and priorities, within the framework of sustainable development plans and/or policies, to combat desertification and mitigate the effects of drought; (c) address the underlying causes of desertification and pay special attention to the socio-economic factors contributing to desertification processes; (d) promote awareness and facilitate the participation of local populations, particularly women and youth, with the support of nongovernmental organizations, in efforts to combat desertification and mitigate the effects of drought; and (e) provide an enabling environment by strengthening, as appropriate, relevant existing legislation and, where they do not exist, enacting new laws and establishing long-term policies and action programmes.

Relationship with Other Conventions

4. Article 8(1) 1. The Parties shall encourage the coordination of activities carried out under this Convention and, if they are Parties to them, under other relevant international agreements, particularly the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity, in order to derive maximum benefit from activities under each agreement while avoiding duplication of effort. The Parties shall encourage the conduct of joint programmes, particularly in the fields of research, training, systematic observation and information collection and exchange, to the extent that such activities may contribute to achieving the objectives of the agreements concerned.

Basic Approach

5. Article 9(1) &

(3)

1. In carrying out their obligations pursuant to article 5, affected developing country Parties and any other affected country Party in the framework of its regional implementation annex or, otherwise, that has notified the Permanent Secretariat in writing of its intention to prepare a national action programme, shall, as appropriate, prepare, make public and implement national action programmes, utilizing and building, to the extent possible, on existing relevant successful plans and programmes, and sub-regional and regional action programmes, as the central element of the strategy to combat desertification and mitigate the effects of drought. Such programmes shall be updated through a continuing participatory process on the basis of lessons from field action, as well as the results of research. The preparation of national action programmes shall be closely interlinked with other efforts to formulate national policies for sustainable development. 3. The Parties shall encourage organs, funds and programmes of the United Nations system and other relevant intergovernmental organizations, academic institutions, the scientific community

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and non-governmental organizations in a position to cooperate, in accordance with their mandates and capabilities, to support the elaboration, implementation and follow-up of action programmes.

National Action Programme

6. Article 10(2)(a)-

(e)

2. National action programmes shall specify the respective roles of government, local communities and land users and the resources available and needed. They shall, inter alia: (a) incorporate long-term strategies to combat desertification and mitigate the effects of drought, emphasize implementation and be integrated with national policies for sustainable development; (b) allow for modifications to be made in response to changing circumstances and be sufficiently flexible at the local level to cope with different socio-economic, biological and geo-physical conditions; (c) give particular attention to the implementation of preventive measures for lands that are not yet degraded or which are only slightly degraded; (d) enhance national climatological, meteorological and hydrological capabilities and the means to provide for drought early warning; (e) promote policies and strengthen institutional frameworks which develop cooperation and coordination, in a spirit of partnership, between the donor community, governments at all levels, local populations and community groups, and facilitate access by local populations to appropriate information and technology; (f) provide for effective participation at the local, national and regional levels of non-governmental organizations and local populations, both women and men, particularly resource users, including farmers and pastoralists and their representative organizations, in policy planning, decision-making, and implementation and review of national action programmes; and (g) require regular review of, and progress reports on, their implementation.

Sub-regional and regional action programmes

7. Article 11 Affected country Parties shall consult and cooperate to prepare, as appropriate, in accordance with relevant regional implementation annexes, sub-regional and/or regional action programmes to harmonize, complement and increase the efficiency of national programmes. The provisions of article 10 shall apply mutatis mutandis to sub-regional and regional programmes. Such cooperation may include agreed joint programmes for the sustainable management of trans boundary natural resources, scientific and technical cooperation, and strengthening of relevant institutions.

International Cooperation

8. Article 12 Affected country Parties, in collaboration with other Parties and the international community, should cooperate to ensure the promotion of an enabling international environment in the implementation of the Convention. Such cooperation should also cover fields of technology transfer as well as scientific research and development, information collection and dissemination and financial resources.

Coordination in the elaboration and implementation of action programmes 9. Article 14(1)

&(2)

1. The Parties shall work closely together, directly and through relevant intergovernmental organizations, in the elaboration and implementation of action programmes. 2. The Parties shall develop operational mechanisms, particularly at the national and field levels, to ensure the fullest possible coordination among developed country Parties, developing country Parties and relevant intergovernmental and non-governmental organizations, in order to avoid duplication, harmonize interventions and approaches, and maximize the impact of assistance. In affected developing country Parties, priority will be given to coordinating activities related to international cooperation in order to maximize the efficient use of resources, to ensure responsive assistance, and to facilitate the implementation of national action programmes and priorities under this Convention.

Regional implementation annexes 10. Article 15

Elements for incorporation in action programmes shall be selected and adapted to the socio-economic, geographical and climatic factors applicable to affected country Parties or regions, as well as to their level of development. Guidelines for the preparation of action programmes and their exact focus and content for particular sub-regions and regions are set out in the regional implementation annexes.

Information Collection, Analysis and Exchange

11. Article 16(a)-(g) The Parties agree, according to their respective capabilities, to integrate and coordinate the collection, analysis and exchange of relevant short term and long term data and information to ensure systematic observation of land degradation in affected areas and to understand better and assess the processes and effects of drought and desertification. This would help accomplish, inter alia, early warning and advance planning for periods of adverse climatic variation in a form suited for practical application by users at all levels, including especially local populations. To

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this end, they shall, as appropriate: (a) facilitate and strengthen the functioning of the global network of institutions and facilities for the collection, analysis and exchange of information, as well as for systematic observation at all levels, which shall, inter alia: (i) aim to use compatible standards and systems; (ii) encompass relevant data and stations, including in remote areas; (iii) use and disseminate modern technology for data collection, transmission and assessment on land degradation; and (iv) link national, sub-regional and regional data and information centers more closely with global information sources; (b) ensure that the collection, analysis and exchange of information address the needs of local communities and those of decision makers, with a view to resolving specific problems, and that local communities are involved in these activities; (c) support and further develop bilateral and multilateral programmes and projects aimed at defining, conducting, assessing and financing the collection, analysis and exchange of data and information, including, inter alia, integrated sets of physical, biological, social and economic indicators; (d) make full use of the expertise of competent intergovernmental and nongovernmental organizations, particularly to disseminate relevant information and experiences among target groups in different regions; (e) give full weight to the collection, analysis and exchange of socioeconomic data, and their integration with physical and biological data; (f) exchange and make fully, openly and promptly available information from all publicly available sources relevant to combating desertification and mitigating the effects of drought; and (g) subject to their respective national legislation and/or policies, exchange information on local and traditional knowledge, ensuring adequate protection for it and providing appropriate return from the benefits derived from it, on an equitable basis and on mutually agreed terms, to the local populations concerned.

Research and Development

12. Article 17 (1)(a)-(g) & (2)

Article 17 Research and development 1. The Parties undertake, according to their respective capabilities, to promote technical and scientific cooperation in the fields of combating desertification and mitigating the effects of drought through appropriate national, sub-regional, regional and international institutions. To this end, they shall support research activities that: (a) contribute to increased knowledge of the processes leading to desertification and drought and the impact of, and distinction between, causal factors, both natural and human, with a view to combating desertification and mitigating the effects of drought, and achieving improved productivity as well as sustainable use and management of resources; (b) respond to well defined objectives, address the specific needs of local populations and lead to the identification and implementation of solutions that improve the living standards of people in affected areas; (c) protect, integrate, enhance and validate traditional and local knowledge, know-how and practices, ensuring, subject to their respective national legislation and/or policies, that the owners of that knowledge will directly benefit on an equitable basis and on mutually agreed terms from any commercial utilization of it or from any technological development derived from that knowledge; (d) develop and strengthen national, sub-regional and regional research capabilities in affected developing country Parties, particularly in Africa, including the development of local skills and the strengthening of appropriate capacities, especially in countries with a weak research base, giving particular attention to multidisciplinary and participative socio-economic research; (e) take into account, where relevant, the relationship between poverty, migration caused by environmental factors, and desertification; (f) promote the conduct of joint research programmes between national, sub-regional, regional and international research organizations, in both the public and private sectors, for the development of improved, affordable and accessible technologies for sustainable development through effective participation of local populations and communities; and (g) enhance the availability of water resources in affected areas, by means of, inter alia, cloud seeding. 2. Research priorities for particular regions and sub-regions, reflecting different local conditions, should be included in action programmes. The Conference of the Parties shall review research priorities periodically on the advice of the Committee on Science and Technology. Transfer, acquisition, adaptation and development of technology

13. Article 18(1)(a)- 1. The Parties undertake, as mutually agreed and in accordance with their respective national

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(e) legislation and/or policies, to promote, finance and/or facilitate the financing of the transfer, acquisition, adaptation and development of environmentally sound, economically viable and socially acceptable technologies relevant to combating desertification and/or mitigating the effects of drought, with a view to contributing to the achievement of sustainable development in affected areas. Such cooperation shall be conducted bilaterally or multilaterally, as appropriate, making full use of the expertise of intergovernmental and non-governmental organizations. The Parties shall, in particular: (a) fully utilize relevant existing national, sub-regional, regional and international information systems and clearing-houses for the dissemination of information on available technologies, their sources, their environmental risks and the broad terms under which they may be acquired; (b) facilitate access, in particular by affected developing country Parties, on favourable terms, including on concessional and preferential terms, as mutually agreed, taking into account the need to protect intellectual property rights, to technologies most suitable to practical application for specific needs of local populations, paying special attention to the social, cultural, economic and environmental impact of such technology; (c) facilitate technology cooperation among affected country Parties through financial assistance or other appropriate means; (d) extend technology cooperation with affected developing country Parties, including, where relevant, joint ventures, especially to sectors which foster alternative livelihoods; and (e) take appropriate measures to create domestic market conditions and incentives, fiscal or otherwise, conducive to the development, transfer, acquisition and adaptation of suitable technology, knowledge, know-how and practices, including measures to ensure adequate and effective protection of intellectual property rights.

14. Article 18(2)(a)-(d)

2. The Parties shall, according to their respective capabilities, and subject to their respective national legislation and/or policies, protect, promote and use in particular relevant traditional and local technology, knowledge, know-how and practices and, to that end, they undertake to: (a) make inventories of such technology, knowledge, know-how and practices and their potential uses with the participation of local populations, and disseminate such information, where appropriate, in cooperation with relevant intergovernmental and non-governmental organizations; (b) ensure that such technology, knowledge, know-how and practices are adequately protected and that local populations benefit directly, on an equitable basis and as mutually agreed, from any commercial utilization of them or from any technological development derived therefrom; (c) encourage and actively support the improvement and dissemination of such technology, knowledge, know-how and practices or of the development of new technology based on them; and (d) facilitate, as appropriate, the adaptation of such technology, knowledge, know-how and practices to wide use and integrate them with modern technology, as appropriate.

Capacity Building, Education and Public awareness

15. Article 19(1)-(4) 1. The Parties recognize the significance of capacity building – that is to say, institution building, training and development of relevant local and national capacities -- in efforts to combat desertification and mitigate the effects of drought. They shall promote, as appropriate, capacity-building: (a) through the full participation at all levels of local people, particularly at the local level, especially women and youth, with the cooperation of non-governmental and local organizations; (b) by strengthening training and research capacity at the national level in the field of desertification and drought; (c) by establishing and/or strengthening support and extension services to disseminate relevant technology methods and techniques more effectively, and by training field agents and members of rural organizations in participatory approaches for the conservation and sustainable use of natural resources; (d) by fostering the use and dissemination of the knowledge, know-how and practices of local people in technical cooperation programmes, wherever possible; (e) by adapting, where necessary, relevant environmentally sound technology and traditional methods of agriculture and pastoralism to modern socio-economic conditions; (f) by providing appropriate training and technology in the use of alternative energy sources, particularly renewable energy resources, aimed particularly at reducing dependence on wood for fuel; (g) through cooperation, as mutually agreed, to strengthen the capacity of affected developing country Parties to develop and implement programmes in the field of collection, analysis and exchange of information pursuant to article 16; (h) through innovative ways of promoting alternative livelihoods, including training in new skills; (i) by training of decision makers, managers, and personnel who are responsible for the collection and analysis of data for the dissemination and use of early warning information on

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drought conditions and for food production; (j) through more effective operation of existing national institutions and legal frameworks and, where necessary, creation of new ones, along with strengthening of strategic planning and management; and (k) by means of exchange visitor programmes to enhance capacity building in affected country Parties through a long-term, interactive process of learning and study. 2. Affected developing country Parties shall conduct, in cooperation with other Parties and competent intergovernmental and non-governmental organizations, as appropriate, an interdisciplinary review of available capacity and facilities at the local and national levels, and the potential for strengthening them. 3. The Parties shall cooperate with each other and through competent intergovernmental organizations, as well as with non-governmental organizations, in undertaking and supporting public awareness and educational programmes in both affected and, where relevant, unaffected country Parties to promote understanding of the causes and effects of desertification and drought and of the importance of meeting the objective of this Convention. To that end, they shall: (a) organize awareness campaigns for the general public; (b) promote, on a permanent basis, access by the public to relevant information, and wide public participation in education and awareness activities; (c) encourage the establishment of associations that contribute to public awareness; (d) develop and exchange educational and public awareness material, where possible in local languages, exchange and second experts to train personnel of affected developing country Parties in carrying out relevant education and awareness programmes, and fully utilize relevant educational material available in competent international bodies; (e) assess educational needs in affected areas, elaborate appropriate school curricula and expand, as needed, educational and adult literacy programmes and opportunities for all, in particular for girls and women, on the identification, conservation and sustainable use and management of the natural resources of affected areas; and (f) develop interdisciplinary participatory programmes integrating desertification and drought awareness into educational systems and in non-formal, adult, distance and practical educational programmes. 4. The Conference of the Parties shall establish and/or strengthen networks of regional education and training centers to combat desertification and mitigate the effects of drought. These networks shall be coordinated by an institution created or designated for that purpose, in order to train scientific, technical and management personnel and to strengthen existing institutions responsible for education and training in affected country Parties, where appropriate, with a view to harmonizing programmes and to organizing exchanges of experience among them. These networks shall cooperate closely with relevant intergovernmental and non-governmental organizations to avoid duplication of effort.

Financial Resources 16. Article 20(1)-(5) 1. Given the central importance of financing to the achievement of the objective of the

Convention, the Parties, taking into account their capabilities, shall make every effort to ensure that adequate financial resources are available for programmes to combat desertification and mitigate the effects of drought. 2. In this connection, developed country Parties, while giving priority to affected African country Parties without neglecting affected developing country Parties in other regions, in accordance with article 7, undertake to: (a) mobilize substantial financial resources, including grants and concessional loans, in order to support the implementation of programmes to combat desertification and mitigate the effects of drought; (b) promote the mobilization of adequate, timely and predictable financial resources, including new and additional funding from the Global Environment Facility of the agreed incremental costs of those activities concerning desertification that relate to its four focal areas, in conformity with the relevant provisions of the Instrument establishing the Global Environment Facility; (c) facilitate through international cooperation the transfer of technology, knowledge and know-how; and (d) explore, in cooperation with affected developing country Parties, innovative methods and incentives for mobilizing and channeling resources, including those of foundations, non-governmental organizations and other private sector entities, particularly debt swaps and other innovative means which increase financing by reducing the external debt burden of affected developing country Parties, particularly those in Africa. 3. Affected developing country Parties, taking into account their capabilities, undertake to

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mobilize adequate financial resources for the implementation of their national action programmes. 4. In mobilizing financial resources, the Parties shall seek full use and continued qualitative improvement of all national, bilateral and multilateral funding sources and mechanisms, using consortia, joint programmes and parallel financing, and shall seek to involve private sector funding sources and mechanisms, including those of non-governmental organizations. To this end, the Parties shall fully utilize the operational mechanisms developed pursuant to article 14. 5. In order to mobilize the financial resources necessary for affected developing country Parties to combat desertification and mitigate the effects of drought, the Parties shall: (a) rationalize and strengthen the management of resources already allocated for combating desertification and mitigating the effects of drought by using them more effectively and efficiently, assessing their successes and shortcomings, removing hindrances to their effective use and, where necessary, reorienting programmes in light of the integrated long-term approach adopted pursuant to this Convention; (b) give due priority and attention within the governing bodies of multilateral financial institutions, facilities and funds, including regional development banks and funds, to supporting affected developing country Parties, particularly those in Africa, in activities which advance implementation of the Convention, notably action programmes they undertake in the framework of regional implementation annexes; and (c) examine ways in which regional and sub-regional cooperation can be strengthened to support efforts undertaken at the national level.

Financial Mechanism

17. Article 21(3) 3. Affected developing country Parties shall utilize, and where necessary, establish and/or strengthen, national coordinating mechanisms, integrated in national development programmes, that would ensure the efficient use of all available financial resources. They shall also utilize participatory processes involving non-governmental organizations, local groups and the private sector, in raising funds, in elaborating as well as implementing programmes and in assuring access to funding by groups at the local level. These actions can be enhanced by improved coordination and flexible programming on the part of those providing assistance.

Communication and Information

18. Article 26(1)-(4)

1. Each Party shall communicate to the Conference of the Parties for consideration at its ordinary sessions, through the Permanent Secretariat, reports on the measures, which it has taken for the implementation of the Convention. The Conference of the Parties shall determine the timetable for submission and the format of such reports. 2. Affected country Parties shall provide a description of the strategies established pursuant to article 5 and of any relevant information on their implementation. 3. Affected country Parties, which implement action programmes pursuant to articles 9 to 15, shall provide a detailed description of the programmes and of their implementation. 4. Any group of affected country Parties may make a joint communication on measures taken at the sub-regional and/or regional levels in the framework of action programmes.

Settlement of Disputes

19. Article 28(1) 1. Parties shall settle any dispute between them concerning the interpretation or application of the Convention through negotiation or other peaceful means of their own choice.

Source: Mr. Sainivalati S. Navoti

Fiji and the UNCCD Convention

Fiji signed the Convention 1998, four years after the Convention was adopted in Paris on 17 June 1994,

and two years since the Convention entered into force on 26 December 1996. Since then, the

implementation of UNCCD in Fiji has continued to advance beginning with the development of the First

National Report – 2000,Second National Report – 2002,Third National Report – 2006 and National

Action Plan (NAP) – 2007.

Land Degradation

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In its first Report, Fiji stated that:

“From the outset, it must be clearly spelt out that Desertification and Drought are not perceived

to be a priority issue, for the Government. However, land degradation has become an

environmental problem due to the increase in deforestation, logging, intensive sloping kind

cultivation, and commercial livestock farming. The consequences of these practices result in a

reduction in farm income that in turn leads to increased poverty. As increased land degradation

may result in desertification, the reporting done for the national report is done in the context of

soil degradation.”192

In ratifying, the UNCCD in 1998, the Fiji Government recognizes that desertification and drought are

impending problems that would inevitably occur in the future if no action is taken to address the

continuing problem of land degradation in rural areas.

Article 1(f) of the UNCCD Convention defined Land Degradation as follows:

"Land degradation" means reduction or loss, in arid, semi-arid and dry sub-humid areas,

of the biological or economic productivity and complexity of rain fed cropland, irrigated

cropland, or range, pasture, forest and woodlands resulting from land uses or from a

process or combination of processes, including processes arising from human activities

and habitation patterns, such as:

(i) soil erosion caused by wind and/or water;

(ii) deterioration of the physical, chemical and biological or economic properties of

soil; and

(iii) long-term loss of natural vegetation”

Causes of Land Degradation in Fiji

In its “National Action Plan to Combat Desertification/ Land Degradation and Mitigate against

Draught”193, the Government of Fiji stated that Land Degradation are caused by direct sources and

indirect sources in Fiji. Summarized below are these sources:

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TABLE 9: CAUSES OF LAND DEGRADATION IN FIJI194

Srl. Sources Direct Sources of Land Degradation

1. Deforestation Deforestation has slowed but it is continuing under a more controlled regime despite introduction of the National Code of Logging Practice. Since 1967, up to 140,000 ha of Fiji’s forest has been converted to non-forest land uses. Unsustainable logging practice is the clear felling of the forest trees and vegetation followed by burning, all in the guise of rural development. There are six principle causes of deforestation in Fiji:

� clearing of forest associated with a large-scale commercial (agriculture) rural � development project; � the continuing small but steady growth of smallholder agriculture involving mixed � commercial and subsistence farming; � the continuing spread of small villages and settlements; � urban growth and infrastructure to service these areas (road, dams, bridges, reservoir); � fire; and � bad logging practices followed by land clearance.

2. Unsustainable Logging

The over exploitation of forest for timber is also a factor of deforestation. Logging itself does not necessarily permanently reduce forest cover. Poor logging practices however can and do affect the ability of forest to regenerate. Heavy disturbance of forests is still occurring and this type tends to encourage clearance for agricultural purposes. More dense forests are under less stress. The unplanned alignments of logging roads have on-site and off-site consequences to the environment such as erosion on road embankments, which causes siltation of creeks and depletion of biodiversity in the river ecosystems. These practices, both within and outside logging concession areas have significantly affected forest quality and biodiversity to the detriment of both forest cover (through erosion) and subsequently, forest based industries.

3. Intensive sloping land cultivation

Increased population, low availability of fertile arable land and the encroachment onto fertile arable land for non-agricultural purposes such as urban expansion, has forced farmers to use sloping marginal steep land. Intensified use of marginal steep land areas leads to shorter fallow periods and ultimately to soil degradation and reduced crop yields from those crops such as sugar cane, ginger and dalo grown on sloping land with crops planted up and down slopes (rather than across the slope). This induces on-site land degradation, soil erosion, loss of plant nutrients, increased pest and disease infestation, reduction in soil depth, decreased soil water-holding capacity and rill and gully erosion. This gives rise to an unsustainable cropping system that ultimately leads to poverty Off-site effects include increased siltation in the river systems, formation of mud banks, reduced navigability of rivers, destruction of fish spawning areas, reduced fish populations and flash floods during heavy rains. The latter cause damage to infrastructure costing millions of dollars in rehabilitation, sometimes loss of life and increasing destruction of coral reefs.

4. Intensive flat land cultivation

Commercial and intensive farming on flat land often includes total clearing of forest and land for mono cropping. It is the concentration of high-production output on a short-term basis, without consideration for the soil resources or ‘best practice’ farming, which results in unsustainable use. The large-scale intensive and continuous cropping with crops like sugar cane, dalo, maize, ginger and others on flatland depletes the soil of plant nutrients and increases the dependence on expensive fertilizers. During heavy rainfall, the leaching and overland flow of the fertilizers and farm chemicals into rivers and ground water causes water pollution. As for sugar cane, the burning of trash after harvesting destroys micro-organisms and the organic matter on the soil surface. Tractors can cause compaction of the soil and an increase in bulk density that results in poor crop growth and low infiltration rates during heavy rain. Compaction is also an issue associated with logging operations.

5. Commercial Livestock Farming

The commercialization of livestock farming without good pasture management, with unfenced paddocks and overstocking, leads to a situation where the land and animal feed is out of balance or the carrying capacity of the pasture is low. This results in soil erosion on steep marginal areas. Land degradation compounds when mature grass cover is burnt repeatedly to create young grass shoots that are palatable for livestock. Burning is usually done just before the onset of the wet season, therefore causing soil losses and mass movement. Another major problem is the accumulation of tonnes of animal waste that usually finds its way into streams and rivers causing pollution of waterways.

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Indirect Sources of Land Degradation 6. Demographic

changes The increase in Fiji’s population over recent decades has placed pressure on the land, particularly marginal land, and this has resulted in significant land degradation and soil erosion. While the majority (54%) of the population still lives in rural areas, there has been an absolute decline in the rural population over the last decade due to the rural to urban migration; a trend that is driven by perceived prospects of employment, problems of access to rural land, limited income-generating opportunities and poorer services and infrastructure in the rural areas. The amount of unused land suitable for development is quite small and land use competition is becoming increasingly intense. The uneven distribution of arable land has resulted in some localised demographic imbalances. The environmental impacts of uncontrolled urbanisation combined with land degradation are seriously impacting on the quality of living and the sustainable income-generating capacity of Fiji’s natural resources. Land availability and land quality, land tenure, labour mobilisation, depopulation in some outer islands and sugar cane areas and, in the Fijian village context, a changing balance between subsistence and commercial agriculture are all factors contributing to fewer people being supported directly in primary production. It is becoming more difficult to absorb (at a satisfactory level of living) within the subsistence farming sector those who cannot find work in the urban or fully commercial rural sectors. The conversion from subsistence to commercial agriculture and the inferior quality of each parcel of land brought into use have meant that the average new rural family requires more land than their predecessors did. The small size of farm holdings (60% are less than 3 ha) forces farmers into intensive cultivation (often mono-cropping) for high-output, short term production without or with only minimal fallow periods.

7. Pressure on the production base

Apart from the commercial crops (sugar, ginger, yaqona, dalo) most farmers are locked into subsistence production or root crops, pulses and rice, not a diverse farming system involving a mix of crops (perennials, fruit and nut trees plus the subsistence crops) that would increase income and self-reliance. Market crops have higher value and perennials are more appropriate for soils prone to erosion. Because of competition and pressure for land, subsistence gardens are increasingly being relocated onto steeper slopes because of the expansion of cash cropping and grazing on the flatter lands. Some gardens experience soil loss, especially when traditional mulching is not practised and fallow periods are too short. Soil loss measurements clearly demonstrate that the agricultural productive base in many sugar cane areas, and with ginger on slopes, is declining at a rate that is well above what would be regarded as economically acceptable. The new system of cash cropping is not sustainable. The method here is to move into a new area, clear a relatively large block (10–20 ha) by slash and burn methods, cultivate the land until depleted of nutrients and eroded and then, if more land can be leased, move to a new area and repeat the process. Goat grazing areas are invariably overstocked and show bare eroded patches due to the typical farmer’s need to recoup expenses as quickly as possible and an ignorance of controlled grazing techniques.

8. Over-

dependence on

the sugar

industry

The country’s high dependence on the sugar industry and its quota and incentive system encourage cane farmers to move onto slopes greater than 11º and, commonly, to not practice any soil conservation measures. Over a short period of time, many of these areas experience soil depletion, soil moisture deficits and decreasing productivity. Where land degradation has become extreme, farmers are forced into growing non-cane crops or foregoing leases. Overall the sugar industry is experiencing declining productivity and industry efficiency. Sugar prices have declined, there is little new investment into the sector, there are growing uncertainties about land tenure and there is a high level of farmer indebtedness. There is a prevalent attitude that a soil’s only function is to physically support the cane crop– all nutrient inputs are artificial – and there is scant regard for the soil’s role as a ‘bank’ for moisture and nutrients. FSC (apart from recent Taiwanese assistance) has long ceased research into soil conservation. This is in a situation where estimates point to 15,000 ha of cane land on Viti Levu being in urgent need of soil conservation works and a further 6500 ha that should not be in cane at all.

Initiatives to Combat Land Degradation in Fiji

Highlighted herein are some initiatives and programmes that have been carried out in Fiji to assist combat

land degradation. The activities and initiatives are as follows:

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a. Soil Surveys and Soil Correlation Program195

The program was carried out from 1981 to 2001 where the National Soils Surveys was completed by

1985 and the soils were classified according to the International Soil Taxonomy based on the USDA

system which is currently being used as the international standards as the primary system with soil series.

These has also being correlated to Fiji National Soil Classification System which locally known as

Twyford and Wright (1965).

After the soil surveys, the soil mapping exercise for Viti Levu, Vanua Levu, Taveuni, and several islands

in the Lau Group were carried out and completed at the scale of 1: 50,000. This information will be the

basis for agro-technology transfer of research and scientific data based on soil types regionally, sub-

regionally or nationally, identification of soil types or series and its chemical components for fertilizer

recommendation purposes, the land use capability classification and crop suitability assessment for the

nation, where the matching of land use/ crop types and land capability is very important if productivity

and sustainable land management goals are to be met.

b. Soil and Crop Evaluation Project196

The Soil and Crop Evaluation Project was a five year project that had been jointly funded by Fiji, New

Zealand and Australia. It began in June, 1993 with an overall objective to contribute to self sufficiency in

Fiji of food crops, and an increase in export earnings by definition and demonstration of crop nutrient

requirements on the soil suitable for sustainable cropping systems in Fiji.

To achieve its overall objectives the project had five sub-objectives, which were as follows;

i. To strengthen the capability of the Research Division to undertake appropriate farmer oriented

research.

ii. To provide skills necessary for the Research Division and Extension Division of MAFF personnel

to be better able to carry out their work.

iii. To undertake scientifically rigorous, high quality agronomic research which responds to the need

of the farmer.

iv. To transfer appropriate technology from the research to the farmer by the most appropriate

means.

v. To assist in the development of the MAFF Geographical Information Systems.

vi. To direct and report on the Project to assure the achievement of the project goals.

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The project ended in June, 1998 with varying degrees of success on its five sub-objectives and its overall

objective.

c. Geographical Information Systems197

In 1994 with the assistance of the AUSAID of Australia, the NZODA of New Zealand and the Fiji

Government through the Soil and Crop Evaluation Project established the MAFF Geographical

Information Systems and it was housed under the Land Use Planning Section of the Research Division

and now of the Department of Land Resources Planning and Development. To date the Land Use Section

have digitized and have stored the database of Taveuni Island and the two main island of Viti Levu and

Vanua Levu and several small islands in the Lau Group.

The Land Use Section have also imported information such as the cadastral mapping systems, roads, river

systems, native land mapping systems, forest inventory, geological information and other information

from data custodians such as the Native Land Trust Board, Forestry Dept. Fiji Land Information Systems

and others. These stored databases is retrieved, manipulated and analyzed for different outputs according

to the needs of the clients, to make informed quality decision for the sustainable uses of their resources.

Table 10: OTHER FIJI PROGRAMMES AND INITIATIVES FOR THE IMPLEMENTATION OF UNCCD

OBLIGATIONS

Srl Programme198

1. Participatory District / Tikina Based Land Use Plan: 2. Soil Loss Research and Development of Sustainable Land Management Technologies: 3. Agro forestry Program: 4. Pacific Regional Agriculture Program 5. Awareness and Training on Sustainable Land Management: 6. Transfer of Sustainable Land Management Technologies (SLMT): 7. Drought Mitigation 8. Climate Change and Variability Scenario Generation/Modeling: 9. Land Use Options in the Fiji Sugar Industry: 10. Land Capability Classification: 11. Development of integrated farming approaches for sustainable crop production in

environmentally- constrained systems in the Pacific region (CROPPRO Project). 12. Integration of Sustainable Land Management (SLM) and Sustainable Forestry Management

(SFM) 13. Integrated Coastal Resources Management 14. Development of Sustainable Agriculture Project. 15. Development of Land care Groups

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Institutional Measures Taken to Implement the UNCCD Convention

a. Established and Functional National Coordination Body

When Fiji ratified the United Nation Convention to Combat Drought and Desertification, in 1998, the

Ministry of Agriculture, Fisheries & Forests was identified as the National Focal Point. The Ministry of

Agriculture, Fisheries & Forests has a Land Use Unit which acts as a secretariat to the Land Conservation

Board. The overall responsibility of implementing the National Action Plan lives solely with the Land

Conservation Board (LCB) which is the National Coordinating Body.

b. Land Conservation Board

The Land Conservation and Improvement Act of 1953 establishes the Land Conservation Board “ to

exercise general supervision over land and water resources”, disseminate information; recommend

appropriate legislation; and make general or particular conservation orders or closing orders, or require

landowners to execute works, for the conservation of land or water resources.

The primary concern of the LCB since the early 1970’s has been drainage. This comes about, not by

virtue of the Land Conservation and Improvement Act, but because the LCB is nominated as the

controlling authority of Drainage Boards established under the Drainage Act. Accordingly, it is the body

that formally institutes boards and drainage areas; authorizes drainage works; approves and helps to

arrange loans to execute drainage works; and approves the levying of drainage rates by Drainage Boards.

The formal powers conferred on the Board by the Land Conservation and Improvement Act are sufficient

to allow the Board to make a substantial contribution to land conservation and the implementation of a

National Action Programme.

c. Fiji National Plan to Combat Desertification

The Fiji National Action Plan (NAP) on Combating Desertification was submitted in 2006. The purpose

of the national action plan was to identify the factors contributing to desertification / degradation and

practical measures needed to combat it. Fiji’s NAP provides for the following:-

(a) Long term strategies to combat desertification / degradation and to mitigate the effects of

drought, emphasizing implementation and integration into national policies for sustainable

development.

(b) Allows for modifications in response to changing circumstances and is sufficiently flexible at the

local level to cope with different socio-economic, biological and geo-physical conditions.

(c) Gives particular attention to the implementation of preventative measures affected areas and

areas with degradation potential.

(d) Enhancement of national capabilities in national climatological / meteorological and

hydrological monitoring as a means of providing early warning systems for drought.

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(e) Promotion of policies and strengthening of institutional frameworks to promote partnerships,

corporation and coordination between the government, donors, local populations and groups and

facilitates information and technology access to all.

(f) Provides for effective participation of government, local populations both men and women, non-

government organizations, particularly resource users and their representative organizations in

policy planning, decision-making, implementation, monitoring and evaluation of national action

plans.

The National Rural Land Use Policy

The Fiji Government understands its obligation to the UNCCD and in its quest for the sustainable

development and management of its resources, key sectoral development issues are being incorporated

into its National Strategic Development Plans. Fiji has just endorsed its “National Rural Land Use

Policy” to coordinate the optimal utilization of land for development. The policy includes formulation of

a National Rural Land Use Plan or National Land Use Master Plan.

i. To promote the consolidation and integration of all land information into database.

ii. To enhance landowners participation in commercial use of there land resources.

iii. To encourage foreign and local investment in commercial use of land

iv. To improve sustainability of land resources use.

v. To monitor and control the physical degradation of land.

Legislative Frameworks

Fiji has a number of legislative and regulatory frameworks already in existence; however, a number of

these need appropriate amendments to bring them in line with the requirements of modern day

conservation as stipulated in the Convention. For Desertification and Land Degradation, the Land

Conservation and Improvement Act 1953 (LCI Act) still remains the principal legislation governing the

use of land resources and has now been complimented by the Environment Management Act 2005.

The LCI Act has been amended to also include the formulation and implementation of the National Land

Use Plan as one of its key functions. The enforcement of these regulations requires additional resources

which the government cannot afford.

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There is very poor public understanding particularly in the rural sector about the various legislation’s that

pertains to land, land use and soil conservation etc. The following twelve (12) pieces of legislation are

relevant to the land development and conservation in Fiji:

^ Land Conservation and Improvement Act, 1953

^ Drainage Act, 1961

^ Irrigation Act, 1974

^ Land Development Act, 1961

^ Town and Country Planning Act, 1946

^ Crown Land ACT, 1946

^ Native Land Trust Act, 1946

^ Agriculture landlord and tenants Act (ALTA), 1976

^ Mining Act, 1966

^ National Trust Act, 1970

^ Forest Act, 1953

^ Forest Decree

Constraints & Challenges

A number of studies were carried out to ascertain the constraints and challenges faced by Fiji in the

implementation of the UNCCD Convention. To avoid repetition, the Author will discuss these together

with challenges and shortcomings from other Treaties in Chapter Five of this paper. Nevertheless, the

following were identified to be those challenges and constrains specifically relevant to the

implementation of UNCCD:199

� Absence of a participatory National Land Use Plan. � Increase demand on arable land. � Shortage of arable land. � Over dependence on the sugar industry. � Use of inappropriate land management technologies. � Lack of infrastructure � Lack of knowledge and awareness on provisions of existing land resources legislations. � Weak institutional linkages. � Inappropriate land use development in the watershed. � Poverty. � Lack of credit facilities for land development. � Inaccessibility to land resources information.

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Analysis

Even though Desertification is not has been pronounced by Fiji to be one of its immediate environmental

concerns, the identification of Land Degradation as a phenomenon that could eventually lead to

desertification exhibit a cautious and responsible approach to land conservation. Land is not an abundant

commodity in Small Island State like Fiji- the need for conservation therefore of this scarce and vital

resource and its proper management to ensure long term sustainable yielding, must be ranked as one of

the top priority of any Government and peoples of Fiji.

The action plan, policies, programmes, initiatives and measures put in place by Fiji to address land

degradation to date, appears to portray genuine attempts at implementation. The focal point for UNCCD

is located within the Ministry of Agriculture. Over the years there have been consistent engagement of

officials of the Ministry with their counterparts at the UNCCD Secretariat and other relevant officers of

regional institutions such as SPREP200. This has undoubtedly facilitated free flow of information and

identification of assistance to be channeled to Fiji. Despite late start in the production of Action Plans

and Strategies to address degradation, Fiji has been consistent in submitting its Reports. This efficiency

can be attributed directly to availability of resources and a continuous and consistent effort of the Focal

Point in monitoring and implementing and following up on initiatives and programmes related to

degradation and land management in general.

Nevertheless, a lot of improvement still remains to be made. Combating desertification does not have

overnight solutions. Fiji must continue to search out to and adopt new and innovative ideas, home grown

solutions drawing on years of traditional conservation practices, mixing it with modern technological

knowhow, a solution matching the uniqueness of Fiji’s environment. International cooperation and

regional solidarity has proven to be of great value, these too must be allowed to continue.

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3.2.3 Convention on International Trade in Endangered Species of Wild Flora and Fauna

1973 (CITES)

Introduction

The Convention on International Trade in Endangered Species, or CITES, is the largest, and perhaps most

important wildlife conservation agreement in the world, and a vital tool to combat the threat to plants and

animals posed by the international wildlife trade201. CITES was concluded on 3 March 1973. It entered

into force after ratification by 10 States, on 1 July 1975202. This Convention has helped to establish the

principle that a modern Government needed to have a scientific basis for determining the status of its own

species, and addressing the implications of trade in them203.

International Wildlife Trade

The wildlife trade involves hundreds of millions of individual plants and animals from tens of thousands

of species. The international trade of wild animals and wildlife products is a major industry that is

growing at a rapid pace204. According to the wildlife trade monitoring network TRAFFIC205, the primary

motivating factor for wildlife traders is economic, ranging from small scale local income generation to

major profit-oriented business. TRAFFIC estimated that 70 000 species of plant are used for medicinal

purposes alone. Additionally, approximately 25% of ‘modern’ pharmacy medicines have been developed

based on the medicinal properties of wild species. Little is known about the status of many of these

species, although those that have been assessed show a concerning picture206.

Between collectors of wildlife and the ultimate users, any number of middlemen may be involved in the

wildlife trade, including specialists involved in storage, handling, transport, manufacturing, industrial

production, marketing, and the export and retail businesses207.

In the early 1990s, TRAFFIC estimated the value of legal wildlife products imported globally was around

USD160 billion. In 2009, the estimated value of global imports was over USD323 billion. From 2005 to

2009, CITES recorded an annual average of more than 317,000 live birds, just over 2 million live reptiles,

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2.5 million crocodilian skins, 1.5 million lizard skins, 2.1 million snake skins, 73 tonnes of caviar, 1.1

million coral pieces and nearly 20,000 hunting trophies208.

Illegal Wildlife Trade

Apart from loss of habitat, illegal wildlife trade is one of the primary threats to the continued existence of

a large number of species on earth. In the early 1990s, the United States Fish and Wildlife Service

reported that international wildlife trade was a $5 billion a year industry with as much as 25% of it being

illegal. That is, wild animals were illegally killed and trade either whole or in parts with an annual

turnover of nearly $1.25 billion209.

In 1993, TRAFFIC reported that illegal trade alone had generated $5 billion to $10 billion in one year.

This makes the illegal wildlife trade the third largest illegal trade in the world after drugs and arms.210 In

1994, the United States, the world’s largest importer of wildlife and wildlife products, reported through

its Customs Authority, that protected plants and animals are second only to drugs among illegal items

smuggled into the country211. In most parts, what makes the trade illegal is that the plant or animal being

traded is endangered. Such trade is either prohibited entirely, restricted or regulated212.

CITES

Global concern over the conservation impact of exploitation of and international trade in wild species was

first expressed at the seventh General Assembly of the International Union for Conservation of Nature

and Natural Resources (IUCN – now IUCN- the World Conservation Union), held in Warsaw, Poland, in

1960213. In light of increasing information on the threatened status of many species, delegates urged

Governments to restrict imports of animals in accordance with export regulations of countries of origin.

However, such regulations were far from uniform and Governments did not have the means to know the

regulations of other countries, or have the legal provisions to support them even if they did. To address

this problem, the eighth IUCN General Assembly, held in Nairobi, Kenya, in 1963, called for the creation

of an international convention to regulate export, transit and import of rare or threatened wild species or

the skins and trophies thereof214.

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Prior to this, a number of international instruments were already in existence215 purporting to address

wildlife trade. However, these instruments were mainly perceived to be limited regionally or in their

impact, or the political will was insufficient to make them work effectively, or they simply became

outdated as the world moved away from colonial rule216.

Progress towards making CITES a reality accelerated in 1972, when the United Nations Conference on

the Human Environment, held in Stockholm, Sweden, adopted its Action Plan for the Human

Environment including a recommendation for the convening of “a plenipotentiary conference be

convened as soon as possible, under appropriate governmental or intergovernmental auspices, to prepare

and adopt a convention on export, import and transit of certain species of wild animals and plants”217.

From 12 February to 2 March 1973, Representatives from 80 countries attended the Plenipotentiary

Conference to Conclude an International Convention on Trade in Certain Species of Wildlife, hosted by

the United States of America in Washington D.C.218 After three weeks of debate, the delegates agreed on

the final text of the Convention, comprising the Preamble and the 25 Articles, and the creation of three

species lists (Appendices I, II and III) and a permit model (Appendix IV). Switzerland offered to act as

the Depositary Government for the new Convention. On Saturday 3 March 1973, 21 countries signed the

Convention. Afterwards, Canada, Chile, Cyprus, Ecuador, Nigeria, Sweden, Switzerland, Tunisia, the

United States of America and Uruguay were the first countries to ratify the Convention, and after the 10

ratification (Canada) the Convention entered into force on 1 July 1975219.

Obligations

The basic principles of CITES are quite straightforward220. It regulates international trade in wild animals

and plants which are listed in three Appendices to the Convention. It is a protectionist treaty in the sense

that it prohibits, with a few exceptions, international commercial trade in species that are threatened with

extinction (listed in Appendix I). It is also a trading treaty in the sense that it allows a controlled

international trade in specimens of species listed in Appendix II. CITES limits exports of Appendix II

species to a level which will not be detrimental to their survival. Appendix III provides a mechanism

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whereby a Party which has domestic legislation regulating the export of species not in Appendix I or II

can seek the support of other Parties in enforcing its own domestic legislation221.

The implementation of the obligations under CITES is explicitly divided in the Convention to three

principal organs: the general obligation of the State, and the specific obligations of the Scientific

Authority of the State, and the Management Authority of the State222.

Obligation of State Parties

Article 8 stipulates that a State Party223 to CITES must:

“……take appropriate measures to enforce the provisions of the present Convention and

to prohibit trade in specimens in violation thereof. These shall include measures:

(a) to penalize trade in, or possession of, such specimens, or both; and

(b) to provide for the confiscation or return to the State of export of such

specimens.”

Further, a State may: “….when it deems it necessary, provide for any method of internal reimbursement

for expenses incurred as a result of the confiscation of a specimen traded in violation of the measures

taken in the application of the provisions of the present Convention”224 and “…..ensure that specimens

shall pass through any formalities required for trade with a minimum of delay. To facilitate such passage,

a Party may designate ports of exit and ports of entry at which specimens must be presented for

clearance. The Parties shall ensure further that all living specimens, during any period of transit, holding

or shipment, are properly cared for so as to minimize the risk of injury, damage to health or cruel

treatment”225.

In addition to the foregoing, States, under Article 10 also must designate, for the purpose of CITES:

a) One or more Management Authorities competent to grant permits or certificate on its behalf;

and

b) One or more State Authorities.

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Obligations of the Scientific Authority

Tabulated below is a summary of the functions, responsibilities and obligation of the “Scientific

Authority”

Table 11: Obligations of the Scientific Authority of CITES

Srl. Article Obligations of the Scientific Authority226 1. Art 3 (2) Export of Schedule 1 Species Export of any specimen of a species included in Appendix I shall require the prior grant and

presentation of an export permit. An export permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;

Art 3(3) Import of Schedule 1 Species Import of any specimen of a species included in Appendix I shall require the prior grant and

presentation of an import permit and either an export permit or a re-export certificate. An import permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved; (b) a Scientific Authority of the State of import is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it;

Art 3(5)(a) Introduction from Sea of Schedule 1 Species Introduction from the sea of any specimen of a species included in Appendix I shall require the prior

grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved;

2. Art 4(2)(a) Export of Schedule 11 Species Export of any specimen of a species included in Appendix II shall require the prior grant and

presentation of an export permit. An export permit shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species;

Art 4(3) Monitor of Export of Schedule 11 Species A Scientific Authority in each Party shall monitor both the export permits granted by that State for

specimens of species included in Appendix II and the actual exports of such specimens. Whenever a Scientific Authority determines that the export of specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I, the Scientific Authority shall advise the appropriate Management Authority of suitable measures to be taken to limit the grant of export permits for specimens of that species.

Art 4(6)(a) Introduction from Sea of Schedule 11 Species The introduction from the sea of any specimen of a species included in Appendix II shall require the

prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met: (a) a Scientific Authority of the State of introduction advises that the introduction will not be detrimental to the survival of the species involved

Art 4(7) Grant of Art 4(6) Certificates Certificates referred to in paragraph 6 of this Article may be granted on the advice of a Scientific

Authority, in consultation with other national scientific authorities or, when appropriate, international scientific authorities, in respect of periods not exceeding one year for total numbers of specimens to be introduced in such periods

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The “Management Authorities of States” under Article 10 of CITES is accorded the obligation

specifically to be the issuing authority for permits and certificates on export, import, re-export and entry

from sea of species listed in Schedule I,II and II of CITES. In discharging this duty, the Management

Authority operates within certain guidelines as stipulated below:

Table 12: Obligations of the Management Authority under CITES

Srl Article Particular Management Authority’s Obligation 1. Art 3(2)(b) Export Permit for

Appendix1 Species Satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora

Art 3(2(c) Satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment

Art 3(2)(d) Satisfied that an import permit has been granted for the specimen. 2. Art 3(3)(c) Import Permit for

Appendix 1 Species Satisfied that the specimen is not to be used for primarily commercial purposes.

3. Art 3(4)(a)-(c)

Re-export License for Appendix. 1 Species

A re-export certificate shall only be granted when the following conditions have been met: (a) a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention; (b) a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment; and (c) a Management Authority of the State of re-export is satisfied that an import permit has been granted for any living specimen.

4. Art 3(5)(b) & (c)

Certificate for Introduction from Sea of Appendix.1 Species

(b) a Management Authority of the State of introduction is satisfied that the proposed recipient of a living specimen is suitably equipped to house and care for it; and (c) a Management Authority of the State of introduction is satisfied that the specimen is not to be used for primarily commercial purposes.

5. Art 4(2)(b)&(C)

Export Permit of Appendix. 11 Species

Export of any specimen of a species included in Appendix II shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met: (a) …….. (b) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and (c) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

6. Art 4(5) (a) & (b)

Re- export of Appendix. II Species

Re-export of any specimen of a species included in Appendix II shall require the prior grant and presentation of a re-export certificate. A re-export certificate shall only be granted when the following conditions have been met: (a) a Management Authority of the State of re-export is satisfied that the specimen was imported into that State in accordance with the provisions of the present Convention; and (b) a Management Authority of the State of re-export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

7. Art 4(6)(b) Introduction by Sea of Appendix. II Species

The introduction from the sea of any specimen of a species included in Appendix II shall require the prior grant of a certificate from a Management Authority of the State of introduction. A certificate shall only be granted when the following conditions have been met: (a) ……; and (b) a Management Authority of the State of introduction is satisfied that any living specimen will be so handled as to minimize the risk of injury, damage to health or cruel treatment.

8. Art 5(2)(a) & Export of Appendix.III The export of any specimen of a species included in Appendix III from any

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(b) Species State which has included that species in Appendix III shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met: (a) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora; and (b) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

9. Art 6(4),(6) & (7)

Permits & Certificates 4. Any copies of a permit or certificate issued by a Management Authority shall be clearly marked as copies only and no such copy may be used in place of the original, except to the extent endorsed thereon. 5. …… 6. A Management Authority of the State of import of any specimen shall cancel and retain the export permit or re-export certificate and any corresponding import permit presented in respect of the import of that specimen. 7. Where appropriate and feasible a Management Authority may affix a mark upon any specimen to assist in identifying the specimen. For these purposes "mark" means any indelible imprint, lead seal or other suitable means of identifying a specimen, designed in such a way as to render its imitation by unauthorized persons as difficult as possible.

10. Art 7(5) Certificate of species bred in captivity

5. Where a Management Authority of the State of export is satisfied that any specimen of an animal species was bred in captivity or any specimen of a plant species was artificially propagated, or is a part of such an animal or plant or was derived therefrom, a certificate by that Management Authority to that effect shall be accepted in lieu of any of the permits or certificates required under the provisions of Article III, IV or V

11. Art 7 (7) Zoo & Circus etc species

7. A Management Authority of any State may waive the requirements of Articles III, IV and V and allow the movement without permits or certificates of specimens which form part of a travelling zoo, circus, menagerie, plant exhibition or other travelling exhibition provided that: (a) the exporter or importer registers full details of such specimens with that Management Authority; (b) the specimens are in either of the categories specified in paragraph 2 or 5 of this Article; and (c) the Management Authority is satisfied that any living specimen will be so transported and cared for as to minimize the risk of injury, damage to health or cruel treatments

12. Art 8(4)(a)-(c)

Confiscated Species/Specimen

4. Where a living specimen is confiscated as a result of measures referred to in paragraph 1 of this Article: (a) the specimen shall be entrusted to a Management Authority of the State of confiscation; (b) the Management Authority shall, after consultation with the State of export, return the specimen to that State at the expense of that State, or to a rescue center or such other place as the Management Authority deems appropriate and consistent with the purposes of the present Convention; and (c) the Management Authority may obtain the advice of a Scientific Authority, or may, whenever it considers it desirable, consult the Secretariat in order to facilitate the decision under sub-paragraph (b) of this paragraph, including the choice of a rescue center or other place.


The Appendices

Article 2 of CITES defines the types or category of species to be listed in each of the Convention’s three

Appendices. Appendix 1 lists all species threatened with extinction which are or may be affected by trade.

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Trade in specimens of these species must be subject to particularly strict regulation in order not to

endanger further their survival and must only be authorized in exceptional circumstances.227

Appendix II lists all species which although not necessarily now threatened with extinction may become

so unless trade in specimens of such species is subject to strict regulation and other species which must be

subject to regulation in order that trade in specimens of certain species referred to earlier may be brought

under effective control228. Appendix III shall include all species which any Party identifies as being

subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as

needing the co-operation of other Parties in the control of trade229.

CITES and Fiji

Introduction

Each country protects and uses their natural resources through written policies, strategies, plans and

legislation. These policies may be integrated or a package of individual measures. Fiji joined CITES in

1997. Fiji’s history in the CITES regime has been somewhat interesting when one takes into

consideration that CITES has been one of those Multilateral Environmental Agreements (MEAs) that did

in fact invoked its internal procedures to “suspended Fiji’s trade” with other CITES Members, due to non

observance of obligations.

Fiji’s suspension from trading under CITES230

It is prudent to account here the details of Fiji’s temporary suspension as a trading party under CITES to

illustrate the power of international law in motion. The lessons learnt from this experience ought to serve

as a positive reminder to Fiji of the maxim “Pacta Sunt Servanda”.

CITES Decision 11.77 directs the CITES Standing Committee to decide the appropriate measures to be taken with respect to the Parties identified in Decision 11.15 as Parties whose national legislation, analyzed during phase 3 of the National Legislation Project, was believed generally not to meet the requirements for implementation of CITES and that are engaged in significant amounts of international trade in specimens of CITES species. Fiji was identified as one of these Parties.

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Decision 11.16 states that all Parties should refuse any import of specimens of CITES-listed species from, and any export or re-export of such specimens to, the Parties listed in Decision 11.15, if, in spite of receiving any assistance that was requested from the Secretariat, the Parties concerned do not adopt the legislation required before 31 October 2001. Pursuant to Decisions 11.15, 11.16 and 11.77, the Secretariat informed the Standing Committee, at its 45th meeting (Paris, June 2001), about the progress made by the countries concerned. Having considered the report of the Secretariat, the Standing Committee agreed to defer until 31 December 2001 a recommendation to suspend trade in specimens of CITES species with those countries. The inadequacy of Fiji’s legislation was brought to the attention of the Management Authority, which has been aware since the 11th meeting of the Conference of the Parties, in April 2000, that Fiji might be subject to a recommendation to suspend trade in specimens of CITES species. In December 2000, the Secretariat received several communications from the Department of Environment advising it of the progress made in preparing the Sustainable Development Bill (SDB) and subsidiary legislation for implementing CITES, and indicating that this legislation should be enacted by 30 April 2001. The Secretariat wrote to Fiji on 7 March 2001 welcoming the progress made and requesting a copy of the draft legislation related to CITES. The Management Authority of Fiji responded on 12 March 2001 pointing out that, owing to political changes in the country, the expected date of enactment of the legislation had been moved from April to August 2001. They indicated that the draft SDB had raised some concerns related to indigenous rights and so had been translated into Fijian and disseminated to provincial heads. They requested technical assistance from the Secretariat to set appropriate penalties for CITES-related offences and to build the capacity of the newly established Scientific Authority. A copy of the draft legislation, however, was not provided. On 14 June 2001, the Secretariat provided technical advice in relation to the penalty levels that might be applied to various offences and reiterated its readiness to provide further technical assistance with the development of its legislation, at any time before the deadline decided by the Standing Committee. On 21 December 2001, The Management Authority informed the Secretariat that: "the Ministry responsible for Fijian Affairs, which initially indicated in early 2001 will complete reviewing the Bill because of a certain requirement of the Fijian Affairs Act pertaining to introduction of new legislation likely to impact natural resource owner’s interest (mostly indigenous Fijians), had requested more time till June 2002 and so our Ministry could not hand in the CITES Bill to Solicitor General’s Office". The Management Authority also stated that Fiji is now moving forward and assured the Secretariat that "by December 2002 or even before CoP12, Fiji will have a new National CITES legislation". It appears, therefore, that Fiji was unable to adopt the necessary legislation before the deadline established. “Therefore the Secretariat hereby informs the Parties that, pursuant to Decision 11.16, the Conference of the Parties recommends that, from the date of this Notification, all Parties should refuse any import from and export or re-export to Fiji of specimens of CITES-listed species, until further notice”

Following the above, on 19 December, 2000, by Notification to the Parties No. 2002/066231 the

Secretariat informs the Parties that the recommendation to suspend trade with Fiji contained in

Notification to the Parties No. 2002/003 was to be temporarily withdrawn with immediate effect. The

Standing Committee was to review Fiji’s legislative progress at its 49th meeting and determine whether

the recommendation to suspend trade should be re-imposed or definitively withdrawn. It has not been re-

imposed.

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Legislative Measures

The Fiji Government in an attempt to rectify and make good its suspension and to facilitate the fulfillment

of its obligations under CITES, promulgated the Endangered and Protected Species Act 2002 (The Act)

which came in to effect the following year 1993.

The Act was designed “to regulate and control the international trade and domestic trade, possession

and transportation of species protected under the convention on international trade in endangered

species of wild fauna and flora (CITES) and for related matters”.

The key features of the Act are set out below:

a. The Fiji Islands CITES Management Authority232

The establishment of an Authority and appointment of its members to administer the CITES233

The functions of the Authority are to advise the Government on its obligations under the CITES234. To

prepare a CITES annual report for the Fiji Islands

b. Fiji Islands CITES Council235

The Act provides for establishment of the Council and appointment of its members. The functions of the

Council are to advise the Authority on any matter relating to the CITES which include proposed export

and import of any specimen, regulate and monitor the issuance of export permits, conduct research on any

other species that are or likely to be endangered, etc.

c. Secretariat to the Authority and the Council236

The Director of Environment is the Secretariat to the Authority and the Council. The function of the

Secretariat is to assist the Authority and Council convene its meetings and carry out relevant public

awareness work related to CITES and prepare materials for training purposes.

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d. Permits237

The Management Authority has the power to grant, refuse, vary or suspend permits and a permit must

specify as to whether the permit is for a specimen listed under Appendices I to III or listed in Schedules 1

or 2 of this Act. The validity of the permits varies according to the type of permit. For example, an import

permit for specimens listed under Appendix I is valid for 12 months from the date of their issue.

Any person who intends to export, import and/or re-export listed in the Schedules and Appendices must

apply for an export, import and/or re-export permit. The Management Authority must keep records of

any permit issued and retain or cancel used export and re-export permits or similar authority issued by

any country.

e. Transit and transshipment of specimens 238

Sets out obligations of authorized officers to inspect, handle species listed in the Schedules and

Appendices in transit or transshipment. Provides that if any other legislation prohibits the importation,

exportation, re-exportation, trade or commercialization of any species protected under the proposed Act,

the provisions of this Act is in addition to those other legislation. Provides exemption to the Act but

exemption is subjected to prior approval of the Management Authority.

f. Registration and Possession239

Persons trading specimens listed in the Schedules and Appendices are required by the Act be registered

with the Management Authority. The Management Authority may register, refuse to register, vary,

suspend or revoke the registration of a person who seeks to trade in endangered species. Persons who

undertake captive breeding of any specimens listed in the Schedules and Appendices must be registered

with the Management Authority.

g. Enforcement240

Provisions are made for certain offences which include general penalties, powers of confiscation and

forfeiture, persons liable for prosecution for offences and reporting of breach of the provisions of the Act.

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h. Miscellaneous241

This Act ensures that CITES becomes enforceable under the Fiji Laws and that domestic measures are

applied to identified CITES species through declarations made under this Act. Provisions are also made

for the establishment of a Trust fund by the management Authority for the receipt of donations for the

purpose of the proposed Act.

Reporting Obligation

Fiji submitted its Annual Report to CITES in 2005, 2006, 2007 and 2008. These were all submitted in

electronic form242. Reporting has been consistent when sufficient funding and technical resources are

available.

Other Initiatives under CITES

The case of the Humphead Wrasse (Varivoce)

Fiji together with European Union and the United States of America made a submission during the 13th

Meeting of the Conference of the Parties to CITES to list the Humphead Wrasse in Appendix II in

accordance with Article II, paragraph 2(a) of the Convention.

In Fiji, the species has virtually disappeared from some places243. In 1994, six fishing grounds, with

varying levels of fishing pressure in the southern and eastern regions of the Fijian archipelago, were

surveyed with five sites per fishing ground and 36 replicates per site for a total area of 162,000 m2 and

about 100 diver hours244. Out of 10,000 fishes surveyed of >15 cm TL, only five humphead wrasses

(0.05% of all fish) were seen despite the surveys being conducted in habitat suitable for the species. More

recent (1995/6) surveys in the same areas on the NW coast of Kadavu Is. (covering 126,000 m2 and over

about 150 diver hours) yielded zero humphead wrasse observations.

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In 1999-2000, underwater visual censuses (UVC’s) around 13 islands in Lau (where fishing pressure is

relatively low) yielded an average of 2.6 fish per 10,000 m2 (range 0.7-4.78)245 In all, seven separate

locations were surveyed in Fiji spanning the range of fishing pressure from low (=1) to highest (=5),

yielding a range of 0.0 - 8.4 humphead wrasse per 10,000 m2. The large difference in densities is almost

certainly the result of fishing pressure. According to interviews, pressure has only increased beyond low

levels on this species in the last 20-30 years.

In addition, trends in the catch volume of humphead wrasse sold domestically in Fiji show an overall

decline in the period of 1992 to 2003. In 1994 and 1996, domestic sales of humphead wrasse were around

22.5MT respectively; in 2002, the domestic sales were recorded as 10.6MT and, in 2003, 3.5MT. In

Labasa, the main retail outlet for this species in Fiji, the majority of specimens sold is between 50 - 70 cm

and thus have not reached sexual maturity. A number of villages in southern Viti Levu stated during

Fisheries surveys that they have not recorded a catch of humphead wrasse for the last 10-15 years and that

the species is rarely seen.

Armed with such a gloomy picture, Fiji presented a case for inclusion of Humphead Wrasse (Varivoce),

in Appendix II of CITES.

In addition to the foregoing, in 1994, by an Amendment to the Fiji Fisheries Regulation- the Fiji

Government gazetted the “Moratorium Humphead Wrasse as follows:

“Moratorium on the humphead wrasse” 20B – (1) No person shall – (a) Take or capture for sale or offer for sale by any means any humphead wrasse; (b) export, sell or offer for sale, or possess live specimens of any humphead wrasse for any commercial purpose; (c) export, sell or offer for sale, or possess any parts of humphead wrasse for the purpose of trading or for income generation

The Live Coral Trade

Live coral exports represent an important fishery in Fiji and are of economic benefit to the coastal peoples

and the national economy. Through exports and consequent coral reef awareness globally, attention is

drawn to Fiji as a valuable source country and a tropical vacation destination. This makes good

management all the more important in maximizing the value of the fishery and in protecting the resource.

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Live Coral assessments conducted in Fiji have confirmed that the collection of live coral is conducive to

sustainable exploitation. The export numbers are few when compared to the natural abundance of the hard

coral resource. The small size of corals (< 15cm) removed for the aquarium market embodies only a

minor reduction in the total living coral cover. Apart from the small colony size collected, the collecting

area is large with a high diversity of reef types and habitat both within and as extensive reefs peripheral to

the collecting areas. Customary fishing rights areas limit the boundaries of collection with only one

operator allowed in each area.

Fiji submitted its 2007 Report to CITES detailing the statistics of Trade in Live Coral, Fiji effort in this

regard need to be consistent and continuous. Detailed studies246 have been carried out on the Live Coral

Industry and found that the Fisheries Act (Cap 158) 1992 requires updating. Guidelines provide an

additional basis for regulating the fishery which includes a moratorium on any new companies entering

the fishery. Fiji’s self-imposed quotas provide accurate export figures, however, they have not been

rationalised with regard to the resource assessment, or the current needs of the domestic trade or market

place. The quotas have been unchanged for 9 years. Though Government has no mechanism for the

alteration of quotas, a scheme has been developed for quota setting based on the abundance of the taxa.

Unfortunately, current management of the fishery has not facilitated exports but rather limited them

through inappropriate quotas and administrative requirements. The CITES agenda is one of wildlife

protection rather than rational fisheries development. It is hoped that best management will evolve over-

time benefiting through experience in understanding the needs of the aquarium fishery, whilst having the

ability to adapt to changing conditions of the trade within both Fiji and the foreign markets. Impending

legislative change must maintain the adaptability that has underpinned the current success in

management.

Other Conservation Measures under CITES

Studies have been conducted and policy have been formulated regarding Turtles247 Work have also been

carried out regarding trade in Horticulture248. Various other studies and research have been conducted

regarding endangered species in Fiji. Justice won’t be served if an attempt is made here to summarize

these works for they have, when viewed from Fiji’s capacity perspective, been valuable initiatives indeed

in the provision of guidance to policy makers. However, it may suffice at this stage and for the purpose of

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this paper to state that Fiji has, to the best of its capabilities, often with the assistance of interested

stakeholders and research institutions, been honest in its endeavors to meet its obligations under CITES.

Analysis of Fiji’s capacity under CITES

In a paper249 prepared for the University of Queensland on the subject ‘Understanding the Constraints

and Opportunities in the use of Native Floriculture to improve Livelihoods of Indigenous Communities in

Australia, PNG and the Pacific Islands’, Mr. Dick Watlin while commenting on the management of

CITES in Fiji, had the following observation:

The management and administrative requirements of CITES are considerable and Department of

Environment (DoE) with its minimal and dwindling resources from government as well as its major

additional responsibilities under the new Environmental Management Act does not have sufficient

resources to administer the legislation effectively.

Issues of concern include:

· The CITES Secretariat suspended Fiji for nearly two years (2002-2003) because of lack of reporting

(specifically information on coral quotas) and lack of regulations to the legislation;

· While the Management Authority as an autonomous committee has significant advantages in certain

circumstances, it is proving difficult for DoE to manage it efficiently and extract decisions and

resolutions.

· Lack of resources (finance) and expertise to commission/undertake non-detrimental finding studies

and other research needs;

· Delay in addressing issues with Schedules 1 and 2;

· Inability to address Orchid out grower – CITES issue (refer 4.4.1), or conspicuous domestic issues i.e.

internal parrot trade;

· Permits for export of plant material have been provided by Forestry Dept. and accepted by

Quarantine Dept. without EPS permits; · No Non-detrimental Finding Study or Management Plan has

been produced for Appendix II listed tree fern material which was until recently being exported; and

an occasional and small illicit trade in palm seeds without CITES permits.

Analysis of Fiji’s performance under CITES

Assessment of Fiji’s performance under CITES reveals a mixed tale. On the one hand, available narrative

on the subject reveals that through the formulation of its various policy initiatives and implementation of

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legislative and regulatory measures, Fiji is seen to be genuinely attempting to implement her obligations

under CITES, within the ambits of its limited capacity. On the other hand, practical observation reveals

that despite the promulgation of such legislative measures, implementation still is being challenged by

lack of capacity.

Fiji needs to strengthen its appreciation of the opportunity presented by CITES. Despite her earlier

suspension, and despite the restraints posed by the inherent lack institutional capacity, Fiji nevertheless,

has continued to observe her duties and obligations. Reports are being submitted at regular intervals while

the promulgation of the Endangered and Protected Species Act 2002 has provided the appropriate

regulatory framework guiding implementation of CITES at National Level.

While a lot remains to be done; a start towards the right direction has been made, such momentum must

continue. The Government of Fiji has an enormous responsibility towards perfecting the system,

innovative ideas and strategic visionary commitments will lead Fiji closer to the goal of satisfactory

delivery of her obligations.

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3.2.4 The Convention on Wetlands (The Ramsar Convention)

Introduction

February 3, 1971 the tiny Iranian town of Ramsar, on the coast of the Caspian Sea became the site of a

groundbreaking international treaty to protect wetlands as waterfowl habitat250. Officially titled “The

Convention on Wetlands of International Importance especially as Waterfowl Habitat,” the treaty was

signed by eighteen nations and is now commonly referred to as the “Ramsar Convention251.” The Ramsar

Convention lists wetlands that qualify under its criteria as a “Wetland of International Importance.”252 The

List is a means of encouraging national protection of wetlands and international cooperation to protect

wetlands crossing national boundaries and that provide habitat and protection for migratory waterfowl253.

Parties to the treaty undertake to designate at least one wetland for the List, complete environmental

impact assessments, establish nature reserves, train wetlands managers, inventory wetlands, consult with

other Parties and assist with the Convention’s operations254.

History

The initial call for an international convention on wetlands came in 1962 during a conference which

formed part of Project MAR (from "MARshes", "MARicages", "MARismas"), a programme established

in 1960 following concern at the rapidity with which large stretches of marshland and other wetlands in

Europe were being "reclaimed" or otherwise destroyed, with a resulting decline in numbers of

waterfowl255.

The MAR Conference was organized by Dr. Luc Hoffmann, with the participation of the International

Union for the Conservation of Nature and Natural Resources (now IUCN-The World Conservation

Union), the International Waterfowl and Wetlands Research Bureau, IWRB (now Wetlands

International), and the International Council for Bird Preservation, ICBP (now Birdlife International), and

was held in Les Saintes Maries-de-la-Mer in the French Camargue, 12-16 November 1962256.

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Over the next eight years, a convention text was negotiated through a series of international technical

meetings (St. Andrews, 1963; Noordwijk, 1966; Leningrad, 1968; Morges, 1968; Vienna, 1969; Moscow,

1969; Espoo, 1970), held mainly under the auspices of IWRB, the guidance of Prof. G.V.T. Matthews,

and the leadership of the Government of the Netherlands. Initially the envisaged convention was directed

specifically at the conservation of waterfowl through the creation of a network of refuges, but as the text

developed, especially with the expert advice of legal consultant Mr. Cyrille de Klemm, conservation of

wetland habitat (rather than species) took prominence257.

Finally, at an international meeting organized by Mr. Eskander Firouz, Director of Iran's Game and Fish

Department, and held in the Caspian seaside resort of Ramsar in Iran, the text of the Convention was

agreed on 2 February 1971 and signed by the delegates of 18 nations the next day. The Convention

entered into force in December 1975, upon receipt by UNESCO, the Convention Depositary, of the

seventh instrument of accession to or ratification of the Convention, which came from Greece258.

Since its adoption, the Ramsar Convention has been modified on two occasions: by a protocol (a new

treaty which amends the original treaty) in December 1982, and by a series of amendments to the original

treaty, known as the "Regina Amendments" of 1987259.

The Obligations

Because wetlands are important for maintaining key ecological processes, for their rich flora and fauna,

and for the benefits that they provide to local communities and to human society in general, the broad

objectives of the Convention are to ensure their conservation and wise use. States that join the Convention

accept four main commitments, which are:

a) Listed sites

The first obligation under the Convention is for a Party to designate at least one wetland at the time of

accession for inclusion in the List of Wetlands of International Importance (the “Ramsar List”)260 and

to promote its conservation, and in addition to continue to “designate suitable wetlands within its

territory” for the List261. Selection for the Ramsar List is be based on the wetland’s significance in terms

of ecology, botany, zoology, limnology, or hydrology. The Contracting Parties have developed specific

criteria and guidelines for identifying sites that qualify for inclusion in the Ramsar List.

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The Parties have also committed themselves “to arrange to be informed at the earliest possible time if the

ecological character of any wetland in its territory and included in the List has changed, is changing or is

likely to change as the result of technological developments, pollution or other human interference.

Information on such changes are to be conveyed without delay” to the Ramsar Secretariat262.

b) Wise use

Under Ramsar, there is a general obligation for the Contracting Parties to include wetland conservation

considerations in their national land-use planning. Parties are to formulate and implement this plan so as

to promote, as far as possible, “the wise use of wetlands in their territory”.263 The Conference of the

Contracting Parties has approved guidelines on how to achieve “wise use”, which has been interpreted as

being synonymous with “sustainable use” The COP has also adopted detailed guidance on the

development of National Wetland Policies and on management planning for individual wetland sites.

c) Reserves and training

Contracting Parties are also obliged to establish nature reserves in wetlands264, whether or not they are

included in the Ramsar List, and they are also expected to promote training in the fields of wetland

research, management and wardening265.

d) International cooperation

Contracting Parties are also obligated to consult with other Contracting Parties about implementation of

the Convention, especially in regard to trans-boundary wetlands, shared water systems, and shared

species266.

Compliance with the commitments

The Ramsar Convention is not a regulatory regime and has no punitive sanctions for violations of or

defaulting upon treaty commitments, nevertheless, its terms do constitute a solemn treaty and are binding

in international law in that sense267. The whole edifice is based upon an expectation of common and

equitably shared transparent accountability. Failure to live up to that expectation could lead to political

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and diplomatic discomfort in high-profile international fora or the media, and would prevent any Party

concerned from getting the most, more generally, out of what would otherwise be a robust and coherent

system of checks and balances and mutual support frameworks 268 . Failure to meet the treaty’s

commitments may also impact upon success in other ways, for example, in efforts to secure international

funding for wetland conservation. In addition, some national jurisdictions now embody international

Ramsar obligations in national law and/or policy with direct effect in their own court systems269.

Table 13: List of Fiji’s Obligations under the RAMSAR Convention

Fiji’s Obligations under RAMZAR 1. Article 2(1) 1. Each Contracting Party shall designate suitable wetlands within its territory for inclusion in a

List of Wetlands of International Importance hereinafter referred to as "the List" which is maintained by the bureau established under Article 8. The boundaries of each wetland shall be precisely described and also delimited on a map and they may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six meters at low tide lying within the wetlands, especially where these have importance as waterfowl habitat.

2. Article 2(4) 4. Each Contracting Party shall designate at least one wetland to be included in the List when signing this Convention or when depositing its instrument of ratification or accession, as provided in Article 9.

3. Article 2(5) 5. Any Contracting Party shall have the right to add to the List further wetlands situated within its territory, to extend the boundaries of those wetlands already included by it in the List, or, because of its urgent national interests, to delete or restrict the boundaries of wetlands already included by it in the List and shall, at the earliest possible time, inform the organization or government responsible for the continuing bureau duties specified in Article 8 of any such changes.

4. Article 2(6) 6. Each Contracting Party shall consider its international responsibilities for the conservation, management and wise use of migratory stocks of waterfowl, both when designating entries for the List and when exercising its right to change entries in the List relating to wetlands within its territory.

5. Article 3(1) 1. The Contracting Parties shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory.

6. Article 3(2) 2. Each Contracting Party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passed without delay to the organization or government responsible for the continuing bureau duties specified in Article 8.

7 Article 4(1) 1. Each Contracting Party shall promote the conservation of wetlands and waterfowl by establishing nature reserves on wetlands, whether they are included in the List or not, and provide adequately for their wardening.

8. Article 4(3) 3. The Contracting Parties shall encourage research and the exchange of data and publications regarding wetlands and their flora and fauna.

9. Article 4(4) 4. The Contracting Parties shall endeavour through management to increase waterfowl populations on appropriate wetlands.

10 Article 4(5) 5. The Contracting Parties shall promote the training of personnel competent in the fields of wetland research, management and wardening.

11. Article 5(1) 1. The Contracting Parties shall consult with each other about implementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties. They shall at the same time endeavour to coordinate and support present and future policies and regulations concerning the conservation of wetlands and their flora and fauna.

12. Article 6(3) 3. The Contracting Parties shall ensure that those responsible at all levels for wetlands management shall be informed of, and take into consideration, recommendations of such Conferences concerning the conservation, management and wise use of wetlands and their flora and fauna.

13. Article 6(6) 6. Each Contracting Party shall contribute to the budget according to a scale of contributions adopted by unanimity of the Contracting Parties present and voting at a meeting of the ordinary

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Conference of the Contracting Parties. 14. Article 7(1) 1. The representatives of the Contracting Parties at such Conferences should include persons who

are experts on wetlands or waterfowl by reason of knowledge and experience gained in scientific, administrative or other appropriate capacities.

15 Article 7(2) 2. Each of the Contracting Parties represented at a Conference shall have one vote, recommendations, resolutions and decisions being adopted by a simple majority of the Contracting Parties present and voting, unless otherwise provided for in this Convention.

Source: Sainivalati Navoti (2011)

RAMSA and Fiji

In March 2005, the Cabinet of the Government of Fiji approved Fiji’s ratification of the Convention on

Wetlands of International Importance270. The formal instrument of ratification was forwarded to the

Convention depository UNESCO and Fiji became a party to the Ramsar Convention on 11 September,

2006271.

The process of formally advancing Fiji’s ratification to the Convention was undertaken by a contingent of

national government agencies, non-government organizations, local landowners, and a well-established

eco-tourism venture, Rivers Fiji Ltd, which was later formed into a coordinating committee namely the

Wetlands Working Group. Amongst the Working Group’s first tasks was to undertake field surveys,

consultations and prepare the documentation for the submission of Fiji’s first Ramsar Site272.

Types of Wetlands

According to the Department of the Environment Fiji, there are 5 types of wetlands in Fiji. This includes:

a) Mangrove; b) Peat bogs; c) Rivers; d) Lakes; e) and reservoirs273.

Fiji has 41,000 ha of mangrove forest, 38,543 ha remains intact. The majority of the Fiji's mangrove

forests are located on the mouths of the larger rivers: the Ba, Rewa and Nadi Rivers on Viti Levu; and the

Labasa River on Vanua Levu274.However the Rewa Delta host the largest and most diverse area of

mangroves in Fiji. In addition, it is the largest river in Fiji with total catchments of more than a quarter of

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the total area of Viti Levu, approximately 2980km2 and discharges to the order of 7,897 million m3 of

water per year275.

Fiji has four major river systems: the Rewa, Navua and Sigatoka on Viti Levu and Dreketi River on

Vanua Levu. The Rewa catchment drains nearly 1/3 of Viti Levu; the two most economically important

rivers: Ba and Nadi drains 15% of Viti Levu276. Peat swamps are freshwater wetland areas and they

occupy 0.3% of Fiji's land use, some examples of peat swamp areas in Fiji are: Melimeli Swamp, Bonatoa

Swamp, Upper Dreketi River Swamp and Tonuve Swamp277.

There are few freshwater lakes in Fiji and those that do exist are small and generally limited to

mountainous regions. The largest lake, Tagimocia in Taveuni, is only 213 ha in area. The only significant

brackish and saline lakes are Galogalo Lake, Gasauva salt lagoon and Lake Drano in Vanua Levu and a

small marine lake on Vuaqava Island in Lau group278. There are two major dams in Fiji, both on Viti

Levu. The smaller Vaturu dam (160ha) provides water to the dry-western division of Viti Levu, and the

larger Monasavu dam (670ha) provides hydro-electricity. A smaller dam (80ha) has been built at the

Wainikavika creek near Navua to provide water for rice irrigation279.

Fiji’s Implementation and selection of a Ramsar Site

Fiji’s main contribution to meeting one of its primary obligations under the Ramsar Convention280 is the

identification and inclusion of a wetland area located in the Upper Navua Gorge formally called the

“Upper Navua Conservation Area or “UNCA” in the Ramsar’s List of Wetlands of International

Importance.

The Upper Navua Gorge and UNCA are located in the Province of Serua on the south-central side of Viti

Levu. The nearest towns are Pacific Harbour, located about 40 kilometers away and Navua Town, located

along the lower reaches of the Navua River. Approximately 15 villages/settlements are located along the

Navua River including the larger town of Navua (Navua Town) located near the mouth of the river281.

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The UNCA is one of the very few relatively untouched major drainages remaining in Fiji. From an

ecological perspective this feature alone makes it especially significant. Maintaining the ecological

character of the site is crucial in maintaining ongoing ecosystem services in the entire catchment282.

The site is nationally and internationally exceptional in terms of both fauna and flora. The waters of the

site contain breeding populations of at least two endemic freshwater fish species (Redigibius leveri and

Schismatogobius chrysonotus) which should be considered as vulnerable due to their limited range and

one un-described new taxa283. These taxa represent at least a quarter of the endemic freshwater fish

species in the Fiji.

The forests surrounding the gorge contain 17 endemic species of birds, 15 of which are endemic to the

island of Viti Levu. Notable are the globally endangered Pink-billed Parrot Finch (Erythrura

kleinschmidt) and the vulnerable Black-faced Shrikebill (Clytorhynchus nigrogularis), Masked Shining

Parrot (Prosopeia personata), Kadavu Parrot (Prosopeia splendens) and Giant Forest Honeyeater

(Gymnomyza viridis). Also notable are the endangered Fiji Banded Iguana (Brachylophus fasciatus) and

the vulnerable Samoan Flying-Fox (Pteropus samoensis)284.

A highly significant component of the vegetation is the endemic sago palm Metroxylon vitiense, which

must be considered as endangered, as it is rapidly disappearing in its more accessible coastal habitats

because of overutilization285. The species is super-abundant in the gorge, having a population consisting

of several thousands of regenerating individuals. In the near future this population may constitute the last

undisturbed natural populations of this palm.

The site is also notable as having the most well developed examples known from Fiji of ultimate riparian

vegetation (adapted to fast-flowing rivers), river bank and gorge and cliff-face vegetation. The site

contains at least five globally threatened plants including the endemic family Degeneriacae containing the

single species Degeneria vitiensis thought to be an ancestor to all flowering plants286.

Other activities in support of Implementation

Fiji is a State in the Pacific and as such it has been a part, it has contributed, assisted and supported

regional initiatives to protect the environment including regional initiatives towards the implementation of

the Ramsar Convention. Representatives of the Fiji Government, have attended, participated and

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presented various papers including general exchanges of good information with other representative from

other Pacific Islands on wetlands through workshops etc287.

Specifically on Ramsar, Fiji assisted the formulation and endorsement of the Regional Wetlands Regional

Plan for the Pacific Islands 2011-2013288 which contained 28 priority actions in the areas of management,

capacity building, research and monitoring for wetland ecosystems in the Pacific.

Challenges

Through regional cooperation289, four key challenges have been identified for the region in relation to

Ramsar:

a) Limited awareness and support for wetland conservation and management at government and

community levels;

b) Insufficient knowledge on which to base wetland conservation and management decisions, and

also limited access to existing knowledge;

c) Limited ability of local communities to influence and control the wise use of their wetlands; and

d) Inadequate policy and institutional frameworks for wetland biodiversity and natural resource

management.

Specific threats to wetland ecosystems have been identified as follows290:

Table 14: Threats to Wetland Ecosystem (Fiji)

Wetland Ecosystem Threats or Issues Rivers, marshes, lakes • Destruction/degradation of riparian vegetation

• Soil erosion caused by human activities in the catchment, e.g. mineral extraction and forest fires • River bank erosion • Reduced water quality

Rivers • River dams

Rivers, marshes, lakes, mangroves • Invasive species (weeds, Tilapia) • Feral animals (dogs, pigs, mongooses)

Mangroves • Urbanization, squatters, unplanned development • Loss/degradation of inner mangrove communities/ mangrove associate species Solid waste and runoff • Invasive species

Rivers, marshes, lakes, coral reefs • Wild life harvesting and trade

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Mangroves, coral reefs • Over-harvesting of marine and mangrove resources, • habitat destructive techniques • Siltation, sedimentation, sand mining

All • Lack of scientific knowledge • Weak legislation, protection and planning • Loss of traditional knowledge and lack of understanding • Natural disasters • Climate change and sea level rise

Institutional challenge reported by Fiji affecting the proper implementation of the RAMSAR Convention

is the “serious lack of human resources” within the Department of the Environment291. This challenge

appears to apply across the board on all MEAs to which Fiji is party. The other challenge identified is the

need for proper legislative arrangement to facilitate the implementation of Ramsar. However, this,

according to the Department of Environment is being taken care of through relevant provisions of the

Environment Management Act (2005) and Regulations (2008) through mechanism such as environmental

impact assessment and control and management of waste and pollution292.

Analysis

By becoming a member state to the Ramsar Convention, Fiji has clearly indicated and exhibited its

willingness to be bound and its desire to cooperate with the rest of the world in advancing the overall

ideals embodied by Ramsar which is “the conservation and wise use of all wetlands through local,

regional and national actions and international cooperation, as a contribution towards achieving

sustainable development throughout the world”. While capacity continues to remain the obvious

challenge293, the identification by Fiji of a Wetland Ecosystem and the listing of such an area in the

Ramsar’s list speaks volume of this SIDS desire to contribute to sustainable development and

environmental conservation. It also fulfilled one of the main requirements of the Ramsar Convention.

The Government of Fiji and other relevant stakeholders including national and international conservation

groups have exerted efforts towards educating the people of Fiji on wise use of wetlands. Cooperative

efforts have also been exhibited through Fiji’s engagement in the Pacific Region assisting the work of

SPREP and through the hosting of and participating in regional and sub-regional workshops and training

activities in Fiji.

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3.2.5 International Tropical Timber Agreement 2006294

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“Forestry is not about trees, it is about people. And it is about trees only insofar as trees

can serve the needs of people”295

Introduction

This section discusses the fifth Convention under the sub- section Nature Conservation/Biodiversity

related MEAs namely: the International Timber Agreement 2006.

History

The International Tropical Timber Agreement (ITTA) was negotiated under UNCTAD’s auspices to:

provide an effective framework for cooperation and consultation between countries producing and

consuming tropical timber; promote the expansion and diversification of international trade in tropical

timber and the improvement of structural conditions in the tropical timber market; promote and support

research and development to improve forest management and wood utilization; and encourage

development of national policies for sustainable utilization and conservation of tropical forests and their

genetic resources and for maintaining ecological balance in the regions concerned296

The ITTA was adopted on 18 November 1983, and entered into force on 1 April 1985. It remained in

force for an initial period of five years and was extended twice for three-year periods. The Agreement was

renegotiated during 1993-1994. The successor agreement, ITTA, 1994, was adopted on 26 January 1994,

and entered into force on 1 January 1997. It contains broader provisions for information sharing,

including non-tropical timber trade data, allows for consideration of non-tropical timber issues as they

relate to tropical timber, and includes the Year 2000 Objective to enhance members’ capacity to

implement a strategy for achieving exports of tropical timber and timber products from sustainably

managed sources by the year 2000297.

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The ITTA, 1994 also established the Bali Partnership Fund to assist producing members in achieving the

Year 2000 Objective. Initially concluded for three years, the ITTA, 1994 was extended twice for three-

year periods and expired on 31 December 2006. The ITTA, 1983 established the International Tropical

Timber Organization (ITTO), headquartered in Yokohama, Japan, which provides a framework for

tropical timber producer and consumer countries to discuss, exchange information and develop policies

on issues relating to international trade in, and utilization of, tropical timber and the sustainable

management of its resource base298.

The ITTO also administers assistance for related projects. The ITTO has 59 members divided into two

caucuses: producer countries (33 members) and consumer countries (26 members). The ITTO’s

membership represents 90 percent of world trade in tropical timber and 80 percent of the world’s tropical

forests. The highest authority of the ITTO is the International Tropical Timber Council (ITTC), which

consists of all ITTO members and meets twice per year. The ITTC performs, or arranges for the

performance of, all functions necessary to carry out the provisions of the ITTA, 1994299.

Obligations

The ITTA is largely architectural and procedural. Its substantive obligations are stated broadly and are

largely aspirational in nature. However, the reporting mechanisms and the ability of the ITTO to fund

projects for members allows for these aspirational obligations to be measured and realized.

The obligations in the Agreement are commitments to support the achievement of the key objectives of

the Agreement, which include “promoting the expansion and diversification of international trade in

tropical timber from sustainably managed and legally harvested forests and promoting the sustainable

management of tropical timber producing forests”.300

These commitments include:

i) improving market intelligence and information available on sustainable forest management;

ii) promoting sustainable forest management, including reforestation;

iii) supporting improvements in technology related to forestry management and trade and

sharing this technology;

iv) strengthening the capacity of members to increase enforcement mechanisms;

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v) promoting a better understanding of the contribution of non-timber forest products and

environmental services to the sustainable management of tropical forests;

vi) recognizing the role of forest-dependent indigenous and local communities; and

vii) improving marketing and distribution of tropical timber and timber product exports from

sustainably managed and legally harvested sources which are legally traded, including

promoting consumer awareness.

Article 29 of the Agreement imposes two binding obligations, which are identical to those imposed under

Article 32 of the ITTA1994. The first is for parties to “use” their “best endeavors and cooperate to

promote the attainment of its [the Agreement’s] objectives and avoid any action contrary thereto”. The

second is to “accept and carry out the decisions of the Council under the provisions of this Agreement”

and “refrain from implementing measures that would have the effect of limiting or running counter to

them”. 301

Table 15: FIJI’S OBLIGATION UNDER THE INTERNATIONAL TROPICAL TIMBER AGREEMENT

2006

SRL ARTICLES OBLIGATIONS

COMPOSITION OF THE INTERNATIONAL TROPICAL TIMBER COUNCIL 1. Article 6(2) 2. Each member shall be represented in the Council by one representative and may

designate alternates and advisers to attend sessions of the Council. 2. Article 6(3) 3. An alternate shall be empowered to act and vote on behalf of the representative during the

latter's absence or in special circumstances. VOTING PROCEDURE OF THE COUNCIL

3. Article 11(1) 1. Each member shall be entitled to cast the number of votes it holds, and no member shall be entitled to divide its votes. A member may, however, cast differently from such votes any votes that it is authorized to cast under paragraph 2 of this article.

GENERAL OBLIGATIONS OF MEMBERS 4. ARTICLE 29(1) 1. Members shall, for the duration of this Agreement, use their best endeavours and

cooperate to promote the attainment of its objectives and avoid any action contrary thereto. 5. ARTICLE 29(2) 2. Members undertake to accept and carry out the decisions of the Council under the

provisions of this Agreement and shall refrain from implementing measures that would have the effect of limiting or running counter to them.

WITHDRAWAL 6. ARTICLE 41(1) 1. A member may withdraw from this Agreement at any time after the entry into force of the

Agreement by giving written notice of withdrawal to the depositary. That member shall simultaneously inform the Council of the action it has taken.

7. ARTICLE 41(2) 2. Withdrawal shall become effective 90 days after the notice is received by the depositary. 8. ARTICLE 41(3) 3. Financial obligations to the Organization incurred by a member under this Agreement

shall not be terminated by its withdrawal. DURATION, EXTENSION AND TERMINATION

9. ARTICLE 44(1) 1. This Agreement shall remain in force for a period of 10 years after its entry into force unless the Council, by special vote in accordance with article 12, decides to extend, renegotiate or terminate it in accordance with the provisions of this article.

Fiji and the ITTA

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Fiji joined the ITTA 2006 on 23 April, 2010. Fiji was also party to the preceding ITTAs of 1983 and

1994.

Fiji Forest Conservation Initiatives

Natural resources, such as forestry, are major revenue earners for the Fiji Islands, and will remain so in

the future. There are almost 1Mha of all types forest growing in Fiji and the forestry sector contributes

about 2.5% of GDP302.

a. Forest Management

Good management practices and policy are key factors in the provision of energy from forests. The

principal elements of Fijian forest policy have remained largely unchanged during the past half-century.

The principal piece of forestry legislation in Fiji is the Forest Decree 1992, which replaced the Forest Act

of 1953 (amended in 1990).

The Forestry Decree 1992 largely legislates to support the objectives specified in the Fijian Forestry

Sector Review 1988, namely:

“To maximize the sustainable contribution of the Sector to the development and

diversification of the economy whilst bringing the Fijian people into fuller and more

active participation in sectoral development of all levels and stages and, at the same

time, protecting and enhancing the effectiveness of the country’s forest in environmental

conservation”.303

The total export earnings from wood products has been estimated by the Forestry Department to average

FJD 38.1 million per year. Pine woodchips accounted for 52% of export earnings, with sawn timber and

plywood export earnings comprising 29% and 9% respectively, and other assorted products 10% in

2006304.

Management responsibility for Fiji’s plantation resource is vested in the Fiji Hardwood Corporation and

Fiji Pine Ltd305; both corporations have detailed management plans in place. It is estimated that around

150 000 hectares of natural forest has been systematically harvested on Fiji. To harvest timber on native

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land, a Forestry Right License is required under laws, which are negotiated through the Native Lands

Trust Board. There are four categories of tenure for timber cutting rights in the natural forests:

� Timber concessions (15-30 year period) � Long term licenses (10 years) � Annual licenses; and � Other licenses and prepayment licenses (usually for land clearing)306

b. Policy

The Fiji Government’s principal forestry agency is the Department of Forestry, a part of the Ministry of

Forest and Fisheries The Department of Forests has a primary role in enforcement of logging regulations.

It also has a significant role in management in natural forests, particularly to support management

decision-making by assembling a database for the natural forest resources including maps, inventories,

and GIS.

Government has over the years put in place a number of initiatives one of which is the development of a

Native Forest Management Pilot Project in Nakavu, Namosi, to assess the impact of different intensities

of logging on the regenerative capacity of the forests.307 Other major initiatives taken towards sustainable

forest management include Fiji Forest Sector Review and its incorporation into the National Forestry

Action Plan, re-inventory of the indigenous forest, installation of the Geographic Information System

(GIS), and Fiji Logging Code of Practice308.

Key Issues and Concerns in the Forestry Sector

A priority for Fiji’s forestry sector is to get acceptance and support of all stakeholders to utilize forest

resources in a more sustainable manner. The land tenure system means that responsibility for natural

forest management rest largely with private and customary landowners, except during brief periods while

forests are logged.

A major challenge for Fiji is to successfully market its increasing plantation resources while maximizing

local benefits through domestic processing. These objectives are likely to continue as a focus for the

sector for the foreseeable future, with policy designed to facilitate niche marketing and to enhance

competitiveness. At the same time, Fiji needs to strengthen its efforts in forest conservation and work

with landowners to ensure a satisfactory proportion of representative forest types are accorded adequate

protection. This is in line with the spirit of the ITTA.

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Major constraints facing the sector include lack of proper infrastructure, inadequate skilled personnel,

poor timber utilization, and the inability to sustain quality and quantity for domestic and export markets.

In recognition of these problems the government allocated in the 2002 budget about US$1.5 million for

the construction of a Timber Industry Training Institute and a Forestry Training Centre. Due to constant

political turmoil, Fiji continues to be faced with these challenges.

Analysis of the Fiji ITTA Implementation

The ITTA advocates a sustainable, holistic and a conservationist approach to the management and trade

of Forest resources. The formulation of the Fiji Forest Policy, the promulgation of the Fiji Forest Decree

1992, the publication of Logging Code all points to positive development and a conscious effort on behalf

of the Fiji Government towards fulfillment of her international Obligations.

Nevertheless, it appears that Fiji’s current approach to utilization of Forest resources is not yielding

maximum benefits as it ought to. The ITTO Diagnostic Mission of 2006 reiterated309 – that will take a

combined, coordinated effort by all parties concerned, to push the national interest, rather than each

simply concentrating on its own interest. And, as the Diagnostic Mission also pointed out, this holistic

perspective is almost totally absent. Individualistic, short-term thinking prevails; the long-term national

interest hardly gets a look in. This has to change if becoming a party to ATTI is to be any value for Fiji.

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3.2.6 International Treaty on Plant Genetic Resources for Food and Agriculture310

Introduction

Humans depend on plant genetic resources for food and agriculture (hereinafter the “PGRFA”)311 for

many aspects of survival, including food, fuel, and fiber. A study conducted by the United Nations Food

and Agriculture Organization (FAO) concluded that plants contribute the vast proportion of the world’s

food supply, particularly for developing countries in Africa, Asia and the Pacific312. The history of the

development and use of PGRFA has been characterized by relatively rapid movements of domesticated

crops and animals across and among continents, with ultimately a relatively small number of species

representing a very high percentage of the daily diets of people around the world. FAO estimates that four

crops—rice, wheat, sugar (beet and cane), and corn—account for over 60% of human calorie intake from

plants313.

The Plant Treaty

The International Treaty on Plant Genetic Resources for Food and Agriculture (the “Plant Treaty”)

provides a general framework for conservation and sustainable use of plant genetic resources314. The

treaty’s preamble acknowledges that the conservation, exploration, collection, characterization,

evaluation, and documentation of Plant Genetic Recourses for Food and Agriculture (PGRFA) are

essential for sustainable agriculture development and to meet the global goals of ending hunger and

poverty315.

The treaty sets up a multilateral system of access and benefit sharing, where all members, in exercise of

their sovereignty, provide free (or nearly free) access to each other’s plant genetic resources for research,

breeding, conservation, and training. The multilateral approach allows members access to germ plasm to

promote food security and improve crop productivity, lowers transaction costs, and redistributes back to

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the governing body financial benefits derived from the commercial exploitation of the genetic

resources316.

By establishing a multilateral approach that provides for a standardized protocol and framework

Applying to all contracting parties, the treaty deals with access and benefit-sharing of agricultural

Biodiversity in a different way than they are treated under the CBD.

History of the Plant Treaty

The treaty originated from and eventually replaced the International Undertaking on Plant Genetic

Resources (IU),317 a voluntary non-legally binding agreement adopted by FAO in 1983.318 The IU was the

first international instrument that sought “to ensure that plant genetic resources of economic and/or

social interest, particularly for agriculture, will be explored, preserved, evaluated and made available for

plant breeding and scientific purposes.”319 The IU reflected the widely held view of the time that plant

genetic resources were a heritage of humanity that should be available to all for research and breeding.

While the IU attracted considerable support, 320some countries did not find the concept of free availability

of genetic resources under the IU compatible with the intellectual property protection afforded by plant

breeders’ rights. Some tension existed concerning farmers’ rights, in that intellectual property regimes

that rewarded formal breeders often ignored the contributions of generations of farmers to the

development and conservation of the PGRFA that breeders utilize.

Many critics were also concerned that any system addressing PGRFA should reflect more fully the

sovereign rights that countries have over those resources. These concerns were addressed in a series of

agreed interpretations of the IU,321 adopted in 1989, that sought to balance the rights of breeders and

farmers. A further conference resolution in 1991 reiterated the sovereign rights of states over their plant

genetic resources.322

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While negotiations proceeded towards the adoption of the CBD,323 the parties in an appendix to the

Nairobi Final Act of the CBD resolved that there were outstanding issues on the Interrelationship between

the CBD and the promotion of sustainable agriculture. In 1993, the FAO Conference requested FAO to

launch a revision of the IU to take into consideration the outstanding issues of access on mutually agreed

terms to PGRFA, including ex situ collections324 and the realization of farmers’ rights, in harmony with

the CBD, and asked its intergovernmental Commission on Genetic Resources for Food and Agriculture to

act as the forum to negotiate between countries.

After seven years of complex and difficult negotiations, FAO members concluded the International Treaty

on Plant Genetic Resources for Food and Agriculture. The treaty established the legal basis for the

exchange of PGRFA, at least for those covered in Annex 1 by the multilateral system of access and

benefits. The treaty was adopted by consensus by the 31st session of the FAO Conference on November 3,

2001,325 and would enter into force 90 days after the ratification, acceptance, approval, or accession of the

40th country, which occurred on June 29, 2004. The treaty currently has 127 contracting parties326.

Summary of the Main Components of the Treaty Objectives

The fundamental purpose of the treaty is to enable individuals and nations around the world to make use

of plant genetic resources for food and agriculture in order to ensure global food security. The two

primary objectives of the treaty, as stated in Article 1, include:

i) conservation and sustainable use of plant genetic resources for food and agriculture; and

ii) fair and equitable sharing of benefits derived from their use, in harmony with the Convention on

Biological Diversity, for sustainable agriculture and food security.

Summary of Treaty Provisions

The main components of the treaty are:

i) general provisions relating to the conservation and sustainable use of plant

ii) genetic resources for food and agriculture;

iii) farmers’ rights,

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v) supporting components;

vi) financial provisions; and

vii) institutional provisions.

Conservation and Sustainable Use of PGRFA327

Article 5 sets out the main tasks that contracting parties are to carry out with respect to conservation,

evaluation, and documentation of PGRFA. Similar to other CBD provisions, the responsibilities are

placed on each contracting party, acting individually or, where appropriate, in cooperation with other

contracting parties, and call for the promotion of an integrated approach to the exploration, conservation,

and sustainable use of PGRFA.

Article 6 requires the contracting parties to develop and maintain appropriate policy and legal measures

that promote the sustainable use of PGRFA. Articles 7 and 8 deal with national commitments,

international cooperation, and technical assistance.

Farmers Rights328

Article 9 of the treaty deals with farmers’ rights and recognizes the contributions of local and indigenous

communities and farmers to the conservation and development of plant genetic resources as a basis for

food and agriculture production. Article 9 places the responsibility for realizing the rights of farmers on

national governments. The provisions of Article 9 are neutral with respect to the issue of the right of

farmers to save, use, exchange, and sell farm-saved seed, an issue that was hotly contested during the

negotiations. The wording in the treaty recognizes implicitly that farmers may have rights under national

law and that these rights should in no way be limited by the provisions in Article 9.

The measures that contracting parties should take under Article 9329 include the protection and promotion

of:

i) traditional knowledge relevant to PGRFA;

ii) rights of farmers to participate equitably in the sharing of benefits arising from the utilization of

PGRFA; and

iii) the right to participate in making decisions at the national level with respect to the conservation

and sustainable use of PGRFA.

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Multilateral System of Access and Benefit Sharing330

A key focus of the treaty is the Multilateral System of Access and Benefit Sharing (MLS), which was

established both to facilitate access to genetic resources of major food crops and forage species and to

share, in a fair and equitable way, the benefits arising from the utilization of these resources, in

accordance with multilaterally agreed terms and conditions.

Article 11 specifies the PGRFA covered by the MLS as those that are listed on Annex I, are under the

management and control of the parties, and are in the public domain. The list in Annex I covers 35 crops

and 29 forages, and does include most of the major food crops, including cereals such as rice, wheat,

maize, sorghum, and millets; grain legumes such as beans, peas, lentils, chickpeas, and cowpeas; roots

and tubers such as potatoes, sweet potatoes, cassava, and yams; oil crops such as coconut, sunflower, and

plants in the mustard family such as cabbage and broccoli; and fruits such as citrus, apple, and

banana/plantain. Noticeable absences that would appear to fit the food security and interdependence

criteria include soybeans, groundnuts (peanuts), sugar cane, wild relatives of cassava including the genus

Manihot, several fruits, and tomato.331

Article 12 creates the core obligation of the treaty, where parties are required to facilitate access to

covered PGRFA. Parties are only obliged to provide access to PGRFA under the MLS when the PGRFA

will be used solely for the purpose of research, breeding, and training for food and agriculture (not

chemical, pharmaceutical, or other non-food or -feed industrial uses). Parties are to provide PGRFA

expeditiously and for free or at a minimal charge, and also are to include available passport data for the

PGRFA.

Article 12 also notes that recipients shall not claim any intellectual property or other rights that limit

access to PGRFA or their genetic parts or components, in the form received from the MLS. Recipients are

required to continue to make accessed PGRFA available to the MLS under the terms of the treaty. This

article also provides for a standard material transfer agreement (SMTA) between germplasm donors and

recipients, which is to accompany any transfer of PGRFA under the MLS.

Article 13 describes the types of benefit-sharing that may result from the provision of access to PGRFA.

It recognizes that the provision of PGRFA itself is a major benefit to the world community. Other benefit-

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sharing takes the form of exchange of information, access to and transfer of technology, capacity-

building, and financial benefit-sharing arising from the commercialization of PGRFA. The parties agree

in this article that the benefits go back to the governing body and not to any individual country or entity,

and that benefits should flow primarily to farmers in all countries who conserve and sustainably use

PGRFA.

Supporting Components332

Part V of the treaty deals with supporting components, which are activities that lie outside the institutional

structure of the treaty itself but provide essential support for proper implementation of the treaty and its

objectives. These include promoting the effective implementation of the Global Plan of Action333,

encouragement of international plant genetic resources networks334, and development and strengthening

of a global information system on PGRFA, including a periodic assessment of the state of the world’s

PGRFA335.

Financial Provisions336

Part VI of the treaty addresses financial resources. Article 18 states that parties are to implement a

funding strategy that will assist in the implementation of the treaty’s activities. The objectives of the

strategy are to enhance the availability, transparency, efficiency, and effectiveness of the provision of

financial resources for the treaty. Financial benefits from the commercialization of PGRFA under the

MLS are included in the strategy, as well as finances made available through other mechanisms, funds,

and bodies.

These provisions state that the governing body may establish targets for funding and that the primary use

of the resources are for the implementation of plans and programs under the treaty (e.g., providing

resources to strengthen technical capacity and infrastructure to assist developing countries in treaty

implementation).

Voluntary contributions may be provided by parties and other sources, but the treaty does envisage

mandatory payments over time by contracting parties.

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Institutional Provisions

The Plant Treaty establishes a Governing Body337 composed of representatives from all contracting

parties. The governing body acts as the supreme body for the treaty and provides policy direction and

guidance for the implementation of the treaty and the MLS. All decisions of the governing body are taken

by consensus, or, if it agrees to do so by consensus, the governing body can use another method of

decision making for all matters other than amendments to the treaty and its annexes.

The treaty also provides for the appointment of a Secretary338 of the Governing Body, who is appointed

by the Director General of the FAO and is required to have the approval of the governing body.

Amendments 339to the treaty may be proposed by any contracting party and must be adopted by consensus

of the parties present at the session of the governing body. Amendments come into force 90 days after

two-thirds of the contracting parties ratify, accept, or approve them and apply only to those parties that

have ratified, accepted, or approved them. The treaty provides for a dispute settlement mechanism and

contains provisions for third-party mediation when negotiations fail. No reservations may be made to the

treaty.

Obligations

Tabulated below are the obligations of the Parties to the Plant Treaty.

TABLE 16: FIJI’S OBLIGATION UNDER THE INTERNATIONAL TREATY ON PLANT GENETIC

RESOURCES FOR FOOD AND AGRICULTURE

Srl. ARTICLE OBLIGATIONS

Article 4 - General Obligations 1. Article 4 Each Contracting Party shall ensure the conformity of its laws, regulations and procedures with its

obligations as provided in this Treaty. Article 5 – Conservation, Exploration, Collection, Characterization, Evaluation

and Documentation of Plant Genetic Resources for Food and Agriculture 2. Article 5(1)(a) –(f) 5.1 Each Contracting Party shall, subject to national legislation, and in cooperation with other

Contracting Parties where appropriate, promote an integrated approach to the exploration, conservation and sustainable use of plant genetic resources for food and agriculture and shall in particular, as appropriate: (a) Survey and inventory plant genetic resources for food and agriculture, taking into account the status and degree of variation in existing populations, including those that are of potential use and, as feasible, assess any threats to them;

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(b) Promote the collection of plant genetic resources for food and agriculture and relevant associated information on those plant genetic resources that are under threat or are of potential use; (c) Promote or support, as appropriate, farmers and local communities’ efforts to manage and conserve on-farm their plant genetic resources for food and agriculture; (d) Promote in situ conservation of wild crop relatives and wild plants for food production, including in protected areas, by supporting, inter alia, the efforts of indigenous and local communities; (e) Cooperate to promote the development of an efficient and sustainable system of ex situ conservation, giving due attention to the need for adequate documentation, characterization, regeneration and evaluation, and promote the development and transfer of appropriate technologies for this purpose with a view to improving the sustainable use of plant genetic resources for food and agriculture; (f) Monitor the maintenance of the viability, degree of variation, and the genetic integrity of collections of plant genetic resources for food and agriculture.

3. Article 5(2) 5.2 The Contracting Parties shall, as appropriate, take steps to minimize or, if possible, eliminate threats to plant genetic resources for food and agriculture.

Article 6 – Sustainable Use of Plant Genetic Resources 4. Article 6(1) 6.1 The Contracting Parties shall develop and maintain appropriate policy and legal measures that

promote the sustainable use of plant genetic resources for food and agriculture. Article 7 – National Commitments and International Cooperation

5. Article 7(1) 7.1 Each Contracting Party shall, as appropriate, integrate into its agriculture and rural development policies and programmes, activities referred to in Articles 5 and 6, and cooperate with other Contracting Parties, directly or through FAO and other relevant international organizations, in the conservation and sustainable use of plant genetic resources for food and agriculture.

Article 8 – Technical Assistance 6. Article 8 The Contracting Parties agree to promote the provision of technical assistance to Contracting

Parties, especially those that are developing countries or countries with economies in transition, either bilaterally or through the appropriate international organizations, with the objective of facilitating the implementation of this Treaty.

Article 9 – Farmers’ Rights 7. Article 9(2)(a)-(c) 9.2 The Contracting Parties agree that the responsibility for realizing Farmers’ Rights, as they

relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers’ Rights, including: (a) protection of traditional knowledge relevant to plant genetic resources for food and agriculture; (b) the right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and (c) the right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.

Article 10 – Multilateral System of Access and Benefit-sharing 8. Article 10(2) 10.2 In the exercise of their sovereign rights, the Contracting Parties agree to establish a

multilateral system, which is efficient, effective, and transparent, both to facilitate access to plant genetic resources for food and agriculture, and to share, in a fair and equitable way, the benefits arising from the utilization of these resources, on a complementary and mutually reinforcing basis.

Article 11 – Coverage of the Multilateral System 9. Article 11(3) 11.3 Contracting Parties also agree to take appropriate measures to encourage natural and legal

persons within their jurisdiction who hold plant genetic resources for food and agriculture listed in Annex I to include such plant genetic resources for food and agriculture in the Multilateral System.

Article 12 – Facilitated access to plant genetic resources for food and agriculture within the Multilateral System

10. Article 12(1) 12.1 The Contracting Parties agree that facilitated access to plant genetic resources for food and agriculture under the Multilateral System, as defined in Article 11, shall be in accordance with the provisions of this Treaty.

11. Article 12(2) 12.2 The Contracting Parties agree to take the necessary legal or other appropriate measures to provide such access to other Contracting Parties through the Multilateral System. To this effect, such access shall also be provided to legal and natural persons under the jurisdiction of any Contracting Party, subject to the provisions of Article 11.4.

12. Article 12(5) 12.5 Contracting Parties shall ensure that an opportunity to seek recourse is available, consistent with applicable jurisdictional requirements, under their legal systems, in case of contractual disputes arising under such MTAs, recognizing that obligations arising under such MTAs rest exclusively with the parties to those MTAs.

13. Article 12(6) 12.6 In emergency disaster situations, the Contracting Parties agree to provide facilitated access

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to appropriate plant genetic resources for food and agriculture in the Multilateral System for the purpose of contributing to the re-establishment of agricultural systems, in cooperation with disaster relief co-coordinators.

Article 13 - Benefit-sharing in the Multilateral System 14. Article 13(1) 13.1 The Contracting Parties recognize that facilitated access to plant genetic resources for food

and agriculture which are included in the Multilateral System constitutes itself a major benefit of the Multilateral System and agree that benefits accruing there from shall be shared fairly and equitably in accordance with the provisions of this Article.

15. Article 13(2) 13.2 The Contracting Parties agree that benefits arising from the use, including commercial, of plant genetic resources for food and agriculture under the Multilateral System shall be shared fairly and equitably through the following mechanisms: the exchange of information, access to and transfer of technology, capacity-building, and the sharing of the benefits arising from commercialization, taking into account the priority activity areas in the rolling Global Plan of Action, under the guidance of the Governing Body: (a) Exchange of information: The Contracting Parties agree to make available information which shall, inter alia, encompass catalogues and inventories, information on technologies, results of technical, scientific and socio-economic research, including characterization, evaluation and utilization, regarding those plant genetic resources for food and agriculture under the Multilateral System. Such information shall be made available, where non-confidential, subject to applicable law and in accordance with national capabilities. Such information shall be made available to all Contracting Parties to this Treaty through the information system, provided for in Article 17. (b) Access to and transfer of technology:

(i) The Contracting Parties undertake to provide and/or facilitate access to technologies for the conservation, characterization, evaluation and use of plant genetic resources for food and agriculture which are under the Multilateral System. Recognizing that some technologies can only be transferred through genetic material, the Contracting Parties shall provide and/or facilitate access to such technologies and genetic material which is under the Multilateral System and to improved varieties and genetic material developed through the use of plant genetic resources for food and agriculture under the Multilateral System, in conformity with the provisions of Article 12. Access to these technologies, improved varieties and genetic material shall be provided and/or facilitated, while respecting applicable property rights and access laws, and in accordance with national capabilities.

(ii) Access to and transfer of technology to countries, especially to developing countries and countries with economies in transition, shall be carried out through a set of measures, such as the establishment and maintenance of, and participation in, crop-based thematic groups on utilization of plant genetic resources for food and agriculture, all types of partnership in research and development and in commercial joint ventures relating to the material received, human resource development, and effective access to research facilities.

(iii) Access to and transfer of technology as referred to in (i) and (ii) above, including that protected by intellectual property rights, to developing countries that are Contracting Parties, in particular least developed countries, and countries with economies in transition, shall be provided and/or facilitated under fair and most favorable terms, in particular in the case of technologies for use in conservation as well as technologies for the benefit of farmers in developing countries, especially in least developed countries, and countries with economies in transition, including on concessional and preferential terms where mutually agreed, inter alia, through partnerships in research and development under the Multilateral System. Such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights. (c) Capacity-building Taking into account the needs of developing countries and countries with economies in transition, as expressed through the priority they accord to building capacity in plant genetic resources for food and agriculture in their plans and programmes, when in place, in respect of those plant genetic resources for food and agriculture covered by the Multilateral System, the Contracting Parties agree to give priority to

(i) establishing and/or strengthening programmes for scientific and technical education and training in conservation and sustainable use of plant genetic resources for food and agriculture,

(ii) developing and strengthening facilities for conservation and sustainable use of plant genetic resources for food and agriculture, in particular in developing countries, and countries with economies in transition, and

(iii) carrying out scientific research preferably, and where possible, in developing countries and countries with economies in transition, in cooperation with institutions of such countries, and developing capacity for such research in fields where they are needed.

(d) Sharing of monetary and other benefits of commercialization

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(i) The Contracting Parties agree, under the Multilateral System, to take measures in order to achieve commercial benefit-sharing, through the involvement of the private and public sectors in activities identified under this Article, through partnerships and collaboration, including with the private sector in developing countries and countries with economies in transition, in research and technology development;

(ii) The Contracting Parties agree that the standard Material Transfer Agreement referred to in Article 12.4 shall include a requirement that a recipient who commercializes a product that is a plant genetic resource for food and agriculture and that incorporates material accessed from the Multilateral System, shall pay to the mechanism referred to in Article 19.3f, an equitable share of the benefits arising from the commercialization of that product, except whenever such a product is available without restriction to others for further research and breeding, in which case the recipient who commercializes shall be encouraged to make such payment.

16. Article 13(3) 13.3 The Contracting Parties agree that benefits arising from the use of plant genetic resources for food and agriculture that are shared under the Multilateral System should flow primarily, directly and indirectly, to farmers in all countries, especially in developing countries, and countries with economies in transition, who conserve and sustainably utilize plant genetic resources for food and agriculture.

17. Article 13(4) 13.5 The Contracting Parties recognize that the ability to fully implement the Global Plan of Action, in particular of developing countries and countries with economies in transition, will depend largely upon the effective implementation of this Article and of the funding strategy as provided in Article 18.

18. Article 13(5) 13.6 The Contracting Parties shall consider modalities of a strategy of voluntary benefit sharing contributions whereby Food Processing Industries that benefit from plant genetic resources for food and agriculture shall contribute to the Multilateral System.

Article 15 - Ex Situ Collections of Plant Genetic Resources for Food and Agriculture held by the International Agricultural Research Centers of the Consultative Group on International Agricultural Research and other International

Institutions 19. Article 15(2) 15.2 The Contracting Parties agree to provide facilitated access to plant genetic resources for food

and agriculture in Annex I under the Multilateral System to IARCs of the CGIAR that have signed agreements with the Governing Body in accordance with this Treaty. Such Centers shall be included in a list held by the Secretary to be made available to the Contracting Parties on request.

Article 16 – International Plant Genetic Resources Networks 20. Article 16(2) 16.2 The Contracting Parties will encourage, as appropriate, all relevant institutions, including

governmental, private, non-governmental, research, breeding and other institutions, to participate in the international networks.

Article 17 – The Global Information System on Plant Genetic Resources for Food and Agriculture 21. Article 17(1) 17.1 The Contracting Parties shall cooperate to develop and strengthen a global information

system to facilitate the exchange of information, based on existing information systems, on scientific, technical and environmental matters related to plant genetic resources for food and agriculture, with the expectation that such exchange of information will contribute to the sharing of benefits by making information on plant genetic resources for food and agriculture available to all Contracting Parties. In developing the Global Information System, cooperation will be sought with the Clearing House Mechanism of the Convention on Biological Diversity.

22. Article 17(3) 17.3 The Contracting Parties shall cooperate with the Commission on Genetic Resources for Food and Agriculture of the FAO in its periodic reassessment of the state of the world’s plant genetic resources for food and agriculture in order to facilitate the updating of the rolling Global Plan of Action referred to in Article 14.

Article 18 – Financial Resources 23. Article 18(1) 18.1 The Contracting Parties undertake to implement a funding strategy for the implementation of

this Treaty in accordance with the provisions of this Article. 24. Article 18(4)(a)-(f) 18.4 Pursuant to this funding strategy:

(a) The Contracting Parties shall take the necessary and appropriate measures within the Governing Bodies of relevant international mechanisms, funds and bodies to ensure due priority and attention to the effective allocation of predictable and agreed resources for the implementation of plans and programmes under this Treaty. (b) The extent to which Contracting Parties that are developing countries and Contracting Parties with economies in transition will effectively implement their commitments under this Treaty will depend on the effective allocation, particularly by the developed country Parties, of the resources referred to in this Article. Contracting Parties that are developing countries and Contracting Parties with economies in transition will accord due priority in their own plans and programmes to building capacity in plant genetic resources for food and agriculture. (c) The Contracting Parties that are developed countries also provide, and Contracting Parties that are developing countries and Contracting Parties with economies in transition avail themselves of, financial resources for the implementation of this Treaty through bilateral and

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regional and multilateral channels. Such channels shall include the mechanism referred to in Article 19.3f. (d) Each Contracting Party agrees to undertake, and provide financial resources for national activities for the conservation and sustainable use of plant genetic resources for food and agriculture in accordance with its national capabilities and financial resources. The financial resources provided shall not be used to ends inconsistent with this Treaty, in particular in areas related to international trade in commodities. ; (e) The Contracting Parties agree that the financial benefits arising from Article 13.2d are part of the funding strategy. (f) Voluntary contributions may also be provided by Contracting Parties, the private sector, taking into account the provisions of Article 13, non-governmental organizations and other sources. The Contracting Parties agree that the Governing Body shall consider modalities of a strategy to promote such contributions;

25. Article 18.5 18.5 The Contracting Parties agree that priority will be given to the implementation of agreed plans and programmes for farmers in developing countries, especially in least developed countries, and in countries with economies in transition, who conserve and sustainably utilize plant genetic resources for food and agriculture.

Article 19 – Governing Body 26. Article 19(4)

19.4 Subject to Article 19.6, each Contracting Party shall have one vote and may be represented at sessions of the Governing Body by a single delegate who may be accompanied by an alternate, and by experts and advisers. Alternates, experts and advisers may take part in the proceedings of the Governing Body but may not vote, except in the case of their being duly authorized to substitute for the delegate.

Article 31 – Non-Parties 27. Article 31 The Contracting Parties shall encourage any Member of FAO or other State, not a Contracting

Party to this Treaty, to accept this Treaty.

Source: Mr. Sainivalati S. Navoti 2011

Fiji and the Plant Treaty

Fiji acceded to the Plant Treaty on 9 July 2008.340 In announcing Fiji’s accession, Fiji’s Minister of Land,

Mineral Resources and Environment said that “Fiji will now be able to address the special problems

associated with plant genetic resources for food and agriculture”341

Reports & Implementation

Fiji has submitted two (2) Reports to the Secretariat of the Plant Treaty; the second Report was submitted

in December 2008342. Summarized below are some of the information contained in Fiji’s 2nd Report

evidencing implementation.

In Situ Conservation and Development

a. Surveying and Inventorying

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There was no countrywide survey carried out to determine the conservation of traditional

crops/landraces and the on - going genetic erosion of plant genetic resources. A survey was

carried out as reported earlier in 2004. Farmers still maintain some of the landraces, but this

seems to be slowly eroding due to the increasing cultivation of improved varieties e.g. taro. This

is evident in local markets that traditional varieties are rarely seen by vendors, but mostly hybrid

taro is sold. There is need to put in place a strategy with the support of regional organization to

carry out a country survey on traditional genetic resources and also the protection of traditional

knowledge. This is compounded by the increasing urban migration of people from these areas.

The eastern and Northern divisions of Fiji are priority areas needed for survey due to population

pressure, rising sea level, climate change and logging activities.

b. Support on–farm management and improvement

There were some activities reported here on some farmers supporting on – farm approach. Four

famers in Vanua Levu carried out on – farm conservation of mangoes and some farmers in

Ovalau, Naitasiri and Wainibuka areas practiced on– farm conservation of duruka (Saccharum

edule). Some reported activities on breadfruit were carried out in Natewa in the Cakaudrove

province of Vanua Levu.

c. Assisting farmers in disaster situation

There is a national plan in place since Fiji is prone to national disasters e.g. hurricanes and

flooding. The Disaster Management Committee (DISMAC) is activated during these times and

work closely with Agriculture ministry in rehabilitating affected farmers.

d. Promoting in situ conservation of wild crop relatives and wild plants for food production

There is a strategy in place in the Ministry of Agriculture to promote underutilized and wild

varieties e.g. fruits, nuts and vegetables for 2009.

Ex situ conservation

Ex situ conservation is carried out by the Research Division of the Ministry of Primary Industries in Fiji.

This is mainly in the form of field gene bank, tissue culture and cool storage facilities. These collections

are maintained at eight (8) research station located at different ecological zones in the country mainly in

the two main islands of Viti Levu and Vanua Levu.

� Koronivia Research Station (root crops, ginger, rice, tissue culture, cool storage, vegetables)

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� Naduruloulou Research Station (kava, duruka, tree crops, fruits, spices, indigenous and exotic

fruits and trees, vegetative propagation)

� Dobuilevu Research Station (root crops, fruits, ginger)

� Legalega Research Station (pulses, fruits, indigenous and exotic fruits, breadfruit, noni,

vegetative propagation)

� Seaqaqa Research Station (fruits , root crops, ginger, indigenous ad exotic fruits and trees)

� Sigatoka Research Station (vegetables, tropical fruits, cereals, wild vegetables and fruits, banana,

breadfruit)

� Taveuni Coconut Center (coconuts, root crops)

� Wainigata Research Station (tree crops, coconuts)

Figure Three: EX SITU PLANT GENETIC RESEARCH SITES IN FIJI

Source: Republic of Fiji (2008) “2nd Country Report on the State of Plant Genetic Resources for

Food and Agriculture”, Suva, Fiji p. 14

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Analysis of Fiji’s Plant Treaty Implementation

Fiji’s acceded to the Plant Treaty 4 years ago, in 2008. Given such a short period, the timeframe may not

be adequate for one to conclude a fair and an accurate assessment of how well Fiji has been performing so

far.

However, from Fiji’s 2nd Report it can be concluded that Fiji has made some progress from the last survey

conducted in 2004 with some new crops added into germplasm. Some crops have been characterized

using morphological, DNA and Molecular methods. Some genetic erosion was identified in ex situ

germplasm. More in depth analysis is required to clearly ascertain the causes of Genetic erosion whether

it is defined as missing from the collection or extinct from a country. If it missing from the germplasm

then it may be present at in situ and collection can be carried out343.

Fiji’s Report also highlight that most PGRFAs activities are concentrating on ex situ collections.

Characterization and standardized documentation are some critical areas that need attention and support

from national and regional institutions. This supports effective decision making in evaluating PGRFAs in

Fiji344.

The Report also stated that there is a need to carry out surveys to in situ areas and that the Northern and

eastern division are critical areas for survey due to natural disasters, climate change and rising sea levels

that these areas are prone to. GPS and GIS system that are currently available in Fiji can be used to map

out diversity hot spots.345

Challenges

Lack of training on PGR by agriculture staffs remains a major drawback, while some initiatives are in

place to train local staffs. Some long term trainings are needed in the field of plant breeding, DNA and

molecular characterization, plant biology and physiology. Staff turnover is another problem faced in Fiji

that hinders the progress of PGR activities.

Conclusion

Implementing the Plant Treaty is a technical affair. The Government of Fiji needs to channel appropriate

resources to facilitate the training of relevant human resource capacity required to adequately monitor and

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implement the obligations contained in the Treaty. Food Security is an important responsibility of any

Government. The Plant Treaty offers a vehicle of cooperation between Governments for the fulfillment of

this responsibility. Because of its relatively short period of existence, Fiji potentially has a good

opportunity to improve on its implementation of this particular treaty, based of cause from lesson learnt

from other treaties.

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3.2.7 Convention Concerning the Protection of the World Cultural and Natural Heritage346

Introduction

The Convention Concerning the Protection of the World Cultural and Natural Heritage ( the “World

Heritage Convention”- “WHC”) was adopted by the United Nations Educational, Scientific and Cultural

Organization (UNESCO) General Conference at its 17th session in Paris on 16 November 1972. The

Convention came into force in 1975.

Aims

The World Heritage Convention aims to promote cooperation among nations to protect heritage around

the world that is of such outstanding universal value that its conservation is important for current and

future generations. It is intended that, unlike the seven wonders of the ancient world, properties on the

World Heritage List will be conserved for all time.

Roles and Responsibilities of Parties347

The participating nations States that are parties to the Convention agree to identify, protect, conserve, and

present World Heritage properties. States recognize that the identification and safeguarding of heritage

located in their territory is primarily their responsibility. They agree to do all they can with their own

resources to protect their World Heritage properties.

They agree, amongst other things, as far as possible to:

a. 'adopt a general policy that aims to give the cultural and natural heritage a function in the

life of the community and to integrate the protection of that heritage into comprehensive

planning programs'348

b. undertake 'appropriate legal, scientific, technical, administrative and financial measures

necessary for the identification, protection, conservation, presentation and rehabilitation of

this heritage'349

c. refrain from 'any deliberate measures which might damage, directly or indirectly, the

cultural and natural heritage' of other Parties to the Convention, and to help other Parties in

the identification and protection of their properties350.

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Administering the World Heritage Convention

The World Heritage Convention is administered by a World Heritage Committee351, which meets

annually and consists of 21 members elected from those States that are parties to the Convention352.

Elections are held every two years and members are generally elected for four years.

The Committee's main tasks are to:353

a. decide on the inscription of new properties on the World Heritage List

b. discuss all matters relating to the implementation of the Convention

c. consider requests for international assistance

d. advise State Parties on how they can ensure States meet their obligations under the Convention to

protect World Heritage Properties

e. administer the World Heritage Fund.

The Committee is supported by a small secretariat, the World Heritage Centre, which is a part of the

United Nations Educational, Scientific and Cultural Organisation (UNESCO) based in Paris, France.354

The World Heritage List355

The Convention establishes a list of properties that have outstanding universal value, called the World

Heritage List. These properties are part of the cultural and natural heritage of States that are Parties to the

Convention.

World Heritage in danger356

The World Heritage Committee prepares and publishes a List of World Heritage in Danger that includes

World Heritage sites threatened by serious and specific dangers, such as:

a. development projects

b. the outbreak or threat of armed conflict;

c. natural disasters.

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The Convention seeks state parties’ consent prior to any 'in danger' listing; however in cases where a site

is threatened and there is no effective government in place, the Committee may reach a decision on its

own. Each time that the Committee makes a new entry on the List of World Heritage in Danger, it is

required to publicize the entry immediately.

The World Heritage Fund357

A trust fund, the World Heritage Fund for the Protection of World Cultural and Natural Heritage of

Outstanding Universal Value (the World Heritage Fund), is established under the Convention358. The

Fund is financed by contributions from state parties and contributions from private organizations and

individuals.

Funds are used when state parties request assistance to protect their World Heritage-listed sites, and to

meet the urgent conservation needs of properties on the List of World Heritage in Danger. State parties

can request international assistance from the World Heritage Fund for studies, provision of experts and

technicians, training of staff and specialists, and the supply of equipment. They can also apply for long-

term loans and, in special cases, non-repayable grants.

Obligations in the WHC

There are about 20359 specific obligations bestowed by the CHC. Tabulated below is a summary of these:

TABLE 17: OBLIGATION UNDER THE CONVENTION CONCERNING THE PROTECTION OF THE

WORLD CULTURAL AND NATURAL HERITAGE

SRL ARTICLE OBLIGATIONS NATIONAL PROTECTION AND INTERNATIONAL PROTECTION OF THE CULTURAL AND NATURAL

HERITAGE 1. Article 4

Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

2.

Article 5

To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavor, in so far as possible, and as appropriate for each country:

(a) to adopt a general policy which aims to give the cultural and natural heritage a

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function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;

(b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions;

(c) to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage;

(d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and

(e) to foster the establishment or development of national or regional centers for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.

3. Article 6(2) 2. The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request.

4. Article 6(3) 3. Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.

5. Article 7 For the purpose of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage.

INTERGOVERNMENTAL COMMITTEE FOR THE PROTECTION OF THE WORLD CULTURAL AND NATURAL HERITAGE

6. Article 8(1)

1. An Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value, called "the World Heritage Committee", is hereby established within the United Nations Educational, Scientific and Cultural Organization. It shall be composed of 15 States Parties to the Convention, elected by States Parties to the Convention meeting in general assembly during the ordinary session of the General Conference of the United Nations Educational, Scientific and Cultural Organization. The number of States members of the Committee shall be increased to 21 as from the date of the ordinary session of the General Conference following the entry into force of this Convention for at least 40 States.

7. Article 11(1) 1. Every State Party to this Convention shall, in so far as possible, submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the list provided for in paragraph 2 of this Article. This inventory, which shall not be considered exhaustive, shall include documentation about the location of the property in question and its significance.

FUND FOR THE PROTECTION OF THE WORLD CULTURAL AND NATURAL HERITAGE 8. Article 16(1)

1. Without prejudice to any supplementary voluntary contribution, the States Parties to this Convention undertake to pay regularly, every two years, to the World Heritage Fund, contributions, the amount of which, in the form of a uniform percentage applicable to all States, shall be determined by the General Assembly of States Parties to the Convention, meeting during the sessions of the General Conference of the United Nations Educational, Scientific and Cultural Organization. This decision of the General Assembly requires the majority of the States Parties present and voting, which have not made the declaration referred to in paragraph 2 of this Article. In no case shall the compulsory contribution of States Parties to the Convention exceed 1% of the contribution to the regular budget of the United Nations Educational, Scientific and Cultural Organization.

9. Article 17

The States Parties to this Convention shall consider or encourage the establishment of national public and private foundations or associations whose purpose is to invite donations for the protection of the cultural and natural heritage as defined in Articles 1 and 2 of this Convention.

10. Article 18

The States Parties to this Convention shall give their assistance to international fund-raising campaigns organized for the World Heritage Fund under the auspices of the United Nations Educational, Scientific and Cultural Organization. They shall facilitate collections made by the bodies mentioned in paragraph 3 of Article 15 for this purpose.

CONDITIONS AND ARRANGEMENTS FOR INTERNATIONAL ASSISTANCE 11. Article 25

As a general rule, only part of the cost of work necessary shall be borne by the international community. The contribution of the State benefiting from international assistance shall constitute a substantial share of the resources devoted to each programme or project, unless its resources do not permit this.

12. Article 26

The World Heritage Committee and the recipient State shall define in the agreement they conclude the conditions in which a programme or project for which international assistance

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under the terms of this Convention is provided, shall be carried out. It shall be the responsibility of the State receiving such international assistance to continue to protect, conserve and present the property so safeguarded, in observance of the conditions laid down by the agreement.

EDUCATIONAL PROGRAMMES 13. Article 27(1)

1. The States Parties to this Convention shall endeavor by all appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect by their peoples of the cultural and natural heritage defined in Articles 1 and 2 of the Convention.

14. Article 27(2) 2. They shall undertake to keep the public broadly informed of the dangers threatening this heritage and of the activities carried on in pursuance of this Convention.

15. Article 28

States Parties to this Convention which receive international assistance under the Convention shall take appropriate measures to make known the importance of the property for which assistance has been received and the role played by such assistance.

REPORTS 16. Article 29

1. The States Parties to this Convention shall, in the reports which they submit to the General Conference of the United Nations Educational, Scientific and Cultural Organization on dates and in a manner to be determined by it, give information on the legislative and administrative provisions which they have adopted and other action which they have taken for the application of this Convention, together with details of the experience acquired in this field.

Fiji and the WHC Fiji ratified the WHC on 21 November, 1990 and became part of a network of countries dedicated to the

international protection of World Heritage properties, and holds a common belief that it is our shared

responsibility to preserve our cultural and natural resources.

Institutional Framework

The National coordinating body responsible for culture, heritage and the arts policy and legislative

development in Fiji is a Government department established by cabinet in 1999 named the then

Department of Culture and Heritage360.

The Department administers the annual grant by Government through an annual memorandum of

understanding to its three flagship implementation agencies who report to the Minister responsible for

Culture. These Agencies includes:

i. The Fiji Museum, a statutory organization reporting to its Board of Trustees;

ii. The National Trust of Fiji reports to a Council and;

iii. The Fiji Arts Council a nonprofit charitable organization reporting to its Board.

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The National Trust of Fiji (NTF) & the Fiji Heritage Sites

The National Trust of Fiji was created in 1970 361to provide for the protection of Fiji’s natural, cultural

and national heritage. The National Trust Act (Cap 265) of 1978 was later strengthened by the Fiji

Government’s National Heritage Policy in 1996 and the National Trust Amendment Act of 1998.

The NTF is governed by the National Trust Council and employs 12 staff who are based at the NTF

Headquarters while 11 are field based staff. Currently the National Trust is responsible for the

management and maintenance of 9 sites around the country and assists with community heritage projects.

Figure Four: National Trust Sites of Fiji

Source: National Trust of Fiji Strategic Plan 2008-2012 p. 4

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Activities for Cultural Heritage for Fiji

In its Report to the 23rd Pacific Council of Arts362 held in Noumea, New Caledonia in March 2010, Fiji

presented the following as summary of work and activities that were undertaken or were being undertaken

in Fiji for the 2009 -2010 period.

� Work intensified on progressing Fiji’s priority nomination for the listing of Levuka Site as Fiji's

proposed first World Heritage site. The National World Heritage Policy endorsed by cabinet

includes work with consultants to review the legislation and the management plan and project staff.

The final submission to the world heritage committee was completed by September 2010.

� Implementing the Fiji World Heritage Action Plan and the last Regional Pacific World Heritage

Action Plan - with its reviews held in Tahiti for the 2010 to 2015 draft Pacific World Heritage

Action Plan.

� Progressing work on a Heritage in Young Hands Teachers Guide through hosting the regional

UNESCO ESD workshop for curriculum developers in Nadi, 2009.

� Fiji Government ratification of the UNESCO 2003 Intangible Heritage Convention and secured

funding for a secretariat to coordinate the implementation of initiatives and laws for the protection of

intangible heritage.

� Advice to the University of the South Pacific and University of Fiji to have the teaching of

archeology, anthropology courses taught in their Institutions and the strengthening of the creative

and expressive arts courses to align if possible with national accreditation systems and Education for

Sustainable development Initiatives.

Activities for Cultural/Creative Industries363

� Launched and progressing work on the UNESCO, UNCTAD, ILO, EU sponsored pilot project for the

Cultural Industries development for music, book publishing and audio visual development with

review and evaluation of the second year of the Wasawasa national arts festival;

� Launched the UNESCO sponsored national Fiji Memory of the World Committee and website on

documentary archives with the successful nomination onto the memory of the world Asia Pacific

register for the records of the Indentured labour records arrival to Fiji.

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� Progressed and completion of Cultural Mapping and Awareness raising with IILC to communities in

5 provinces (Namosi, Serua, Rewa, Tailevu and Lomaiviti Islands) this activity linked to efforts to

map the villages on the island of Ovalau to strengthen ownership and support by communities in the

heritage listing of the Levuka site to the world heritage listing.

� Community awareness and skills revival workshops for the province of Macuata on Vanua levu the

second largest island in Fiji as a pilot for planting and revival of kuta weaving and economic

sustainable support for marketing and infrastructure.

� Cultural mapping to date linked to proposed legislation for the protection of traditional knowledge

and expressions of culture planned completion of final legislation by 2010

� Establishing and securing a site for Fiji's First National Art Gallery following a cabinet decision and

for the Department to relocate to the Heritage building in 2010.

� Facilitated UNESCO Education for Sustainable Development Regional workshop with curriculum

developers linking culture and education.

Mainstreaming Culture364

The Department of Culture and Heritage has ensured that the Ministry of Educations strategic, corporate

and business plans have included in the sub outputs and work plans the Promotion of culturally inclusive

curriculum into the formal primary and secondary school system. This includes continuing with the

development of the teaching and learning resources for;

� Heritage in Young Hands from Primary school level;

� Piloting the family tree and social science curriculum with assistance from UNESCO and UNDP;

� Reviewing existing school curriculum to strengthen local traditional knowledge content;

� Facilitate the development of cross cultural learning through ITC’s and OLPC for Fijian,

Rotuman and Hindustani;

� Support the strengthening and integration of education for sustainable development and Technical

Vocational Education and Training (TVET) through implementation of TVET courses offered in

Design, Fashion, Visual and Heritage arts in schools, Traditional Knowledge and practices,

Archeology, Anthropology and conservation practices with pilots in traditional navigation and

boat building skills established.

� Advancing the Pacific Youth plan, Presenting at the Pacific Youth Festival.

� Supporting pacific identities initiatives and engaging six youth volunteers attached to the

department on implementing activities and presenting to other youth on their work at the national,

regional and International level. ��"��)��

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� Input into the National Women’s Plan of Action Beijing follow up, Environment department

strengthening of the National Biodiversity Strategic

� Action Plan and policy developed for research policy to include cultural impact assessment as a

requirement for any developments in Fiji and for the protection of sacred sites.

� The Tourism development of best practices for a Green Fiji accreditation system and label of

origin policy endorsement.

The Fiji World Heritage Policy

In order to meet the requirements of the Convention, and to ensure the long-term protection of heritage

areas in Fiji, there is a need for the revision of existing, and the creation of new, heritage area legislation

in Fiji. The creation of new legislation and the revision of existing heritage legislation is a task that can

only be undertaken by the Government.

The Department of Culture and Heritage, as a specialist policy and legislation unit within the Government

of Fiji, has responsibility for developing and amending policies and legislation which affects the long

term conservation of heritage, and has a responsibility to provide advice to other Government agencies on

legislation they are developing which could impact upon the heritage of Fiji.

In 2010, the Department published Fiji’s World Heritage Policy365 which sets out in broad term Fiji’s

plans and vision for the implementation of its obligation under the WHC. The Policy contained six (6)

specific objectives namely:

i. Aim 1: Improve Understanding of the Role Heritage Plays in Society ;366

ii. Aim 2: Improve Understanding of the Issues Impacting on Heritage Areas;367

iii. Aim 3: Build Capacity within Fiji to Manage Heritage Areas ;368

iv. Aim 4: Develop and Strengthen Processes to Protect Heritage Areas 369;

v. Aim 5: Establish means to fund heritage area conservation370; and

vi. Aim 6: Nominate Heritage Areas of Outstanding Universal Value to the World371.

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Conclusion

Narratives available on Fiji’s implementation of the WHC reflect an honest attempt by the relevant

Stakeholders of Fiji to carry out their various mandates towards conservation and preservation of national

heritage sites with limited resources. Government has increased its budgetary allocation to the

Department of Culture372, this means and reflects commitments. A lot however, remains to be done.

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3.3 Hazardous Materials/Wastes and Chemical – Related MEAs

Introduction

Section 3.3 of this Paper carries an examination of the Hazardous Materials/Wastes and Chemical related

MEAs to which Fiji is a Party. Hazardous wastes are wastes that are dangerous or potentially harmful to

human health or the environment. Hazardous wastes can be liquids, solids, gases, or sludges. They can be

discarded commercial products, like cleaning fluids or pesticides, or the by-products of manufacturing

processes.

The Conventions

There are two Conventions to be discussed under this section:

a. The Cartagena Protocol on Bio-Safety to the Convention on Biological Diversity; and

b. Stockholm Convention on Persistent Organic Pollutants.

Fiji ratified both of these Conventions in 2001.

3.3.1 Cartagena Protocol on Bio-safety to the Convention on Biological Diversity373

Introduction

The Cartagena Protocol on Biosafety is one of the most important international treaties recently adopted.

It marks the commitment of the international community to ensure the safe transfer, handling and use of

living modified organisms (LMOs). It is an historic commitment as it is the first binding international

agreement dealing with bio-safety, thereby addressing novel and controversial issues.

Efforts to create international Biosafety rules began in the 1980s, when modern biotechnology was still at

its infancy but showing signs of progressing towards the commercialization of genetically modified

organisms and products374.

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The Cartagena Protocol on Biosafety was adopted in January 2000 as a supplementary agreement to the

Convention on Biological Diversity (UNCBD). The UNCBD entered into force on 29 December 1993

and has 3 main objectives:

1. The conservation of biological diversity;

2. The use biological diversity in a sustainable fashion and

3. The fair and equitable sharing of the benefits of biological diversity.375

The Cartagena Protocol on Biosafety was established pursuant to Article 19, paragraph 3 of the UNCBD

which enabled the Parties:

“to consider the need for and modalities of a protocol setting out appropriate procedures,

including, in particular, advance informed agreement, in the field of the safe transfer, handling and use of

any living modified organism resulting from biotechnology that may have adverse effect on the

conservation and sustainable use of biological diversity.”376

Article 28 of the UNCBD mandates Parties to cooperate in the formulation and adoption of Protocols and

thus pursuant to this Article and Article 19 (3), the Conference of Parties of the UNCBD established an

Open-ended Ad Hoc Working Group on Biosafety to develop a Draft Protocol on Biosafety. The

Working Group was to focus specifically on trans-boundary movement of any living modified organism

resulting from modern biotechnology that may have adverse effects on the conservation and sustainable

use of biological diversity.

The Cartagena Protocol

The Cartagena Protocol on Biosafety (as stated earlier) is the first multilateral international treaty dealing

with the trans boundary movement of living modified organisms commonly referred to as genetically

modified organisms.

The objective of the Cartagena Protocol provides:

“In accordance with the precautionary approach contained in Principle 15 of the Rio

Declaration on Environment and Development, the objective of the Protocol is to

contribute to ensuring an adequate level of protection in the field of the safe transfer,

handling and use of living modified organisms resulting from modern biotechnology that

may have adverse effects on the conservation and sustainable use of biological diversity,

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taking also into account risks to human health, and specifically focusing on trans

boundary movements.”377

Living Modified Organism

A Living Modified Organism (LMO) is defined in the Cartagena Protocol on Biosafety as any living

organism that possesses a novel combination of genetic material obtained through the use of modern

biotechnology. The Protocol also defines the terms 'living organism' and 'modern biotechnology'378. In

everyday usage LMOs are usually considered to be the same as GMOs (Genetically Modified

Organisms), but definitions and interpretations of the term GMO vary widely. Common LMOs include

agricultural crops that have been genetically modified for greater productivity or for resistance to pests or

diseases. Examples of modified crops include tomatoes, cassava, corn, cotton and soybeans.379

Main features of the Protocol

a. Transfer and Handling

The Protocol promotes bio-safety by establishing rules and procedures for the safe transfer, handling, and

use of LMOs, with specific focus on trans-boundary movements of LMOs. It features a set of procedures

including:

i. one for LMOs that are to be intentionally introduced into the environment (advance

informed agreement procedure380; and

ii. one for LMOs that are intended to be used directly as food or feed or for processing381.

Parties to the Protocol must ensure that LMOs are handled, packaged and transported under conditions of

safety. Furthermore, the shipment of LMOs subject to trans-boundary movement must be accompanied by

appropriate documentation specifying, among other things, identity of LMOs and contact point for further

information,

These procedures and requirements are designed to provide importing Parties with the necessary

information needed for making informed decisions about whether or not to accept LMO imports and for

handling them in a safe manner. The Party of import makes its decisions in accordance with scientifically

sound risk assessments382.

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b. Risks assessments

The Protocol sets out principles and methodologies on how to conduct a risk assessment383. In case of

insufficient relevant scientific information and knowledge, the Party of import may use precaution in

making their decisions on import. Parties may also take into account, consistent with their international

obligations, socio-economic considerations in reaching decisions on import of LMOs384. Parties must

also adopt measures for managing any risks identified by the risk assessment385 and they must take

necessary steps in the event of accidental release of LMOs386 .

c. Clearing House

To facilitate its implementation, the Protocol establishes a Biosafety Clearing-House for Parties to

exchange information and contains a number of important provisions, including capacity-building,

financial mechanism387 compliance procedures and public awareness and participation.

Obligations

Closer analysis of the Protocol reveals that there are a little over forty (40) specific obligations contained

in the text of the Convention. Tabulated below is a summary of these obligations.

TABLE 18: FIJI’S OBLIGATIONS UNDER THE CARTAGENA PROTOCOL ON BIO-

SAFETY TO THE CONVENTION ON BIOLOGICAL DIVERSITY

SRL ARTICLE OBLIGATIONS

GENERAL PROVISIONS 1. Article 2(1) 1. Each Party shall take necessary and appropriate legal, administrative and other measures to

implement its obligations under this Protocol. 2. Article 2(2) 2. The Parties shall ensure that the development, handling, transport, use, transfer and release

of any living modified organisms are undertaken in a manner that prevents or reduces the risks to biological diversity, taking also into account risks to human health.

SCOPE 3. Article 4 This Protocol shall apply to the trans-boundary movement, transit, handling and use of all living

modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health.

TRANSIT AND CONTAINED USE 4. Article 6(1) 1. Notwithstanding Article 4 and without prejudice to any right of a Party of transit to regulate

the transport of living modified organisms through its territory and make available to the Biosafety Clearing-House, any decision of that Party, subject to Article 2, paragraph 3, regarding the transit through its territory of a specific living modified organism, the provisions of this Protocol with respect to the advance informed agreement procedure shall not apply to living modified organisms in transit.

5. Article 6(2) 2. Notwithstanding Article 4 and without prejudice to any right of a Party to subject all living

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modified organisms to risk assessment prior to decisions on import and to set standards for contained use within its jurisdiction, the provisions of this Protocol with respect to the advance informed agreement procedure shall not apply to the trans-boundary movement of living modified organisms destined for contained use undertaken in accordance with the standards of the Party of import.

NOTIFICATION 6. Article 8(1) 1. The Party of export shall notify, or require the exporter to ensure notification to, in writing,

the competent national authority of the Party of import prior to the intentional trans-boundary movement of a living modified organism that falls within the scope of Article 7, paragraph 1. The notification shall contain, at a minimum, the information specified in Annex I.

7. Article 8(2) 2. The Party of export shall ensure that there is a legal requirement for the accuracy of information provided by the exporter.

ACKNOWLEDGEMENT OF NOTIFICATION 8. Article 9(1)-(4) 1. The Party of import shall acknowledge receipt of the notification, in writing, to the notifier

within ninety days of its receipt. 2. The acknowledgement shall state: (a) The date of receipt of the notification; (b) Whether the notification, prima facie, contains the information referred to in Article 8; (c) Whether to proceed according to the domestic regulatory framework of the Party of import or according to the procedure specified in Article 10. 3. The domestic regulatory framework referred to in paragraph 2 (c) above, shall be consistent with this Protocol. 4. A failure by the Party of import to acknowledge receipt of a notification shall not imply its consent to an intentional trans-boundary movement.

PROCEDURE FOR LIVING MODIFIED ORGANISMS INTENDED FOR DIRECT USE AS FOOD OR FEED, OR FOR PROCESSING

9. Article 11(1) 1. A Party that makes a final decision regarding domestic use, including placing on the market, of a living modified organism that may be subject to trans-boundary movement for direct use as food or feed, or for processing shall, within fifteen days of making that decision, inform the Parties through the Biosafety Clearing-House. This information shall contain, at a minimum, the information specified in Annex II. The Party shall provide a copy of the information, in writing, to the national focal point of each Party that informs the Secretariat in advance that it does not have access to the Biosafety Clearing- House. This provision shall not apply to decisions regarding field trials.

10. Article 11(2) 2. The Party making a decision under paragraph 1 above, shall ensure that there is a legal requirement for the accuracy of information provided by the applicant.

11. Article 11(3) 3. Any Party may request additional information from the authority identified in paragraph (b) of Annex II.

12. Article 11(4) 4. A Party may take a decision on the import of living modified organisms intended for direct use as food or feed, or for processing, under its domestic regulatory framework that is consistent with the objective of this Protocol.

13. Article 11(5) 5. Each Party shall make available to the Biosafety Clearing-House copies of any national laws, regulations and guidelines applicable to the import of living modified organisms intended for direct use as food or feed, or for processing, if available

14. Article 11(6) 6. A developing country Party or a Party with an economy in transition may, in the absence of the domestic regulatory framework referred to in paragraph 4 above, and in exercise of its domestic jurisdiction, declare through the Biosafety Clearing-House that its decision prior to the first import of a living modified organism intended for direct use as food or feed, or for processing, on which information has been provided under paragraph 1 above, will be taken according to the following: (a) A risk assessment undertaken in accordance with Annex III; and (b) A decision made within a predictable timeframe, not exceeding two hundred and seventy days.

15. Article 11(7) 7. Failure by a Party to communicate its decision according to paragraph 6 above, shall not imply its consent or refusal to the import of a living modified organism intended for direct use as food or feed, or for processing, unless otherwise specified by the Party.

16. Article 11(8) 8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of that living modified organism intended for direct use as food or feed, or for processing, in order to avoid or minimize such potential adverse effects.

17. Article 11(9) 9. A Party may indicate its needs for financial and technical assistance and capacity-building with respect to living modified organisms intended for direct use as food or feed, or for

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processing. Parties shall cooperate to meet these needs in accordance with Articles 22 and 28. RISKS ASSESSMENT

18. Article 15(2) & (3) 2. The Party of import shall ensure that risk assessments are carried out for decisions taken under Article 10. It may require the exporter to carry out the risk assessment. 3. The cost of risk assessment shall be borne by the notifier if the Party of import so requires.

RISKS MANAGEMENT 19. Article 16(1) 1. The Parties shall, taking into account Article 8 (g) of the Convention, establish and maintain

appropriate mechanisms, measures and strategies to regulate, manage and control risks identified in the risk assessment provisions of this Protocol associated with the use, handling and trans-boundary movement of living modified organisms.

20. Article 16(2) 2. Measures based on risk assessment shall be imposed to the extent necessary to prevent adverse effects of the living modified organism on the conservation and sustainable use of biological diversity, taking also into account risks to human health, within the territory of the Party of import.

21. Article 16(3) 3. Each Party shall take appropriate measures to prevent unintentional trans-boundary movements of living modified organisms, including such measures as requiring a risk assessment to be carried out prior to the first release of a living modified organism.

22. Article 16(4) 4. Without prejudice to paragraph 2 above, each Party shall endeavor to ensure that any living modified organism, whether imported or locally developed, has undergone an appropriate period of observation that is commensurate with its life-cycle or generation time before it is put to its intended use.

23. Article 16(5) 5. Parties shall cooperate with a view to: (a) Identifying living modified organisms or specific traits of living modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health; and (b) Taking appropriate measures regarding the treatment of such living modified organisms or specific traits.

UNINTENTIONAL TRANS-BOUNDARY MOVEMENTS AND EMERGENCY MEASURES

24. Article 17(1) 1. Each Party shall take appropriate measures to notify affected or potentially affected States, the Biosafety Clearing-House and, where appropriate, relevant international organizations, when it knows of an occurrence under its jurisdiction resulting in a release that leads, or may lead, to an unintentional trans-boundary movement of a living modified organism that is likely to have significant adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health in such States. The notification shall be provided as soon as the Party knows of the above situation.

25. Article 17(2) 2. Each Party shall, no later than the date of entry into force of this Protocol for it, make available to the Biosafety Clearing-House the relevant details setting out its point of contact for the purposes of receiving notifications under this Article.

26. Article 17(3) 3. Any notification arising from paragraph 1 above, should include: (a) Available relevant information on the estimated quantities and relevant characteristics and/or traits of the living modified organism; (b) Information on the circumstances and estimated date of the release, and on the use of the living modified organism in the originating Party; (c) Any available information about the possible adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, as well as available information about possible risk management measures; (d) Any other relevant information; and (e) A point of contact for further information.

27. Article 17(4) 4. In order to minimize any significant adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, each Party, under whose jurisdiction the release of the living modified organism referred to in paragraph 1 above, occurs, shall immediately consult the affected or potentially affected States to enable them to determine appropriate responses and initiate necessary action, including emergency Measures.

HANDLING, TRANSPORT, PACKAGING AND IDENTIFICATION 28. Article 18(2)(a)-(c) 2. Each Party shall take measures to require that documentation accompanying:

(a) Living modified organisms that are intended for direct use as food or feed, or for processing, clearly identifies that they “may contain” living modified organisms and are not intended for intentional introduction into the environment, as well as a contact point for further information. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall take a decision on the detailed requirements for this purpose, including specification of their identity and any unique identification, no later than two years after the date of entry into force of this Protocol; (b) Living modified organisms that are destined for contained use clearly identifies them as living modified organisms; and specifies any requirements for the safe handling, storage,

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transport and use, the contact point for further information, including the name and address of the individual and institution to whom the living modified organisms are consigned; and (c) Living modified organisms that are intended for intentional introduction into the environment of the Party of import and any other living modified organisms within the scope of the Protocol, clearly identifies them as living modified organisms; specifies the identity and relevant traits and/or characteristics, any requirements for the safe handling, storage, transport and use, the contact point for further information and, as appropriate, the name and address of the importer and exporter; and contains a declaration that the movement is in conformity with the requirements of this Protocol applicable to the exporter.

COMPETENT NATIONAL AUTHORITIES AND NATIONAL FOCAL POINTS 29. Article 19(1) 1. Each Party shall designate one national focal point to be responsible on its behalf for liaison

with the Secretariat. Each Party shall also designate one or more competent national authorities, which shall be responsible for performing the administrative functions required by this Protocol and which shall be authorized to act on its behalf with respect to those functions. A Party may designate a single entity to fulfill the functions of both focal point and competent national authority.

30. Article 19(2) 2. Each Party shall, no later than the date of entry into force of this Protocol for it, notify the Secretariat of the names and addresses of its focal point and its competent national authority or authorities. Where a Party designates more than one competent national authority, it shall convey to the Secretariat, with its notification thereof, relevant information on the respective responsibilities of those authorities. Where applicable, such information shall, at a minimum, specify which competent authority is responsible for which type of living modified organism. Each Party shall forthwith notify the Secretariat of any changes in the designation of its national focal point or in the name and address or responsibilities of its competent national authority or authorities.

CONFIDENTIAL INFORMATION 31. Article 21(1) 1. The Party of import shall permit the notifier to identify information submitted under the

procedures of this Protocol or required by the Party of import as part of the advance informed agreement procedure of the Protocol that is to be treated as confidential. Justification shall be given in such cases upon request.

32. Article 21(2) 2. The Party of import shall consult the notifier if it decides that information identified by the notifier as confidential does not qualify for such treatment and shall, prior to any disclosure, inform the notifier of its decision, providing reasons on request, as well as an opportunity for consultation and for an internal review of the decision prior to disclosure.

33. Article 21(3) 3. Each Party shall protect confidential information received under this Protocol, including any confidential information received in the context of the advance informed agreement procedure of the Protocol. Each Party shall ensure that it has procedures to protect such information and shall protect the confidentiality of such information in a manner no less favourable than its treatment of confidential information in connection with domestically produced living modified organisms.

34. Article 21(4) 4. The Party of import shall not use such information for a commercial purpose, except with the written consent of the notifier.

35. Article 21(5) 5. If a notifier withdraws or has withdrawn a notification, the Party of import shall respect the confidentiality of commercial and industrial information, including research and development information as well as information on which the Party and the notifier disagree as to its confidentiality

CAPACITY-BUILDING 36. Article 22(1) 1. The Parties shall cooperate in the development and/or strengthening of human resources and

institutional capacities in biosafety, including biotechnology to the extent that it is required for biosafety, for the purpose of the effective implementation of this Protocol, in developing country Parties, in particular the least developed and small island developing States among them, and in Parties with economies in transition, including through existing global, regional, sub-regional and national institutions and organizations and, as appropriate, through facilitating private sector involvement.

PUBLIC AWARENESS AND PARTICIPATION 37. Article 23(1)(a)&(b) 1. The Parties shall:

(a) Promote and facilitate public awareness, education and participation concerning the safe transfer, handling and use of living modified organisms in relation to the conservation and sustainable use of biological diversity, taking also into account risks to human health. In doing so, the Parties shall cooperate, as appropriate, with other States and international bodies; (b) Endeavour to ensure that public awareness and education encompass access to information on living modified organisms identified in accordance with this Protocol that may be imported.

38. Article 23(2) 2. The Parties shall, in accordance with their respective laws and regulations, consult the public

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in the decision-making process regarding living modified organisms and shall make the results of such decisions available to the public, while respecting confidential information in accordance with Article 21.

39. Article 23(3) 3. Each Party shall endeavor to inform its public about the means of public access to the Biosafety Clearing House.

ILLEGAL TRANSBOUNDARY MOVEMENTS 40. Article 25(1) 1. Each Party shall adopt appropriate domestic measures aimed at preventing and, if

appropriate, penalizing trans-boundary movements of living modified organisms carried out in contravention of its domestic measures to implement this Protocol. Such movements shall be deemed illegal trans-boundary movements.

41. Article 25(2) 2. In the case of an illegal trans-boundary movement, the affected Party may request the Party of origin to dispose, at its own expense, of the living modified organism in question by repatriation or destruction, as appropriate.

42. Article 25(3) 3. E ach Party shall make available to the Biosafety Clearing-House information concerning cases of illegal trans-boundary movements pertaining to it.

MONITORING AND REPORTING 43. Article 33 Each Party shall monitor the implementation of its obligations under this Protocol, and shall, at

intervals to be determined by the Conference of the Parties serving as the meeting of the Parties to this Protocol, report to the Conference of the Parties serving as the meeting of the Parties to this Protocol on measures that it has taken to implement the Protocol.

Fiji and the Cartagena Protocol

Fiji signed the Cartagena Protocol on 2 May 2001 and ratified it on 5 June 2001, and became a full

member on 11 September 2003. The Department of Environment is the focal point388.

Available narratives on Fiji’s implementation of the Cartagena Protocol reveal very little activities. Fiji

“Final Report on the Thematic Assessment of the UNCBD and the Cartagena Protocol”389 also reveals

very little in terms of Fiji’s implementation of the Cartagena Protocol.

Reporting

The Cartagena Protocol website does not carry evidence of reporting from Fiji.

Implementation

With funding from the UNDP-GEF, Fiji conducted its first national Biosafety Clearing House Taskforce

workshop in May 2008. A National Biosafety Sub-committee was established, comprising the ministries

of Justice, Agriculture (Quarantine) and Health, the Customs Authority (border control), and the

Consumer Council of Fiji.

A second workshop was conducted (September 2008). The purpose of this workshop is to train national

authorized users on how to enter and retrieve information on living modified organisms (LMO) and ��??�� ) ��" ��") �>�� T��") �>U�C��?%�"��)�� %�

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genetically modified organisms (GMO) on/to the international biosafety website that is hosted by UNEP

(United Nations Environment Programme) in Geneva. The participants at the workshop will include the

National Biosafety Task-force and remaining stakeholders.

In April 2008, a taskforce at the Office of the Attorney-General examined existing legislation relevant to

biosafety, and in October 2008 the Fiji Government approved the Bio-security Promulgation390. In

addition to the lack of legal provision, an identified problem is that different reservoirs of information on

biosecurity and biosafety exist in Fiji: each border control and/or relevant resource organization has its

own data and so far it has not been shared.

From 28-39 November, 2011- a workshop was held in Fiji. Organized by the Secretariat of the

Convention on Biological Diversity (CBD), the workshop to: promote awareness of recent developments

under the Protocol, including decisions of the meeting of the Parties, and major issues and processes

underpinning the Protocol's implementation; review the status of implementation in the Pacific sub region

and share experiences, best practices and lessons learned in the development and implementation of

national biosafety frameworks; and identify national and sub-regional capacity building priority needs and

discuss ways to address those needs, including the possibility of developing a Pacific sub-regional

capacity-building programme on implementation of national biosafety frameworks.

Analysis

Information available on the Cartagena Protocol reveals that Fiji will needs to exert more effort in the

implementation of her obligations under this multilateral instrument. One of the urgent areas needing

immediate action is the formulation of necessary and appropriate legislative and administrative measures

to regulate activities under the Cartagena Protocol in Fiji.

The formation of the Fiji National Bio-Safety Sub Committee and training for the 1st National Biosafety

Clearing House Taskforce are positive steps towards fuller implementation, however, if Fiji desires a

credible image in the eyes of the international community- more remains to be done in the legislative and

regulatory sphere.

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3.3.2 Stockholm Convention on Persistent Organic Pollutants (POPs)391

Introduction

Persistent Organic Pollutants (POPs) are chemicals that adversely affect human health and environmental

quality when released into the air, water or soil. During the 1960s and 1970s, the use of chemicals and

pesticides in industry and agriculture increased dramatically392. In particular, a category of chemicals

known as POPs attracted international attention due to a growing body of scientific evidence indicating

that exposure to very low doses of POPs can lead to cancer, damage to the central and peripheral nervous

systems, diseases of the immune system, reproductive disorders and interference with normal infant and

child development393. POPs are chemical substances that persist in the environment, bios-accumulate in

living organisms, and can have adverse effects on human health and the environment.

With further evidence of the long-range transport of these substances to regions where they have never

been used or produced, and the consequent threats they pose to the global environment, the international

community called for urgent global action to reduce and eliminate their release into the environment.

Early Phase

In March 1995, the United Nations Environment Programme’s Governing Council (UNEP GC) adopted

Decision 18/32 inviting the Inter-Organization Programme on the Sound Management of Chemicals, the

Intergovernmental Forum on Chemical Safety (IFCS) and the International Programme on Chemical

Safety to initiate an assessment process regarding a list of 12 POPs. The IFCS Ad Hoc Working Group

on POPs concluded that sufficient information existed to demonstrate the need for international action to

minimize risks from the 12 POPs, including a global legally-binding instrument.394

In February 1997, the UNEP GC adopted Decision 19/13C 395 endorsing the conclusions and

recommendations of the IFCS. The GC requested that UNEP, together with relevant international

organizations, convene an intergovernmental negotiating committee (INC) with a mandate to develop, by

the end of 2000, an international legally-binding instrument for implementing international action,

beginning with the list of 12 POPs. In May 1997, the WHA endorsed the recommendations of the IFCS

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Negotiation of the POPs Convention

The Intergovernmental Negotiating Committee met five times between June 1998 and December 2000 to

elaborate the convention. The Conference of the Plenipotentiaries convened from 22-23 May 2001, in

Stockholm, Sweden, where delegates adopted: the Stockholm Convention. The Stockholm Convention as

adopted in 2001 calls for international action on 12 POPs grouped into three categories:

1) Pesticides: aldrin, chlordane, DDT, dieldrin, endrin, heptachlor, mirex and toxaphene; 396

2) Industrial chemicals: hexachlorobenzene (HCB) and polychlorinated biphenyls (PCBs)397; and

3) Unintentionally produced POPs: dioxins and furans398.

The POPs Convention

The objective of the Treaty is to protect human health and the environment from the effects of persistent

organic pollutants (POPs)399. The Treaty sets out a range of control measures to reduce and, where

feasible, eliminate releases of POPs into the environment, including emissions of by-product POPs. The

Treaty also aims to ensure the sound management of stockpiles and wastes that contain POPs. The Treaty

initially covers control measures on 12 POPs, listed in Annexes A, B and C. Under Article 8, further

chemicals may be added to the Treaty.

Obligations relating to intentionally produced and used POPs

Article 3 of the Treaty contains obligations relating to restriction and elimination of Annex A and B

chemicals. Parties are required to eliminate or, in certain cases, reduce or restrict production, use, and

trade of chemicals included in Annexes A and B, subject to certain exemptions and specific obligations

relating to individual chemicals.

The exemptions that may relate to intentionally produced and used POPs specified in the Treaty include:

• chemicals to be used for laboratory-scale research or as a reference standard (Article 3(5));

• chemicals occurring as unintentional trace contaminants in products and articles;

• (Annex A); chemicals occurring as constituents of articles manufactured or already in use

before or on the date of entry into force of the Treaty, provided the Party has notified the

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Secretariat that a particular type of article remains in use. Such notification will be publicly

available. Obligations still apply to these articles on becoming waste (Annex A);

• closed system site-limited intermediate chemicals - these are not end products, but are

chemically transformed in the manufacture of other chemicals that do not exhibit POPs

characteristics and no significant quantity of the chemical is expected to reach humans and the

environment during production and use (currently only applies to HCB and DDT) (Annexes A

and B); and

• Chemicals used and/or produced that are registered as specific exemptions for a Party under

the Treaty (Article 3(6) and Article 4). These are subject to a review process within five years

after entry into force of the Treaty.

Under Article 3(2) (b) (iii), export from a Party to a non-Party may occur, subject to certain conditions,

including specification by the non-Party of the proposed use of the chemical concerned and provision of

specified information, including information on measures to minimize POPs releases400.

Parties will be required to take into account POPs characteristics (persistence, bioaccumulation, potential

for long-range environmental transport, adverse effects to human health or the environment) when

carrying out assessment of new and existing chemicals, so as to prevent the production and use of new

pesticides or industrial chemicals, or the continuing use of chemicals, that exhibit these characteristics

(Article 3, paragraphs 3, 4)401.

Obligations to control unintentionally produced or by-product POPs

The POPs Convention also contains obligations relating to by-product POPs402. Annex C chemicals are

hexachlorobenzene, polychlorinated biphenyls, dioxins and furans. The goal is to reduce the total releases

of unintentionally produced by-product POPs from anthropogenic sources to achieve “continuing

minimization and, where feasible, ultimate elimination”403.

Parties will be required to:

• develop a National Action Plan on unintended production of POPs within two years of entry into

force of the Treaty and subsequently implement the plan (which will evaluate current and

projected releases; evaluate efficacy of laws and policies to manage such releases; develop

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strategies; promote education and training with regard to awareness of these strategies; and

review its own success and report to the Conference of the Parties)404;

• promote measures to reduce releases and eliminate sources, including developing substitute or

modified materials, products and processes; and promoting and, in accordance with the

implementation schedule of their action plans, requiring use of best available techniques and best

environmental practices as defined under the Treaty405.

Obligations relating to POPs in stockpiles and wastes

Article 6 of the POPs Convention contains obligations relating to stockpiles and wastes. The goal is to

ensure sound management of stockpiles and wastes, and products and articles upon becoming waste that

consist of, contain, or are contaminated by POPs.

Parties are obligated to:

i) identify and manage stockpiles and wastes containing POPs406;

ii) take measures to handle, collect, transport and store wastes in an environmentally sound

manner407;

iii) dispose of wastes in a way that destroys their POPs content, or otherwise in an environmentally

sound manner taking into account international rules, standards and guidelines; 408and

iv) endeavour to develop appropriate strategies for identifying sites contaminated by POPs409.

Obligations relating to chemicals added to the Treaty

The Treaty also includes provisions for further chemicals with similar toxic, persistent and bio

accumulative properties to be added to Annexes A, B or C. 410 The process has three stages:

(i) nomination by any Party;411

(ii) a science-based assessment; 412and

(iii) a decision by the Conference of the Parties.413

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When considering nominated chemicals (and possible control measures), the Conference of the Parties

will attempt to make decisions by consensus, and if this fails by a three-quarter majority. After a decision

by the Conference of the Parties that a chemical should be added to the Treaty, individual Parties then

have the right to decide if and when they take on the obligations associated with an additional

chemical414.

The Treaty contains two ways for Parties to make this decision. The first gives Parties a certain amount of

time to provide a notification that they will not take on the obligations associated with an additional

chemical and if no notification is provided then the Party is deemed to have accepted the obligation.415

The other way requires a Party to make a declaration in its instrument of ratification that any amendment

to add a new chemical would apply to it only if it separately ratifies, accepts, approves or accedes to the

amendment.416 This option allows for a Party to affirmatively decide that it will take on the obligations

associated with an additional chemical.

Obligations relating to dispute settlement

Under Article 18, Parties have the option of making a declaration in relation to their preferred method of

dispute settlement under the Treaty. A Party may declare it accepts either arbitration in accordance with

procedures to be adopted by the Conference of the Parties to the Treaty, or adjudication by the

International Court of Justice, or both. The effect would be to make one or the other compulsory in the

event that the other Party has accepted the same obligation.

TABLE 19: LIST OF DUTIES AND OBLIGATIONS UNDER THE STOCKHOLM CONVENTION ON

PERSISTENT ORGANIC POLLUTANTS

FIJI’S OBLIGATIONS UNDER THE POPS CONVENTION SRL. ARTICLES OBLIGATIONS

Measures to eliminate releases from intentional use and production 1. Article 3(1)(a)&(b) Each Party shall:

(a) Prohibit and/or take the legal and administrative measures necessary to eliminate: (i) Its production and use of the chemicals listed in Annex A subject to the provisions of that Annex; and (ii) Its import and export of the chemicals listed in Annex A in accordance with the provisions of paragraph 2; and (b) Restrict its production and use of the chemicals listed in Annex B in accordance with the provisions of that Annex.

2. Article 3(2) 2. Each Party shall take measures to ensure: (a) That a chemical listed in Annex A or Annex B is imported only: (i) For the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6; or

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(ii) For a use or purpose which is permitted for that Party under Annex A or Annex B; (b) That a chemical listed in Annex A for which any production or use specific exemption is in effect or a chemical listed in Annex B for which any production or use specific exemption or acceptable purpose is in effect, taking into account any relevant provisions in existing international prior informed consent instruments, is exported only: (i) For the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6; (ii) To a Party which is permitted to use that chemical under Annex A or Annex B; or (iii) To a State not Party to this Convention which has provided an annual certification to the exporting Party. Such certification shall specify the intended use of the chemical and include a statement that, with respect to that chemical, the importing State is committed to: a. Protect human health and the environment by taking the necessary measures to minimize or prevent releases; b. Comply with the provisions of paragraph 1 of Article 6; and c. Comply, where appropriate, with the provisions of paragraph 2 of Part II of Annex B. The certification shall also include any appropriate supporting documentation, such as legislation, regulatory instruments, or administrative or policy guidelines. The exporting Party shall transmit the certification to the Secretariat within sixty days of receipt. (c) That a chemical listed in Annex A, for which production and use specific exemptions are no longer in effect for any Party, is not exported from it except for the purpose of environmentally sound disposal as set forth in paragraph 1 (d) of Article 6;

3. Article 3(3) 3. Each Party that has one or more regulatory and assessment schemes for new pesticides or new industrial chemicals shall take measures to regulate with the aim of preventing the production and use of new pesticides or new industrial chemicals which, taking into consideration the criteria in paragraph 1 of Annex D, exhibit the characteristics of persistent organic pollutants.

4. Article 3(4) 4. Each Party that has one or more regulatory and assessment schemes for pesticides or industrial chemicals shall, where appropriate, take into consideration within these schemes the criteria in paragraph 1 of Annex D when conducting assessments of pesticides or industrial chemicals currently in use.

5. Article 3(6) 6. Any Party that has a specific exemption in accordance with Annex A or a specific exemption or an acceptable purpose in accordance with Annex B shall take appropriate measures to ensure that any production or use under such exemption or purpose is carried out in a manner that prevents or minimizes human exposure and release into the environment. For exempted uses or acceptable purposes that involve intentional release into the environment under conditions of normal use, such release shall be to the minimum extent necessary, taking into account any applicable standards and guidelines.

Register of specific exemption 6. Article 4(3) 3. Any State may, on becoming a Party, by means of a notification in writing to the

Secretariat, register for one or more types of specific exemptions listed in Annex A or Annex B.

7. Article 4(8) 8. A Party may, at any time, withdraws an entry from the Register for a specific exemption upon written notification to the Secretariat. The withdrawal shall take effect on the date specified in the notification.

Measures to reduce or eliminate releases from unintentional production 8. Article 5(a) Each Party shall at a minimum take the following measures to reduce the total releases

derived from anthropogenic sources of each of the chemicals listed in Annex C, with the goal of their continuing minimization and, where feasible, ultimate elimination:

(a) Develop an action plan or, where appropriate, a regional or sub-regional action plan within two years of the date of entry into force of this Convention for it, and subsequently implement it as part of its implementation plan specified in Article 7, designed to identify, characterize and address the release of the chemicals listed in Annex C and to facilitate implementation of subparagraphs (b) to (e). The action plan shall include the following elements:

(i) An evaluation of current and projected releases, including the development and maintenance of source inventories and release estimates, taking into consideration the source categories identified in Annex C;

(ii) An evaluation of the efficacy of the laws and policies of the Party relating to the management of such releases;

(iii) Strategies to meet the obligations of this paragraph, taking into account the evaluations in (i) and (ii); (iv) Steps to promote education and training with regard to, and

awareness of, those strategies;

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(v) A review every five years of those strategies and of their success in meeting the obligations of this paragraph; such reviews shall be included in reports submitted pursuant to Article 15;

A schedule for implementation of the action plan, including for the strategies and measures identified therein;

9. Article5(b) (b) Promote the application of available, feasible and practical measures that can expeditiously achieve a realistic and meaningful level of release reduction or source elimination;

10. Article 5(c) (c) Promote the development and, where it deems appropriate, require the use of substitute or modified materials, products and processes to prevent the formation and release of the chemicals listed in Annex C, taking into consideration the general guidance on prevention and release reduction measures in Annex C and guidelines to be adopted by decision of the Conference of the Parties;

11. Article 5(d) (d) Promote and, in accordance with the implementation schedule of its action plan, require the use of best available techniques for new sources within source categories which a Party has identified as warranting such action in its action plan, with a particular initial focus on source categories identified in Part II of Annex C. In any case, the requirement to use best available techniques for new sources in the categories listed in Part II of that Annex shall be phased in as soon as practicable but no later than four years after the entry into force of the Convention for that Party. For the identified categories, Parties shall promote the use of best environmental practices. When applying best available techniques and best environmental practices, Parties should take into consideration the general guidance on prevention and release reduction measures in that Annex and guidelines on best available techniques and best environmental practices to be adopted by decision of the Conference of the Parties;

12. Article 5(e) (e) Promote, in accordance with its action plan, the use of best available techniques and best environmental practices: (i) For existing sources, within the source categories listed in Part II of Annex C and within source categories such as those in Part III of that Annex; and (ii) For new sources, within source categories such as those listed in Part III of Annex C which a Party has not addressed under subparagraph (d). When applying best available techniques and best environmental practices, Parties should take into consideration the general guidance on prevention and release reduction measures in Annex C and guidelines on best available techniques and best environmental practices to be adopted by decision of the Conference of the Parties;

Measures to reduce or eliminate releases from stockpiles and wastes 13. Article 6(1)(a) 1. In order to ensure that stockpiles consisting of or containing chemicals listed either in

Annex A or Annex B and wastes, including products and articles upon becoming wastes, consisting of, containing or contaminated with a chemical listed in Annex A, B or C, are managed in a manner protective of human health and the environment, each Party shall: (a) Develop appropriate strategies for identifying: (i) Stockpiles consisting of or containing chemicals listed either in Annex A or Annex B; and (ii) Products and articles in use and wastes consisting of, containing or contaminated with a chemical listed in Annex A, B or C;

14. Article 6(b) (b) Identify, to the extent practicable, stockpiles consisting of or containing chemicals listed either in Annex A or Annex B on the basis of the strategies referred to in subparagraph (a);

15. Article 6(c) (c) Manage stockpiles, as appropriate, in a safe, efficient and environmentally sound manner. Stockpiles of chemicals listed either in Annex A or Annex B, after they are no longer allowed to be used according to any specific exemption specified in Annex A or any specific exemption or acceptable purpose specified in Annex B, except stockpiles which are allowed to be exported according to paragraph 2 of Article 3, shall be deemed to be waste and shall be managed in accordance with subparagraph (d);

16. Article 6(d) (d) Take appropriate measures so that such wastes, including products and articles upon becoming wastes, are:

(i) Handled, collected, transported and stored in an environmentally sound manner;

(ii) Disposed of in such a way that the persistent organic pollutant content is destroyed or irreversibly transformed so that they do not exhibit the characteristics of persistent organic pollutants or otherwise disposed of in an environmentally sound manner when destruction or irreversible transformation does not represent the environmentally preferable option or the persistent organic pollutant content is low, taking into account international rules, standards, and guidelines, including those that may be developed pursuant to paragraph 2, and relevant global and regional regimes governing the

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management of hazardous wastes; (iii) Not permitted to be subjected to disposal operations that may lead to

recovery, recycling, reclamation, direct reuse or alternative uses of persistent organic pollutants; and

(iv) Not transported across international boundaries without taking into account relevant international rules, standards and guidelines;

17. Article 6(e) (e) Endeavour to develop appropriate strategies for identifying sites contaminated by chemicals listed in Annex A, B or C; if remediation of those sites is undertaken it shall be performed in an environmentally sound manner.

Implementation plans 18. Article 7(1)(a)-(c) 1. Each Party shall:

(a) Develop and endeavor to implement a plan for the implementation of its obligations under this Convention; (b) Transmit its implementation plan to the Conference of the Parties within two years of the date on which this Convention enters into force for it; and (c) Review and update, as appropriate, its implementation plan on a periodic basis and in a manner to be specified by a decision of the Conference of the Parties.

Listing of chemicals in Annexes A, B and C 19. Article 8(1) 1. A Party may submit a proposal to the Secretariat for listing a chemical in Annexes A, B

and/or C. The proposal shall contain the information specified in Annex D. In developing a proposal, a Party may be assisted by other Parties and/or by the Secretariat.

Information exchange 20. Article 9(1)(a) &(b) 1. Each Party shall facilitate or undertake the exchange of information relevant to:

(a) The reduction or elimination of the production, use and release of persistent organic pollutants; and (b) Alternatives to persistent organic pollutants, including information relating to their risks as well as to their economic and social costs.

21. Article 9(2) 2. The Parties shall exchange the information referred to in paragraph 1 directly or through the Secretariat.

22. Article 9(3) 3. Each Party shall designate a national focal point for the exchange of such information. Public information, awareness and education

23. Article 10(1)(a)-(g) 1. Each Party shall, within its capabilities, promote and facilitate: (a) Awareness among its policy and decision makers with regard to persistent organic pollutants; (b) Provision to the public of all available information on persistent organic pollutants, taking into account paragraph 5 of Article 9; (c) Development and implementation, especially for women, children and the least educated, of educational and public awareness programmes on persistent organic pollutants, as well as on their health and environmental effects and on their alternatives; (d) Public participation in addressing persistent organic pollutants and their health and environmental effects and in developing adequate responses, including opportunities for providing input at the national level regarding implementation of this Convention; (e) Training of workers, scientists, educators and technical and managerial personnel; (f) Development and exchange of educational and public awareness materials at the national and international levels; and (g) Development and implementation of education and training programmes at the national and international levels.

24. Article 10(2) 2. Each Party shall, within its capabilities, ensure that the public has access to the public information referred to in paragraph 1 and that the information is kept up-to-date.

25. Article 10(3) 3. Each Party shall, within its capabilities, encourage industry and professional users to promote and facilitate the provision of the information referred to in paragraph 1 at the national level and, as appropriate, sub-regional, regional and global levels.

26. Article 10(5) 5. Each Party shall give sympathetic consideration to developing mechanisms, such as pollutant release and transfer registers, for the collection and dissemination of information on estimates of the annual quantities of the chemicals listed in Annex A, B or C that are released or disposed of.

Research, Development and Monitoring 27. Article 11(1)(a)-(g) 1. The Parties shall, within their capabilities, at the national and international levels,

encourage and/or undertake appropriate research, development, monitoring and cooperation

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pertaining to persistent organic pollutants and, where relevant, to their alternatives and to candidate persistent organic pollutants, including on their: (a) Sources and releases into the environment; (b) Presence, levels and trends in humans and the environment; (c) Environmental transport, fate and transformation; (d) Effects on human health and the environment; (e) Socio-economic and cultural impacts; (f) Release reduction and/or elimination; and (g) Harmonized methodologies for making inventories of generating sources and analytical techniques for the measurement of releases.

28. Article 11(2)(a)-(f) 2. In undertaking action under paragraph 1, the Parties shall, within their capabilities: (a) Support and further develop, as appropriate, international programmes, networks and organizations aimed at defining, conducting, assessing and financing research, data collection and monitoring, taking into account the need to minimize duplication of effort; (b) Support national and international efforts to strengthen national scientific and technical research capabilities, particularly in developing countries and countries with economies in transition, and to promote access to, and the exchange of, data and analyses; (c) Take into account the concerns and needs, particularly in the field of financial and technical resources, of developing countries and countries with economies in transition and cooperate in improving their capability to participate in the efforts referred to in subparagraphs (a) and (b); (d) Undertake research work geared towards alleviating the effects of persistent organic pollutants on reproductive health; (e) Make the results of their research, development and monitoring activities referred to in this paragraph accessible to the public on a timely and regular basis; and (f) Encourage and/or undertake cooperation with regard to storage and maintenance of information generated from research, development and monitoring.

Technical Assistance 29. Article 12(2) 2. The Parties shall cooperate to provide timely and appropriate technical assistance to

developing country Parties and Parties with economies in transition, to assist them, taking into account their particular needs, to develop and strengthen their capacity to implement their obligations under this Convention.

30. Article 12(4) 4. The Parties shall establish, as appropriate, arrangements for the purpose of providing technical assistance and promoting the transfer of technology to developing country Parties and Parties with economies in transition relating to the implementation of this Convention. These arrangements shall include regional and sub-regional centers for capacity-building and transfer of technology to assist developing country Parties and Parties with economies in transition to fulfill their obligations under this Convention. Further guidance in this regard shall be provided by the Conference of the Parties.

31. Article 12(5) 5. The Parties shall, in the context of this Article, take full account of the specific needs and special situation of least developed countries and small island developing states in their actions with regard to technical assistance.

Financial resources and mechanisms 32. Article 13(1) 1. Each Party undertakes to provide, within its capabilities, financial support and incentives

in respect of those national activities that are intended to achieve the objective of this Convention in accordance with its national plans, priorities and programmes.

33. Article 13(5) 5. The Parties shall take full account of the specific needs and special situation of the least developed countries and the small island developing states in their actions with regard to funding.

34. Article 13(7)(a)-(e) 7. Pursuant to the objectives of this Convention and paragraph 6, the Conference of the Parties shall at its first meeting adopt appropriate guidance to be provided to the mechanism and shall agree with the entity or entities participating in the financial mechanism upon arrangements to give effect thereto. The guidance shall address, inter alia: (a) The determination of the policy, strategy and programme priorities, as well as clear and detailed criteria and guidelines regarding eligibility for access to and utilization of financial resources including monitoring and evaluation on a regular basis of such utilization; (b) The provision by the entity or entities of regular reports to the Conference of the Parties on adequacy and sustainability of funding for activities relevant to the implementation of this Convention; (c) The promotion of multiple-source funding approaches, mechanisms and arrangements; (d) The modalities for the determination in a predictable and identifiable manner of the amount of funding necessary and available for the implementation of this Convention, keeping in mind that the phasing out of persistent organic pollutants might require sustained funding, and the conditions under which that amount shall be periodically reviewed; and

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(e) The modalities for the provision to interested Parties of assistance with needs assessment, information on available sources of funds and on funding patterns in order to facilitate coordination among them.

Reporting 35. Article 15(1) 1. Each Party shall report to the Conference of the Parties on the measures it has taken to

implement the provisions of this Convention and on the effectiveness of such measures in meeting the objectives of the Convention.

36. Article 15(2)(a)&(b) 2. Each Party shall provide to the Secretariat: (a) Statistical data on its total quantities of production, import and export of each of the chemicals listed in Annex A and Annex B or a reasonable estimate of such data; and (b) To the extent practicable, a list of the States from which it has imported each such substance and the States to which it has exported each such substance.

Settlement of Disputes 37. Article 18(1) 1. Parties shall settle any dispute between them concerning the interpretation or application

of this Convention through negotiation or other peaceful means of their own choice. Amendment to the Convention

38. Article 21(3) 3. The Parties shall make every effort to reach agreement on any proposed amendment to this Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting.

The Right to Vote 39. Article 23(1) 1. Each Party to this Convention shall have one vote, except as provided for in paragraph 2.


The POPs Convention and Fiji

History shows that Fiji was the second country in the world to have ratified the POPS Convention417. The

Convention was entered into force on 17 May, 2004.418 Whilst it is encouraging to note historical

information about Fiji becoming part of the growing reservoir of international environmental

arrangements, it is also important, in fact, it is more crucially important that Fiji plays it part in

implementing the obligations contained in those agreements. Below is an assessment of Fiji’s

Implementation of the POPs Convention.

Implementation

The Convention requires Fiji to inter alia develop strategies, measures, and action plans to address

specific issues, namely:

(i) Intentional production and use of POPs (Article 3 and 4, Annexes A and B);

(ii) Unintentional production of POPs (Article 5 and Annex C Parts I, II and III);

(iii) Stockpiles and wastes (Article 6); and

(iv) Measures related to information exchange (Article 9), public information, awareness and

education (Article 10), research, development and monitoring (Articles 11) and reporting (Article

15).

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Article 7 of the Convention also required Fiji to:

i) Develop and attempt to implement a plan for the implementation of its obligations under this

Convention

ii) Transmit its implementation plan to the Conference of the Parties within two years of the date on

which this Convention enters into force for it: and

iii) Review and update, as appropriate, its implementation plan on a periodic basis and in a manner

to be specified by a decision of the Conference of the Parties.

a. The POPs National Implementation Plan 2005

In June 2005, with financial assistance from the Global Environment Facility (GEF)419, with the United

Nations Environment Programme (UNDP) as Implementing Agency and guided by a National

Coordinating Committee, which included representation from central government, non-governmental

organizations, education and research institutions, and the private sector, Fiji prepared and developed its

National Implementation Plan for the POPs Convention.

The National Implementation Plan was based around a number of specific action plans with goals and

objectives of each action plan reflecting generally the requirements of the POPs Convention, but was also

intended to address the specific issues identified as being most relevant for Fiji.

The Plan summarized the following to be the key issues relating to POPs chemicals and implementation

of the Convention in Fiji420:

“POPs Pesticides There is no evidence of any current trade by Fiji in POPs chemicals. The POPs pesticides BHC, chlordane, dieldrin and DDT were previously approved for use in Fiji but these registrations were withdrawn some years ago, and the pesticides were formally banned in 1995. None of the other five POPs pesticides have ever been registered for use in Fiji, although they are not formally banned. Recent surveys of pesticide users, along with a limited amount of evidence of environmental contamination, indicate a need for much better monitoring and enforcement of the current controls over POPs and other pesticides. This would include capacity building for the Customs agency, for better enforcement of import restrictions and detection of illegal imports. PCBs

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As with most other countries, PCBs were used in the past in Fiji, especially as transformer oils. However, there is no “hard” data available on the extent of this use. It is believed that most PCBs in transformer oils were removed from Fiji some years ago, although there is no documentation available to confirm that this was the case. Recent field testing on a limited number of transformers showed no evidence of PCB contamination. A survey of Fiji trade statistics showed recent significant imports of waste oil containing PCBs, which indicates a significant short coming in border control, because imports of PCBs have been banned under the Health and Safety Act. No specific regulatory actions have been taken in Fiji for the removal and disposal of old electrical equipment containing PCBs, such as the capacitors used in fluorescent lighting ballasts. PCBs have been detected in samples of marine sediments, and low but measurable quantities of PCBs were reported in a 2002 analysis of breast milk samples. Unintentional POPs (Dioxins and Furans) An initial estimate of dioxin and furan releases for Fiji has been prepared using the Standardized Toolkit, which was developed by UNEP Chemicals. The major releases of dioxins and furans to air are believed to be from waste incineration (including medical wastes), power generation and the burning of wood for cooking. Domestic rubbish burning and scrub clearing may also be significant contributors, while landfills may be a significant reservoir source. However, given the limitations of the toolkit, these conclusions may need to be confirmed through additional studies. There are currently no specific regulatory controls on the release of dioxins and furans in Fiji, although the potential now exists for these controls to be introduced under the new Environment Management Act. This also allows for the licensing of specific industrial sources, and the development of environmental standards. Stockpiles and Contaminated Sites There are significant stockpiles of obsolete and unwanted chemicals in Fiji, including a small amount of POPs. Most of the stockpiles are being stored under relatively unsafe conditions, awaiting action on disposal. Some of the stockpiles, mainly obsolete pesticides, will be exported to Australia by mid-2005, for disposal under an AusAID/SPREP project. The University of the South Pacific has also taken action on the disposal of some of its stocks of obsolete chemicals, by shipping to a facility in New Zealand. However, there are no other initiatives currently in place to address the remaining wastes. There is believed to be a significant issue in Fiji with contaminated sites, although the extent of the problem has not yet been determined. There are a number of sites around the country where pesticides were disposed by burial. However, there are no accurate records available on the quantities and types of pesticides involved. It is essential that these sites be identified, investigated and the appropriate remedial action taken. Public Awareness, Information and Education The Environment, Health, Education and Labour Ministries all have well-established roles in education and awareness activities relevant to their particular mandates, and this includes activities directed at POPs chemicals. The Department of Environment has been especially active in raising awareness in the chemicals area over the last 2 years, in support of the POPs Enabling Activity project. These were based on a survey of chemical awareness in Fiji which showed that there are significant concerns about practices for chemical storage, handling and use, both at work and in homes. There is also clear evidence of the need for improving the current knowledge and understanding of personnel in these key agencies. Research, Development and Monitoring

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The technical infrastructure for POPs monitoring and research in Fiji is very limited. The only laboratory with capabilities in this area is the Institute of Applied Science at the University of the South Pacific, and these are currently restricted to the monitoring and analysis of POPs pesticides and PCBs.”

The Annex to the Plan lists in detail all Actions to be undertaken in respect to obligations specified in the

POPs Convention as follows:421

i) Action Plan to address Annex A, Part I, POPs and other pesticides (Article 3);

ii) Action Plan to address Annex A, Part II, POPs (PCBs, Article 3);

iii) Action Plan to address Unintentional Releases of POPs (Dioxins and Furans, Article 5);

iv) Action Plan for Chemical Stockpiles and Contaminated Sites (Article 6);

v) Action Plan for Public Awareness, Information and Education (Articles 9 and 10); and

vi) Action Plan for Research, Development and Monitoring (Article 11).

Reporting

Official record currently available on State Parties Reports pursuant to the POPs Convention reveals that

Fiji has yet to submit its Report to the Secretariat422. This includes both the first and second rounds of

reporting periods. The POPs Convention website also does not carry any record of submission by Fiji of

its National Plan of Implementation as required under Article 7.

National reports should be submitted every four years. The first submission deadline was on 31 December

2006; the second was due on 31 December 2010423. To simplify the reporting process, an electronic

system has been developed. Parties receive access codes to allow two officials to enter national data

online. Only the Official Contact Point registered under the Stockholm Convention is entitled to certify

and officially submit the report. Submissions can also be made in hard copy; the Secretariat would then

enter the data so that information is available on internet424.

The importance of national reports has been emphasized as one of the reference documents of the

effectiveness evaluation together with: reports on monitoring of environmental levels gathered through

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the global monitoring plan; and noncompliance information provided pursuant to Article 17. Fiji has yet

to make good on these obligations.


To ensure safe and proper regulations of chemicals, POPs, or any other substance for that matter, that

poses danger to human health or on the environment, national laws ought to be devised to give legislative

and regulatory safeguards. Some of Fiji’s Legislations applicable to POPs are as follows:

a. The Pesticides Act 1971

This Act covers the regulation and sale of pesticides. No pesticide may be offered for sale or

use within Fiji unless it is first registered with the Registrar of Pesticides. The requirements

for the types of data to be submitted in support of registration, and labeling specifications are

covered in the accompanying Regulations.

The Pesticide Act is an old piece legislation and some of its shortcomings include the vesting

of authority in a single person (the Registrar), the lack of an Inspectorate, outdated labeling

requirements, and no requirements for product quality testing. Also, the provisions for

penalties under the Act are now quite trivial, with a maximum fine of $200, and an additional

sum of $10 per day for a continuing offence.

The registration of specific pesticides can be cancelled by the Registrar under s7 of the Act,

and this has been done for a variety of substances, including most of the POPs pesticides.

These chemicals can also be prohibited by a Regulation passed under s11, and this was done

for most of the de-registered pesticides in 1995425.

The following agricultural chemicals have been banned from use in Fiji by regulation under

the Pesticides Act:

2,4,5-T Arsenic pentoxide BHC Captafol Captan Chlordane DDT Deet (N, N-diethyl-m-toluamide) Dichlorvos Dieldrin Lindane (HCH) Pentachlorophenol PMA (phenylmercury acetate) Sodium chlorate

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b. Health and Safety at Work Act 1996 (OHS Act)

This Act provides for the protection of the health and safety of workers and others affected by

work. It specifies the duties of employers, employees, manufacturers, importers, suppliers

and installers. Implementation of the Act is guided by a National Occupational Health and

Safety Advisory Board (NOHSAB) which has a tripartite composition, made up of

Government, Employee and Worker (Union) representatives.

One of the most relevant provisions under this Act is a system for the assessment and control

of chemicals. A Fiji Chemical Inventory is specified under s53 of the Act and the operation

and management of the chemical inventory has been set out in the Health and Safety at Work

(Control of Hazardous Substance) Regulations 2004.

Other matters covered by the Regulations include the classification of hazardous substances,

the provision of Material Safety Data Sheets (MSDS), and workplace monitoring and

surveillance. Any new chemicals are subject to the preparation of an Assessment Report, the

specifications for which include information on health, safety and environmental effects,

packaging, storage, handling and use controls, emergency measures, and methods for

disposal. Existing chemicals may also require an Assessment Report, if they are deemed to be

a Priority Chemical under s.54 of the Act.

The importation of all POPs pesticides and PCBs was banned in 2003 by a regulation under

the OHS Act426, although this ban only applies to imports of chemicals intended for use in a

workplace.

c. The Environment Management Act 2005

In 2005, the Fiji Government enacted Environmental Management Act which establishes a

broad framework for the protection of natural resources in Fiji, for the control and

management of developments, and for waste management and pollution control.

Implementation of the Act is guided by a National Environment Council, which includes

representation from all relevant Ministries and other government agencies, the Native Land

Trust Board; the Fiji Islands Trade and Investment Bureau; the Local Government

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Association; and representatives of NGOs, the general business community, manufacturing

industries, and the academic community.

The Act establishes a formal process of environmental impact assessment (EIA) for any

development proposals considered to have the potential for significant environmental or

resource management impacts. A system of permits is also proposed and these will be

required for any facilities involved in the handling, storage or use of hazardous substances;

and the production and/or discharge of any waste, pollutant or hazardous substance. There is

also provision for the development of a National Chemical Management Infrastructure for

Fiji, which is to be based on the recommendations of the National Chemical Profile.

A variety of enforcement measures are also set out in the Act, including the specific powers

of Officers to take samples and other evidence and to issue enforcement or cessation notices.

The penalties for non-compliance with the Act range up to $100,000 and/or a 5-year prison

sentence for individuals, and up to 10 times those limits for a body corporate. There is also

provision for the setting of environmental standards, which could include limits for chemical

contaminants in air, water and soil.

TABLE 20: SUMMARY OF KEY LEGISLATION RELATING TO PROTECTION OF HUMAN HEALTH

AND ENVIRONMENT, AND THE SOUND MANAGEMENT OF CHEMICALS

Legal Instrument Responsible Agency427

Objectives of Legislation

1. Customs Act 1986 Customs (FICRA) Control of imports and exports and the collection of duties

2. Environment Management

Act 2005

Environment (MLGHSSE)

Protection of natural resources, control of developments and pollution control

3. Explosives Act Minerals (MLMR) Management and use of explosives

4. Food Safety Bill 2003 Health (MoH) To ensure the safety of food

5. Forest Decree 1992 Forests (MFF) Approval, handling & use of timber preservatives

6. Health and Safety at Work

Act 1996

Labour (MLIRP) The protection of workers and others affected by work

7. Land Transport Act 1998 Transport (MTCA, LTA)

To control the transport of Dangerous Goods

8. Mining Act 1986 Minerals (MLMR) Control of mining and exploration activities

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9. Ozone Depleting Substance Act 1998

Environment (MLGHSSE)

Controls on the import, export and use of ozone depleting substances

10. Pesticides Act 1971 Agriculture (MASLR)

To regulate the registration and sale of pesticides

11. Petroleum Act Minerals (MLMR) Controls on quality and composition of petroleum products

12. Pharmacy and Poisons Act 1985

Health (MoH) Control the practice of pharmacy, sale and distribution of drugs and poisons

13. Public Health Act 1937 Health (MoH) Protection of the public health

Source: “National Plan for Implementation of the Stockholm Convention on Persistent Organic

Pollutants in Fiji Islands” Draft: June 2005

Challenges428

i) Monitoring and enforcement

The draft Fiji National Plan for Implementation of the POPs Convention concludes that t here is a

need for much better monitoring and enforcement of the current controls over POPs and other

pesticides. This also includes capacity building for the Customs agency, for better enforcement of

import restrictions and detection of illegal imports429.

ii) Data Collection

As with most other countries, PCBs were used in the past in Fiji, especially as transformer oils.

However, there is no “hard” data available on the extent of this use. Nor is there any information

available on other possible uses, although this would almost certainly have included their presence in

capacitors, and possibly lubricating and cutting oils

iii) Lack of Regulatory Control

No specific regulatory actions have been taken in Fiji for the removal and disposal of old electrical

equipment containing PCBs, such as the capacitors used in fluorescent lighting ballasts. There is no

data available on the extent of this possible source.

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iv) Institutional Strengthening

The main issue that Fiji needs to address in relation to Annex A, Part II chemicals is the development

of a system for the identification and environmentally sound management and disposal of capacitors

and other small items of electrical equipment potentially contaminated with PCBs. There is a need for

strengthening of the Customs agency to ensure that future imports of PCBs, if any, are identified and

stopped at the border. A system for export controls may also be required, given that any PCBs found

in the future may need to be exported for disposal.

v) Capacity

The Department of Environment has the necessary authority under the Environment Management

Act, to initiate work on identification and management of contaminated sites. However, it currently

lacks the necessary expertise and resources (technical and personnel) to undertake these activities.

vi) Lack of Proper facilities

The technical infrastructure for POPs management in Fiji is very limited. There are no specialized

facilities for the handling, storage and transportation of hazardous materials, and none for the

treatment and disposal of hazardous wastes. The only laboratory with the capability for POPs

monitoring and analysis (pesticides and PCBs) is the Institute of Applied Science at the

University of the South Pacific.

Analysis and Observation

By becoming a party to the POPs Convention, Fiji again has exhibited a willingness to cooperate with

other countries in an effort to protect human health and the environment from the effects of persistent

organic pollutants.

It is encouraging to note that Fiji is recorded as being the second to have ratified the Convention.

However, enthusiasm is dampened when it is revealed that to date, no official report has been

forthcoming from Fiji during the last two rounds of reporting (2006 and 2010).

Lesson learnt from the various narratives on Fiji’s implementation of the POPs Convention suggests that

in order for Fiji to faithfully undertake its responsibility, it needs to ensure that within the ambits of its

capability permitted by available resources, a steadfast, continuous and a consistent spirit of commitment,

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must continue to exist amongst the main players and important stakeholders within the Fiji Government.

Such consistent and continuous commitment, both financially, and through enhanced capacity of its

human resources, will ensure that Fiji persist in playing its role as envisaged under the convention. It is all

very well jumping into the bandwagon of multilateral arrangements, implementation, and consistency

defines the ride.

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3.4 Climate Change/Atmosphere – Related MEAs

Introduction

Section 3.4 examines Fiji’s implementation of the Climate Change and Atmosphere related MEAs.

Climate includes patterns of temperature, precipitation, humidity, wind and seasons. "Climate change"

affects more than just a change in the weather; it refers to seasonal changes over a long period of time.

These climate patterns play a fundamental role in shaping natural ecosystems, and the human economies

and cultures that depend on them. Because so many systems are tied to climate, a change in climate can

affect many related aspects of where and how people, plants and animals live, such as food production,

availability and use of water, and health risks430.

The MEAs to be considered includes:

i. Vienna Convention for the Protection of the Ozone Layer 1985

ii. Montreal Protocol on Substances that Deplete the Ozone Layer 1987

iii. United Nations Framework Convention on Climate Change 1992(UNFCCC)

iv. Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997 (Kyoto)

Vienna & Montreal – UNFCC & Kyoto

Given the identical nature of their purpose, the Author has decided, for brevity sake, to discuss Fiji’s

implementations the MEAs in this section under two combined separate clusters.. First there will be a

combined discussion on the “Ozone Instruments” i.e. the Vienna Convention and the Montreal Protocol,

and then there will a discussion on the “Climate Instruments”, the UNFCCC and the Kyoto Protocol. The

assessment of Fiji’s implementation will made at the end of each of the combine discussions.

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3.4.1 Vienna Convention for the Protection of the Ozone Layer 1985

Introduction – The Ozone Layer

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Among other planets of the solar system our very own Earth is unique in having an atmosphere suitable

for sustaining life. The atmosphere is composed of a mixture of gases within which the main constituents

are nitrogen (N2), oxygen (O2), argon (Ar), carbon dioxide (CO2), neon (Ne), hydrogen (H2) and ozone

(O3)431. Among these there are several that are vital to sustaining life. Oxygen constituting 20.93% of the

volume is the main gas among them432. Although present in very small amounts compared with oxygen, a

mere 0.000005%, ozone also is vital to make the planet habitable433.

Ozone occurs in the upper atmosphere as a layer located about 15-55 km above sea level434. The presence

of this gas in the lower atmosphere is insignificant. It is well-known fact that sunlight is needed for

sustaining life on Earth. Ozone is formed in the upper atmosphere when oxygen is bombarded by

ultraviolet rays in sunlight with shorter wavelength and energy than other components of the visible light.

Ozone, thus formed, stays as a layer above the earth and protects the Earth and all life on it by preventing

the entry of harmful radiation through this layer435.

This protective layer is being destroyed as a result of certain chemical compounds produced by man for

various industrial and other uses. Main products responsible for this destruction of the ozone layer include

chlorofluorocarbon (CFC), halon, methyl bromide, carbon tetrachloride and methyl chloroform436. These

gases do not pose a threat to the environment in the lower atmosphere, and as a result, are widely used by

diverse industries. However, once released into the atmosphere, these gases find their way into the upper

layers and react with ultraviolet to form highly reactive free radicals of bromine and chlorine. In turn,

these free radicals destroy ozone molecules, thereby, depleting the protective ozone layer, particularly

over the Polar Regions. The hole in the ozone layer above Antarctica is estimated to be around 2, 3000,

000 square miles.

Inability to prevent the penetration of ultraviolet rays of the sun by a depleted ozone layer causes a

multitude of health concerns and adverse effects on the environment. These include skin cancers,

cataracts, blindness, loss of immunity to diseases, abnormalities in the growth of plants, poor yields of �� >�� 0�6$9��97�(��3��47��;�@��*�)� � �,)�.�� >�D %%�#�� E�� )��)*��) �� )��)J*�� =��)>+�@��D��E��&47��8�(��7��&��B��9��79��=��89��$��9�� R��&��7��/� �2�� >��*�*��>�) ��")��) �� X�)��X�)�� "� ��)��

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crops, loss of biodiversity, poor yields fish due to destruction of plankton, mutation of genes, warming of

the earth, melting of the polar icecaps with the resultant rise in the sea level, crop loss due abnormal

rainfall patterns, protracted drought, etc. The end result of all this would be the inability of Mother Earth

to sustain life any longer.

The Convention

At its ninth session, the Governing Council of the United Nations Environment Programme (UNEP)

adopted decision 9/13B of 26 May 1981 by which, recognizing the desirability of initiating work aimed at

the elaboration of a global framework convention which would cover monitoring, scientific research and

the development of best available and economically feasible technologies to limit and gradually reduce

emissions of ozone-depleting substances, as well as the development of appropriate strategies and

policies, it decided to initiate work aimed at the elaboration of such a convention. The Governing Council

further decided to this end to establish an Ad Hoc Working Group of Legal and Technical Experts for the

Elaboration of a Global Framework Convention for the Protection of the Ozone Layer which should

report, through the Executive Director, to the Governing Council on the progress of its work437

On 13 January 1982, the Secretariat of the United Nations Environment Programme issued a paper for the

Ad Hoc Working Group (UNEP/WG.69/8) entitled “Some observations on the preparation of a global

framework convention for the protection of the stratospheric ozone layer.” The Ad Hoc Working Group,

which met in Stockholm from 20 to 28 January 1982, had before it the draft text of the global framework

convention. In its report, the Ad Hoc Working Group formulated recommendations for its future work,

which included preparations of a revised text of the draft convention based on the comments and

proposals made during its first meeting.438

The Ad Hoc Working Group met between 1982 and 1985 and issued several reports on its work

(UNEP/WG.69/10; UNEP/WG.78/8; UNEP/WG.78/13; UNEP/WG/94/3; UNEP/WG.94/5;

UNEP/WG.94/10; UNEP/WG.110/4; and UNEP/IG.53/4). At these sessions, the Ad Hoc Working Group

considered three revised texts of the draft convention (UNEP/WG.94/3; UNEP/WG.94/8;

UNEP/WG.94/11)439.

By Governing Council decision 12/14 of 28 May 1984, the Council requested its Executive Director to

convene another session of the Ad Hoc Working Group in order to complete work on the convention, and

to ensure that any report from the Working Group was brought to the attention of a diplomatic conference

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to be convened in 1985 for the finalization, adoption and signature of the convention. The final fifth draft

of the convention was subsequently submitted to the Conference of Plenipotentiaries on the Protection of

the Ozone Layer (see Report of the Ad Hoc Working Group, UNEP/IG.53/3) which was held at Vienna

from 18 to 22 March 1985.

The Convention for the Protection of the Ozone Layer was adopted by the Conference on the Protection

of the Ozone Layer and was opened for signature at Vienna on 22 March 1985 and remained open for

signature at the United Nations Headquarters in New York until 21 March 1986. The Convention entered

into force on 22 September 1988, in accordance with article 17440.

Obligations

Highlighted below are the general obligations under the Vienna Convention. The discussion of Fiji’s

implementation of the obligations in both the Vienna Convention and the Montreal Protocol will be made

following the general discussion of the Montreal Protocol.

TABLE 21: OBLIGATIONS UNDER THE VIENNA CONVENTION FOR THE PROTECTION OF THE

OZONE LAYER

Obligations under the Vienna Convention for the Protection of the Ozone Layer General Obligations

1. Article 2(1) 1. The Parties shall take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.

2. Article 2(2)(a) 2. To this end the Parties shall, in accordance with the means at their disposal and their capabilities: (a) Co-operate by means of systematic observations, research and information exchange in order to better understand and assess the effects of human activities on the ozone layer and the effects on human health and the environment from modification of the ozone layer;

3. Article 2(2)(b) (b) Adopt appropriate legislative or administrative measures and co-operate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer;

4. Article 2(2)(c) (c) Co-operate in the formulation of agreed measures, procedures and standards for the implementation of this Convention, with a view to the adoption of protocols and annexes;

5. Article 2(2)(d) (d) Co-operate with competent international bodies to implement effectively this Convention and protocols to which they are party.

Research and Systematic Observation 6. Article 3(1)(a)-

(g) 1. The Parties undertake, as appropriate, to initiate and co-operate in, directly or through competent international bodies, the conduct of research and scientific assessments on: (a) The physical and chemical processes that may affect the ozone layer; (b) The human health and other biological effects deriving from any modifications of the ozone layer, particularly those resulting from changes in ultra-violet solar radiation having biological effects (UV-B); (c) Climatic effects deriving from any modifications of the ozone layer; (d) Effects deriving from any modifications of the ozone layer and any consequent change in UV-B radiation on natural and synthetic materials useful to mankind;

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(e) Substances, practices, processes and activities that may affect the ozone layer, and their cumulative effects;

(f) Alternative substances and technologies;

(g) Related socio-economic matters; and as further elaborated in annexes I and II. 7. Article 3(2) 2. The Parties undertake to promote or establish, as appropriate, directly or through competent

international bodies and taking fully into account national legislation and relevant ongoing activities at both the national and international levels, joint or complementary programmes for systematic observation of the state of the ozone layer and other relevant parameters, as elaborated in annex I.

8. Article 3(3) 3. The Parties undertake to co-operate, directly or through competent international bodies, in ensuring the collection, validation and transmission of research and observational data through appropriate world data centers in a regular and timely fashion.

Co-operation in the Legal, Scientific and Technical Fields 9. Article 4(1) 1. The Parties shall facilitate and encourage the exchange of scientific, technical, socio-economic,

commercial and legal information relevant to this Convention as further elaborated in annex II. Such information shall be supplied to bodies agreed upon by the Parties. Any such body receiving information regarded as confidential by the supplying Party shall ensure that such information is not disclosed and shall aggregate it to protect its confidentiality before it is made available to all Parties.

10. Article 4(2)(a)-(d)

2. The Parties shall co-operate, consistent with their national laws, regulations and practices and taking into account in particular the needs of the developing countries, in promoting, directly or through competent international bodies, the development and transfer of technology and knowledge. Such co-operation shall be carried out particularly through: (a) Facilitation of the acquisition of alternative technologies by other Parties; (b) Provision of information on alternative technologies and equipment, and supply of special manuals or guides to them; (c) The supply of necessary equipment and facilities for research and systematic observations; (d) Appropriate training of scientific and technical personnel.

Transmission of Information 11. Article 5 The Parties shall transmit, through the secretariat, to the Conference of the Parties established

under article 6 information on the measures adopted by them in implementation of this Convention and of protocols to which they are party in such form and at such intervals as the meetings of the parties to the relevant instruments may determine.

Settlement of Disputes 12. Article 11(1) 1. In the event of a dispute between Parties concerning the interpretation or application of this

Convention, the parties concerned shall seek solution by negotiation. 13. Article 11(2) 2. If the parties concerned cannot reach agreement by negotiation, they may jointly seek the good

offices of, or request mediation by, a third party. 14. Article 11(3) 3. When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a

State or regional economic integration organization may declare in writing to the Depositary that for a dispute not resolved in accordance with paragraph 1 or paragraph 2 above, it accepts one or both of the following means of dispute settlement as compulsory: (a) Arbitration in accordance with procedures to be adopted by the Conference of the Parties at its first ordinary meeting; (b) Submission of the dispute to the International Court of Justice.

Right to Vote 15 Article15(1) 1. Each Party to this Convention or to any protocol shall have one vote.

Research and Systematic Observation (ANNEX 1) 16. Annex.1 Para 3 3. The Parties to the Convention shall co-operate, taking into account the particular needs of the

developing countries, in promoting the appropriate scientific and technical training required to participate in the research and systematic observations outlined in this annex. Particular emphasis should be given to the inter calibration of observational instrumentation and methods with a view to generating comparable or standardized scientific data sets.

Information Exchange (ANNEX II) 17 Annex.2 Para 1 1. The Parties to the Convention recognize that the collection and sharing of information is an

important means of implementing the objectives of this Convention and of assuring that any actions that may be taken are appropriate and equitable. Therefore, Parties shall exchange scientific, technical, socioeconomic, business, commercial and legal information.

18. Annex. 2 Para 2 2. The Parties to the Convention, in deciding what information is to be collected and exchanged, should take into account the usefulness of the information and the costs of obtaining it. The Parties further recognize that co-operation under this annex has to be consistent with national laws, regulations and practices regarding patents, trade secrets, and protection of confidential and proprietary information.

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3.4.2 Montreal Protocol on Substances that Deplete the Ozone Layer 1987

Introduction

The Montreal Protocol is widely considered as the most successful environment protection agreement.

The Protocol sets out a mandatory timetable for the phase out of ozone depleting substances. This

timetable has been reviewed regularly, with phase out dates accelerated in accordance with scientific

understanding and technological advances441.

The Montreal Protocol sets binding progressive phase out obligations for developed and developing

countries for all the major ozone depleting substances, including CFCs, halons and less damaging

transitional chemicals such as HCFCs.

The Montreal Protocol targets 96 chemicals in thousands of applications across more than 240 industrial

sectors. The Multilateral Fund has provided more than US $2.5 billion in financial assistance to

developing countries to phase out production and consumption of ozone depleting substances since the

Protocol’s inception in 1987.

Amendments

The Protocol has been further strengthened through five Amendments - London 1990, Copenhagen 1992,

Vienna 1995, Montreal 1997 and Beijing 1999 - which have brought forward phase out schedules and

added new ozone depleting substances to the list of substances controlled under the Montreal Protocol.

The Montreal Protocol has also produced other significant environmental benefits. Damage to the Earth’s

protective ozone layer has sparked unprecedented worldwide concern and action. Since it was agreed

internationally in 1987 to phase out ozone depleting substances (also known as ODS), 196 countries have

ratified the Montreal Protocol.

In September 2009, East Timor ratified the Montreal Protocol, making it the first international

environmental treaty to achieve complete ratification - a truly remarkable effort that reflects the universal

acceptance and success of the agreement.

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Multilateral Fund for the Implementation of the Montreal Protocol

The Multilateral Fund for the Implementation of the Montreal Protocol provides funds to help developing

countries to phase out the use of ozone depleting substances (ODSs). ODSs are used in refrigeration,

foam extrusion, industrial cleaning, fire safety and fumigation.

The Multilateral Fund was the first financial mechanism to be created under an international treaty. It

embodies the principle agreed at the United Nations Conference on Environment and Development in

1992 that countries have “a common, but differentiated, responsibility” to protect and manage the global

commons.

The Fund is managed by an Executive Committee with an equal representation of seven industrialised and

seven Article 5 countries which are elected annually by a Meeting of the Parties. The Committee reports

annually to the Meeting of the Parties on its operations.

The Fund is replenished on a three-year basis by the donors. Pledges amounted to more than US$2.8

billion over the period 1991 to 2011. Funds are used, for example, to finance the conversion of existing

manufacturing processes, train personnel, pay royalties and patent rights on new technologies, and

establish national Ozone Offices. To date more than US$2.3 billion has been approved to support more

than 6000 projects and activities in 148 developing countries.

Fiji and the Ozone Instruments

Assessment of Fiji’s implementation of the Ozone Instruments (the Vienna Convention & the Montreal

Protocol) tells a mixed tale. Fiji’s story contains both dismal “threatened with suspension” warning to

celebrating and receiving “Award Winning” performance prize.

Before expanding further on this extreme tale, it will be prudent at this juncture to exam some ozone

control legislative and regulatory initiatives of the Government of Fiji.

The Ozone Depleting Substances Act 1998

� This Act came into force on 28 July 2000. The Act and regulations give effect to Fiji's obligations

under international conventions aimed at reducing the emission of greenhouse gases and the

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consequent destruction of the ozone layer. The legislation regulates the importation, sale, storage

and use of ozone depleting substances - mainly chlorofluorocarbons ("CFCs").

CFCs were widely used in air conditioners, refrigerators, fire extinguishers and aerosol cans. Although

many countries have banned their use, some manufacturers in countries which are not parties to the

conventions continued to include CFCs in their products.

The Act requires:

• persons who manufacture, sell or distribute equipment which contains CFCs or other ozone

depleting substances must ensure that the equipment is labeled as required by the legislation.

This would include air conditioners (including car air conditioners), refrigerators and fire

extinguishers.

• all portable halon fire extinguishers and extinguisher systems must be deposited with the

Department of the Environment by 1 October 2000.

• aerosol sprays containing any CFC (other than methyl bromide) may no longer be imported or

sold.

• all automotive garages that undertake the refilling of automotive air conditioners must employ

"handlers" licensed by the Director of the Environment.

• licensed handlers are obliged by law to retro-fit or replace any air conditioning system which

contains a CFC or to require vehicle owners to undertake the retrofit or replacement themselves.

2010 Amendments to Act and Regulations

In 2010, the Fiji Government approved the amending of the Ozone Depleting Substances (ODS) Act 1998

and Ozone Depleting Substances Regulations 2010.Cabinet has also approved the drafting of a new

Refrigerant Management Decree and Regulations. The ODS Act and Regulations were gazetted in 1998

and 2010 respectively to regulate the importation, exportation, sale, storage and use of Ozone Depleting

Substances as well to give effect to Fiji’s obligations under the Vienna Convention for the Protection of

the Ozone Layer and the Montreal Protocol on Substances that deplete the Ozone Layer.

Over the ten years of implementation, the Department of Environment, through the ODS Unit hopes to

strengthen its inspectorate powers, penalties and update interpretation via amendments to the Act and

Regulations; for example the Fees schedule to reflect new Vat component (15%), rephrasing of

schedules; classifications of licenses and permits. The 19th Meeting of the Parties to the Montreal Protocol

in September 2007, through its Decision XIX/6, adopted an accelerated phase-out schedule for HCFCs.

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Fiji’s Act and Regulations needed to be amended to include the activities as such under the said decision

hence, the ban placed for second- hand equipment containing ODS (including chillers); and HCFC usage

in foam manufacturing and equipment used in foam production.

The Refrigerant Management Decree and Regulations is proposed to curb the following: non - companies

and individuals; prevent such companies to operate their businesses using ODS under the name of

Refrigerants as found in several spot inspections; and to have a proper criterion for technicians to gain

license under refrigerant handling thus, avoiding leakage of these refrigerants into the atmosphere.

Threat of Suspension

In 1989, at the 17th Meeting of the Parties to the Montreal Protocol, the Parties by Decision XVII/33 noted

Fiji’s non compliance with the Protocol. The Decision stated:

Decision XVII/33: Non-compliance with the Montreal Protocol by Fiji

The Seventeenth Meeting of the Parties decided in Dec. XVII/33:

1. To note that Fiji ratified the Montreal Protocol on 23 October 1989, the London Amendment on 9 December 1994 and the Copenhagen Amendment on 17 May 2000, is classified as a Party operating under paragraph 1 of Article 5 of the Protocol and had its country programme approved by the Executive Committee of the Multilateral Fund for the Implementation of the Montreal Protocol in June 1993. The Executive Committee has approved $542,908 from the Multilateral Fund to enable the Party’s compliance in accordance with Article 10 of the Protocol;

2. To note also that Fiji’s baseline for the controlled substance in Annex E (methyl bromide) is 0.6710 ODP-tonnes. As the Party reported consumption of methyl bromide of 1.506 ODP-tonnes in 2003 and 1.609 ODP-tonnes in 2004, it was in non-compliance with its obligations under Article 2H of the Montreal Protocol in those years;

3. To note with appreciation Fiji’s submission of a plan of action to ensure a prompt return to compliance with the Protocol’s methyl bromide control measures and to note that, under the plan, without prejudice to the operation of the financial mechanism of the Protocol, Fiji specifically commits itself:

a) To reduce methyl bromide consumption from 1.609 ODP-tonnes in 2004 as follows: i. To 1.5 ODP-tonnes in 2005;

ii. To 1.3 ODP-tonnes in 2006; iii. To 1.0 ODP-tonnes in 2007; iv. To 0.5 ODP-tonnes in 2008;

b) To monitor its existing system for licensing imports and exports of ozone-depleting substances; c) To commence implementation of a methyl bromide import quota system in 2006;

4. To note that the measures listed in paragraph 3 above should enable Fiji to return to compliance in 2008, and to urge Fiji to work with the relevant implementing agencies to implement the plan of action and phase out consumption of methyl bromide;

5. To monitor closely the progress of Fiji with regard to the implementation of its plan of action and the phase-out of methyl bromide. To the degree that the Party is working towards and meeting the specific Protocol control measures, it should continue to be treated in the same manner as a Party in good standing. In that regard, Fiji should continue to receive international assistance to enable it to meet those commitments in accordance with item A of the indicative list of measures that may be taken by a Meeting of the Parties in respect of non-compliance. Through the present decision, however, the Parties caution Fiji, in accordance with item B of the indicative list of measures, that, in the event that it fails to remain in compliance, the Parties will consider measures consistent with item C of the indicative list of measures. Those measures may include the possibility of actions available under Article 4, such as ensuring that the supply of methyl bromide that is the substance that is the subject of non-compliance is ceased so that exporting Parties are not contributing to a continuing situation of non-compliance.

The above Decision exhibits the resolve of the International Community in their collective desire to

enforce the reduction of usage of ozone depleting substances from within its membership. It ought to be

clarified that Fiji was a recipient of Fund under Article 10 of the Montreal Protocol and as such the

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obligation bestowed on Fiji to reduce consumption of the concerned gas during the period concerned was

an onus one.

Despite the above cautionary note, Fiji took a 180 degree turn when in May 2008 Fiji won an Award for

successfully phasing out ozone depleting substances in Fiji. A snippet of the news article carrying this

success story read as follows:

Fiji National Ozone Unit442

The Fiji National Ozone Unit (NOU), under the leadership of Mr. Shakil Kumar, successfully phased-out ozone depleting

substances. The Fiji NOU is a leading example of effective Montreal Protocol implementation through its strong efforts in

establishing proactive regulation, enforcement of these regulations, support to industry, and a strong public awareness

campaign. The success of the chlorofluorocarbon phase-out in Fiji relies on strong implementation and enforcement of its

regulation. Regular inspections and audits assist the refrigeration and air-conditioning industry in complying with the ODS

legislation. Fiji’s enforcement efforts have led to the successful prosecution of a company that violated the ODS legislation. Fiji

established its ODS Act in 1998 and its ODS Regulation in 2000 make it one of the first Article 5 Parties to achieve advanced

CFC phase-out. Fiji has also collected and disposed of unwanted halon through support from Australia, and has returned to

compliance in methyl bromide use ahead of the agreed phase-out plan. Following its exemplary record in addressing CFC

phase-out, the Fiji NOU is now turning its focus on hydro chlorofluorocarbon control. In 2007 Fiji became one of the first

Article 5 Parties to impose import quota on HCFC-22. In addition, the NOU has licensed over 500 technicians and 190

companies to ensure the proper handling of HCFC and other ODS. Fiji will be starting its HCFC survey in 2008 which will serve

as the basis to formulate its HCFC phase-out program.

Fiji’s performance in the implementation of the Ozone related MEAs, i.e. the Vienna Convention and the

Montreal Protocol paints an encouraging picture of persistent and dedicated efforts. Despite earlier

warnings, Fiji bounced back to be a leading example in Treaty implementation.

Fiji’s success in the Ozone Treaties implementation is indicative of what could be achieved across the

board when proper and persistent efforts are exerted. Undoubtedly, the provision of much needed

financial assistance would assist efforts to go along way; however, raw conviction and stubborn

dedication usually win rewards.

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3.4.3 United Nations Framework Convention on Climate Change 1992

History

The international political response to climate change began with the adoption of the United Nations

Framework Convention on Climate Change (UNFCCC) in 1992, which sets out a framework for action

aimed at stabilizing atmospheric concentrations of greenhouse gases to avoid “dangerous anthropogenic

interference” with the climate system. The UNFCCC entered into force on 21 March 1994 and now has

195 parties.

In December 1997, delegates to the third session of the Conference of the Parties (COP) in Kyoto, Japan,

agreed to a Protocol to the UNFCCC that commits industrialized countries and countries in transition to a

market economy to achieve emission reduction targets. These countries, known as Annex I parties under

the UNFCCC, agreed to reduce their overall emissions of six greenhouse gases by an average of 5.2%

below 1990 levels between 2008-2012 (the first commitment period), with specific targets varying from

country to country. The Kyoto Protocol entered into force on 16 February 2005 and now has 193 parties.

At the end of 2005, the first steps were taken to consider long-term issues. Convening in Montreal,

Canada, the first session of the Conference of the Parties serving as the meeting of the Parties to the

Kyoto Protocol (COP/MOP 1) decided to establish the Ad hoc Working Group on the Kyoto Protocol-

AWG-KP on the basis of Protocol Article 3.9, which mandates consideration of Annex I parties’ further

commitments at least seven years before the end of the first commitment period. COP 11 agreed to

consider long-term cooperation under the Convention through a series of four workshops known as “the

Convention Dialogue,” which continued until COP 13.

The Bali Roadmap

COP 13 and COP/MOP 3 took place in December 2007 in Bali, Indonesia. Negotiations resulted in the

adoption of the Bali Action Plan (BAP). Parties established the Adhoc Working Group on Long Term

Cooperation AWG-LCA with a mandate to focus on key elements of long-term cooperation identified

during the Convention Dialogue namely:

a. mitigation,

b. adaptation,

c. finance,

d. technology; and

e. a shared vision for long-term cooperative action.

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The Bali conference also resulted in agreement on the Bali Roadmap, based on two negotiating “tracks”

under the Convention and the Protocol, and set a deadline for concluding the negotiations at COP 15 and

COP/MOP 5 in Copenhagen in December 2009.

Copenhagen Climate Conference

The UN Climate Change Conference in Copenhagen, Denmark, took place from 7-19 December 2009.

The conference was marked by disputes over transparency and process. During the high-level segment,

informal negotiations took place in a group consisting of major economies and representatives of regional

and other negotiating groups. Late in the evening of 18 December, these talks resulted in a political

agreement: the “Copenhagen Accord,” which was then presented to the COP plenary for adoption. Over

the next 13 hours, delegates debated the Accord. Many supported adopting it as a step towards securing a

“better” future agreement. However, some developing countries opposed the Accord, which they felt had

been reached through an “un-transparent” and “undemocratic” negotiating process.

Ultimately, the COP agreed to “take note” of the Copenhagen Accord. It established a process for parties

to indicate their support for the Accord and, during 2010, over 140 countries did so. More than 80

countries also provided information on their national emission reduction targets and other mitigation

actions.

On the last day of the Copenhagen Climate Change Conference, the COP and COP/MOP also agreed to

extend the mandates of the AWG-LCA and AWG-KP, requesting them to present their respective

outcomes to COP 16 and COP/MOP 6 in Cancun, Mexico.

Cancun Climate Talk

Following four preparatory meetings in 2010, the UN Climate Change Conference in Cancun took place

from 29 November to 11 December 2010. Expectations for Cancun were more modest than for

Copenhagen a year earlier. Most were hoping to see agreement on a “balanced package” of decisions and

few expected a legally-binding outcome. By the end of the conference, parties finalized the Cancun

Agreements, which include decisions under both negotiating tracks.

Under the Convention track, Decision 1/CP.16 recognized the need for deep cuts in global emissions to

achieve the 2°C target. Parties also agreed to consider strengthening the global long-term goal during a

review by 2015, including in relation to the 1.5°C target. They took note of emission reduction targets and

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nationally appropriate mitigation actions (NAMAs) communicated by developed and developing

countries, respectively (FCCC/SB/2011/INF.1 and FCCC/AWGLCA/2011/INF.1, both issued after

Cancun), and agreed to discuss them during workshops. Decision 1/CP.16 also addressed other aspects of

mitigation, such as MRV; and reducing emissions from deforestation and forest degradation in

developing countries, and the role of conservation, sustainable management of forests and enhancement

of forest carbon stocks in developing countries (REDD+).

Parties also agreed to establish several new institutions and processes. These included the Cancun

Adaptation Framework and the Adaptation Committee, as well as the Technology Mechanism, which

includes the Technology Executive Committee and the Climate Technology Centre and Network

(CTCN). On finance, Decision 1/CP.16 created the Green Climate Fund, which was designated as the

new operating entity of the Convention’s financial mechanisms and is to be governed by a Board of 24

members.

Parties agreed to set up a Transitional Committee tasked with the Fund’s detailed design, and established

a Standing Committee to assist the COP with respect to the financial mechanism. They also recognized

the commitments by developed countries to provide US$30 billion of fast-start finance in 2010-2012, and

to jointly mobilize US$100 billion per year by 2020.

Under the Protocol track, Decision 1/CMP.6, which is also part of the Cancun Agreements, included

agreement to complete the work of the AWG-KP and have the results adopted by the COP/MOP as soon

as possible, and in time to ensure there will be no gap between the first and second commitment periods.

They urged Annex I parties to raise the level of ambition of their emission reduction targets with a view

to achieving aggregate emission reductions consistent with the range identified in the Fourth Assessment

Report of the Intergovernmental Panel on Climate Change. They also adopted Decision 2/CMP.6 on

LULUCF.

Key features of the UNFCCC

The key provision of the United Nations Framework Convention on Climate Change is its objective,

which is outlined in Article 2:

“The ultimate objective of this Convention and any related legal instruments that the Conference

of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention,

stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous

anthropogenic interference with the climate system.”

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In other words, the objective calls for a fine balance, which achieves stabilization of greenhouse gas

concentrations in the atmosphere within a time frame sufficient to:

i. allow ecosystems to adapt naturally to climate change;

ii. ensure that food production is not threatened; and

iii. enable economic development to proceed in a sustainable manner

Obligations

Tabulated below are the major obligations under the UNFCCC. It is to be clarified that other obligations

have been added on to the list over the years through the various Decision of the COP.

TABLE 22: OBLIGATIONS UNDER THE UNFCCC

Fiji’s Obligation under the United Nations Framework Convention on Climate Change Commitments

1. Article 4(a) 1. All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall: (a) Develop, periodically update, publish and make available to the Conference of the Parties, in accordance with Article 12, national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the Conference of the Parties;

2. Article 4(b) (b) Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change;

3. Article 4(c) (c) Promote and cooperate in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol in all relevant sectors, including the energy, transport, industry, agriculture, forestry and waste management sectors;

4. Article 4(d) (d) Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems;

5. Article 4(e) (e) Cooperate in preparing for adaptation to the impacts of climate change; develop and elaborate appropriate and integrated plans for coastal zone management, water resources and agriculture, and for the protection and rehabilitation of areas, particularly in Africa, affected by drought and desertification, as well as floods;

6. Article 4(f) (f) Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change;

7. Article 4(g) (g) Promote and cooperate in scientific, technological, technical, socio-economic and other research, systematic observation and development of data archives related to the climate system and intended to further the understanding and to reduce or eliminate the remaining uncertainties regarding the causes, effects, magnitude and timing of climate change and the economic and social consequences of various response strategies;

8. Article 4(h) (h) Promote and cooperate in the full, open and prompt exchange of relevant scientific, technological, technical, socio-economic and legal information related to the climate system and climate change, and to the economic and social consequences of various response strategies;

9. Article 4(i) (i) Promote and cooperate in education, training and public awareness related to climate change and encourage the widest participation in this process, including that of non- governmental organizations; and

10. Article 4(j) (j) Communicate to the Conference of the Parties information related to implementation, in accordance with Article 12.

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Research and Systematic Observation 11. Article 5 (a) In carrying out their commitments under Article 4, paragraph 1(g), the Parties shall:

(a) Support and further develop, as appropriate, international and intergovernmental programmes and networks or organizations aimed at defining, conducting, assessing and financing research, data collection and systematic observation, taking into account the need to minimize duplication of effort;

12. Article 5(b) (b) Support international and intergovernmental efforts to strengthen systematic observation and national scientific and technical research capacities and capabilities, particularly in developing countries, and

13. Article 5(c) (c) Take into account the particular concerns and needs of developing countries and cooperate in improving their endogenous capacities and capabilities to participate in the efforts referred to in subparagraphs (a) and (b) above.

Education, Training and Public Awareness 14. Article 6 In carrying out their commitments under Article 4, paragraph 1(i), the Parties shall:

(i) The development and implementation of educational and public awareness programmes on climate change and its effects; (iii) Public participation in addressing climate change and its effects and developing adequate responses; and (iv) Training of scientific, technical and managerial personnel. (b) Cooperate in and promote, at the international level, and, where appropriate, using existing bodies: (i) The development and exchange of educational and public awareness material on climate change and its effects; and (ii) The development and implementation of education and training programmes, including the strengthening of national institutions and the exchange or secondment of personnel to train experts in this field, in particular for developing countries.

Communication of Information related to Implementation 15 Article 12(1)(a) 1. In accordance with Article 4, paragraph 1, each Party shall communicate to the Conference of

the Parties, through the secretariat, the following elements of information: (a) A national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, to the extent its capacities permit, using comparable methodologies to be promoted and agreed upon by the Conference of the Parties;

16. Article 12(1)(b) (b) A general description of steps taken or envisaged by the Party to implement the Convention; and

17 Article 12(1)(c) (c) Any other information that the Party considers relevant to the achievement of the objective of the Convention and suitable for inclusion in its communication, including, if feasible, material relevant for calculations of global emission trends.

18. Article 12(4) 4. Developing country Parties may, on a voluntary basis, propose projects for financing, including specific technologies, materials, equipment, techniques or practices that would be needed to implement such projects, along with, if possible, an estimate of all incremental costs, of the reductions of emissions and increments of removals of greenhouse gases, as well as an estimate of the consequent benefits.

Settlement of Disputes 19. Article 14(1) 1. In the event of a dispute between any two or more Parties concerning the interpretation or

application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.

20. Article 14(2) 2. When ratifying, accepting, approving or acceding to the Convention, or at any time thereafter, a Party which is not a regional economic integration organization may declare in a written instrument submitted to the Depositary that, in respect of any dispute concerning the interpretation or application of the Convention, it recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation: (a) Submission of the dispute to the International Court of Justice, and/or (b) Arbitration in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on arbitration.

Amendments to the Convention 21 Article 15(3) 3. The Parties shall make every effort to reach agreement on any proposed amendment to the

Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting. The adopted amendment shall be communicated by the secretariat to the Depositary, who shall circulate it to all Parties for their acceptance.

Right to Vote 22 Article 18(1) `1. Each Party to the Convention shall have one vote, except as provided for in paragraph 2 below.

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3.4.4 Kyoto Protocol to the United Nations Framework Convention on Climate Change 1997

“We are certain ... emissions resulting from human activities are substantially increasing the atmospheric concentrations of the greenhouse gases... These increases will enhance the greenhouse effect, resulting on average in an additional warming of the Earth’s surface ...”443

Introduction

Negotiations on what was to become the Kyoto Protocol were launched by the Conference of the Parties

(COP) at its first session (Berlin, March/April 1995) when it adopted its decision 1/CP.1 (the “Berlin

Mandate”). This decision established that the commitments in Article 4.2(a) and (b) of the Convention2

were “not adequate”, and launched a process to “take appropriate action beyond 2000, including the

strengthening of the commitments of Annex I Parties … through the adoption of a protocol or another

legal instrument”. 444

The Berlin Mandate stated that the process should, to this end, “elaborate policies and measures” for

Annex I Parties, as well as “set quantified emission limitation and reduction objectives” (QELROs) for

these Parties. The decision also specified that the negotiation process should “not introduce any new

Commitments” for non-Annex I Parties, “but reaffirm existing commitments in Article 4.1 [on general

commitments for all Parties] and continue to advance the implementation of those commitments in order

to achieve sustainable development.”445

The Protocol

The Kyoto Protocol was adopted by the third Conference of the Parties to the UNFCCC at their meeting

in Kyoto, Japan in December 1997. The Protocol entered into force on February 16, 2005.

The Kyoto Protocol is an outgrowth of the United Nations Framework Convention on Climate Change

(the UNFCCC). The UNFCCC, which entered into force in 1994, does not establish binding limits on

greenhouse gas emissions. Rather, it sets the stage for such actions in the future. The Kyoto Protocol to

the Framework Convention, which was adopted at the third Conference of the Parties to the UNFCCC

(COP3) at their meeting in Kyoto, Japan in December 1997, and which entered into force on February 16,

2005, does establish binding limits for greenhouse gas emissions.

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Binding Emission Limits

The binding limits on greenhouse gas emissions contained in the Kyoto Protocol apply to those Annex

One Parties to the UNFCCC that are also Parties to the Kyoto Protocol.446In general, the UNFCCC

divides Parties into two groups:

(1) Annex One countries, which are primarily developed countries; and

(2) Non-Annex One countries, which are primarily developing countries.

The non-applicability of binding emission limits to developing countries such as China and India was one

of the aspects of the Kyoto Protocol that the United States objected to. In addition, the binding emission

limits contained in the Kyoto Protocol only apply during the Protocol’s five year Commitment Period,

which runs from 2008 to 2012.447

Objective of Kyoto

The objective of the Kyoto Protocol is to collectively reduce anthropogenic emissions of the six

greenhouse gases covered by the Protocol (carbon dioxide, methane, nitrous oxide, hydrofluorocarbons,

per fluorocarbons, and sulfur hexafluoride) from Annex One countries to 5.2% below 1990 levels. Each

Annex One Party is given an Assigned Amount of greenhouse gas emissions for the Commitment Period.

For example, in negotiations, Germany agreed to limit its annual average emissions during 2008 to 2012

to 8% below the level of its 1990 emissions.448 The Kyoto Protocol provides that an Annex One Party’s

anthropogenic greenhouse gas emissions during the Commitment Period may not exceed the Party’s

Assigned Amount for the Commitment Period449.

Obligations

Obligations under the Kyoto Protocol are directed mainly at Annex One Countries. A list of these is

reflected below:

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Source: Greenpeace (1998) “A Guide to the Kyoto Protocol” Greenpeace International, Amsterdam,

Netherlands, p.3

Because of word limits and of the little relevance the majority of mandatory obligations under Kyoto has

on Fiji (a Developing State), the Author has decided to not elaborate further on the Kyoto obligations at

this stage. The general obligations of all parties under Kyoto are tabulated below.

TABLE 23: OBLIGATIONS UNDER THE KYOTO PROTOCOL

Srl. Articles Obligations 1. Article 10(a) All Parties, taking into account their common but differentiated responsibilities and their specific

national and regional development priorities, objectives and circumstances, without introducing any new commitments for Parties not included in Annex I, but reaffirming existing commitments under Article 4, paragraph 1, of the Convention, and continuing to advance the implementation of these commitments in order to achieve sustainable development, taking into account Article 4, paragraphs 3, 5 and 7, of the Convention, shall: (a) Formulate, where relevant and to the extent possible, cost-effective national and, where appropriate, regional programmes to improve the quality of local emission factors, activity data and/or models which reflect the socio-economic conditions of each Party for the preparation and periodic updating of national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the Conference of the Parties, and consistent with the guidelines for the preparation of national communications adopted by the Conference of the Parties

2. Article 10(b) (b) Formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change and measures to facilitate adequate adaptation to climate change: (i) Such programmes would, inter alia, concern the energy, transport and industry sectors as well as agriculture, forestry and waste management. Furthermore, adaptation technologies and methods for improving spatial planning would improve adaptation to climate change; and (ii) Parties included in Annex I shall submit information on action under this Protocol, including national programmes, in accordance with Article 7; and other Parties shall seek to include in their national communications, as appropriate, information on programmes which contain measures that the Party believes contribute to addressing climate change and its adverse impacts, including the abatement of increases in greenhouse gas emissions, and enhancement of and removals by sinks, capacity building and adaptation measures;

3. Article 10(c) (c) Cooperate in the promotion of effective modalities for the development, application and diffusion of, and take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies, know-how, practices and processes pertinent to climate

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change, in particular to developing countries, including the formulation of policies and programmes for the effective transfer of environmentally sound technologies that are publicly owned or in the public domain and the creation of an enabling environment for the private sector, to promote and enhance the transfer of, and access to, environmentally sound technologies;

4. Article 10(d) (d) Cooperate in scientific and technical research and promote the maintenance and the development of systematic observation systems and development of data archives to reduce uncertainties related to the climate system, the adverse impacts of climate change and the economic and social consequences of various response strategies, and promote the development and strengthening of endogenous capacities and capabilities to participate in international and intergovernmental efforts, programmes and networks on research and systematic observation, taking into account Article 5 of the Convention;

5. Article 10(e) (e) Cooperate in and promote at the international level, and, where appropriate, using existing bodies, the development and implementation of education and training programmes, including the strengthening of national capacity building, in particular human and institutional capacities and the exchange or secondment of personnel to train experts in this field, in particular for developing countries, and facilitate at the national level public awareness of, and public access to information on, climate change. Suitable modalities should be developed to implement these activities through the relevant bodies of the Convention, taking into account Article 6 of the Convention;

6. Article 10(f) (f) Include in their national communications information on programmes and activities undertaken pursuant to this Article in accordance with relevant decisions of the Conference of the Parties; and

7. Article 10(g) (g) Give full consideration, in implementing the commitments under this Article, to Article 4, paragraph 8, of the Convention.

8. Article 11(1) 1. In the implementation of Article 10, Parties shall take into account the provisions of Article 4, paragraphs 4, 5, 7, 8 and 9, of the Convention.

9. Article 20(3) 3. The Parties shall make every effort to reach agreement on any proposed amendment to this Protocol by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting. The adopted amendment shall be communicated by the secretariat to the Depositary, who shall circulate it to all Parties for their acceptance.

10. Article 21(4) The Parties shall make every effort to reach agreement on any proposed annex or amendment to an annex by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the annex or amendment to an annex shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting. The adopted annex or amendment to an annex shall be communicated by the secretariat to the Depositary, who shall circulate it to all Parties for their acceptance.

11. Article 22(1) 1. Each Party shall have one vote, except as provided for in paragraph 2 below.

Fiji and the Climate Change Convention (UNFCCC & Kyoto)

Fiji ratified the UNFCCC on 25 February, 2011 and the Kyoto Protocol on 17 September, 1998.

Numerous papers have been prepared to assess Fiji’s UNFCCC and Kyoto Protocol implementation

efforts. The Author recommends readers to refer to the document prepared by Dr. Paulo Vanualailai titled

“Final Report: Thematic Assessment, Climate Change (UNFCCC), 2008 for a thorough and detailed

discussion for Fiji’s efforts. For the purpose of this Paper, and to avoid duplication, tabulated below are

the findings of the 2008 Thematic Assessment of Fiji’s UNFCCC implementation efforts.

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Source: Dr. Paulo Vanualailai450

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Analysis

Overall, Fiji’s performance of obligations under the Climate and Atmospheric related MEAs has been

mediocre. One only has to look at Dr. Vanualailai’s analysis above to ascertain the true picture.

Nevertheless, fresh momentum appears to be gathering lately and indeed a couple of major initiatives

have occurred while this paper was being written. The first of these is the relocation of the Climate

Change Portfolio from the Department of the Environment to the Ministry of Foreign Affairs and

International Cooperation. In announcing the move, the Government of Fiji was of the view that given the

increased international attention now focusing of Climate Change and the detrimental effect climate

change might inflict on the nation and Fiji’s neighboring countries, the Ministry of Foreign Affairs will

take charge of all negotiations and implementation of the UNFCCC and Kyoto obligations. Whether this

structural adjustment will yield the desired result on implementation remains to be seen.

The second major initiative is the launching of the Fiji Climate Change Policy. The policy includes an

implementation framework identifying the responsible lead agencies and implementing agencies. This

implementation framework serves to guide and organize stakeholders in the implementation of the

climate change policy. It is genuinely hoped that the launching of the policy will assist improve Fiji’s

implementation efforts.

There exists an opportunity for Fiji to benefit financially from the various funding sources available under

the UNFCCC Framework including the Green fund that is being currently negotiated. Fiji needs to be

proactive and discussions at Chapter 6 may offer some suggestions that could be followed.

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3.5 Marine and Freshwater- Related MEAs

“Oceans and coasts provide valuable resources and services to support human populations, particularly coastal communities that depend heavily on them, and that the sustainable use of marine living resources will enhance global food security and contribute towards poverty reduction for present and future generations”.451

Introduction

This section of the paper (Section 3.5) discusses Fiji’s implementation of the obligations under the

Marine and Freshwater related MEAs to which it is a party. It is to be clarified that in this section,

attempts will be made to first discuss the obligations contained in each of the global MEAs. However,

unlike other sections, due to the identical nature of the obligations and of the issues concerned, the author

has decided that in order to avoid duplicity, a combine assessment and analysis of Fiji’s implementation

will be made after the discussion of both the “Global” and “Regional” Marine and Freshwater related

MEAs.

The full assessment of Fiji’s implementation will be made after discussion of the obligations contained in

the “Regional” MEAs in Section 4.2 of Chapter 4 under the heading “Ocean Governance and Fisheries”.

Discussion of the MEAs will be therefore be as follows:

Chapter 3.5

a. United Nations Convention on the Law of the Sea 1982(UNCLOS);

b. 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 1995;

Chapter 4.2

c. 1979 South Pacific Forum Fisheries Agency Convention;

d. 1990 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific;

e. The Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific

Region 1992; and

f. 2000 Convention on the Conservation and Management of Highly Migratory Fish stocks in the

Western and Central Pacific Ocean.

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3.5.1. United Nations Convention on the Law of the Sea 1982(UNCLOS)452

Introduction

The United Nations Convention on the Law of the Sea 1982 (UNCLOS) lays down a comprehensive

regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans

and their resources. It enshrines the notion that all problems of ocean space are closely interrelated and

need to be addressed as a whole453.

The Convention was opened for signature on 10 December 1982 in Montego Bay, Jamaica454. This

marked the culmination of more than 14 years of work involving participation by more than 150 countries

representing all regions of the world, all legal and political systems and the spectrum of socio/economic

development. At the time of its adoption, the Convention embodied in one instrument traditional rules for

the uses of the oceans and at the same time introduced new legal concepts and regimes and addressed new

concerns. The Convention also provided the framework for further development of specific areas of the

law of the sea455.

The Convention entered into force in accordance with its Article 308 on 16 November 1994, 12 months

after the date of deposit of the sixtieth instrument of ratification or accession. Today, it is the globally

recognized regime dealing with all matters relating to the law of the sea456.

Brief History of UNCLOS

The law of the sea developed from the struggle between coastal states, who sought to expand their control

over marine areas adjacent to their coastlines. By the end of the 18th century, it was understood that states

had sovereignty over their territorial sea. The maximum breadth of the territorial sea was generally

considered to be three miles - the distance that shore-based cannon could reach and that a coastal state

could therefore control457.

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After the Second World War, the international community requested that the United Nations International

law Commission consider codifying the existing laws relating to the oceans. The commission began

working towards this in 1949 and prepared four draft conventions, which were adopted at the first UN

Conference on the Law of the Sea:

The First United Nations Conference on the Law of the Sea (UNCLOS I) from February 24 until

April 29, 1958, adopted the four conventions, which are commonly known as the 1958 Geneva

Conventions458:

1. The Convention on the Territorial Sea and Contiguous Zone; 2. The Convention on the High Seas; 3. The Convention on Fishing and Conservation of the Living Resources of the High Seas; and 4. The Convention on the Continental Shelf.

While considered to be a step forward, the conventions did not establish a maximum breadth of the

territorial sea459.

The Second United Nations Conference on the Law of the Sea (UNCLOS II) from March 17 until

April 26, 1960 did not result in any international agreements. The conference once again failed to fix a

uniform breadth for the territorial or establish consensus on sovereign fishing rights460.

The Third United Nations Conference on the Law of the Sea (UNCLOS III) from 1973 to 1982.

UNCLOS III addressed the issues bought up at the previous conferences. Over 160 nations participated in

the 9-year convention, which finally came into force on November 14, 1994, 21 years after the first

meeting of UNCLOS III and one year after ratification by the sixtieth state. The first sixty ratifications

were almost all developing states461.

Major features of UNCLOS

The Convention (full text) comprises 320 articles and nine annexes, governing all aspects of ocean space.

Major features of the Convention includes the definition of maritime zones- the territorial sea462, the

contiguous zone463 , the exclusive economic zone464 , the continental shelf465 , the high sea466 , the

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international sea-bed area467 and archipelagic waters468. The convention also made provision for the

passage of ships469, protection of the marine environment470, freedom of scientific research471, and

exploitation of resources.

Part XII of UNCLOS and the Obligations to Protection of the Marine Environment

For the purpose of this section of the paper, discussion will be limited exclusively to those obligations

contained in Part XII of UNCLOS specifically relating to the “Protection and Preservation of the Marine

Environment”.

a. Protect & Preserve

The Convention lays down, first of all, the fundamental obligation of all States to protect and preserve the

marine environment472. It further urges all States to cooperate on a global and regional basis in

formulating rules and standards and otherwise take measures for the same purpose473.

b. Coastal State Powers

Coastal States are empowered to enforce their national standards and anti-pollution measures within their

territorial sea474. Every coastal State is granted jurisdiction for the protection and preservation of the

marine environment of its EEZ. Such jurisdiction allows coastal States to control, prevent and reduce

marine pollution from dumping, land-based sources or seabed activities subject to national jurisdiction, or

from or through the atmosphere475.

c. Foreign Vessels

With regard to marine pollution from foreign vessels476, coastal States can exercise jurisdiction only for

the enforcement of laws and regulations adopted in accordance with the Convention or for "generally

accepted international rules and standards"477. Such rules and standards, many of which are already in

place, are adopted through the competent international organization, namely the International Maritime

Organization (IMO)478.

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d. Flag State

On the other hand, it is the duty of the "flag State",479 the State where a ship is registered and whose flag it

flies, to enforce the rules adopted for the control of marine pollution from vessels, irrespective of where a

violation occurs. This serves as a safeguard for the enforcement of international rules, particularly in

waters beyond the national jurisdiction of the coastal State, i.e., on the high seas.

e. Port State

Furthermore, the Convention gives enforcement powers to the "port State",480 or the State where a ship is

destined. In doing so it has incorporated a method developed in other Conventions for the enforcement of

treaty obligations dealing with shipping standards, marine safety and pollution prevention. The port State

can enforce any type of international rule or national regulations adopted in accordance with the

Convention or applicable international rules as a condition for the entry of foreign vessels into their ports

or internal waters or for a call at their offshore terminals. This has already become a significant factor in

the strengthening of international standards.

f. Seabed Area

Finally, as far as the international seabed area is concerned, the International Seabed Authority, through

its Council, is given broad discretionary powers to assess the potential environmental impact of a given

deep seabed mining operation, recommend changes, formulate rules and regulations, establish a

monitoring programme and recommend issuance of emergency orders by the Council to prevent serious

environmental damage. States are to be held liable for any damage caused by either their own enterprise

or contractors under their jurisdiction481.

Tabulated below are the obligations in Part XII of UNCLOS relating to the Protection and Preservation of

the Environment.

TABLE 24: FIJI’S ENVIRONMENTAL PROTECTION & PRESERVATION OBLIGATIONS UNDER PART

XII

OF UNCLOS

Fiji’s Obligation under Part XII “Protection and Preservation of the Marine Environment” of the United Nations Convention on the Law of the Sea 1982 (UNCLOS)

Section 1. General Provision “Measures to prevent, reduce and control pollution of the marine environment 1. Article 194(1) 1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention

that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with

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their capabilities, and they shall endeavour to harmonize their policies in this connection. 2. Article 194(2) 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control

are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

3. Article 194(4) 4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

Duty not to transfer damage or hazards or transform one type of pollution into another 4. Article 195 In taking measures to prevent, reduce and control pollution of the marine environment, States shall act

so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.

Use of technologies or introduction of alien or new species 5. Article 196(1) 1. States shall take all measures necessary to prevent, reduce and control pollution of the marine

environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto.

Cooperation on a Global or Regional Basis 6. Article 197 States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through

competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.

Notification of Imminent or actual damage 7. Article 198 When a State becomes aware of cases in which the marine environment is in imminent danger of being

damaged or has been damaged by pollution, it shall immediately notify other States it deems likely to be affected by such damage, as well as the competent international organizations.

Contingency Plan for Pollution 8. Article 199 In the cases referred to in article 198, States in the area affected, in accordance with their capabilities,

and the competent international organizations shall cooperate, to the extent possible, in eliminating the effects of pollution and preventing or minimizing the damage. To this end, States shall jointly develop and promote contingency plans for responding to pollution incidents in the marine environment.

Studies, research programmes and exchange of information and data 9. Article 200 States shall cooperate, directly or through competent international organizations, for the purpose of

promoting studies, undertaking programmes of scientific research and encouraging the exchange of information and data acquired about pollution of the marine environment. They shall endeavour to participate actively in regional and global programmes to acquire knowledge for the assessment of the nature and extent of pollution, exposure to it, and its pathways, risks and remedies.

Scientific criteria for regulations 10. Article 201 In the light of the information and data acquired pursuant to article 200, States shall cooperate,

directly or through competent international organizations, in establishing appropriate scientific criteria for the formulation and elaboration of rules, standards and recommended practices and procedures for the prevention, reduction and control of pollution of the marine environment.

Scientific and technical assistance to developing States 11. Article 202 States shall, directly or through competent international organizations:

(a) promote programmes of scientific, educational, technical and other assistance to developing States for the protection and preservation of the marine environment and the prevention, reduction and control of marine pollution. Such assistance shall include, inter alia:

(i) training of their scientific and technical personnel; (ii) facilitating their participation in relevant international programmes; (iii) supplying them with necessary equipment and facilities; (iv) enhancing their capacity to manufacture such equipment; (v) advice on and developing facilities for research, monitoring, educational and other programmes;

(b) provide appropriate assistance, especially to developing States, for the minimization of the effects of major incidents which may cause serious pollution of the marine environment; (c) provide appropriate assistance, especially to developing States, concerning the preparation of environmental assessments.

Monitoring of the risks or effects of pollution 12 Article 204 1. States shall, consistent with the rights of other States, endeavour, as far as practicable, directly or

through the competent international organizations, to observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment.

13 2. In particular, States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment.

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Publication of reports 14 Article 205 States shall publish reports of the results obtained pursuant to article 204 or provide such reports at

appropriate intervals to the competent international organizations, which should make them available to all States.

Assessment of potential effects of activities 15 Article 206 When States have reasonable grounds for believing that planned activities under their jurisdiction or

control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.

Pollution from land-based sources 16 Article 207

(1) 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.

17 Article 207(2) 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 18 Article 207(3) 3. States shall endeavour to harmonize their policies in this connection at the appropriate regional

level. 19 Article 207(4) 4. States, acting especially through competent international organizations or diplomatic conference,

shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

20 Article 207(5) 5. Laws, regulations, measures, rules, standards and recommended practices and procedures referred to in paragraphs 1, 2 and 4 shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment.

Pollution from seabed activities subject to national jurisdiction 21 Article 208(1) 1 Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the

marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to articles 60 and 80.

22 Article 208(2) 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 23 Article 208(3) 3. Such laws, regulations and measures shall be no less effective than international rules, standards

and recommended practices and procedures. 24 Article 208(4) 4. States shall endeavour to harmonize their policies in this connection at the appropriate regional

level. 25 Article 208(5) 5. States, acting especially through competent international organizations or diplomatic conference,

shall establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment referred to in paragraph l. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

Pollution from activities in the Area 26 Article 209(1) 1. International rules, regulations and procedures shall be established in accordance with Part XI to

prevent, reduce and control pollution of the marine environment from activities in the Area. Such rules, regulations and procedures shall be re-examined from time to time as necessary.

27 Article 209(2) 2. Subject to the relevant provisions of this section, States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from activities in the Area undertaken by vessels, installations, structures and other devices flying their flag or of their registry or operating under their authority, as the case may be. The requirements of such laws and regulations shall be no less effective than the international rules, regulations and procedures referred to in paragraph 1.

Pollution by dumping 28 Article 210(1) 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine

environment by dumping. 29 Article 210(2) 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 30 Article 210(3) 3. Such laws, regulations and measures shall ensure that dumping is not carried out without the

permission of the competent authorities of States. 31 Article 210(4) 4. States, acting especially through competent international organizations or diplomatic conference,

shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

32 Article 210(5) 5. Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal State, which has the right to

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permit, regulate and control such dumping after due consideration of the matter with other States which by reason of their geographical situation may be adversely affected thereby.

33 Article 210(6) 6. National laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards.

Pollution from vessels 34 Article 211(1) 1. States, acting through the competent international organization or general diplomatic conference,

shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary.

35 Article 211(2) 2. States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.

36 Article 211(3) 3. States which establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization. Whenever such requirements are established in identical form by two or more coastal States in an endeavour to harmonize policy, the communication shall indicate which States are participating in such cooperative arrangements. Every State shall require the master of a vessel flying its flag or of its registry, when navigating within the territorial sea of a State participating in such cooperative arrangements, to furnish, upon the request of that State, information as to whether it is proceeding to a State of the same region participating in such cooperative arrangements and, if so, to indicate whether it complies with the port entry requirements of that State. This article is without prejudice to the continued exercise by a vessel of its right of innocent passage or to the application of article 25, paragraph 2.

37 Article 211(4) 4. Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels

38 Article 211(5) 5. Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference.

39 Article 211(6) 6. (a) Where the international rules and standards referred to in paragraph 1 are inadequate to meet special circumstances and coastal States have reasonable grounds for believing that a particular, clearly defined area of their respective exclusive economic zones is an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic, the coastal States, after appropriate consultations through the competent international organization with any other States concerned, may, for that area, direct a communication to that organization, submitting scientific and technical evidence in support and information on necessary reception facilities. Within 12 months after receiving such a communication, the organization shall determine whether the conditions in that area correspond to the requirements set out above. If the organization so determines, the coastal States may, for that area, adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the organization, for special areas. These laws and regulations shall not become applicable to foreign vessels until 15 months after the submission of the communication to the organization.

(b) The coastal States shall publish the limits of any such particular, clearly defined area. (c) If the coastal States intend to adopt additional laws and regulations for the same area for the prevention, reduction and control of pollution from vessels, they shall, when submitting the aforesaid communication, at the same time notify the organization thereof. Such additional laws and regulations may relate to discharges or navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards; they shall become applicable to foreign vessels 15 months after the submission of the communication to the organization, provided that the organization agrees within 12 months after the submission of the communication.

40 Article 211(7) 7. The international rules and standards referred to in this article should include inter alia those relating to prompt notification to coastal States, whose coastline or related interests may be affected by incidents, including maritime casualties, which involve discharges or probability of discharges.

Pollution from or through the atmosphere 41 Article 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine

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212(1)-(3) environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 3. States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution.

Enforcement with respect to pollution from land-based sources States shall enforce their laws and regulations adopted in accordance with article 207 and shall adopt

laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources.

Enforcement with respect to pollution from seabed activities 42 Article 214

States shall enforce their laws and regulations adopted in accordance with article 208 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to articles 60 and 80.

Enforcement with respect to pollution from activities in the Area 43 Article 215 Enforcement of international rules, regulations and procedures established in accordance with Part XI

to prevent, reduce and control pollution of the marine environment from activities in the Area shall be governed by that Part.

Enforcement with respect to pollution by dumping 44 Article 216(1)

1. Laws and regulations adopted in accordance with this Convention and applicable international rules and standards established through competent international organizations or diplomatic conference for the prevention, reduction and control of pollution of the marine environment by dumping shall be enforced:

(a) by the coastal State with regard to dumping within its territorial sea or its exclusive economic zone or onto its continental shelf; (b) by the flag State with regard to vessels flying its flag or vessels or aircraft of its registry; (c) by any State with regard to acts of loading of wastes or other matter occurring within its territory or at its off-shore terminals.

45 Article 216(2) 2. No State shall be obliged by virtue of this article to institute proceedings when another State has already instituted proceedings in accordance with this article.

Enforcement by flag States 46 Article 217(1)

1. States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag States shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs.

47 Article 217(2)

2. States shall, in particular, take appropriate measures in order to ensure that vessels flying their flag or of their registry are prohibited from sailing, until they can proceed to sea in compliance with the requirements of the international rules and standards referred to in paragraph 1, including requirements in respect of design, construction, equipment and manning of vessels.

48 Article 217(3)

3. States shall ensure that vessels flying their flag or of their registry carry on board certificates required by and issued pursuant to international rules and standards referred to in paragraph 1. States shall ensure that vessels flying their flag are periodically inspected in order to verify that such certificates are in conformity with the actual condition of the vessels. These certificates shall be accepted by other States as evidence of the condition of the vessels and shall be regarded as having the same force as certificates issued by them, unless there are clear grounds for believing that the condition of the vessel does not correspond substantially with the particulars of the certificates.

49 Article 217(4)

4. If a vessel commits a violation of rules and standards established through the competent international organization or general diplomatic conference, the flag State, without prejudice to articles 218, 220 and 228, shall provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation irrespective of where the violation occurred or where the pollution caused by such violation has occurred or has been spotted.

50 Article 217(5)

5. Flag States conducting an investigation of the violation may request the assistance of any other State whose cooperation could be useful in clarifying the circumstances of the case. States shall endeavour to meet appropriate requests of flag States.

51 Article 217(6)

6. States shall, at the written request of any State, investigate any violation alleged to have been committed by vessels flying their flag. If satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, flag States shall without delay institute

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such proceedings in accordance with their laws. 52 Article 217(7) 7. Flag States shall promptly inform the requesting State and the competent international organization

of the action taken and its outcome. Such information shall be available to all States. 53 Article 217(8) 8. Penalties provided for by the laws and regulations of States for vessels flying their flag shall be

adequate in severity to discourage violations wherever they occur. Enforcement by Port States

54 Article 218(1)

1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference.

55. Article 218(2)

2. No proceedings pursuant to paragraph 1 shall be instituted in respect of a discharge violation in the internal waters, territorial sea or exclusive economic zone of another State unless requested by that State, the flag State, or a State damaged or threatened by the discharge violation, or unless the violation has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone of the State instituting the proceedings.

56 Article 218(3)

3. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State shall, as far as practicable, comply with requests from any State for investigation of a discharge violation referred to in paragraph 1, believed to have occurred in, caused, or threatened damage to the internal waters, territorial sea or exclusive economic zone of the requesting State. It shall likewise, as far as practicable, comply with requests from the flag State for investigation of such a violation, irrespective of where the violation occurred.

57 Article 218(4)

4. The records of the investigation carried out by a port State pursuant to this article shall be transmitted upon request to the flag State or to the coastal State. Any proceedings instituted by the port State on the basis of such an investigation may, subject to section 7, be suspended at the request of the coastal State when the violation has occurred within its internal waters, territorial sea or exclusive economic zone. The evidence and records of the case, together with any bond or other financial security posted with the authorities of the port State, shall in that event be transmitted to the coastal State. Such transmittal shall preclude the continuation of proceedings in the port State.

Measures relating to seaworthiness of vessels to avoid pollution 58 Article 219

Subject to section 7, States which, upon request or on their own initiative, have ascertained that a vessel within one of their ports or at one of their off-shore terminals is in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment shall, as far as practicable, take administrative measures to prevent the vessel from sailing. Such States may permit the vessel to proceed only to the nearest appropriate repair yard and, upon removal of the causes of the violation, shall permit the vessel to continue immediately.

Enforcement by coastal States 59 Article

220(1)-(8)

1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State. 2. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section 7. 3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred. 4. States shall adopt laws and regulations and take other measures so that vessels flying their flag comply with requests for information pursuant to paragraph 3. 5. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a substantial discharge causing or threatening significant pollution of the marine environment, that State may undertake physical inspection of the vessel for matters relating to the violation if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection.

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6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. 7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organization or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed. 8. The provisions of paragraphs 3, 4, 5, 6and 7 also apply in respect of national laws and regulations adopted pursuant to article 211, paragraph 6.

Measures to avoid pollution arising from maritime casualties 60 Article 221(1)

& (2)

1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. 2. For the purposes of this article, "maritime casualty" means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo. Enforcement with respect to pollution from or through the atmosphere

61 Article 222

States shall enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from or through the atmosphere, in conformity with all relevant international rules and standards concerning the safety of air navigation.

Measures to facilitate proceedings 62 Article 223

In proceedings instituted pursuant to this Part, States shall take measures to facilitate the hearing of witnesses and the admission of evidence submitted by authorities of another State, or by the competent international organization, and shall facilitate the attendance at such proceedings of official representatives of the competent international organization, the flag State and any State affected by pollution arising out of any violation. The official representatives attending such proceedings shall have such rights and duties as may be provided under national laws and regulations or international law.

Duty to avoid adverse consequences in the exercise of the powers of enforcement 63 Article 225

In the exercise under this Convention of their powers of enforcement against foreign vessels, States shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk.

Investigation of foreign vessels 64 Article

226(1)&(2)

1. (a) States shall not delay a foreign vessel longer than is essential for purposes of the investigations provided for in articles 216, 218 and 220. Any physical inspection of a foreign vessel shall be limited to an examination of such certificates, records or other documents as the vessel is required to carry by generally accepted international rules and standards or of any similar documents which it is carrying; further physical inspection of the vessel may be undertaken only after such an examination and only when:

(i) there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents; (ii) the contents of such documents are not sufficient to confirm or verify a suspected violation; or (iii) the vessel is not carrying valid certificates and records.

(b) If the investigation indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security. (c) Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part XV. 2. States shall cooperate to develop procedures for the avoidance of unnecessary physical inspection of vessels at sea.

Non-discrimination with respect to foreign vessels

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65 Article 227 In exercising their rights and performing their duties under this Part, States shall not discriminate in form or in fact against vessels of any other State

Suspension and restrictions on institution of proceedings 66 Article 228

1. Proceedings to impose penalties in respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings shall be suspended upon the taking of proceedings to impose penalties in respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal State or the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels. The flag State shall in due course make available to the State previously instituting proceedings a full dossier of the case and the records of the proceedings, whenever the flag State has requested the suspension of proceedings in accordance with this article. When proceedings instituted by the flag State have been brought to a conclusion, the suspended proceedings shall be terminated. Upon payment of costs incurred in respect of such proceedings, any bond posted or other financial security provided in connection with the suspended proceedings shall be released by the coastal State. 2. Proceedings to impose penalties on foreign vessels shall not be instituted after the expiry of three years from the date on which the violation was committed, and shall not be taken by any State in the event of proceedings having been instituted by another State subject to the provisions set out in paragraph 1. 3. The provisions of this article are without prejudice to the right of the flag State to take any measures, including proceedings to impose penalties, according to its laws irrespective of prior proceedings by another State.

Notification to the flag State and other States concerned 67 Article 231

States shall promptly notify the flag State and any other State concerned of any measures taken pursuant to section 6 against foreign vessels, and shall submit to the flag State all official reports concerning such measures. However, with respect to violations committed in the territorial sea, the foregoing obligations of the coastal State apply only to such measures as are taken in proceedings. The diplomatic agents or consular officers and where possible the maritime authority of the flag State, shall be immediately informed of any such measures taken pursuant to section 6 against foreign vessels.

Liability of States arising from enforcement measures 68 Article 232

States shall be liable for damage or loss attributable to them arising from measures taken pursuant to section 6 when such measures are unlawful or exceed those reasonably required in the light of available information. States shall provide for recourse in their courts for actions in respect of such damage or loss.

Responsibility and liability 69 Article 235

1. States are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law. 2. States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction. 3. With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds.

Obligations under other conventions on the protection and preservation of the marine environment 70 Article 237

1. The provisions of this Part are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention. 2. Specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.


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Fiji and UNCLOS

UNCLOS is perhaps one of those international instrument to which Fiji could claim a modest contribution

in its formulation. This was due mainly to the efforts of Ambassador Satya Nandan. Ambassador Satya N.

Nandan, C.F., C.B.E., was the Secretary-General of the International Seabed Authority 1996-2009. He

served earlier as Secretary for Foreign Affairs of Fiji and as Under-Secretary-General of the United

Nations and Special Representative of the Secretary-General for the Law of the Sea. Nandan was among

the leaders of the third UN Conference on the Law of the Sea and Chairman of the negotiating groups on

a number of key issues before the Conference. As Special Representative of the Secretary-General for the

Law of the Sea, he lead the consultations on outstanding issues relating to the regime for deep seabed

mining which had prevented the industrialized countries from accepting the 1982 United Nations

Convention on the Law of the Sea. The consultations resulted in the 1994 Agreement to implement the

provisions of Part XI of UNCLOS which opened the door to universal participation.482

Ratification

It is now a historical fact that Fiji was the first country in the world to have signed and ratified UNCLOS.

This was done in Montego Bay, Jamaica on 10 December, 1982.483 But as stated before, the test for

ratification lies in the implementation.

The analysis in this paper as tabulated above reveals that Fiji has a little over 70 different obligations and

duties to observe, implement or execute under Part XII of UNCLOS. These obligations ensure the

protection and preservation of the marine ecosystems and regulate the manner in which human activities

are carried out.

For Fiji, like most other Small Island Developing States in the Pacific, the Ocean has been an integral part

of life since Human habitation of these tiny islands. The Ocean plays an enormous role in the health and

life of the entire biological diversity and therefore its preservation, protection and regulation ought to be

accorded the gravity commensurate with its important role.

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Implementation

The burden for implementing the obligations under Part XII of UNCLOS lies squarely on Fiji. The

maxim pacta sunt servanda (Agreement must be kept) rings loud. Despite capacity constraints, Fiji has

endeavored its best over the years to keep its part of the bargain through formulation of appropriate

legislative and policy measures to address and implement its obligations. An elaborate and combine

discussion of these initiatives together with those under the remaining marine and fresh water related

MEAs will be made at Section 4.2.4 of this paper.

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3.5.2 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 1995484

“States Parties shall fulfill in good faith the obligations assumed under this Agreement and shall exercise the rights recognized in this Agreement in a

manner which would not constitute an abuse of right”.485

Introduction

The United Nations Agreement for the Implementation 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 sets out principles for the conservation and management of those Fish

stocks and establishes that such management must be based on the “precautionary approach”486 and the

“best available scientific information”487 . The Agreement elaborates on the fundamental principle,

established in UNCLOS, which states that States should cooperate to ensure conservation and promote

the objective of the optimum utilization of fisheries resources both within and beyond the exclusive

economic zone.

The Agreement attempts to achieve this objective by providing a framework for cooperation in the

conservation and management of those resources. It promotes good order in the oceans through the

effective management and conservation of high seas resources by establishing, among other things,

detailed minimum international standards for the conservation and management of straddling Fish stocks

and highly migratory Fish stocks; ensuring that measures taken for the conservation and management of

those stocks in areas under national jurisdiction and in the adjacent high seas are compatible and coherent;

ensuring that there are effective mechanisms for compliance and enforcement of those measures on the

high seas; and recognizing the special requirements of developing States in relation to conservation and

management as well as the development and participation in fisheries for the two types of stocks

mentioned above. 488

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The Agreement was adopted on 4 August 1995 by the United Nations Conference on Straddling Fish

stocks and Highly Migratory Fish stocks and opened for signature on 4 December 1995. It remained

open for signature until 4 December 1996 and was signed by 59 States and entities. 489 The

requirements for the entry into force of the Agreement were met on 11 November 2001, when the

Minister for Foreign Affairs of Malta deposited an instrument of accession to the Agreement with the

Secretary-General. The instrument was the thirtieth instrument of ratification or accession deposited490.

The Agreement was entered into force on 11 December 2001, i.e., 30 days after the date of deposit of the

thirtieth instrument of ratification or accession, in accordance with article 40 (1) of the Agreement.491

Highly Migratory & Straddling Fish stocks

Article 64 of UNCLOS defines “highly migratory species” by means of listing them in Annex I of that

Convention as follows492:

1. Albacore tuna: Thunnus alalunga. 2. Bluefin tuna: Thunnus thynnus. 3. Bigeye tuna: Thunnus obesus. 4. Skipjack tuna: Katsuwonus pelamis. 5. Yellowfin tuna: Thunnus albacares. 6. Blackfin tuna: Thunnus atlanticus. 7. Little tuna: Euthynnus alletteratus; Euthynnus affinis. 8. Southern bluefin tuna: Thunnus maccoyii. 9. Frigate mackerel: Auxis thazard; Auxis rochei. 10. Pomfrets: Family Bramidae. 11. Marlins: Tetrapturus angustirostris; Tetrapturus belone; Tetrapturus pfluegeri; Tetrapturus albidus; Tetrapturus audax; Tetrapturus georgei; Makaira mazara; Makaira indica; Makaira nigricans. 12. Sail-fishes: Istiophorus platypterus; Istiophorus albicans. 13. Swordfish: Xiphias gladius. 14. Sauries: Scomberesox saurus; Cololabis saira; Cololabis adocetus; Scomberesox saurus scombroides. 15. Dolphin: Coryphaena hippurus; Coryphaena equiselis. 16. Oceanic sharks: Hexanchus griseus; Cetorhinus maximus; Family Alopiidae; Rhincodon typus; Family Carcharhinidae; Family Sphyrnidae; Family Isurida. 17. Cetaceans: Family Physeteridae; Family Balaenopteridae; Family Balaenidae; Family Eschrichtiidae; Family Monodontidae; Family Ziphiidae; Family Delphinidae

A definition of straddling species or Fish stocks does not appear in UNCLOS or the Fish stocks

Agreement. Nevertheless, it is commonly understood that straddling stocks means those stocks referred to

in Article 63(2) of the Convention, i.e. stocks which “occur both within the exclusive economic zone and

in an area beyond and adjacent to the zone”.493 Although on its face simple, this definition is not without

difficulty, however. During the negotiations on the Fish stocks Agreement, consideration was given to the

development of a precise definition, but the participants resolved that it was better to avoid a definition of ��?%��%��% ��%��4))'� ��,-(M3��%��,-(M3�4� ��D�E�

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straddling Fish stocks definitions altogether and leave the matter to be resolved at the (sub-) regional

level494.In practice, Fish stocks should presumably be treated as straddling when their occurrence in both

the exclusive economic zone (EEZ) and the high seas leads to trans-boundary effects that are significant

for fisheries management authorities495.

General Principles

Underlying the Fish stocks Agreement is a broad set of general principles which contain a detailed

statement of the duties and responsibilities of States in relation to the conservation and management of

straddling and highly migratory Fish stocks496 .These principles are based on modern concepts of

environmentally-sound fishing practices and also on the basic objectives expressed in the LOS

Convention, namely the optimum utilization of fisheries and the maintenance or restoration of stocks at

levels capable of producing maximum sustainable yield (MSY)497.

Precautionary Approach

The Fish stocks Agreement is concerned with the application of the “precautionary approach” to the

conservation, management and exploitation of straddling and highly migratory Fish stocks498. Annex II to

the Fish stocks Agreement sets out the Guidelines for the Application of Precautionary Reference Points

in the Conservation and Management of Straddling Fish stocks and Highly Migratory Fish stocks and lists

out the specific details that are involved in the implementation of the precautionary approach.

UNCLOS and the Fish stocks Agreement

As explained in the Introduction of this section, the Fish stock Agreement is an Implementation

Agreement of the UNCLOS. It does not deal with all of the UNCLOS’s categories of stocks, but

exclusively with straddling Fish stocks and highly migratory Fish stocks. Its objective is “to ensure the

long-term conservation and sustainable use of straddling Fish stocks and highly migratory Fish stocks”.499

Its scope of application encompasses not only areas beyond national jurisdiction but also areas within

national jurisdiction.500

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While the Fish stock Agreement does not alter the basic jurisdictional framework of UNCLOS,501 the

basic provisions of the LOS Convention are broadened, strengthened and specified in more detail in the

Fish stocks Agreement in relation to straddling and highly migratory Fish stocks. This includes the

requirements to apply a precautionary approach and an ecosystem approach to fisheries502, to protect

biodiversity in the marine environment, the concept of compatibility503, a variety of specific obligations

for flag states504, high seas enforcement powers for non-flag states and rights and obligations for port

states505.

In contrast with the UNCLOS, the Fish stocks Agreement regards Regional Fisheries Management

Organizations (RFMOs) and Arrangements as the preferred vehicles for fisheries regulation at the

regional level. It imposes obligations on States Parties to the Fish stocks Agreement to cooperate through

appropriate existing RFMOs and Arrangements. Of crucial importance in that regard is Article 8(4),

which stipulates that access to fisheries is limited to cooperating states. New is also the right in Article

8(3) of states with a “real interest‟ to become members of RFMOs or participants in Arrangements.

Arguably, the duty to cooperate with the relevant RFMO or Arrangement laid down in Article 8(3) is

already part of customary international law and thereby entitles the relevant members or participants to

take measures against (non-cooperating) non-members and non-participants that would otherwise be in

violation of international law, for instance trade-related measures506.

RFMOs and Arrangements are to be established where these do not exist507. Moreover, as a consequence

of in particular bottom-fisheries targeting deep-sea fish species - which are often discrete high seas Fish

stocks - there is broad support in the international community to ensure that all areas beyond national

jurisdiction are covered by RFMOs or Arrangements. Such coverage would ensure that all target fisheries

fall within the mandate of an RFMO or Arrangement. Moreover, these RFMOs or Arrangements need to

have modern ecosystem-based fisheries management mandates that also allow them to address fisheries

impacts on non-target species (including on benthic habitats).508

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The Agreement does not establish a regulatory body but provides for the convening of a review

conference in its Article 36. While this was likely to have been envisaged as a one-off event, the Review

Conference on the Fish stocks Agreement that convened in May 2006509 was not formally closed and was

resume in 2010. This may transform the review conference into a permanent or at least regularly recurring

forum in which the implementation of the Fish stocks Agreement and RFMOs and Arrangements can be

discussed and where recommendations can be made to improve such implementation510.

Obligations

Individual obligations contained in the Fish stocks Agreement to which Fiji is bound to implement

numbers close to a little over 60. Ranging from those obligations contained in the general principles of

the Agreement to the requirements for cooperation (including the various duties and obligations as a Flag

and as a Coastal State), faithful implementation of the Agreement could be insurmountable. However, as

it will be discussed later, regional cooperation makes the duties lighter. Tabulated below is the list of

obligations under the Fish stocks Agreement.

TABLE 25: FIJI’S OBLIGATIONS UNDER THE UN FISH STOCKS AGREEMENT.

Fiji’s Obligations under the Fish stocks Agreement General Principles

1. Article 5(a)-(l) In order to conserve and manage straddling Fish stocks and highly migratory Fish stocks, coastal States and States fishing on the high seas shall, in giving effect to their duty to cooperate in accordance with the Convention: (a) adopt measures to ensure long-term sustainability of straddling Fish stocks and highly migratory Fish stocks and promote the objective of their optimum utilization; (b) ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub-regional, regional or global; (c) apply the precautionary approach in accordance with article 6; (d) assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks; (e) adopt, where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened; (f) minimize pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species, both fish and non-fish species, (hereinafter referred to as non-target species) and impacts on associated or dependent species, in particular endangered species, through measures including, to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques; (g) protect biodiversity in the marine environment; (h) take measures to prevent or eliminate overfishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of

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fishery resources; (i) take into account the interests of artisanal and subsistence fishers; (j) 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 set out in Annex I, as well as information from national and international research programmes; (k) promote and conduct scientific research and develop appropriate technologies in support of fishery conservation and management; and (l) implement and enforce conservation and management measures through effective monitoring, control and surveillance.

Application of the precautionary approach 2. Article 6(1) –(7) 1. States shall apply the precautionary approach widely to conservation, management and

exploitation of straddling Fish stocks and highly migratory Fish stocks in order to protect the living marine resources and preserve the marine environment. 2. States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures. 3. In implementing the precautionary approach, States shall: (a) improve decision-making for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty; (b) apply the guidelines set out in Annex II and determine, on the basis of the best scientific information available, stock-specific reference points and the action to be taken if they are exceeded; (c) take into account, inter alia, uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distribution of fishing mortality and the impact of fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic, environmental and socio-economic conditions; and (d) develop data collection and research programmes to assess the impact of fishing on non-target and associated or dependent species and their environment, and adopt plans which are necessary to ensure the conservation of such species and to protect habitats of special concern. 4. States shall take measures to ensure that, when reference points are approached, they will not be exceeded. In the event that they are exceeded, States shall, without delay, take the action determined under paragraph 3 (b) to restore the stocks. 5. Where the status of target stocks or non-target or associated or dependent species is of concern, States shall subject such stocks and species to enhanced monitoring in order to review their status and the efficacy of conservation and management measures. They shall revise those measures regularly in the light of new information. 6. For new or exploratory fisheries, States shall adopt as soon as possible cautious conservation and management measures, including, inter alia, catch limits and effort limits. Such measures shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks, whereupon conservation and management measures based on that assessment shall be implemented. The latter measures shall, if appropriate, allow for the gradual development of the fisheries. 7. If a natural phenomenon has a significant adverse impact on the status of straddling Fish stocks or highly migratory Fish stocks, States shall adopt conservation and management measures on an emergency basis to ensure that fishing activity does not exacerbate such adverse impact. States shall also adopt such measures on an emergency basis where fishing activity presents a serious threat to the sustainability of such stocks. Measures taken on an emergency basis shall be temporary and shall be based on the best scientific evidence available.

Compatibility of conservation and management measures 3. Article 7(1)-(8)

1. Without prejudice to the sovereign rights of coastal States for the purpose of exploring and exploiting, conserving and managing the living marine resources within areas under national jurisdiction as provided for in the Convention, and the right of all States for their nationals to engage in fishing on the high seas in accordance with the Convention: (a) with respect to straddling Fish stocks, the relevant coastal States and the States whose nationals fish for such stocks in the adjacent high seas area shall seek, either directly or through the appropriate mechanisms for cooperation provided for in Part III, to agree upon the measures necessary for the conservation of these stocks in the adjacent high seas area; (b) with respect to highly migratory Fish stocks, the relevant coastal States and other States whose nationals fish for such stocks in the region shall cooperate, either directly or through the appropriate mechanisms for cooperation provided for in Part III, with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond the areas under national jurisdiction. 2. Conservation and management measures established for the high seas and those adopted for

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areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling Fish stocks and highly migratory Fish stocks in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks. In determining compatible conservation and management measures, States shall: (a) take into account the conservation and management measures adopted and applied in accordance with article 61 of the Convention in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures; (b) take into account previously agreed measures established and applied for the high seas in accordance with the Convention in respect of the same stocks by relevant coastal States and States fishing on the high seas; (c) take into account previously agreed measures established and applied in accordance with the Convention in respect of the same stocks by a sub-regional or regional fisheries management organization or arrangement; (d) take into account the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction; (e) take into account the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned; and (f) ensure that such measures do not result in harmful impact on the living marine resources as a whole. 3. In giving effect to their duty to cooperate, States shall make every effort to agree on compatible conservation and management measures within a reasonable period of time. 4. If no agreement can be reached within a reasonable period of time, any of the States concerned may invoke the procedures for the settlement of disputes provided for in Part VIII. 5. Pending agreement on compatible conservation and management measures, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature. In the event that they are unable to agree on such arrangements, any of the States concerned may, for the purpose of obtaining provisional measures, submit the dispute to a court or tribunal in accordance with the procedures for the settlement of disputes provided for in Part VIII. 6. Provisional arrangements or measures entered into or prescribed pursuant to paragraph 5 shall take into account the provisions of this Part, shall have due regard to the rights and obligations of all States concerned, shall not jeopardize or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of any dispute settlement procedure. 7. Coastal States shall regularly inform States fishing on the high seas in the sub region or region, either directly or through appropriate sub-regional or regional fisheries management organizations or arrangements, or through other appropriate means, of the measures they have adopted for straddling Fish stocks and highly migratory Fish stocks within areas under their national jurisdiction. 8. States fishing on the high seas shall regularly inform other interested States, either directly or through appropriate sub-regional or regional fisheries management organizations or arrangements, or through other appropriate means, of the measures they have adopted for regulating the activities of vessels flying their flag which fish for such stocks on the high seas.

Cooperation for conservation and management 4. Article 8(1)-(6) 1. Coastal States and States fishing on the high seas shall, in accordance with the Convention,

pursue cooperation in relation to straddling Fish stocks and highly migratory Fish stocks either directly or through appropriate sub regional or regional fisheries management organizations or arrangements, taking into account the specific characteristics of the sub region or region, to ensure effective conservation and management of such stocks. 2. States shall enter into consultations in good faith and without delay, particularly where there is evidence that the straddling Fish stocks and highly migratory Fish stocks concerned may be under threat of over-exploitation or where a new fishery is being developed for such stocks. To this end, consultations may be initiated at the request of any interested State with a view to establishing appropriate arrangements to ensure conservation and management of the stocks. Pending agreement on such arrangements, States shall observe the provisions of this Agreement and shall act in good faith and with due regard to the rights, interests and duties of other States. 3. Where a sub-regional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling Fish stocks or highly migratory Fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement. States having a real

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interest in the fisheries concerned may become members of such organization or participants in such arrangement. The terms of participation in such organization or arrangement shall not preclude such States from membership or participation; nor shall they be applied in a manner which discriminates against any State or group of States having a real interest in the fisheries concerned. 4. Only those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply. 5. Where there is no sub-regional or regional fisheries management organization or arrangement to establish conservation and management measures for a particular straddling Fish stocks or highly migratory Fish stocks, relevant coastal States and States fishing on the high seas for such stock in the sub region or region shall cooperate to establish such an organization or enter into other appropriate arrangements to ensure conservation and management of such stock and shall participate in the work of the organization or arrangement. 6. Any State intending to propose that action be taken by an intergovernmental organization having competence with respect to living resources should, where such action would have a significant effect on conservation and management measures already established by a competent sub-regional or regional fisheries management organization or arrangement, consult through that organization or arrangement with its members or participants. To the extent practicable, such consultation should take place prior to the submission of the proposal to the intergovernmental organization.

Sub-regional and regional fisheries management organizations and arrangements 5. Article 9

1. In establishing sub-regional or regional fisheries management organizations or in entering into sub regional or regional fisheries management arrangements for straddling Fish stocks and highly migratory Fish stocks, States shall agree, inter alia, on: (a) the stocks to which conservation and management measures apply, taking into account the biological characteristics of the stocks concerned and the nature of the fisheries involved; (b) the area of application, taking into account article 7, paragraph 1, and the characteristics of the sub region or region, including socio-economic, geographical and environmental factors; (c) the relationship between the work of the new organization or arrangement and the role, objectives and operations of any relevant existing fisheries management organizations or arrangements; and (d) the mechanisms by which the organization or arrangement will obtain scientific advice and review the status of the stocks, including, where appropriate, the establishment of a scientific advisory body. 2. States cooperating in the formation of a sub-regional or regional fisheries management organization or arrangement shall inform other States which they are aware have a real interest in the work of the proposed organization or arrangement of such cooperation.

Functions of sub-regional and regional fisheries management organizations and arrangements 6. Article 10(a) –(m)

In fulfilling their obligation to cooperate through sub-regional or regional fisheries management organizations or arrangements, States shall: (a) agree on and comply with conservation and management measures to ensure the long-term sustainability of straddling Fish stocks and highly migratory Fish stocks; (b) agree, as appropriate, on participatory rights such as allocations of allowable catch or levels of fishing effort; (c) adopt and apply any generally recommended international minimum standards for the responsible conduct of fishing operations; (d) obtain and evaluate scientific advice, review the status of the stocks and assess the impact of fishing on non-target and associated or dependent species; (e) agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks; (f) compile and disseminate accurate and complete statistical data, as described in Annex I, to ensure that the best scientific evidence is available, while maintaining confidentiality where appropriate; (g) promote and conduct scientific assessments of the stocks and relevant research and disseminate the results thereof; (h) establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement; (i) agree on means by which the fishing interests of new members of the organization or new participants in the arrangement will be accommodated; (j) agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner; (k) promote the peaceful settlement of disputes in accordance with Part VIII; (l) ensure the full cooperation of their relevant national agencies and industries in implementing the recommendations and decisions of the organization or arrangement; and

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(m) give due publicity to the conservation and management measures established by the organization or arrangement.

Transparency in activities of sub-regional and regional fisheries management organizations and arrangements 7. Article 12 1. States shall provide for transparency in the decision-making process and other activities of

sub-regional and regional fisheries management organizations and arrangements. Strengthening of existing organizations and arrangements

8. Article 13

States shall cooperate to strengthen existing sub-regional and regional fisheries management organizations and arrangements in order to improve their effectiveness in establishing and implementing conservation and management measures for straddling Fish stocks and highly migratory Fish stocks.

Collection and provision of information and cooperation in scientific research 9. Article 14(1)-(3)

1. States shall ensure that fishing vessels flying their flag provide such information as may be necessary in order to fulfill their obligations under this Agreement. To this end, States shall in accordance with Annex I: (a) collect and exchange scientific, technical and statistical data with respect to fisheries for straddling Fish stocks and highly migratory Fish stocks; (b) ensure that data are collected in sufficient detail to facilitate effective stock assessment and are provided in a timely manner to fulfill the requirements of sub=regional or regional fisheries management organizations or arrangements; and (c) take appropriate measures to verify the accuracy of such data. 2. States shall cooperate, either directly or through sub=regional or regional fisheries management organizations or arrangements: (a) to agree on the specification of data and the format in which they are to be provided to such organizations or arrangements, taking into account the nature of the stocks and the fisheries for those stocks; and (b) to develop and share analytical techniques and stock assessment methodologies to improve measures for the conservation and management of straddling Fish stocks and highly migratory Fish stocks. 3. Consistent with Part XIII of the Convention, States shall cooperate, either directly or through competent international organizations, to strengthen scientific research capacity in the field of fisheries and promote scientific research related to the conservation and management of straddling Fish stocks and highly migratory Fish stocks for the benefit of all. To this end, a State or the competent international organization conducting such research beyond areas under national jurisdiction shall actively promote the publication and dissemination to any interested States of the results of that research and information relating to its objectives and methods and, to the extent practicable, shall facilitate the participation of scientists from those States in such research.

Duties of the flag State 10. Article 18(1)-(4) Article 18

1. A State whose vessels fish on the high seas shall take such measures as may be necessary to ensure that vessels flying its flag comply with sub-regional and regional conservation and management measures and those such vessels do not engage in any activity which undermines the effectiveness of such measures. 2. A State shall authorize the use of vessels flying its flag for fishing on the high seas only where it is able to exercise effectively its responsibilities in respect of such vessels under the Convention and this Agreement. 3. Measures to be taken by a State in respect of vessels flying its flag shall include: (a) control of such vessels on the high seas by means of fishing licenses, authorizations or permits, in accordance with any applicable procedures agreed at the sub-regional, regional or global level; (b) establishment of regulations: (i) to apply terms and conditions to the license, authorization or permit sufficient to fulfill any sub-regional, regional or global obligations of the flag State; (ii) to prohibit fishing on the high seas by vessels which are not duly licensed or authorized to fish, or fishing on the high seas by vessels otherwise than in accordance with the terms and conditions of a license, authorization or permit; (iii) to require vessels fishing on the high seas to carry the license, authorization or permit on board at all times and to produce it on demand for inspection by a duly authorized person; and (iv) to ensure that vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of other States; (c) establishment of a national record of fishing vessels authorized to fish on the high seas and provision of access to the information contained in that record on request by directly interested States, taking into account any national laws of the flag State regarding the release of such information; (d) requirements for marking of fishing vessels and fishing gear for identification in

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accordance with uniform and internationally recognizable vessel and gear marking systems, such as the Food and Agriculture Organization of the United Nations Standard Specifications for the Marking and Identification of Fishing Vessels; (e) requirements for recording and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data in accordance with sub-regional, regional and global standards for collection of such data; (f) requirements for verifying the catch of target and non-target species through such means as observer programmes, inspection schemes, unloading reports, supervision of transshipment and monitoring of landed catches and market statistics; (g) monitoring, control and surveillance of such vessels, their fishing operations and related activities by, inter alia: (i) the implementation of national inspection schemes and sub-regional and regional schemes for cooperation in enforcement pursuant to articles 21 and 22, including requirements for such vessels to permit access by duly authorized inspectors from other States; (ii) the implementation of national observer programmes and sub-regional and regional observer programmes in which the flag State is a participant, including requirements for such vessels to permit access by observers from other States to carry out the functions agreed under the programmes; and (iii) the development and implementation of vessel monitoring systems, including, as appropriate, satellite transmitter systems, in accordance with any national programmes and those which have been sub-regionally, regionally or globally agreed among the States concerned; (h) regulation of transshipment on the high seas to ensure that the effectiveness of conservation and management measures is not undermined; and (i) regulation of fishing activities to ensure compliance with sub-regional, regional or global measures, including those aimed at minimizing catches of non-target species. 4. Where there is a sub-regionally, regionally or globally agreed system of monitoring, control and surveillance in effect, States shall ensure that the measures they impose on vessels flying their flag are compatible with that system.

Compliance and enforcement by the flag State 11. Article 19(1) & (2)

1. A State shall ensure compliance by vessels flying its flag with sub-regional and regional conservation and management measures for straddling Fish stocks and highly migratory Fish stocks. To this end, that State shall: (a) enforce such measures irrespective of where violations occur; (b) investigate immediately and fully any alleged violation of sub-regional or regional conservation and management measures, which may include the physical inspection of the vessels concerned, and report promptly to the State alleging the violation and the relevant sub-regional or regional organization or arrangement on the progress and outcome of the investigation; (c) require any vessel flying its flag to give information to the investigating authority regarding vessel position, catches, fishing gear, fishing operations and related activities in the area of an alleged violation; (d) if satisfied that sufficient evidence is available in respect of an alleged violation, refer the case to its authorities with a view to instituting proceedings without delay in accordance with its laws and, where appropriate, detain the vessel concerned; and (e) ensure that, where it has been established, in accordance with its laws, a vessel has been involved in the commission of a serious violation of such measures, the vessel does not engage in fishing operations on the high seas until such time as all outstanding sanctions imposed by the flag State in respect of the violation have been complied with. 2. All investigations and judicial proceedings shall be carried out expeditiously. Sanctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities. Measures applicable in respect of masters and other officers of fishing vessels shall include provisions which may permit, inter alia, refusal, withdrawal or suspension of authorizations to serve as masters or officers on such vessels.

International cooperation in enforcement 12. Article 20(1)-(7) 1. States shall cooperate, either directly or through sub-regional or regional fisheries

management organizations or arrangements, to ensure compliance with and enforcement of sub-regional and regional conservation and management measures for straddling Fish stocks and highly migratory Fish stocks. 2. A flag State conducting an investigation of an alleged violation of conservation and management measures for straddling Fish stocks or highly migratory Fish stocks may request the assistance of any other State whose cooperation may be useful in the conduct of that investigation. All States shall endeavor to meet reasonable requests made by a flag State in connection with such investigations. 3. A flag State may undertake such investigations directly, in cooperation with other interested

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States or through the relevant sub-regional or regional fisheries management organization or arrangement. Information on the progress and outcome of the investigations shall be provided to all States having an interest in, or affected by, the alleged violation. 4. States shall assist each other in identifying vessels reported to have engaged in activities undermining the effectiveness of sub-regional, regional or global conservation and management measures. 5. States shall, to the extent permitted by national laws and regulations, establish arrangements for making available to prosecuting authorities in other States evidence relating to alleged violations of such measures. 6. Where there are reasonable grounds for believing that a vessel on the high seas has been engaged in unauthorized fishing within an area under the jurisdiction of a coastal State, the flag State of that vessel, at the request of the coastal State concerned, shall immediately and fully investigate the matter. The flag State shall cooperate with the coastal State in taking appropriate enforcement action in such cases and may authorize the relevant authorities of the coastal State to board and inspect the vessel on the high seas. This paragraph is without prejudice to article 111 of the Convention. 7. States Parties which are members of a sub-regional or regional fisheries management organization or participants in a sub-regional or regional fisheries management arrangement may take action in accordance with international law, including through recourse to sub-regional or regional procedures established for this purpose, to deter vessels which have engaged in activities which undermine the effectiveness of or otherwise violate the conservation and management measures established by that organization or arrangement from fishing on the high seas in the sub-region or region until such time as appropriate action is taken by the flag State.

Sub-regional and regional cooperation in enforcement 13. Article 21(1) - 18)

1. In any high seas area covered by a sub-regional or regional fisheries management organization or arrangement, a State Party which is a member of such organization or a participant in such arrangement may, through its duly authorized inspectors, board and inspect, in accordance with paragraph 2, fishing vessels flying the flag of another State Party to this Agreement, whether or not such State Party is also a member of the organization or a participant in the arrangement, for the purpose of ensuring compliance with conservation and management measures for straddling Fish stocks and highly migratory Fish stocks established by that organization or arrangement. 2. States shall establish, through sub-regional or regional fisheries management organizations or arrangements, procedures for boarding and inspection pursuant to paragraph 1, as well as procedures to implement other provisions of this article. Such procedures shall be consistent with this article and the basic procedures set out in article 22 and shall not discriminate against non-members of the organization or non-participants in the arrangement. Boarding and inspection as well as any subsequent enforcement action shall be conducted in accordance with such procedures. States shall give due publicity to procedures established pursuant to this paragraph. 3. If, within two years of the adoption of this Agreement, any organization or arrangement has not established such procedures, boarding and inspection pursuant to paragraph 1, as well as any subsequent enforcement action, shall, pending the establishment of such procedures, be conducted in accordance with this article and the basic procedures set out in article 22. 4. Prior to taking action under this article, inspecting States shall, either directly or through the relevant sub-regional or regional fisheries management organization or arrangement, inform all States whose vessels fish on the high seas in the sub-region or region of the form of identification issued to their duly authorized inspectors. The vessels used for boarding and inspection shall be clearly marked and identifiable as being on government service. At the time of becoming a Party to this Agreement, a State shall designate an appropriate authority to receive notifications pursuant to this article and shall give due publicity of such designation through the relevant sub-regional or regional fisheries management organization or arrangement. 5. Where, following a boarding and inspection, there are clear grounds for believing that a vessel has engaged in any activity contrary to the conservation and management measures referred to in paragraph 1, the inspecting State shall, where appropriate, secure evidence and shall promptly notify the flag State of the alleged violation. 6. The flag State shall respond to the notification referred to in paragraph 5 within three working days of its receipt, or such other period as may be prescribed in procedures established in accordance with paragraph 2, and shall either: (a) fulfill, without delay, its obligations under article 19 to investigate and, if evidence so warrants, take enforcement action with respect to the vessel, in which case it shall promptly inform the inspecting State of the results of the investigation and of any enforcement action taken; or (b) authorize the inspecting State to investigate.

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7. Where the flag State authorizes the inspecting State to investigate an alleged violation, the inspecting State shall, without delay, communicate the results of that investigation to the flag State. The flag State shall, if evidence so warrants, fulfill its obligations to take enforcement action with respect to the vessel. Alternatively, the flag State may authorize the inspecting State to take such enforcement action as the flag State may specify with respect to the vessel, consistent with the rights and obligations of the flag State under this Agreement. 8. Where, following boarding and inspection, there are clear grounds for believing that a vessel has committed a serious violation, and the flag State has either failed to respond or failed to take action as required under paragraphs 6 or 7, the inspectors may remain on board and secure evidence and may require the master to assist in further investigation including, where appropriate, by bringing the vessel without delay to the nearest appropriate port, or to such other port as may be specified in procedures established in accordance with paragraph 2. The inspecting State shall immediately inform the flag State of the name of the port to which the vessel is to proceed. The inspecting State and the flag State and, as appropriate, the port State shall take all necessary steps to ensure the well-being of the crew regardless of their nationality. 9. The inspecting State shall inform the flag State and the relevant organization or the participants in the relevant arrangement of the results of any further investigation. 10. The inspecting State shall require its inspectors to observe generally accepted international regulations, procedures and practices relating to the safety of the vessel and the crew, minimize interference with fishing operations and, to the extent practicable, avoid action which would adversely affect the quality of the catch on board. The inspecting State shall ensure that boarding and inspection is not conducted in a manner that would constitute harassment of any fishing vessel. 11. For the purposes of this article, a serious violation means: (a) fishing without a valid license, authorization or permit issued by the flag State in accordance with article 18, paragraph 3 (a); (b) failing to maintain accurate records of catch and catch-related data, as required by the relevant sub-regional or regional fisheries management organization or arrangement, or serious misreporting of catch, contrary to the catch reporting requirements of such organization or arrangement; (c) fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota established by the relevant sub-regional or regional fisheries management organization or arrangement; (d) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear; (f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures; or (i) such other violations as may be specified in procedures established by the relevant sub-regional or regional fisheries management organization or arrangement. 12. Notwithstanding the other provisions of this article, the flag State may, at any time, take action to fulfill its obligations under article 19 with respect to an alleged violation. Where the vessel is under the direction of the inspecting State, the inspecting State shall, at the request of the flag State, release the vessel to the flag State along with full information on the progress and outcome of its investigation. 13. This article is without prejudice to the right of the flag State to take any measures, including proceedings to impose penalties, according to its laws. 14. This article applies mutatis mutandis to boarding and inspection by a State Party which is a member of a sub-regional or regional fisheries management organization or a participant in a sub-regional or regional fisheries management arrangement and which has clear grounds for believing that a fishing vessel flying the flag of another State Party has engaged in any activity contrary to relevant conservation and management measures referred to in paragraph 1 in the high seas area covered by such organization or arrangement, and such vessel has subsequently, during the same fishing trip, entered into an area under the national jurisdiction of the inspecting State. 15. Where a sub-regional or regional fisheries management organization or arrangement has established an alternative mechanism which effectively discharges the obligation under this Agreement of its members or participants to ensure compliance with the conservation and management measures established by the organization or arrangement, members of such organization or participants in such arrangement may agree to limit the application of paragraph 1 as between themselves in respect of the conservation and management measures which have been established in the relevant high seas area. 16. Action taken by States other than the flag State in respect of vessels having engaged in activities contrary to sub-regional or regional conservation and management measures shall be

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proportionate to the seriousness of the violation. 17. Where there are reasonable grounds for suspecting that a fishing vessel on the high seas is without nationality, a State may board and inspect the vessel. Where evidence so warrants, the State may take such action as may be appropriate in accordance with international law. 18. States shall be liable for damage or loss attributable to them arising from action taken pursuant to this article when such action is unlawful or exceeds that reasonably required in the light of available information to implement the provisions of this article.

Basic procedures for boarding and inspection pursuant to article 21

14. Article 22

1. The inspecting State shall ensure that its duly authorized inspectors: (a) present credentials to the master of the vessel and produce a copy of the text of the relevant conservation and management measures or rules and regulations in force in the high seas area in question pursuant to those measures; (b) initiate notice to the flag State at the time of the boarding and inspection; (c) do not interfere with the master's ability to communicate with the authorities of the flag State during the boarding and inspection; (d) provide a copy of a report on the boarding and inspection to the master and to the authorities of the flag State, noting therein any objection or statement which the master wishes to have included in the report; (e) promptly leave the vessel following completion of the inspection if they find no evidence of a serious violation; and (f) avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances. 2. The duly authorized inspectors of an inspecting State shall have the authority to inspect the vessel, its license, gear, equipment, records, facilities, fish and fish products and any relevant documents necessary to verify compliance with the relevant conservation and management measures. 3. The flag State shall ensure that vessel masters: (a) accept and facilitate prompt and safe boarding by the inspectors; (b) cooperate with and assist in the inspection of the vessel conducted pursuant to these procedures; (c) do not obstruct, intimidate or interfere with the inspectors in the performance of their duties; (d) allow the inspectors to communicate with the authorities of the flag State and the inspecting State during the boarding and inspection; (e) provide reasonable facilities, including, where appropriate, food and accommodation, to the inspectors; and (f) facilitate safe disembarkation by the inspectors. 4. In the event that the master of a vessel refuses to accept boarding and inspection in accordance with this article and article 21, the flag State shall, except in circumstances where, in accordance with generally accepted international regulations, procedures and practices relating to safety at sea, it is necessary to delay the boarding and inspection, direct the master of the vessel to submit immediately to boarding and inspection and, if the master does not comply with such direction, shall suspend the vessel's authorization to fish and order the vessel to return immediately to port. The flag State shall advise the inspecting State of the action it has taken when the circumstances referred to in this paragraph arise.

Measures taken by a Port State 15. Article 23

1. A port State has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of sub-regional, regional and global conservation and management measures. When taking such measures a port State shall not discriminate in form or in fact against the vessels of any State. 2. A port State may, inter alia, inspect documents, fishing gear and catch on board fishing vessels, when such vessels are voluntarily in its ports or at its offshore terminals. 3. States may adopt regulations empowering the relevant national authorities to prohibit landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of sub-regional, regional or global conservation and management measures on the high seas. 4. Nothing in this article affects the exercise by States of their sovereignty over ports in their territory in accordance with international law. Special assistance in the implementation of this Agreement

16. Article 26

Special assistance in the implementation of this Agreement 1. States shall cooperate to establish special funds to assist developing States in the implementation of this Agreement, including assisting developing States to meet the costs involved in any proceedings for the settlement of disputes to which they may be parties.

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2. States and international organizations should assist developing States in establishing new sub-regional or regional fisheries management organizations or arrangements, or in strengthening existing organizations or arrangements, for the conservation and management of straddling Fish stocks and highly migratory Fish stocks.

Good faith and abuse of rights 17. Article 34

States Parties shall fulfill in good faith the obligations assumed under this Agreement and shall exercise the rights recognized in this Agreement in a manner which would not constitute an abuse of right.

Fiji and the Fish stock Agreement

Fiji was the 6th Country to have ratified the Fish stock Agreement. This was done on 12th December,

1996511. Interesting to note that of the 5 countries who ratified the Agreements ahead of Fiji, 2 are from

the Pacific Region512. Others included the United States of America513, Sri Lanka514 and the Caribbean

Island State of St. Lucia515.

Fiji’s contribution to the formulation of the Agreement was once again through the efforts of Ambassador

Satya Nandan who was unanimously elected Chairman of the United Nations Conference on Straddling

Fish Stocks and Highly Migratory Fish Stocks (1993 -1995)516.

The implementations of the obligations under the Agreement by Fiji are manifested in a number of

legislative, policy and regulatory measures that are currently in place. Regional Cooperation, has by far

the most efficient and economical way upon which Fiji has fulfilled its obligations, however, a full

discussion on these initiatives will be made a little later, in Section 4.2.5 of this paper.

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Chapter Four: Fiji’s Regional MEAs Implementation Analysis

4.1 Introduction Regional MEAs

Discussion in Chapter Four relates to the implementation of the regional MEAs to which Fiji is a Party.

The Author deemed it appropriate to keep each of the thematic clusters of MEAs separated between

Global and Regional in order to highlight regional initiatives on environment protection and preservations

which had their origins from the far sighted vision and cooperative efforts of the Leaders of the Small

Island States of the Pacific.

Not until the Rio Summit and the promulgation and adoption by States of the Rio Conventions that global

drive for environmental conservations began in earnest. Prior to that, most of the initiative were discussed

and adopted at regional level. Nevertheless, implementation and coordination has been better facilitated at

regional level wherein the South Pacific Regional Environmental Programme has been the premier

organization assisting Pacific Island Countries through provision of technical advice.

To date, Fiji has ratified a total of 9 Regional MEAs as follows:

1. 1979 South Pacific Forum Fisheries Agency Convention;

2. 1990 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific

3. 1992 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South

Pacific Region

4. 2000 Convention on the Conservation and Management of Highly Migratory Fish stocks in the

Western and Central Pacific Ocean

5. 1985 South Pacific Nuclear Free Zone Treaty (Treaty of Raratonga)

6. 1986 SPREP Protocol for the Prevention of Pollution of the South Pacific

7. Region by Dumping (SPREP Dumping Protocol) 1990 SPREP Protocol Concerning Cooperation

in Combating Pollution Emergencies in the South Pacific Region (SPREP Pollution Emergencies

Protocol)

8. Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive

Wastes and to Control the Tran boundary Movements and Management of Hazardous Wastes

within the South Pacific Region 1995(Waigani Convention)

9. 1976 Convention on the Conservation of Nature in the South Pacific (Apia Convention);

10. 1986 SPREP (Noumea) Convention for the Protection of the Natural Resources and Environment

of the South Pacific Region (SPREP Convention)

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4.2 Ocean Governance & Fisheries

Section 4.2 will discuss Regional MEAs dealing with “Ocean Governance & Fisheries”. As alluded to

above, discussion of Fiji’s Implementation of these Regional Agreements will be made at the end of this

sub-section and it will also include (in a combined fashion), discussion of the implementation of the

Global Oceans and Fisheries related MEAs. Thus, discussion in this section will be as follows:

1. 1979 South Pacific Forum Fisheries Agency Convention

2. 1990 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific

3. The Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific

Region 1992 (“The Niue Treaty”)

4. 2000 Convention on the Conservation and Management of Highly Migratory Fish stocks in the Western and Central Pacific Ocean

5. Fiji and the Ocean& Fisheries Related MEAs

4.2.1 1979 South Pacific Forum Fisheries Agency Convention517

Introduction

In August 1979 the member countries of the South Pacific Forum, desiring to promote regional

cooperation and co-ordination in respect of their fisheries policies518 and recognizing their common

interest in the conservation and optimum utilization of the living marine resources of the South Pacific

region and in particular of the highly migratory species519; created the FFA to help them manage and

develop their living marine resources, notably the highly migratory tuna species in the western and central

Pacific Ocean. Its creation was the Forum’s direct response to its recognition two years earlier520 of the:

a. Dangers of fisheries exploitation in the region given “the continued absence of a comprehensive

international convention on the law of the sea and … the action taken by a large number of

countries including distant water fishing countries exploiting the valuable highly migratory

species in the region;”

b. Need for such an agency to facilitate regional action by enabling and helping member countries to

“move quickly to establish fishing or exclusive economic zones and … take steps to coordinate

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their policies and activities if they are to secure more than a very small part of the benefits from

their resources for their peoples;” and

c. Importance of a unified approach whereby member countries “coordinate and harmonize their

policies on the law of the sea so as to ensure the maximum benefits for their peoples and for the

region as a whole and, specifically, … harmonize fisheries policies in the region and … adopt a

coordinated approach in their negotiations with distant water fishing countries.”

The Purpose of the FFA Convention

The primary purpose of the FFA Convention was the setting up of the Forum Fisheries Agency. Article 1

states:

“Article I

Agency

1. There is hereby established a South Pacific Forum Fisheries Agency.

2. The Agency shall consist of a Forum Fisheries Committee and a Secretariat.

3. The seat of the Agency shall be at Honiara, Solomon Islands.”

The functions of the Agency as stipulated in Article 7 are as follows:

(a) collect, analyze, 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;

Obligations of the Parties

Given its purpose521, the FFA convention, unlike other MEAs to which Fiji is a party, bestows relatively

few obligations on Fiji. Article 9 deals with the sharing of information, Article 11 deals with the

procedure for withdrawal from the Convention and the Annex carries the contribution. Tabulated below is

the summary of Fiji’s obligation under the FFA Convention.

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TABLE 26: OBLIGATIONS UNDER THE FORUM FISHERIES AGENCY CONVENTION

Fiji’s Obligations Under the Forum Fisheries Agency Convention

Information 1. Article 9(1)(a)-(d) The Parties shall provide the Agency with available and appropriate information including:

(a) catch and effort statistics in respect of fishing operations in waters under their jurisdiction or conducted by vessels under their jurisdiction; (b) relevant laws, regulations and international agreements; (c) relevant biological and statistical data; and (d) action with respect to decisions taken by the committee.

Withdrawal and Amendments 2. Article 11(1) & (2) 1. Any Party may withdraw from this Convention by giving written notice to the depositary.

Withdrawal shall take effect one year after receipt of such notice. 2. Any Party may propose amendments to the Convention for consideration by the Committee. The text of any amendment shall be adopted by a unanimous decision. The Committee may determine the procedures for the entry into force of amendments to this Convention.

Annex – Contribution Formula 3 Annex Para.1 The following are the shares to be contributed by Parties to the Convention towards the budget

of the Agency in accordance with Article VI(6) – …….Fiji 1/30……

Organization Structure of FFA

The FFA comprises the Forum Fisheries Committee (FFC) and a Secretariat based in Honiara, Solomon

Islands522. Each member country which is a party to the convention is entitled to one representative on

it523. The role of the Committee is to oversee the Secretariat’s work, set its strategic direction, and

approve its budget and work programme. It is also charged with promoting “intra-regional coordination

and co-operation” in various fields including: (1) “harmonisation of policies with respect to fisheries

management”; and (2) “cooperation in respect of relations with distant water fishing countries.”524 The

Secretariat’s operations are managed by a Director who is appointed by and reports to the FFC525. The

Committee’s decisions are usually made by consensus. But where this is not possible each member shall

have one vote, and decisions shall be taken by a two-thirds majority of the members present and voting526.

Membership of the FFA

Membership of the FFA is open to: (a) members of the South Pacific Forum; and (b) other states or

territories in the region on the recommendation of the Committee and with the approval of the Forum527.

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FFA Contribution to Member Countries

The FFA has benefited member countries by providing them with an ongoing means to enable them:

a. To develop informed strategies to achieve their common goals for fisheries in the region; and

b. To facilitate and coordinate action by them to implement such strategies.528

Since its formulation, FFA has over the years also assisted its members by:

a. Securing Suitable Regulation of Fisheries

The FFA has helped member countries collectively to develop informed regulatory strategies for their

fisheries by compiling, evaluating and disseminating relevant information to members about: (1) the

region’s fisheries; (2) existing management practices and their likely impacts on the sustainability of Fish

stocks; and (3) other management options, their impacts, precedents elsewhere and impacts.529

b. Help to Assess Economics of Fisheries

The FFA also compiles and disseminates relevant information with a focus primarily on the economic or

commercial aspects of the fisheries, including information on fish prices, catch volumes, transport costs,

processing and marketing of fish and fish products.

c. Help to Secure Economic Benefits from Fisheries

For many years advising individual member countries was a key FFA role, notably to help them:

i. To formulate suitable national policies for managing and conserving the fisheries in their EEZs;

ii. To formulate and negotiate suitable access licenses to fish in their EEZs; and so

iii. To secure recognition of sovereign right to EEZ resources, even if de facto.

d. Forum to Discuss Common Issues and Foster Unified Action530

Another valuable role of the FFA is providing a forum for frank, informed discussion about fisheries

issues, between countries with essentially similar interests in deriving a “fair” economic return from the

fisheries resources in their respective EEZs. The Secretariat typically assesses relevant issues and possible

options for resolving them, and advises members of its findings. Such advice helps to enable member

countries:

a. To hold well-informed discussions on key fisheries issues and how best to resolve them; and,

thereby

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b. To make well-informed decisions on strategies and specific action to resolve the issues in an

acceptable way for member countries collectively.

A particular strength of the FFA is that its membership is the bond created by shared interests that helps

member countries to act in unity if needed. For example, each member country shares a primary common

goal of securing a sustainable economic return from their sovereign right to utilize fisheries resources in

their own EEZ.

e. Help to Develop and Coordinate Fisheries Monitoring and Surveillance

The FFA has long played a pivotal role in developing and coordinating measures to encourage Distance

Waters Fishing Nations to comply with their obligations under the applicable fisheries management rules

and access agreements when operating in member countries’ EEZs.

For example, the FFA:531:

1) Spearheaded development fisheries management systems notably: the foreign fishing vessel

registration and later vessel monitoring systems (VMS) used in member countries’ EEZs;

2) Maintains several fisheries-management related databases for member countries to help them

with their monitoring, control and surveillance, including:

1) Regional Register of Foreign Fishing Vessels,

2) Fisheries Agreements and Licensing,

3) FFA_VMS,

4) Violations and Prosecutions database; and

5) Fisheries Legislation of all member countries.

3) Acts as a coordination point for aerial surveillance by the air forces of Australia, France and

New Zealand, and the US Coast Guard532.

f. Help to Train Staff in Various Aspects of Fisheries Management

Since its inception the FFA has provided training to member country staff in a variety of fisheries

management areas. For example, it conducts in-country workshops on topical fisheries management

issues, which have included workshops on: the law of the sea and international fisheries law; and training

for member-country observers on foreign fishing vessels licensed to operate in their EEZs in the region.

g. Attracting and Channeling Donor Support for Fisheries in the Region

The FFA has served as a useful focal point for individual donor countries and multilateral donor

organizations to channel assistance cost-effectively to fisheries activities in the region.

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4.2.2 1990 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific

Introduction

The island nations of the South Pacific are especially dependent upon the ocean and its resources. In

particular, tuna stocks represent a major resource for the island developing countries--in some cases one

of the few natural resources available to them. The people of the Pacific islands consume tuna; the

landing of tuna into island canneries and tuna transshipments in island ports provide employment and

revenue; and the payment of license fees by fishing nations for access to the tuna resources provides a

significant contribution to island economies.

Thus, it was with some concern that the South Pacific countries watched the dramatic increase in the

1980s of fleets from Japan, Taiwan, and Korea as they prosecuted driftnet fisheries for albacore tuna in

the South Pacific Ocean. From a small experimental Japanese fishery in the early 1980s the fishery grew

to about 200 vessels by 1988-89. The generally suggested annual harvest level in the 1980s for South

Pacific albacore was in the area of 45,000 metric tons. With the new driftnet fishery catching

approximately 25-50,000 metric tons, the annual total catch exceeded the suggested amount by almost

double.

The significant increase in the scope of these fisheries during the late 1980s raised alarms among the

South Pacific states because of the devastating potential impact of the fisheries on all marine resources in

general, and on albacore tuna stocks in particular. The scientific data available indicated that the South

Pacific albacore stocks would be in danger of collapse if driftnet fishing continued to occur at these high

levels. In response to this threat, the leaders of the South Pacific Forum nations, meeting in Tarawa on

July 10-11, 1989, called for the negotiation of a convention to free the South Pacific region from driftnet

fishing.

The Wellington Convention was the result, negotiated by the Forum countries and concluded on

November 23, 1989. It is consistent with fundamental law-of-the-sea principles and is designed to

prohibit driftnet fishing in the South Pacific Ocean by its parties and to send a clear message to non-

parties that driftnet fishing is not welcome in the region.

The convention prohibits the use of driftnets and the transshipment of driftnet catches in waters within the

convention area under the fisheries jurisdiction of the parties, and by vessels and nationals of the parties

anywhere within the convention area. For the United States, these obligations will apply to the US

Exclusive Economic Zone [EEZ] around American Samoa and certain unincorporated US islands,

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specifically Howland, Baker, and Jarvis Islands, Kingman Reef, and Palmyra Atoll, and to US nationals

and vessels documented under US laws fishing within the convention area. The US EEZ around Guam

and Hawaii and the Northern Marian Islands is not within the convention area.

Fourteen nations have signed the Wellington Convention, namely, Australia, Cook Islands, Federated

States of Micronesia, France, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Solomon

Islands, Tokelau, Tuvalu and Vanuatu, and the United States. It entered into force with the deposit of the

fourth instrument of ratification on May 17, 1991. (Cook Islands, Federated States of Micronesia, New

Zealand, and Tokelau have ratified.)

TABLE 27: FIJI’S OBLIGATIONS UNDER THE DRIFTNET CONVENTION

Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (1989) Measures regarding national vessels

1. Article 2 Each Party undertakes to prohibit its nationals and vessels documented under its laws from engaging in driftnet fishing activities within the Convention Area

Measures Against Driftnet Fishing Activities 2. Article

3(1)(a)&(b)(i)(ii) (1) Each Party undertakes: (a) not to assist or encourage the use of driftnets within the Convention Area; and (b) to take measures consistent with international law to restrict driftnet fishing activities within the Convention Area, including but not limited to: (i) prohibiting the use of driftnets within areas under its fisheries jurisdiction; and (ii) prohibiting the transshipment of driftnet catches within areas under its jurisdiction.

3. Article 3(2)(a)-(e) (2) Each Party may also take measures consistent with international law to: (a) prohibit the landing of driftnet catches within its territory; (b) prohibit the processing of driftnet catches in facilities under its jurisdiction; (c) prohibit the importation of any fish or fish product, whether processed or not, which was caught using a driftnet; (d) restrict port access and port servicing facilities for driftnet fishing vessels; and (e) prohibit the possession of driftnets on board any fishing vessel within areas under its fisheries Jurisdiction.

Enforcement 4. Article 4(1) (1) Each Party shall take appropriate measures to ensure the application of the provisions of

this Convention. 5. Article 4(2) (2) The Parties undertake to collaborate to facilitate surveillance and enforcement of

measures taken by Parties pursuant to this Convention. 6. Article 4(3) (3) The Parties undertake to take measures leading to the withdrawal of good standing on the

Regional Register of Foreign Fishing Vessels maintained by the FFA against any vessel engaging in driftnet fishing activities.

Consultation with Non Parties 7. Article 5(1) (1) The Parties shall seek to consult with any State which is eligible to become a Party to this

Convention on any matter relating to driftnet fishing activities which appear to affect adversely the conservation of marine living resources within the Convention Area or the implementation of the Convention or its Protocols.

8. Article 5(2) (2) The Parties shall seek to reach agreement with any State referred to in paragraph 1 of this Article, concerning the prohibitions established pursuant to Articles 2 and 3.

Institutional Arrangement 9. Article 6(2)(a)&(b) (2) Each Party shall expeditiously convey to the FFA:

(a) information on the measures adopted by it pursuant to the implementation of the Convention; and (b) information on, and scientific analyses on the effects of, driftnet fishing activities relevant to the Convention Area.

10. Article 6(3) (3) All Parties, including States or Territories not members of the FFA and the FFA shall co-

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operate to promote the effective implementation of this Article. Conservation and Management Measures

11. Article 8 Parties to this Convention shall co-operate with each other and with appropriate distant water fishing nations and other entities or organizations in the development of conservation and management measures for South Pacific albacore tuna within the Convention Area.

Amendments 12. Article 12(1) (1) Any Party may propose amendments to this Convention.

4.2.3 The Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region 1992 (“The Niue Treaty”)533

Introduction

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

(“the Niue Treaty”) was concluded at the 23rd South Pacific Forum held in Honiara in July 1992 and was

entered into force on 20 May 1993, following receipt by the depositary (the Government of Niue) of the

fourth instrument of ratification534.

The Purpose of the Niue Treaty

Reflecting a desire by Forum Fisheries Agency (FFA) member countries in the early 1990s to enhance

their control over foreign fishing vessels operating in the region, the main purposes of the Niue Treaty

are:

a. Enforcement; and

b. Deterrence.

The overall objective of the Treaty is to promote maximum effectiveness in regional and sub-regional

surveillance and enforcement through cooperation between countries on a reciprocal or joint basis535. The

main benefits of reciprocal and joint enforcement include assistance to countries with inadequate

surveillance and enforcement capabilities and the creation of facilities to follow the movement of fishing

vessels from one zone to another.

The Niue Treaty establishes a general framework to enable these objectives to be achieved and sets out

the parameters within which joint and reciprocal surveillance measures may be undertaken as well as

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mechanisms designed to encourage greater cooperation and coordination in the regional surveillance

effort.

Advantages of the Niue Treaty536

The Niue Treaty facilitates the:

� The promotion of maximum effectiveness as a result of the establishment of a framework to

facilitate the sharing of surveillance capability and the development of mechanisms for joint and

reciprocal enforcement in the region537;

� Enhanced coordination and exchange of information regarding foreign fishing vessels in the

region538;

� Increased availability of information about vessels authorized to fish on the high seas539; and

� The implementation of harmonized terms and conditions in relation to fisheries access

agreements540.

Obligations

a. General Cooperation

Article 3 of the Niue Treaty sets out the general obligations of the parties. It states:

“ 1. The Parties shall cooperate in the enforcement of their fisheries laws and regulations in accordance with this Treaty and may agree on forms of assistance for that purpose. 2. The Parties shall cooperate to develop regionally agreed procedures for the conduct of fisheries surveillance and law enforcement. Where appropriate, fisheries surveillance and law enforcement will be conducted in accordance with such regionally agreed procedures.”

b. Cooperation in the implementation of harmonized minimum terms and conditions of access

In accordance with Article 4, the Parties shall cooperate in the implementation of harmonized minimum

terms and conditions of fisheries access as may be agreed upon from time to time541. The Parties shall

ensure that no foreign fishing vessel shall be licensed for fishing unless the vessel has good standing on

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the Regional Register of Foreign Fishing Vessels maintained by the Forum Fisheries Agency542. The

Parties shall ensure that foreign fishing vessels licensed to fish under foreign fishing agreements are, as a

minimum, required to provide reports in accordance with the standard forms of reporting as set out in the

harmonized minimum terms and conditions of fisheries access543. The Parties shall ensure that fishing

vessels licensed to fish under foreign fishing agreements are required to be readily identifiable from the

sea and the air by way of distinctive markings544. The Parties shall ensure that foreign fishing agreements

with flag States require the flag State to take responsibility for the compliance by its flag vessels with the

terms of any such agreement and applicable laws545. The Parties shall also, as far as possible, ensure that

foreign fishing arrangements with foreign parties, including Fishing Associations, require the foreign

party to take responsibility for compliance by its vessels with the terms of any such arrangement and

applicable laws546.

c. Exchange of information

Each Party is required, to the extent permitted by its national laws and regulations provide to the Forum

Fisheries Agency or to any other Party directly, information relevant to the purposes of the Treaty,

including547:

i. The location and movement of foreign fishing vessels;

ii. Foreign fishing vessel licensing;

iii. Fisheries surveillance and law enforcement activities.

d. Cooperation in fisheries surveillance and law enforcement

Article 6 of the Treaty states that Parties may permit another Party to extend its fisheries surveillance and

law enforcement activities to the territorial sea and archipelagic waters of that Party548. Vessels seized by

another Party in the territorial sea or archipelagic waters of a Party shall, together with the persons on

board, be handed over as soon as possible to the authorities of that Party549. Any Party wishing to

authorize its officers or those of another Party, to perform fisheries surveillance and law enforcement

functions on its behalf while on board a vessel or aircraft of another Party shall by instrument in writing

designate the officers accordingly550.

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e. Cooperation in prosecutions

The majority of provisions of the Niue Treaty relating to cooperation in prosecutions (including

extradition, requests for assistance in enforcement of fisheries law, participation in judicial proceedings in

the jurisdiction of another Party) are couched in permissive rather than mandatory terms. In addition,

where there are waters over which more than one Party claims to have jurisdiction for the purposes of the

application of fisheries laws, the Parties concerned shall for the purposes of the application of the Treaty

seek to adopt the provisional lines used for the distribution of revenue received under the Treaty on

Fisheries between the Governments of Certain Pacific Island States and the Government of the United

States of America (the US Tuna Treaty) done at Port Moresby on 2 April 1987551.

f. Notification

Each Party shall notify the FFA Director of the contact details for the receipt of notices given pursuant to

the Niue Treaty. Such information will be subsequently transmitted to all States Parties552.

TABLE 28: FIJI’S OBLIGATIONS UNDER THE NIUE TREATY

Srl. Article Obligation GENERAL OBLIGATION

1. Article 3(1) 1. The Parties shall cooperate in the enforcement of their fisheries laws and regulations in accordance with this Treaty and may agree on forms of assistance for that purpose.

2. Article 3(2) 2. The Parties shall cooperate to develop regionally agreed procedures for the conduct of fisheries surveillance and law enforcement. Where appropriate, fisheries surveillance and law enforcement will be conducted in accordance with such regionally agreed procedures.

COOPERATION IN THE IMPLEMENTATION OF HARMONIZED MINIMUM TERMS AND CONDITIONS OF FISHERIES ACCESS

3. Article 4(1) 1. The Parties shall cooperate in the implementation of harmonized minimum terms and conditions of fisheries access as may be agreed upon from time to time.

4. Article 4(2) 2. The Parties shall ensure that no foreign fishing vessel shall be licensed for fishing unless the vessel has good standing on the Regional Register of Foreign Fishing Vessels maintained by the South Pacific Forum Fisheries Agency.

5. Article 4(3) 3. The Parties shall ensure that foreign fishing vessels licensed to fish under foreign fishing agreements are, as a minimum, required to provide reports in accordance with the standard forms of reporting as set out in the harmonized minimum terms and conditions of fisheries access from time to time.

6. Article 4(4) 4. The Parties shall ensure that fishing vessels licensed to fish under foreign fishing agreements are required to be readily identifiable from the sea and the air by way of distinctive markings.

7. Article 4(5) 5. The Parties shall, as far as possible, ensure that foreign fishing agreements with flag States require the flag State to take responsibility for the compliance by its flag vessels with the terms of any such agreement and applicable laws.

8. Article 4(6) 6. The Parties shall, as far as possible, ensure that foreign fishing arrangements with foreign parties, including Fishing Associations, require the foreign party to take responsibility for the compliance by its vessels with the terms of any such arrangement and applicable laws.

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EXCHANGE OF INFORMATION 9. Article 5(1) 1. Each Party shall, to the extent permitted by its national laws and regulations, provide to the

South Pacific Forum Fisheries Agency, or to any other Party directly, information relevant to the purposes of this Treaty, including but not limited to information about: (a) the location and movement of foreign fishing vessels; (b) foreign fishing vessel licensing; and (c) fisheries surveillance and law enforcement activities.

10. Article 5(2) 2. The Parties shall develop standard forms and procedures for reporting information provided under paragraph 1 of this Article and effective methods for communicating such information.

COOPERATION IN FISHERIES SURVEILLANCE AND LAW ENFORCEMENT 11. Article 6(1) 1. A Party may, by way of provisions in a Subsidiary Agreement or otherwise, permit another

Party to extend its fisheries surveillance and law enforcement activities to the territorial sea and archipelagic waters of that Party. In such circumstances, the conditions and method of stopping, inspecting, detaining, directing to port and seizing vessels shall be governed by the national laws and regulations applicable in the State in whose territorial sea or archipelagic waters the fisheries surveillance or law enforcement activity was carried out.

12. Article 6(3) 2. Vessels seized by another Party pursuant to an agreement under paragraph 1 of this Article in the territorial sea or archipelagic waters of a Party shall, together with the persons on board, be handed over as soon as possible to the authorities of that Party.

13. Article 6(3) 3. Any two or more Parties may enter into a Subsidiary Agreement under which they would cooperate in the provision of personnel and the use of vessels, aircraft or other items of equipment for fisheries surveillance and law enforcement purposes. Vessels and aircraft shall be identified as set out in Annex 1.

14. Article 6(4) 4. Any Party wishing to authorize its officers to perform fisheries surveillance and law enforcement functions on its behalf while on board a vessel or aircraft of another Party shall by instrument in writing designate the officers accordingly and such officers shall be identified as set out in Annex 2.

15. Article 6(5) 5. Any Party wishing to authorize the officers of another Party to perform fisheries surveillance and law enforcement functions on its behalf while on board a vessel of that other Party shall by instrument in writing designate such officers accordingly. Officers carrying out enforcement functions shall be identified by a card in the form set out in Annex 2 with such variations as may be agreed to in a Subsidiary Agreement or otherwise.

COOPERATION IN PROSECUTIONS 16. Article 7(1) 1. The Parties may, by way of provisions in a Subsidiary Agreement or otherwise, agree on

procedures for the extradition to a Party of persons charged with offences against the fisheries laws of that Party.

17. Article 7(2) 2. A Party may request another Party which is holding a person or any equipment (including a vessel) in custody for an offence against the laws of the holding Party to assist the requesting Party to enforce its fisheries laws in respect of that person or equipment. The holding Party shall provide such assistance upon completion of its legal processes and to the extent permitted by its national laws and regulations. Such assistance shall be provided on conditions as to cost recovery or other matters as the Parties agree in each case.

18. Article 7(3) 3. The Parties may agree on procedures whereby persons permitted to appear as advocates or expert witnesses in the courts of one Party are, for the purposes of judicial proceedings involving offences against fisheries laws, entitled to perform the same or substantially similar functions in the courts of another Party.

19. Article 7(4) 4. Where there are waters over which more than one Party claims to have jurisdiction for the purposes of the application of fisheries laws, the Parties concerned shall for the purposes of the application of this Agreement seek to adopt the provisional lines used for the distribution of revenue received under the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America done at Port Moresby on 2 April 1987.

NOTIFICATION 20. Article 10(1) 1. Each Party shall notify the Director of the South Pacific Forum Fisheries Agency of the current

postal, cable, telex and facsimile addresses which it wishes to be used for the receipt of notices given pursuant to this Treaty, and of any changes to a notified address. The Director of the South Pacific Forum Fisheries Agency shall inform all Parties of the notified addresses.

21. Article 10(2) 2. Any notice given under this Treaty shall be in writing and may be served by hand, post, cable, telex or facsimile to the notified address.

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4.2.4 2000 Convention on the Conservation and Management of Highly Migratory Fish stocks in the Western and Central Pacific Ocean

Introduction

The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western

and Central Pacific Ocean (the Convention) established the Western and Central Pacific Fisheries

Commission (WCPFC) to conserve and manage migratory fishery resources in the western and central

Pacific Ocean.

The Convention was negotiated at a series of multilateral high-level conferences (MHLCs), which

included participants from Pacific Island Countries (PICs) and distant water fishing nations. At the

Seventh meeting of the MHLC in September 2000 the delegates adopted the text of the Convention. After

consultation with states, territories and industry groups, Australia ratified the Convention in September

2003. On 19 June 2004, the Convention entered into force and the Commission met for the first time in

December 2004 in Pohnpei, Federated States of Micronesia.

Objective

The objective of the Convention 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 United Nations Convention on the Law of the Sea and also the 1995 UN Fish Stocks

Agreement.

The Convention draws upon the principles of sustainable use, long-term conservation, effective

monitoring, control and surveillance and the precautionary approach.

The Commission seeks to manage all highly migratory fish stocks within the Convention area including

tuna, billfish such as swordfish, marlin, sailfish, mackerel and sharks. These fisheries are a very valuable

resource for the Pacific.

Application

The Convention applies to waters of the Pacific Ocean including an area off the eastern coast of Australia.

PICs and Australia's participation in WCPFC serves to protect the fisheries resources that migrate through

our exclusive economic zone.

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Participation in WCPFC allows Fiji to be directly engaged in the development of management

arrangements for the fisheries the Commission is responsible for, including measures to manage and

conserve big eye, yellow fin and albacore tunas.

Through the Commission, Fiji and other members states are engaged in the development of management

arrangements for the fisheries for which the Commission is responsible including measures to manage

and conserve big eye, yellow fin and southern albacore tunas. The development of an operationally

effective Monitoring, Control and Surveillance Scheme that includes boarding and inspection

arrangements and a Commission vessel monitoring system (VMS) is now a high priority.

Regional Engagement

The Convention holds particular significance for PICs. Many of these nations rely heavily upon their

fishing resources for their national income. WCPFC seeks to establish effective management of the

fisheries to ensure that they are utilized in a sustainable way. Australia has a considerable interest in the

economic stability and development of neighboring PICs. Many PICs have developing economies and the

effective management of their fisheries will allow them to improve their economic self-reliance.

Binding Treaty Action

Fiji has undertaken binding treaty action on the Convention on the basis that it is a ground-breaking

management regime that will best serve to protect Fiji’s interest in the highly migratory fish stocks of the

western and central Pacific.

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Figure Five: Map of the WCPFC Convention Area

Source: WCPFC Website

Members

Australia, China, Canada, Cook Islands, European Union, Federated States of Micronesia, Fiji, France,

Japan, Kiribati, Korea, Republic of Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New

Guinea, Philippines, Samoa, Solomon Islands, Chinese Taipei, Tonga, Tuvalu, United States of America,

Vanuatu.

Participating Territories

American Samoa, Commonwealth of the Northern Mariana Islands, French Polynesia, Guam, New

Caledonia, Tokelau, Wallis and Futuna.

Cooperating Non-member(s)

Belize, Indonesia, Senegal, Mexico, El Salvador, Ecuador, Vietnam.

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Meetings

Sessions of the Commission are held annually in December. The Scientific Committee and the Technical

and Compliance Committee meet annually in advance of the Commission meeting in order for

Commission members to act on the most recent scientific and compliance advice.

TABLE 29: FIJI’S OBLIGATIONS UNDER THE WCPFC

Fiji’s Obligations under the Convention on the Conservation and Management of Highly Migratory Fish

stocks in the Western and Central Pacific Ocean Principles and Measures for Conservation and Management

1. Article 5(a) In order to conserve and manage highly migratory Fish stocks in the Convention Area in their entirety, the members of the Commission shall, in giving effect to their duty to cooperate in accordance with the 1982 Convention, the Agreement and this Convention: (a) adopt measures to ensure long-term sustainability of highly migratory Fish stocks in the Convention Area and promote the objective of their optimum utilization;

2. Article 5(b) (b) ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States in the Convention Area, particularly small island developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub-regional, regional or global;

3. Article 5(c) (c) apply the precautionary approach in accordance with this Convention and all relevant internationally agreed standards and recommended practices and procedures;

4. Article 5(d) (d) assess the impacts of fishing, other human activities and environmental factors on target stocks, non-target species, and species belonging to the same ecosystem or dependent upon or associated with the target stocks;

5. Article 5(e) (e) adopt measures to minimize waste, discards, catch by lost or abandoned gear, pollution originating from fishing vessels, catch of non-target species, both fish and non-fish species, (hereinafter referred to as non-target species) and impacts on associated or dependent species, in particular endangered species and promote the development and use of selective, environmentally safe and cost-effective fishing gear and techniques;

6. Article 5(f) (f) protect biodiversity in the marine environment; 7. Article 5(g) (g) 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;

8. Article 5(h) (h) take into account the interests of artisanal and subsistence fishers; 9. Article 5(i) (i) 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

10. Article 5(j) (j) Implement and enforce conservation and management measures through effective monitoring, control and surveillance.

Application of the Precautionary Approach 11. Article 6(1)(a) 1. In applying the precautionary approach, the members of the Commission shall:

(a) apply the guidelines set out in Annex II of the Agreement, which shall form an integral part of this Convention, and determine, on the basis of the best scientific information available, stock-specific reference points and the action to be taken if they are exceeded;

12. Article 6(1)(b) (b) take into account, inter alia, uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distributions of fishing mortality and the impact of fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic, environmental and socio-economic conditions; and

13. Article 6(1)(c) (c) develop data collection and research programmes to assess the impact of fishing on non-target and associated or dependent species and their environment, and adopt plans where necessary to ensure the conservation of such species and to protect habitats of special concern.

14. Article 6(2) 2. Members of the Commission shall be more cautious when information is uncertain, unreliable or

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inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.

15. Article 6(3) 3. Members of the Commission shall take measures to ensure that, when reference points are approached, they will not be exceeded. In the event they are exceeded, members of the Commission shall, without delay, take the action determined under paragraph 1(a) to restore the stocks

16. Article 6(4) 4. Where the status of target stocks or non-target or associated or dependent species is of concern, members of the Commission shall subject such stocks and species to enhanced monitoring in order to review their status and the efficacy of conservation and management measures. They shall revise those measures regularly in the light of new information.

17. Article 6(5) 5. For new or exploratory fisheries, members of the Commission shall adopt as soon as possible cautious conservation and management measures, including, inter alia, catch limits and effort limits. Such measures shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long term sustainability of the stocks, whereupon conservation and management measures based on that assessment shall be implemented. The latter measures shall, if appropriate, allow for the gradual development of the fisheries.

18. Article 6(6) 6. If a natural phenomenon has a significant adverse impact on the status of highly migratory Fish stocks, members of the Commission shall adopt conservation and management measures on an emergency basis to ensure that fishing activity does not exacerbate such adverse impacts. Members of the Commission shall also adoptsuch measures on an emergency basis where fishing activity presents a serious threat to the sustainability of such stocks. Measures taken on an emergency basis shall be temporary and shall be based on the best scientific information available.

Implementation of Principles in areas under National Jurisdiction 19. Article7(1) 1. The principles and measures for conservation and management enumerated in article 5 shall be

applied by coastal States within areas under national jurisdiction in the Convention Area in the exercise of their sovereign rights for the purpose of exploring and exploiting, conserving and managing highly migratory Fish stocks.

20. Article 7(2) 2. The members of the Commission shall give due consideration to the respective capacities of developing coastal States, in particular small island developing States, in the Convention Area to apply the provisions of articles 5 and 6 within areas under national jurisdiction and their need for assistance as provided for in this Convention.

Compatibility of Conservation and Management Measures 21. Article 8(1) 1. Conservation and management measures established for the high seas and those adopted for areas

under national jurisdiction shall be compatible in order to ensure conservation and management of highly migratory Fish stocks in their entirety. To this end, the members of the Commission have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks.

22. Article 8(2)(a) 2. In establishing compatible conservation and management measures for highly migratory Fish stocks in the Convention Area, the Commission shall: (a) take into account the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction;

22. Article 8(2)(b)(i)&(ii)

(b) take into account: (i) the conservation and management measures adopted and applied in accordance with article 61 of the 1982 Convention in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the Convention Area as a whole do not undermine the effectiveness of such measures; (ii) previously agreed measures established and applied in respect of the same stocks for the high seas which form part of the Convention Area by relevant coastal States and States fishing on the high seas in accordance with the 1982 Convention and the Agreement;

23. Article 8(2)(c) (c) take into account previously agreed measures established and applied in accordance with the 1982 Convention and the Agreement in respect of the same stocks by a sub-regional or regional fisheries management organization or arrangement;

24. Article 8(2)(d) (d) take into account the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned; and

25. Article 8(2)(e) (e) ensure that such measures do not result in harmful impact on the living marine resources as a whole.

26. Article 8(3) 3. The coastal State shall ensure that the measures adopted and applied by it to highly migratory Fish stocks within areas under its national jurisdiction do not undermine the effectiveness of measures adopted by the Commission under this Convention in respect of the same stocks.

27. Article 8(4)

4. Where there are areas of high seas in the Convention Area entirely surrounded by the exclusive economic zones of members of the Commission, the Commission shall, in giving effect to this article, pay special attention to ensuring compatibility between conservation and management measures established for such high seas areas and those established in respect of the same stocks in accordance with article 61 of the 1982 Convention by the surrounding coastal States in areas under national jurisdiction.

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Obligations of Members of the Commission 28. Article 23(1) 1. Each member of the Commission shall promptly implement the provisions of this Convention and

any conservation, management and other measures or matters which may be agreed pursuant to this Convention from time to time and shall cooperate in furthering the objective of this Convention.

29. Article 23(2)(a) 2. Each member of the Commission shall: (a) provide annually to the Commission statistical, biological and other data and information in accordance with Annex I of the Agreement and, in addition, such data and information as the Commission may require;

30. Article 23(2)(b) (b) provide to the Commission in the manner and at such intervals as may be required by the Commission, information concerning its fishing activities in the Convention Area, including fishing areas and fishing vessels in order to facilitate the compilation of reliable catch and effort statistics; and

31. Article 23(2)(c) (c) provide to the Commission at such intervals as may be required information on steps taken to implement the conservation and management measures adopted by the Commission.

32. Article 23(3) 3. The members of the Commission shall keep the Commission informed of the measures they have adopted for the conservation and management of highly migratory Fish stocks in areas within the Convention Area under their national jurisdiction. The Commission shall circulate periodically such information to all members.

33. Article 23(4) 4. Each member of the Commission shall keep the Commission informed of the measures it has adopted for regulating the activities of fishing vessels flying its flag which fish in the Convention Area. The Commission shall circulate periodically such information to all members.

34. Article 23(5) 5. Each member of the Commission shall, to the greatest extent possible, take measures to ensure that its nationals, and fishing vessels owned or controlled by its nationals fishing in the Convention Area, comply with the provisions of this Convention. To this end, members of the Commission may enter into agreements with States whose flags such vessels are flying to facilitate such enforcement. Each member of the Commission shall, to the greatest extent possible, at the request of any other member, and when provided with the relevant information, investigate any alleged violation by its nationals, or fishing vessels owned or controlled by its nationals, of the provisions of this Convention or any conservation and management measure adopted by the Commission. A report on the progress of the investigation, including details of any action taken or proposed to be taken in relation to the alleged violation, shall be provided to the member making the request and to the Commission as soon as practicable and in any case within two months of such request and a report on the outcome of the investigation shall be provided when the investigation is completed.

Flag States Duties 35. Article 24(1)(a) 1. Each member of the Commission shall take such measures as may be necessary to ensure that:

(a) fishing vessels flying its flag comply with the provisions of this Convention and the conservation and management measures adopted pursuant hereto and that such vessels do not engage in any activity which undermine the effectiveness of such measures; and

35 Article 24(1)(b) (b) fishing vessels flying its flag do not conduct unauthorized fishing within areas under the national jurisdiction of any Contracting Party.

36 Article 24(2) 2. No member of the Commission shall allow any fishing vessel entitled to fly its flag to be used for fishing for highly migratory Fish stocks in the Convention Area beyond areas of national jurisdiction unless it has been authorized to do so by the appropriate authority or authorities of that member. A member of the Commission shall authorize the use of vessels flying its flag for fishing in the Convention Area beyond areas of national jurisdiction only where it is able to exercise effectively its responsibilities in respect of such vessels under the 1982 Convention, the Agreement and this Convention.

37. Article 24(3)(a) 3. It shall be a condition of every authorization issued by a member of the Commission that the fishing vessel in respect of which the authorization is issued: (a) conducts fishing within areas under the national jurisdiction of other States only where the fishing vessel holds any license, permit or authorization that may be required by such other State; and

38. Article 24(3)(b) (b) is operated on the high seas in the Convention Area in accordance with the requirements of Annex III, the requirements of which shall also be established as a general obligation of all vessels operating pursuant to this Convention.

39. Article 24(4) 4. Each member of the Commission shall, for the purposes of effective implementation of this Convention, maintain a record of fishing vessels entitled to fly its flag and authorized to be used for fishing in the Convention Area beyond its area of national jurisdiction, and shall ensure that all such fishing vessels are entered in that record.

40. Article 24(5) 5. Each member of the Commission shall provide annually to the Commission, in accordance with such procedures as may be agreed by the Commission, the information set out in Annex IV to this Convention with respect to each fishing vessel entered in the record required to be maintained under paragraph 4 and shall promptly notify the Commission of any modifications to such information.

41. Article 24(6)(a) 6. Each member of the Commission shall also promptly inform the Commission of: (a) any additions to the record;

42. Article 24(6)(b)(i)-(v)

(b) any deletions from the record by reason of: (i) the voluntary relinquishment or non-renewal of the fishing authorization by the fishing

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vessel owner or operator; (ii) the withdrawal of the fishing authorization issued in respect of the fishing vessel under paragraph 2; (iii) the fact that the fishing vessel concerned is no longer entitled to fly its flag; (iv) the scrapping, decommissioning or loss of the fishing vessel concerned; and (v) any other reason, specifying which of the reasons listed above is applicable.

43. Article 24(8) 8. Each member of the Commission shall require its fishing vessels that fish for highly migratory Fish stocks on the high seas in the Convention Area to use near real-time satellite position-fixing transmitters while in such areas. The standards, specifications and procedures for the use of such transmitters shall be established by the Commission, which shall operate a vessel monitoring system for all vessels that fish for highly migratory Fish stocks on the high seas in the Convention Area. In establishing such standards, specifications and procedures, the Commission shall take into account the characteristics of traditional fishing vessels from developing States. The Commission, directly, and simultaneously with the flag State where the flag State so requires, or through such other organization designated by the Commission, shall receive information from the vessel monitoring system in accordance with the procedures adopted by the Commission. The procedures adopted by the Commission shall include appropriate measures to protect the confidentiality of information received through the vessel monitoring system. Any member of the Commission may request that waters under its national jurisdiction be included within the area covered by such vessel monitoring system.

44. Article 24(9) 9. Each member of the Commission shall require its fishing vessels that fish in the Convention Area in areas under the national jurisdiction of another member to operate near real-time satellite position-fixing transmitters in accordance with the standards, specification and procedures to be determined by the coastal State.

45. Article 24(10) 10. The members of the Commission shall cooperate to ensure compatibility between national and high seas vessel monitoring systems.

Compliance and Enforcement 46. Article 25(1) 1. Each member of the Commission shall enforce the provisions of this Convention and any

conservation and management measures issued by the Commission. 47. Article 25(2) 2. Each member of the Commission shall, at the request of any other member, and when provided

with the relevant information, investigate fully any alleged violation by fishing vessels flying its flag of the provisions of this Convention or any conservation and management measure adopted by the Commission. A report on the progress of the investigation, including details of any action taken or proposed to be taken in relation to the alleged violation, shall be provided to the member making the request and to the Commission as soon as practicable and in any case within two months of such request and a report on the outcome of the investigation shall be provided when the investigation is completed.

48. Article 25(3) 3. Each member of the Commission shall, if satisfied that sufficient evidence is available in respect of an alleged violation by a fishing vessel flying its flag, refer the case to its authorities with a view to instituting proceedings without delay in accordance with its laws and, where appropriate, detain the vessel concerned.

49. Article 25(4) 4. Each member of the Commission shall ensure that, where it has been established, in accordance with its laws, that a fishing vessel flying its flag has been involved in the commission of a serious violation of the provisions of this Convention or of any conservation and management measures adopted by the Commission, the vessel concerned ceases fishing activities and does not engage in such activities in the Convention Area until such time as all outstanding sanctions imposed by the flag State in respect of the violation have been complied with. Where the vessel concerned has conducted unauthorized fishing within areas under the national jurisdiction of any coastal State Party to this Convention, the flag State shall, in accordance with its laws, ensure that the vessel complies promptly with any sanctions which may be imposed by such coastal State in accordance with its national laws and regulations or shall impose appropriate sanctions in accordance with paragraph 7. For the purposes of this article, a serious violation shall include any of the violations specified in article 21, paragraphs 11 (a) to (h) of the Agreement and such other violations as may be determined by the Commission.

50. Article 25(5) 5. Each member of the Commission shall, to the extent permitted by its national laws and regulations, establish arrangements for making available to prosecuting authorities of other members evidence relating to alleged violations.

51. Article 25(6) 6. Where there are reasonable grounds for believing that a fishing vessel on the high seas has engaged in unauthorized fishing within an area under the national jurisdiction of a member of the Commission, the flag State of that vessel, at the request of the member concerned, shall immediately and fully investigate the matter. The flag State shall cooperate with the member concerned in taking appropriate enforcement action in such cases and may authorize the relevant authorities of such member to board and inspect the vessel on the high seas. This paragraph is without prejudice to article 111 of the 1982 Convention.

52. Article 25(7) 7. All investigations and judicial proceedings shall be carried out expeditiously. Sanctions applicable

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in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities. Measures applicable in respect of masters and other officers of fishing vessels shall include provisions which may permit, inter alia, refusal, withdrawal or suspension of authorizations to serve as masters or officers on such vessels.

53. Article 25(8) 8. Each member shall transmit to the Commission an annual statement of compliance measures, including imposition of sanctions for any violations, it has taken in accordance with this article.

54. Article 25(10) 10. Each member of the Commission, where it has reasonable grounds for believing that a fishing vessel flying the flag of another State has engaged in any activity that undermines the effectiveness of conservation and management measures adopted for the Convention Area, shall draw this to the attention of the flag State concerned and may, as appropriate, draw the matter to the attention of the Commission. To the extent permitted by its national laws and regulations it shall provide the flag State with full supporting evidence and may provide the Commission with a summary of such evidence. The Commission shall not circulate such information until such time as the flag State has had an opportunity to comment, within a reasonable time, on the allegation and evidence submitted, or to object as the case may be.

55. Article 25(11) 11. The members of the Commission may take action in accordance with the Agreement and international law, including through procedures adopted by the Commission for this purpose, to deter fishing vessels which have engaged in activities which undermine the effectiveness of or otherwise violate the conservation and management measures adopted by the Commission from fishing in the Convention Area until such time as appropriate action is taken by the flag State.

Boarding and Inspection 56. Article 26(3) 3. Each member of the Commission shall ensure that fishing vessels flying its flag accept boarding by

duly authorized inspectors in accordance with such procedures. Such duly authorized inspectors shall comply with the procedures for boarding and inspection.

Measures taken by Port States 57. Article 27(1) 1. A port State has the right and the duty to take measures, in accordance with international law, to

promote the effectiveness of sub- regional, regional and global conservation and management measures. When taking such measures a port State shall not discriminate in form or in fact against the fishing vessels of any State.

58. Article 27(2) 2. Whenever a fishing vessel of a member of the Commission voluntarily enters a port or offshore terminal of another member, the port State may, inter alia, inspect documents, fishing gear and catch on board such fishing vessel.

Regional Observer Programme 59. Article 28(4) 4. Each member of the Commission shall ensure that fishing vessels flying its flag in the Convention

Area, except for vessels that operate exclusively within waters under the national jurisdiction of the flag State, are prepared to accept an observer from the regional observer programme, if required by the Commission.

60 Article 28(6)(b)&(c)

6. The regional observer programme shall operate in accordance with the following guidelines and under the conditions set out in article 3 of Annex III of this Convention: (b) each member of the Commission shall be entitled to have its nationals included in the programme as observers; (c) observers shall be trained and certified in accordance with uniform procedures to be approved by the Commission;

Transshipment 61 Article 29(1) 1. In order to support efforts to ensure accurate reporting of catches, the members of the Commission

shall encourage their fishing vessels, to the extent practicable, to conduct transshipment in port. A member may designate one or more of its ports as transshipment ports for the purposes of this Convention, and the Commission shall circulate periodically to all members a list of such designated ports.

Non Parties to the Convention 62. Article 32(1) 1. Each member of the Commission shall take measures consistent with this Convention, the

Agreement and international law to deter the activities of vessels flying the flags of non-parties to this Convention which undermine the effectiveness of conservation and management measures adopted by the Commission.

63. Article 32(2) 2. The members of the Commission shall exchange information on the activities of fishing vessels flying the flags of non-parties to this Convention which are engaged in fishing operations in the Convention Area.

64. Article 32(4) 4. The members of the Commission shall, individually or jointly, request non-parties to this Convention whose vessels fish in the Convention Area to cooperate fully in the implementation of conservation and management measures adopted by the Commission with a view to ensuring that such measures are applied to all fishing activities in the Convention Area. Such cooperating non-parties to this Convention shall enjoy benefits from participation in the fishery commensurate with their commitment to comply with, and their record of compliance with, conservation and management measures in respect of the relevant stocks.

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4.2.5 Fiji and the Ocean& Fisheries Related MEAs

Institutional Arrangement

The two institutions that are responsible for the regulations and conservation of marine and fisheries

resources in Fiji are the Department of Fisheries and the Fiji Island Maritime Safety Administration

(FIMSA). Of these, it is the Ministry of Fisheries that is bestowed the legislative responsibility to regulate

and monitor fisheries resources in Fiji.

Fiji’s Fisheries Sector

The fisheries sector in the Fiji Islands makes an extremely important contribution to the lives of many

Fijians. The sector is a large employer generating over 9100 jobs and annual consumption of fish

estimated at over 44 kg per capita. In addition, the fisheries sector is the third largest natural resource

sector (behind sugar and “other crops”) in the Fiji Islands553.

Responsibility for fisheries matters lies with the Ministry (Minister) of Fisheries and Forests. Within this

Ministry, the Director of Fisheries oversees the work of the Fisheries Division of the Department of

Fisheries, which has its headquarters at Lama, on the western outskirts of Suva. Fisheries Division has

Divisional offices in Lautoka (Western Division), Labasa (Northern Division), Nausori (Central Division)

and Lami (Eastern Division). Respectively, these service subsidiary offices in Rakiraki, Tavua, Ba and

Sigatoka (Western); Taveuni, Savusavu, Lekutu and Nabouwalu (Northern); Navua and Wainibokasi

(Central) and Lakeba, Vunisea and Levuka (Eastern). The Fisheries Division also has fisheries research

stations at Naduruloulou and Dreketi (freshwater aquaculture), Laucala Bay (product development) and

Makogai Island (mariculture).554

Fiji Maritime Safety Authority

FIMSA is government’s maritime administration arm. Whilst directly responsible to the Minister of

Works, Transport and Public Utilities, FIMSA’s role in the maritime sector is clearly defined and

prescribed in the Marine Act of 1986. As government’s sole maritime administration arm, FIMSA is

effectively government’s Registrar of Vessels and Seafarers. FIMSA’s role include registering ships and

certifying seafarers; survey and inspections of registered vessels; inspect and audit all main Ports of

Entries to ensure that their operations are in accordance with the Marine (ISPS Code) Regulations;

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regulate ships to shore communications; provide policy and technical advice to the Government on safe

ship construction, manning and operation of shipping ensuring that the government has in place sound

navigational aids, regulate hydrographic services obligations; regulate the protection of the marine

environment from ship-sourced oil pollution; approve Maritime Training Providers; and undertake

maritime awareness.

Status of Marine Conservation in Fiji

A study conducted back in 2003 on the “Setting Priorities for Marine Conservation in the Fiji Islands

Marine Eco-region” concluded that:555

• Fiji’s marine environment contains globally and regionally significant biodiversity that needs to

be protected for its intrinsic value and the central role it plays in sustaining the livelihoods of the

people of Fiji.

• The pressures being placed on the marine environment and its biodiversity today far exceed

current conservation efforts. The alleviation of poverty and enhancement of community capacity

to pursue sustainable livelihood needs should be tackled in partnership with conservation efforts.

• There are a number of promising initiatives and programmes being conducted at the national,

regional and international level, but a concerted effort is required to link these efforts and ensure

that there is coherence between policies and action.

• Current knowledge of Fiji’s marine ecosystems and biodiversity is poor. It is essential to

consolidate and expand this knowledge if conservation and sustainable resource management of

the marine environment is to be effective.

• Information gaps need to be filled and opportunities for collaboration identified to ensure that

conservation efforts and considerations for further research and monitoring are an integral part of

future marine conservation and resource management planning.


The Fisheries Act Cap

The Fisheries Act is the primary piece of legislation governing the management of marine resources, with

management functions vested in the Fisheries Department of the Ministry of Fisheries and Forests. The

provisions of the Act cover the establishment and management of marine protected areas, and set out the

arrangements by which communities may control their coastal marine resources.

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A number of conservation measures are contained in the Act, for instance Section 9 of the Fisheries Act

empowers the Minister to make regulations ‘prescribing areas and seasons within which the taking of fish

is prohibited or restricted, either entirely or with reference to a named species’556. The regulations to the

Act provide for the declaration of ‘restricted areas’, within which ‘no person, unless he is authorised in

writing under the hand of the Commissioner of the Division … shall … kill or take fish of any kind

whatsoever, except by hand net, wading net, spear or line and hook’557

Moreover, the Minister may designate seasons when fishing is restricted or prohibited, and also has the

power to make regulations for ‘any other matters relating to the conservation, protection and

maintenance of a stock of fish which may be deemed requisite’.558 The Minister may also prohibit fishing

for named species in certain areas.559

Fishing activities in the qoliqoli are subject to a licensing and permit system under the Fisheries Act.

Permits are required for any type of fishing in the qoliqoli, and licenses are required for commercial

fishing. However, there are exceptions: Any harvester is exempt from obtaining a permit when fishing is

done with hook and line or with a spear or portable fish trap which can be handled by one person.88

Commercial harvesters do not need a license if they fish with a line from the shore or with a spear, or are

specially exempted from the license requirement by the Minister.560

Comments on Fisheries Act

The Fisheries Act merely provides for the creation of offences under a minimal licensing regime. There is

little capacity under the legislation to actively manage fisheries resources for a societal objective. Indeed,

the long title is "An Act to make provision for the regulation of fishing." More contemporary legislation

should compel the determination of fisheries and the preparation of fishery-specific management plans.

The process of management planning should follow prescribed timelines and consultation requirements.

Management plans would in turn be disallowable instruments, ensuring parliamentary oversight of natural

resources management.561

The role of the Minister in fisheries regulation is peculiar. Licenses to fish — the peak decision under

legislation — are granted by a licensing officer rather than by the Minister. While it may be argued that

officials should exercise this power under delegation (itself a difficult argument to maintain) in Fiji’s case

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the Minister doesn’t even possess this power, let alone the corresponding power to delegate licensing. The

Fisheries Act therefore precludes the elected government from assuming responsibility for custodianship

of the public’s interest in fish resources562.

An additional flaw with licensing is that licenses to fish cannot be revoked by officials or even the

Minister. Licenses can only be cancelled by a court following conviction for an offence against the

legislation or for contravening license conditions. At written, this provision may be conceived to protect

licenses form arbitrary or injudicious actions by fisheries officials. However, it does mean that the

government cannot intervene to halt fishing in the event of observed misbehavior or abuse of licensing

terms.563

The validity period of licences is inappropriate to resource stewardship and formal planning. Licences are

valid for only one year, encouraging operators to maximise extractions during this time and mitigating

against long-term resource sustainability. Nor are commercial fishers able to plan for fishing operations

on the expectation of continued access to stocks on pre-defined terms, given the lack of succession in the

system. Even then, the Fisheries Act doesn’t expressly provide for license renewals (although forms exist

for this purpose under subsidiary legislation).564

A final licensing point relates to native fishing. The requirement to hold a license to fish as well as a

permit to access a qoliqoli seems excessive. The reason for having another system for qoliqoli fishing is

appreciated. However, this system should operate as separate regime rather than as additive, as is the

case.565

Another very real shortcoming with the Fisheries Act is that it assumes non-commercial fishing ("by way

of trade or business") is less in need of control than fishing for profit. The catch and effort capacity of

non-commercial operations clearly is much less than for a fitted trawler or long liner. However,

subsistence and artisanal fishing can employ motorized and mechanized techniques, not necessarily

relying upon low technologies. And especially in countries with demography like Fiji’s, there are many

more non-commercial fishers than there are licensed commercial operators. The catch capacity therefore

may well exceed the resource sustainability but be outside of regulation.566

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The move towards quotas reflected in the 1990 regulations is to be welcomed. Three apparent limitations

arise with this approach, though. Firstly, no such quotas have been allocated following the setting of a

TAC in 2002; the scientific basis of this TAC has even been the subject of severe questioning. Moreover,

this TAC only applies to the tuna long lining fishery. Linking quotas to a total allowable catch or effort is

a necessary measure.567

The second problem with the quota regulation is whether it is supportable by the parent legislation. The

regulation-making power does not specifically refer to quotas, nor does the generality of the construction

of this head of power appear immediately to enable such a regulation. A quota is ideally transferable

between participants in a fishery; the Fisheries Act licensing provisions would prevent any such

transfers.568

Thirdly, under the Fisheries Act, the Minister has been required for decades to establish a TAC in the

context of foreign fishing under UNCLOS. No such TAC has been established, so the commitment to

manage fisheries on a sustainable basis is questionable.569

A final observation on the anachronistic Fisheries Act relates to destructive fishing with explosives. The

legislation very explicitly bans this type of fishing and the sale of fish so taken. The Minister may,

however, permit fishing with explosives and the transporting and sale thereof by fisheries officers. Quite

simply the Fisheries Act contains two policies in complete contradiction, which further erodes the

integrity of the legislation.570

Legislative Revision

While this Paper was being written, the Director of Fisheries has confirmed571 to the Author that

appropriate consultation for the amendment of the Fisheries Act are almost completed and the

promulgation of Fiji’s new Fisheries Laws and Regulation is soon to be realized.

The amended Act has taken into account most of the concerns expressed above and also take into account

the implementation of Fiji’s obligations under the Fisheries related MEAs especially the Fish-stock

Agreement and the WPCFC.

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Advantages of joining Regional MEAs

Becoming party to Regional and Global MEAs also has its benefits. One example of such is the assistance

under the Niue Treaty on surveillance of maritime zones. Fiji, like most in the Pacific, do not have

capability to monitor completely its enormous maritime boundary and programme such operation

Kurukuru offers the much needed capacity in this regard.

Operation Kurukuru572

Operation Kurukuru 2009 was a coordinated maritime surveillance operation in which countries,

members of the Forum Fisheries Agency, cooperated to detect activities such as illegal, unregulated and

unreported fishing (IUU Fishing), smuggling and people trafficking. It was hosted by FFA for over a ten

(10) days exercise573.

Operation Kurukuru 2009 resulted in 8 boarding of vessels and 1 apprehension of a vessel which has

been escorted to port for further investigation. In Tuvalu, 1 vessel was fined USD $10,000 for

misreporting of fishing catch. The 4 aircraft involved in the operation flew a total of 85 hours and

covered approximately 800,000 square nautical miles574.

Covering an area of approximately 10 million square kilometers - including the Exclusive Economic

Zones (EEZ) of Cook Islands, Kiribati, Niue, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu and

Vanuatu – Operation Kurukuru 2009 involved fisheries surveillance and enforcement staff from all of

these countries working together with their counterparts from Australia, New Zealand, France and US

over 10 days of surveillance575.

Surveillance was conducted by individual countries within their respective EEZ’s using 7 Pacific Class

Patrol Boats (from Cook Islands, Samoa, Solomon Islands, Tonga, Tuvalu, Kiribati and Vanuatu) and 1

French Patrol Boat. This was supported by aerial surveillance provided by 4 Maritime Patrol Aircraft (2

P-3 Orion supplied by Australia & New Zealand, a Guardian supplied by France and a Hercules C-130

from the US Coast Guard).576

All countries had access to an FFA web-based map of surveillance flights, licensed vessels and ��B�C��)��"��)�� =�� )��B��"��)��@�>��%��5)�+�B�C��)� �� )�63��97��G��/��"� ��%�� -.� ��+� �� '�� *��*� � �� >�� )� ).��*�� ")�� -�"�

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unlicensed vessels, so individual countries were able to send out patrol boats where aerial surveillance

had identified suspicious activities or vessels.577

Outcomes of Operation Kurukuru 2009 included: 578

� Tuvalu’s Patrol Boat boarded and fined a foreign fishing vessel for misreporting its catch.

� Solomon Island’s Patrol Boat boarded and apprehended a foreign fishing vessel for a number of

breaches.

� The aerial surveillance effort identified a number of vessels apparently not complying with their FFA

registration and license conditions and are the subject of further investigation.

However the success of the Monitoring, Control and Surveillance effort by the FFA member countries

and the United State and France in the region should not necessarily just be measured by the number of

fishing vessels apprehended. The reduction in the number of vessels conducting illegal, unregulated and

unreported fishing is a sure sign that the policing and other measures being taken are working.

Operation Kurukuru is an activity to meet the broader objectives of sustainable fisheries development and

management in the Pacific region. This annual operation held in the Eastern and Western FFA Member

countries complements other operations held in the rest of the FFA member countries.

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4.3 Chemicals, Hazardous Wastes, and Marine Pollution

Section 4.3 examines Fiji’s implementation of chemicals, hazardous wastes and marine pollution related

MEAs. Under this heading, the following MEAs will be discussed:

a. 1985 South Pacific Nuclear Free Zone Treaty (Treaty of Raratonga);

b. 1986 SPREP Protocol for the Prevention of Pollution of the South Pacific Region by Dumping

(SPREP Dumping Protocol) 1990

c. SPREP Protocol Concerning Cooperation in Combating Pollution Emergencies in the South

Pacific Region (SPREP Pollution Emergencies Protocol); and the

d. 1995 Waigani Convention to Ban the Importation into Forum Island Countries of Hazardous and

Radioactive Wastes and to Control the Tran boundary Movements and Management of

Hazardous Wastes within the South Pacific Region (Waigani Convention).

4.3.1 1985 South Pacific Nuclear Free Zone Treaty (Treaty of Raratonga)

Introduction

The South Pacific Nuclear Free Zone (Treaty of Rarotonga) was the second such treaty established in the

world. Its area of coverage ranges from the west coast of Australia to the Latin America nuclear free zone

area to the east, and from just north of the equator to the Antarctica Treaty area. Together with the Treaty

of Llatelolco covering Latin America and the Treaty on Antarctica, SPNFZ covers contiguously a very

significant portion of the globe. This coverage has been greatly increased by the Bangkok Treaty of

December 1995 which created a nuclear-free-zone for South East Asia and the Pelindaba Treaty of April

1996 which created a similar zone for Africa.

Established in 1985, the Treaty of Rarotonga represents a unified approach by Forum countries in

fulfilling their commitments under Article VII of the Nuclear Non- Proliferation Treaty (NPT). In

addition to seeking from the Nuclear Weapons States (NWS) a commitment not to conduct or to continue

conducting nuclear tests in the South Pacific, Parties to SPNFZ renounced for themselves the

manufacture, acquisition and possession of nuclear explosive devices and agreed to abide by safeguards

in the provision of nuclear material and equipment. Parties to the Treaty of Rarotonga further undertook

to prevent the stationing of any nuclear explosive device on their territory and agreed not to dump radio-

active waste and material at sea in the SPNFZ area.

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The South Pacific Nuclear Free Zone Treaty has been signed and ratified by all Forum members within

the original geographical boundaries of the Treaty. We maintain close working relations with the

Federated States of Micronesia, Republic of the Marshall Islands, and Palau, who joined the Pacific

Islands Forum after the establishment of the Treaty, and we are hopeful that in time, they too will become

Parties to the Treaty.

In respect of the three protocols to the Treaty, whilst all nuclear weapons states have signed the SPFNZ

Protocols, not all have ratified them. The Protocols obligate nuclear weapons states to apply the

Rarotonga Treaty to their territories in the region; to refrain from the use or threat of nuclear explosive

devices against any Party; and not to test nuclear explosive devices in the Zone.

The Rarotonga Treaty is a significant achievement for the Pacific Islands Forum - it is one of the region’s

major contributions to strengthening global security and the international non-proliferation regime.

Regional treaties like the SPNFZ Treaty provide valuable support and strength to the Nuclear Non-

Proliferation Treaty, including opportunities to enhance coordination and cooperation among Nuclear

Weapons Free Zones in support of the process of nuclear disarmament, with the ultimate goal of

eliminating all nuclear weapons.

The Parties to the Rarotonga Treaty work in close cooperation with their counterpart Treaties of

Tlatelolco and Bangkok, and are supported by the bans imposed by the Antarctic Treaty and the Seabed

Treaty. Parties to the Rarotonga Treaty look forward to the entry into force of the Pelindaba Treaty,

establishing a nuclear weapons free zone for Africa, and welcome the continuing efforts of Mongolia to

promote awareness of its nuclear-weapon-free status nationally and internationally.

Obligations

Summarized in the Table below is the list of obligations bestowed on Fiji by the Treaty of Rarotonga.

TABLE 30: OBLIGATIONS UNDER THE TREATY OF RAROTONGA

Fiji’s Obligation Under the Nuclear Free Zone Treaty (Treaty of Rarotonga) Renunciation of Nuclear Explosive Devices

1. Article 3(a)-(c) Each Party undertakes: (a) not to manufacture or otherwise acquire, possess or have control over any nuclear explosive device by any means anywhere inside or outside the South Pacific Nuclear Free Zone; (b) not to seek or receive any assistance in the manufacture or acquisition of any nuclear explosive device; (c) not to take any action to assist or encourage the manufacture or acquisition of any nuclear explosive device by any State.

Peaceful Nuclear Activities 2. Article

4(a)(i)&(ii) Each party undertakes: (a) not to provide source or special fissionable material, or equipment or material especially

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designed or prepared for the processing, use or production of special fissionable material for peaceful purposes to: (i) any non-nuclear-weapon State unless subject to the safeguards required by Article III.1 of the NPT, or (ii) any nuclear-weapon State unless subject to applicable safeguards agreements with the International Atomic Energy Agency (IAEA).

3. Article 4(b) (b) to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system.

Prevention of Stationing of Nuclear Explosive Devices 4. Article 5(1) 1. Each Party undertakes to prevent in its territory the stationing of any nuclear explosive device. 5. Article 5(2) 2. Each Party in the exercise of its sovereign rights remains free to decide for itself whether to allow

visits by foreign ships and aircraft to its ports and airfields, transit of its airspace by foreign aircraft, and navigation by foreign ships in its territorial sea or archipelagic waters in a manner not covered by the rights of innocent passage, archipelagic sea lane passage or transit passage of straits.

Prevention of Testing of Nuclear Explosive Devices 6. Article 6(a) &

(b) Each Party undertakes: (a) to prevent in its territory the testing of any nuclear explosive device; (b) not to take action to assist or encourage the testing of any nuclear explosive device by any State.

Prevention of Dumping 7. Article 7(1)(a)-

(d) 1. Each Party undertakes: (a) not to dump radioactive wastes and other radioactive matter at sea anywhere within the South Pacific Nuclear Free Zone; (b) to prevent the dumping of radioactive wastes and other radioactive matter by anyone in its territorial sea; (c) not to take any action to assist or encourage the dumping by anyone of radioactive wastes and other radioactive matter at sea anywhere within the South Pacific Nuclear Free Zone; (d) to support the conclusion as soon as possible of the proposed Convention relating to the protection of the natural resources and environment of the South Pacific region and its Protocol for the prevention of pollution of the South Pacific region by dumping, with the aim of precluding dumping at sea of radioactive wastes and other radioactive matter by anyone anywhere in the region.

Reports and Exchange of Information 8. Article 9(1) 1. Each Party shall report to the Director of the South Pacific Bureau for Economic Co-operation

(the Director) as soon as possible any significant event within its jurisdiction affecting the implementation of this Treaty. The Director shall circulate such reports promptly to all Parties.

9. Article 9(2) 2. The Parties shall endeavour to keep each other informed on matters arising under or in relation to this Treaty. They may exchange information by communicating it to the Director, who shall circulate it to all Parties.

Fiji and the Treaty of Rarotonga

After ratification, and with the cessation of nuclear testing in the Pacific by Nuclear Super Powers, there

has been very little activities concerning nuclear proliferation in the Pacific. Fiji has not manufactured or

otherwise acquired, possess or have control over any nuclear explosive device in recent ties and has done

her best not to take action to assist or encourage the testing of any nuclear explosive device by any State.

Fiji continues to support the Treaty through its interventions and votes in appropriate international forum

where the issues of International Nuclear Disarmament are discussed. Fiji is an active member of the 1st

Committee of the UN General Assembly and has been a vocal advocator for nuclear free world in that

Committee for some time.

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4.3.2 1986 SPREP Protocol for the Prevention of Pollution of the South Pacific Region by Dumping (SPREP Dumping Protocol)579

Introduction

The general objective of the SPREP Dumping Protocol is to prevent, reduce and control pollution by

dumping of wastes and other matter in the South Pacific.

In the Protocol, the Parties agreed to take all appropriate measures to prevent, reduce and control

pollution in the Protocol Area by dumping580 The Protocol stipulates that Dumping within the territorial

sea and the exclusive economic zone or onto the continental shelf of a Party as defined in international

law must not to be carried out without the express prior approval of the Party581.

Conservation Measures

The Protocol stipulates that National laws, regulations and measures adopted by the Parties not to be less

effective in preventing, reducing and controlling pollution by dumping than the relevant internationally

recognized rules and procedures relating to the control of dumping established within the framework of

the Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter 1972.

Categories of Wastes

The Protocol prohibits the dumping of substances listed in Annex 1 except as provided in the Protocol582.

These substances include:

1. Organohalogen compounds. 2. Mercury and mercury compounds. 3. Cadmium and cadmium compounds. 4. Persistent plastics and other persistent synthetic materials, for example, netting and

ropes, which may remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea.

5. Crude oil and its wastes, refined petroleum products, petroleum distillate residues and any mixtures containing any of these taken on board for the purpose of dumping.

6. Materials in whatever form (e.g. solids, liquids, semi-liquids, gases, or in a living state) produced for biological and chemical warfare.

7. Organosphosphorous compounds.

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The dumping in the Protocol Area of wastes or other matter listed in annex II to this Protocol requires, in

each case, a prior special permit583 Matters referred to in Annex II are as follows:

A

arsenic ) Lead ) and their compounds Copper ) Zinc )

Organosilicon compounds cyanides fluorides pesticides and their by-products not covered in Annex I.

B. In the issue of permits for the dumping of acids and alkalis, consideration shall be given to the possible presence in such wastes of the substances listed in section A and to the following additional substances:

Beryllium ) chromium ) and their compounds nickel ) vanadium )

C. Containers, scrap metal and other bulky wastes liable to sink to the sea bottom which may present a serious obstacle to fishing or navigation. D. Substances which, though of a non-toxic nature, may become harmful due to the quantities in which they are dumped or which are liable to seriously reduce amenities.

Membership

The Dumping Protocol was open for ratification, acceptance, approval or accession to those States that

were invited to participate in the High-level Conference on the Protection of the Natural Resources and

Environment of the South Pacific Region, held at Noumea, New Caledonia from 24-25 November 1986.

Any State that was not invited to participate in the High-level Conference may accede to the Convention

subject to prior approval by three-fourths of the Parties.

The Protocol was adopted on 25th November, 1986 in Noumea, New Caledonia and it entered into force

on 18 August, 1990. The Parties to the Protocol includes: Australia, Cook Islands, Federated States of

Micronesia, Fiji, France, Marshall Islands, New Zealand, Papua New Guinea, Solomon Islands

and Samoa.

Tabulated overleaf are the obligations contained in the SPREP Dumping Protocol

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TABLE 31: OBLIGATIONS UNDER THE SPREP DUMPING PROTOCOL

Fiji’s Obligation Under the Protocol for the Prevention of Pollution of the Pacific Region by Dumping General Application Provision

1 Article 2(2)(a)&(b)

(2) Notwithstanding any other provision of this Protocol, this Protocol shall relate to internal waters only to the extent provided for in sub-paragraphs (a) and (b). (a) Each Party shall at its discretion either apply the provisions of this Protocol or adopt other effective permitting and regulatory measures to control the deliberate disposal of wastes or other matter in marine internal waters where such disposal would be “dumping” or “incineration at sea” within the meaning of article 1, if conducted at sea. (b) Each Party should provide the Organization with information on legislation and institutional mechanisms regarding implementation, compliance and enforcement in marine internal waters. Parties should also use their best efforts to provide on voluntary basis summary reports on the type and nature of the materials dumped in marine internal waters.

General Obligation 2. Article 3(1) (1) Consistent with their technical, economic and scientific capabilities, the Parties shall take all

appropriate measures to effectively prevent, reduce and where practicable eliminate pollution in the Protocol Area by the dumping and incineration of wastes and other matter at sea.

3. Article 3(4)(a)&(b)

(4) When implementing the provisions of this Protocol, the Parties shall act so as to ensure that: (a) there is no direct or indirect transfer of the damage or likelihood of damage from one part of the environment to another; and (b) the nature of the pollution is not transformed from one type to another.

4. Article 3(5) (5) In implementing this Protocol, Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.

5. Article 3(6) (6) Taking into account the approach that the polluter should, in principle, bear the cost of pollution, each Party shall endeavour to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest.

Dumping of Wastes and Other Matters and Exceptions 6. Article 4(1) (1) Each Party shall establish and implement legislative and administrative arrangements to give effect

to this Protocol. 7. Article 4(2) (2) Parties shall ensure that the issuances of permits, and the permit conditions, comply with the

provisions of Annexes I and II. The dumping of wastes or other matter listed in Annex I shall require a permit issued in accordance with this Protocol.

8. Article 4(4) (4) The Parties shall prohibit the following activities: (a) the dumping of wastes or other matter at sea, other than those listed in Annex I; (b) the incineration of wastes or other matter at sea; and (c) the exportation of wastes and other matter for the purpose of dumping or incineration at sea.

Responsibilities of Designated Authorities 9. Article

5(1)(a)-(c) (1) Each Party shall designate an appropriate authority or authorities to: (a) issue permits in accordance with this Protocol; (b) keep records of the nature and quantities of all wastes or other matter for which dumping permits have been issued and where practicable the quantities actually dumped and the location, time and method of dumping; and (c) monitor individually, or in collaboration with other Parties and competent international organizations, the condition of the sea for the purposes of this Protocol.

10. Article 5(2)(a)&(b)

(2) The appropriate authority or authorities of each Party shall issue the permits under paragraph 1 and in the emergency circumstances provided for in Article 4, in respect of the wastes or other matter intended for dumping or incineration at sea: (a) loaded in its territory; or (b) loaded onto vessels and aircraft registered in its territory or flying its flag when the loading occurs in the territory of a State not Party to this Protocol.

11. Article 5(3) (3) In issuing permits under this Protocol the appropriate authority or authorities shall comply with Article 4 and Annex II together with such additional criteria, measures and requirements, as they may consider relevant.

12. Article 5(4)(a)-(c)

(4) Each Party shall report to the Organisation, and where appropriate to the other Parties: (a) the information specified in paragraph 1(b) and (c), which shall be submitted annually; (b) any administrative and legislative measures taken to implement the provisions of this Protocol, including a summary of enforcement measures; and (c) any problems experienced in the application of the administrative and legislative measures, and any matter related to their effectiveness.

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13. Article 5(5) (5) The information referred to in paragraph 4(b) and (c) shall be submitted on a regular basis for evaluation by an appropriate subsidiary body determined by the Meeting of the Parties. This body shall regularly report to Meetings or Special Meetings of the Parties.

Implementation and Enforcement 14. Article

6(1)(a)-(c) (1) Each Party shall apply the measures required to implement this Protocol to all: (a) vessels and aircraft registered in its territory or flying its flag; (b) vessels and aircraft loading in its territory wastes or other matter which are to be dumped or incinerated at sea; and (c) vessels, aircraft and fixed or floating platforms or other man-made structures believed to be engaged in dumping or incineration at sea in areas within which it is entitled to exercise jurisdiction in accordance with international law.

15. Article 6(2) (2) Each Party shall take in its territory appropriate measures in accordance with international law to prevent and if necessary punish conduct in contravention of the provisions of this Protocol.

16. Article 6(3) (3) The Parties agree to co-operate in the development of procedures for the effective application of this Protocol particularly on the high seas, including procedures for the reporting of vessels and aircraft observed dumping or incinerating at sea wastes or other matter in contravention of the Protocol.

17. Article 6(4) (4) This Protocol shall not apply to those vessels and aircraft entitled to sovereign immunity under international law. However, each Party shall ensure by the adoption of appropriate measures that such vessels and aircraft owned or operated by it act in a manner consistent with the object and purpose of this Protocol, and shall inform the Organisation accordingly.

Reporting of Unauthorized Dumping and Incineration Incidents 18. Article 9 Each Party undertakes to issue instructions to its maritime inspection vessels and aircraft and to other

appropriate services to report to its authorities any incidents or conditions in the Protocol Area which give rise to suspicions that dumping or incineration at sea in contravention of the provisions of this Protocol has occurred or is about to occur. Parties shall, if they consider it appropriate, report accordingly to the Organisation and to any other Party concerned.

Technical Cooperation and Assistance 19. Article 10(a)-

(e) The Parties, in consultation with the Organisation, shall cooperate with a view to formulating and as far as practicable implementing programs of assistance for the prevention, reduction and where practicable elimination of pollution caused by dumping and incineration of wastes and other matter at sea, including the provision of: (a) training programs for scientific and technical personnel relating to research, monitoring and enforcement; (b) as appropriate, necessary equipment and facilities with a view to strengthening national capabilities; (c) advice on the implementation of this Protocol; (d) information and technical cooperation relating to the disposal and treatment of wastes and other measures to prevent, reduce and where practicable eliminate pollution caused by dumping and incineration at sea; and (e) access to and transfer of environmentally sound technologies and corresponding know-how, in particular to Small Island Developing States on favourable terms, including on concessional and preferential terms, as mutually agreed, taking into account the need to protect intellectual property rights as well as the special needs of Small Island Developing States.

Annex II Action List 20. Annex ii Para.

9 9. Each Party shall develop a National Action List to provide a mechanism for screening candidate wastes and their constituents on the basis of their potential effects on human health and the marine environment. In selecting substances for consideration in an Action List, priority shall be given to toxic, persistent and bioaccumulative substances from anthropogenic sources (e.g. cadmium, mercury, organohalogens, petroleum hydrocarbons, and, whenever relevant, arsenic, lead, copper, zinc, beryllium, chromium, nickel and vanadium, organosilicon compounds, cyanides, fluorides and pesticides or their by-products other than organohalogens). An Action list can also be used as a trigger mechanism for further waste prevention considerations.


Fiji and the SREP Dumping Protocol

Fiji became a party to the SPREP Dumping Protocol on 18 September 1989. Not much development has

been undertaken under this Protocol. The Department of the Environment has the responsibility to

monitor Fiji’s implementation; most of the activities are being carried out under the various programmes

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attributed to other Conventions. No major dumping activities has been reported lately, a welcomed state

of affair indeed.

4.3.3 1990 SPREP Protocol Concerning Cooperation in Combating Pollution Emergencies in the South Pacific Region (SPREP Pollution Emergencies Protocol)

Introduction

Recognizing that in the event of a pollution emergency or threat thereof, prompt and effective action

should be taken initially at the national level to organise and co-ordinate prevention, mitigation and

cleanup activities, several countries in the then region called the South Pacific signed the Protocol

Concerning Cooperation in Combating Pollution Emergencies in the South Pacific Region (SPREP

Pollution Emergencies Protocol)

Objective

The objective of the Protocol is to enhance cooperation among the Parties to protect the South Pacific

Region from threats and effects of pollution incidents.

Summary of main provisions

Under the Protocol, Parties agree to establish and maintain the means of preventing and combating

pollution incidents, and reducing the risk thereof. Such means includes the enactment, as necessary, of

relevant legislation, the preparation of contingency plans, the development and strengthening of the

capability to respond to pollution incidents and the designation of a national authority responsible for the

implementation of the Protocol.584

Parties undertake to periodically exchange with other Parties current information relating to the

implementation of this Protocol.585 They are to establish appropriate procedures to ensure that information

regarding pollution incidents is reported as rapidly as possible.586 In the event of receiving a report

regarding a pollution incident, Parties undertake to promptly inform all other Parties whose interests are

likely to be affected by such incident, the flag State of any vessel involved in it and the competent

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international organizations.587 Each Party requiring assistance to deal with a pollution incident may

request the assistance of other Parties588 .

Obligations

Tabulated below are the obligations under the SPREP Emergency Protocol

TABLE 32: OBLIGATIONS UNDER THE SPREP EMERGENCY PROTOCOL

Srl ARTICLE OBLIGATIONS GENERAL PROVISION

1. Article 3(1) 1. The Parties to this Protocol shall, within their respective capabilities, co-operate in taking all necessary measures for the protection of the South Pacific Region from the threat and effects of pollution incidents.

2. Article 3(2) 2. The Parties shall, within their respective capabilities, establish and maintain, or ensure the establishment and maintenance of, the means of preventing and combating pollution incidents, and reducing the risk thereof. Such means shall include the enactment, as necessary, of relevant legislation, the preparation of contingency plans, the development or strengthening of the capability to respond to a pollution incident and the designation of a national authority responsible for the implementation of this Protocol.

EXCHANGE OF INFORMATION 3. Article 4 Each Party shall periodically exchange with other Parties, either directly or through the

Organisation, current information relating to the implementation of this Protocol, including the identification of the officials charged with carrying out the activities covered by it, and information on its laws, regulations, institutions and operational procedures relating to the prevention and the means of reducing and combating the harmful effects of pollution incidents.

COMMUNICATION OF INFORMATION CONCERNING, AND REPORTING OF, POLLUTION INCIDENTS 4. Article 5(1) 1. Each Party shall establish appropriate procedures to ensure that information regarding pollution

incidents is reported as rapidly as possible and shall, inter alia: (a) require appropriate officials of its government to report to it the occurrence of any pollution incident which comes to their attention; (b) require masters of vessels flying its flag and persons in charge of offshore facilities operating under its jurisdiction to report to it the existence of any pollution incident involving their vessel or facilities; (c) establish procedures to encourage masters of vessels flying its flag or of its registry to report, to the extent practicable, the existence of any pollution incident involving their vessel to any coastal State in the South Pacific Region which they deem likely to be seriously affected; (d) request masters of all vessels and pilots of all aircraft operating in the vicinity of its coasts to report to it any pollution incident of which they are aware.

5. Article 5(2) 2. In the event of receiving a report regarding a pollution incident, each Party shall promptly inform all other Parties whose interests are likely to be affected by such incident as well as the flag State of any vessel involved in it. Each Party shall also inform the Organisation and, directly or through the Organisation, the competent international organisations. Furthermore, it shall inform, as soon as feasible, such other Parties and organisations of any measures it has itself taken to minimize or reduce pollution or the threat thereof.

MUTUAL ASSISTANCE 6. Article 6(1) 1. Each Party requiring assistance to deal with a pollution incident may request, either directly or

through the Organisation, the assistance of the other Parties. The Party requesting assistance shall specify the type of assistance it requires. The Parties whose assistance is requested under this article shall, within their capabilities, provide this assistance based on an agreement with the requesting Party or Parties and taking into account, in particular in the case of pollution by hazardous substances other than oil, the technological means available to them. If the Parties responding jointly within the framework of this article so request, the Organisation may co-ordinate the activities undertaken as a result.

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7. Article 6(2) 2. Each Party shall facilitate the movement of technical personnel, equipment and material necessary for responding to a pollution incident, into, out of and through its territory

OPERATIONAL MATTERS 8. Article 7 Each Party shall, within its capabilities, take steps including those outlined below in responding to a

pollution incident: (a) make a preliminary assessment of the incident, including the type and extent of existing or likely pollution effects; (b) promptly communicate information concerning the situation to other Parties and the Organisation pursuant to article 5; (c) promptly determine its ability to take effective measures to respond to the pollution incident and the assistance that might be required and to communicate any request for such assistance to the Party or Parties concerned or the Organisation in accordance with article 6; (d) consult, as appropriate, with other affected or concerned Parties or the Organisation in determining the necessary response to a pollution incident; (e) carry out the necessary measures to prevent, eliminate or control the effects of the pollution incident, including surveillance and monitoring of the situation.

SUN-REGIONAL ARRANGEMENT 9. Article 8(1) 1. The Parties should develop and maintain appropriate sub-regional arrangements, bilateral or

multilateral, in particular to facilitate the steps provided for in articles 6 and 7 and taking into account the general provisions of this Protocol.

10. Article 8(2) 2. The Parties to any arrangements shall notify the other Parties to this Protocol as well as the Organisation of the conclusion of such sub-regional arrangements and the provisions thereof.

Fiji and the SPREP Pollution Emergency Protocol

Fiji ratified this Protocol on 18 September 1989. To date, not much activities has taken place under the

SPREP Emergency Protocol. Because there hasn’t been any major pollution threat in the region, little

could be said at this stage about the status of readiness of the parties.

Fiji has not entered into any specific bilateral arrangement to facilitate implementation of the

requirements of the Protocol; however, the Emergency Protocol makes available this opportunity in the

future. The major threat of marine pollution facing Fiji to date is Oil Spill. While Seabed Mining

potentially could post risks for pollution, no adverse effect of such activities has been reported.

Marine Department & The National Oil Pollution Contingency Plan

The Fiji Marine Department is the designated authority for coordinating marine pollution response actions

in Fiji including arranging technical and financial support. The Fiji National Oil Pollution Contingency

Plan of 1992 stipulates the responsibilities doe oil spill response. Within ports and harbours limits the

administrative authority for the affected area would assume the lead, whilst on beaches and foreshores;

this role falls on the Ministry of Works.

In territorial waters and within Fiji’s EEZ, the Marine Department is responsible, and has also a

coordinating function in any serious pollution incident. Representative of the major oil companies in Fiji,

together with the Government formed the National Oil Pollution Committee with the aim of reviewing

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contingency plans, encouraging training and exercise procedures in promoting awareness of the scope for

oil spill response.

Pollution Incidents Centers has been established at the Suva Fire Brigade, Fiji Marine Department and the

Fiji Ports Authority. In addition, police and military authorities may provide assistance with staff and

communication facilities.

In Fiji, The National Oil Pollution Contingency Plan recognizes that in major incident, it would not be

possible to protect or clean all affected areas. Priority should be given to the protection of the most

sensitive areas, where feasible.

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4.3.4 1995 Waigani Convention to Ban the Importation into Forum Island Countries of

Hazardous and Radioactive Wastes and to Control the Tran boundary Movements and

Management of Hazardous Wastes within the South Pacific Region (Waigani Convention)589

Introduction

Conscious of their responsibility to protect, preserve and improve the environment of the South Pacific

for the good health, benefit and enjoyment of present and future generations of the people of the South

Pacific and concerned about the growing threat to human health and the environment posed by the

increasing generation of hazardous wastes and the disposal of such wastes by environmentally unsound

methods590, leaders of certain Pacific SIDS, in 1995, in the administrative suburb of Papua New Guinea’s

Capital Port Moresby, called Waigani, agreed to bind themselves collectively in a regional effort to ban

the importation into their territory hazardous wastes and to control the trans boundary movement of

wastes and management of hazardous wastes within the South Pacific Region. Their agreement was

codified in a Regional Treaty carrying the name of that suburb, the Waigani Convention.

The Purpose

Waigani aims to reduce or eliminate trans-boundary movements of hazardous and radioactive wastes into

and within the Pacific Forum region; to minimize the production of hazardous and toxic wastes in the

Pacific Forum region; to ensure that disposal of wastes is done in an environmentally sound manner and

as close to the source as possible; and to assist Pacific island countries that are Parties to the Convention

in the environmentally sound management of hazardous and other wastes they generate.

The Waigani Area

Article 1 of the Waigani Convention asserts that the “Convention Area” comprises of:

(i.) the land territory, internal waters, territorial sea, continental shelf, archipelagic waters and exclusive economic zones established in accordance with international law of:

- American Samoa - The Commonwealth of Northern Mariana Islands - Australia - Cook Islands - Republic of Palau

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- Federated States of Micronesia - Papua New Guinea - Fiji - Pitcairn - French Polynesia - Solomon Islands - Guam - Tokelau - Kiribati - Tonga - Republic of Marshall Islands - Tuvalu - Nauru - Vanuatu - New Caledonia and Dependencies - Wallis and Futuna - New Zealand - Western Samoa; - Niue

Waigani goes further to include:

(ii) Those areas of high seas which are enclosed from all sides by the exclusive economic zones referred to in sub-paragraph (i); (iii) Areas of the Pacific Ocean which have been included in the Convention Area pursuant to Article 2.6;”

The Parties

The Convention is open to all Pacific island Forum countries. As of June 2008, there are 13 Parties:

Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, New Zealand, Niue, Papua New

Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. France, Marshall Islands, United

Kingdom and the United States are eligible to join the convention but have not yet done so. Nauru and

Palau signed the convention in 1995 but have yet to ratify591.

Hazardous Wastes

Annex 1 of the Waigani Convention lists in a scientific and technical fashion the categories of wastes that

are considered “Hazardous” under the Convention. In layman’s term, the Convention covers toxic,

poisonous, explosive, corrosive, flammable, eco-toxic, infectious and radioactive wastes.

Obligations

The Waigani Convention is very similar to the Basel Convention592, which serves as the primary inter-

national instrument governing the trans-boundary movement and the environmental management of

hazardous wastes593. The major difference lies in the fact that Waigani is administered within the Pacific

Forum region. This means that Pacific Island countries have a significant say in how the Convention will

evolve. The Waigani Convention is also different to Basel in that it covers radioactive wastes594 and

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extends to the Economic Exclusion Zone (200 nautical miles) rather than the territorial sea (12 nautical

miles) under Basel595. Both Conventions are important and complement each other.

The general obligation bestowed by Waigani is that members should ban the import of hazardous and

radioactive wastes. They should minimize the production of hazardous wastes and cooperate to ensure

that wastes are treated and disposed of in an environmentally sound manner. Article 4 of the Convention

lists in detail the general obligations.

Tabulated in Table 32 below are the obligations to which Fiji is legally bound to under Waigani. However

apart from the general commitments in Article 4, other notable obligations include the requirement that

after six months of becoming a party, members must inform the Secretariat of the wastes other than those

listed in the Annex 1 of the Convention that are considered hazardous in their national legislation and of

any requirements concerning trans-boundary movement procedures to such waste596. The other is the

requirement for the designation or establishment of one competent authority and one focal point597.

TABLE 33: FIJI’S OBLIGATIONS UNDER THE WAIGANI CONVENTION

Fiji’s Obligations under the Convention to Ban the Importation into Forum Islands Countries of Hazardous and Radioactive Wastes and to Control the Trans-boundary Movement of Hazardous

Wastes and Management of Hazardous Wastes within the South Pacific Region (Waigani Convention)

National Definition of Hazardous Waste 1. Article 3(1) 1. Each Party shall, within six months of becoming a Party to this Convention, inform the Secretariat

of the wastes, other than those listed in Annex I of this Convention, considered or defined as hazardous under its national legislation and of any requirements concerning trans-boundary movement procedures applicable to such wastes.

2. Article 3(2) 2. Each Party shall subsequently inform the Secretariat of any significant changes to the information it has provided pursuant to paragraph 1 of this Article.

3. Article 3(4) 4. Parties shall be responsible for making the information transmitted to them by the Secretariat under paragraph 3 of this Article available to their exporters, importers and other appropriate bodies.

General Obligations 4. Article 4(1)(a) 1. Hazardous Wastes and Radioactive Wastes Import and Export Ban

(a) Each Pacific Island Developing Party shall take appropriate legal, administrative and other measures within the area under its jurisdiction to ban the import of all hazardous wastes and radioactive wastes from outside the Convention Area. Such import shall be deemed an illegal and criminal act;

5. Article 4(2)(a)&(b)

2. To facilitate compliance with paragraph 1 of this Article, all Parties: (a) Shall forward in a timely manner all information relating to illegal hazardous wastes and radioactive wastes import activity within the area under its jurisdiction to the Secretariat who shall distribute the information as soon as possible to all Parties; and (b) Shall cooperate to ensure that no illegal import of hazardous wastes and radioactive wastes from a non-Party enters areas under the jurisdiction of a Party to this Convention.

6. Article 4(4)(a) 4. Wastes Located in the Convention Area Each Party shall: (a) Ensure that within the area under its jurisdiction, the generation of hazardous wastes is reduced at its source to a minimum taking into account social, technological and economic needs;

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7. Article 4(4)(b) (b) Take appropriate legal, administrative and other measures to ensure that within the area under its jurisdiction, all trans-boundary movements of hazardous wastes generated within the Convention Area are carried out in accordance with the provisions of this Convention;

8. Article 4(4)(c) (c) Ensure the availability of adequate treatment and disposal facilities for the environmentally sound management of hazardous wastes, which shall be located, to the extent practicable, within areas under its jurisdiction, taking into account social, technological and economic considerations. However, where Parties are for geographic, social or economic reasons unable to dispose safely of hazardous wastes within those areas, cooperation should take place as provided for under Article 10 of this Convention;

9. Article 4(4)(d) (d) In cooperation with SPREP, participate in the development of programmes to manage and simplify the trans-boundary movement of hazardous wastes which cannot be disposed of in an environmentally sound manner in the countries in which they are located. Provided that such programmes do not derogate from the environmentally sound management of hazardous wastes as required by this Convention, they may be registered as arrangements under Article 11 of this Convention;

10. Article 4(4)(e) (e) Develop a national hazardous wastes management strategy which is compatible with the SPREP South Pacific Regional Pollution Prevention, Waste Minimization and Management Programme;

11. Article 4(4)(f) (f) Submit to the Secretariat such reports as the Conference of the Parties may require regarding the hazardous wastes generated in the area under its jurisdiction in order to enable the Secretariat to produce a regular hazardous wastes report;

12. Article 4(4)(g) (g) Subject to Article 11 of this Convention, prohibit within the area under its jurisdiction hazardous wastes from being exported to or imported from non-Parties within the Convention Area; and

13. Article 4(4)(h) (h) Take appropriate legal, administrative and other measures to prohibit vessels flying its flag or aircraft registered in its territory from carrying out activities in contravention of this Convention.

14. Article 4(5)(a) 5. Radioactive Wastes (a) Parties shall give active consideration to the implementation of the IAEA Code of Practice on the International Trans-boundary Movement of Radioactive Wastes and such other international and national standards which are at least as stringent; and

15. Article 4(5)(b) (b) Subject to available resources, Parties shall actively participate in the development of the Convention on the Safe Management of Nuclear Waste.

16. Article 4(6)(a) 6. Domestically Prohibited Goods: (a) Subject to available resources, Parties shall endeavour to participate in relevant international fora to find an appropriate global solution to the problems associated with the international trade of domestically prohibited goods;

Competent Authorities and Focal Points 17. Article 5(1) 1. To facilitate the implementation of this Convention, each Party shall designate or establish one

competent authority and one focal point. A Party need not designate or establish new or separate authorities to perform the functions of the competent authority and the focal point.

16. Article 5(2) 2. The competent authority shall be responsible for the implementation of notification procedures for trans-boundary movement of hazardous wastes in accordance with the provisions of Article 6 of this Convention.

18. Article 5(3) 3. The focal point shall be responsible for transmitting and receiving information in accordance with the provisions of Article 7 of this Convention.

19. Article 5(4) 4. The Parties shall inform the Secretariat, within three months of the date of the entry into force of this Convention for them, which authorities they have designated or established as the competent authority and the focal point.

Notification Procedures for Trans-boundary Movements of Hazardous Wastes between Parties 20. Article 6(1) 1. The exporting Party shall notify, or shall require the generator or exporter to notify, in writing,

through its competent authority, the competent authority of the countries concerned of any proposed trans-boundary movement of hazardous wastes. Such notification shall contain the declarations and information specified in Annex VI A of this Convention, written in a language acceptable to the importing Party. Only one notification needs to be sent to each country concerned.

21. Article 6(2) 2. The importing Party shall acknowledge within reasonable time, which in the case of Other Parties shall not exceed fourteen working days, the receipt of the notification referred to in paragraph 1 of this Article. The importing Party shall have sixty days after issuing the acknowledgement to inform the notifier that it is consenting to the movement, with or without conditions, denying permission for the movement or requesting additional information. In the event that additional information has been sought, a new period of twenty one days recommences from the time of receipt of the additional information.

22. Article 6(3)(a)-(e) 3. The exporting Party shall not allow the trans-boundary movement until it has received: (a) Written consent of the importing Party; (b) Written consent from every transit Party; (c) Written consent of every non-Party country of transit; (d) Written confirmation from the importing Party of the existence of a contract between the exporter and the disposer specifying the environmentally sound management of the wastes in question; and (e) Written confirmation from the exporter of the existence of adequate insurance, bond or other

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guarantee satisfactory to the exporting Party. 23. Article 6(4) 4. Each transit Party shall acknowledge within reasonable time, which in the case of Other Parties

shall not exceed fourteen working days, the receipt of the notification referred to in paragraph 1 of this Article. Each transit Party shall have sixty days after issuing the acknowledgement to inform the notifier that it is consenting to the movement, with or without conditions, denying permission for the movement or requesting additional information. In the event that additional information has been sought, a new period of twenty one days recommences from the time of receipt of the additional information.

24. Article 6(6) 6. The exporting Party may, subject to the written consent of the countries concerned, allow the generator or the exporter to use a general notification where hazardous wastes having the same physical and chemical characteristics are shipped regularly to the same disposer via the same customs office of exit of the exporting Party, via the same customs office of entry of the importing Party, and, in the case of transit, via the same customs office of entry and exit of the Party or Parties of transit.

Transmission of Information 25. Article 7(1) 1. The Parties shall ensure that in the case of an accident occurring during the Trans-boundary

movement of hazardous wastes or their disposal which is likely to present risks to human health and the environment in other States and Parties, those States and Parties and the Secretariat are immediately informed.

26. Article 7(2)(a)&(b)

2. The Parties shall inform one another, through the Secretariat, of: (a) Changes regarding the designation of competent authorities and/or focal points, pursuant to Article 5 of this Convention; and (b) Changes in their national definition of hazardous wastes, pursuant to Article 3 of this Convention.

27. Article 7(3) 3. The Parties, consistent with national laws and regulations, shall set up information collection and dissemination mechanisms on hazardous wastes to enable the Secretariat to fulfill the functions listed in Article 14.

Duty to Re-import 28. Article 8(1) 1. The exporting Party shall adopt appropriate administrative and legal measures to ensure that

when an authorised trans-boundary movement of hazardous wastes cannot be completed in accordance with the terms of the contract or of this Convention, the wastes in question are returned to it by the exporter. To this end, the importing Party and the transit Party or Parties shall not oppose, hinder or prevent the return of those wastes to the exporting Party.

29. Article 8(2) 2. Notwithstanding the provisions of paragraph 1 of this Article, where an authorised trans-boundary movement of hazardous wastes cannot be completed within the terms of the contract or the terms of this Convention, the exporting Party need not re-import those wastes provided that alternative arrangements are made for the disposal of the wastes in a manner which is compatible with the environmentally sound management of hazardous wastes as required by this Convention and other international legal obligations. Such disposal shall take place within ninety days from the time that the importing Party informed the exporting Party and the Secretariat, or such other period of time as the Parties concerned agree.

Illegal Traffic 30. Article 9(2) 2. Each Party shall introduce or adopt appropriate national legislation to prevent and punish illegal

traffic. The Parties shall cooperate with a view to achieving the objects of this Article. 31. Article 9(3)(a) &

(b) 3. (a) In the case of a trans-boundary movement of hazardous wastes deemed to be illegal traffic as the result of conduct on the part of the exporter or generator, the exporting Party shall ensure that, within thirty days from the time the exporting Party has been informed about the illegal traffic or such other period of time the countries concerned may agree, the wastes in question are either: (i) taken back by the exporter or generator or if necessary by itself into the exporting Party; or, if impracticable, (ii) otherwise disposed of in accordance with the provisions of this Convention; (b) In the case of paragraph 3(a)(i) of this Article, the Parties concerned shall not oppose, hinder or prevent the return of those wastes to the exporting Party.

32 Article 9(4) 4. In the case of a trans-boundary movement of hazardous wastes deemed to be illegal traffic as a result of conduct on the part of the importer or disposer, the importing Party shall ensure that the wastes in question are disposed of in an environmentally sound manner by the importer or disposer or, if necessary, by itself within thirty days from the time the illegal traffic has come to the attention of the importing Party or such time as the countries concerned may agree. To this end, the importing Party and the exporting Party shall cooperate, as necessary, in the disposal of the wastes in an environmentally sound manner.

33. Article 9(5) 5. In cases where the responsibility for the illegal traffic cannot be assigned either to the exporter or generator or to the importer or disposer, the Parties concerned or any other Parties, as appropriate, shall ensure through cooperation that the wastes in question are disposed of as soon as possible in an environmentally sound manner either in the exporting Party or the importing Party or elsewhere as appropriate.

Cooperation Among Parties and International Cooperation 34. Article 10(1) 1. The Parties to this Convention shall cooperate with one another, non-Parties and relevant regional

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and international organizations, to facilitate the availability of adequate treatment and disposal facilities and to improve and achieve the environmentally sound management of hazardous wastes. Such facilities shall be located within the Convention Area to the extent practicable taking into account social, technological and economic considerations.

35. Article 10(2)(a) 2. To this end, the Parties shall: (a) Upon request, make information available, whether on a bilateral or regional basis, with a view to promoting the environmentally sound management of hazardous wastes, including harmonization of relevant technical standards and practices;

36. Article 10(2)(b) (b) Cooperate in monitoring the effects of hazardous wastes and their management on human health and the environment;

37. Article 10(2)(c) (c) Cooperate, subject to their national laws and policies, in the development and implementation of new environmentally sound and cleaner production technologies and the improvement of existing technologies. Such cooperation shall be with a view to eliminating, as far as practicable, the generation of hazardous wastes and achieving more effective and efficient methods of ensuring their management in an environmentally sound manner, including the study of the economic, social and environmental impacts of the adoption of such new and improved technologies;

38. Article 10(2)(d) (d) Cooperate, subject to their national laws and policies, actively in the transfer of technology and management systems related to the environmentally sound management of hazardous wastes. They shall also cooperate in developing the technical capacity and infrastructure of Parties, especially those which may need and request technical assistance in this field; and

39. Article 10(2)(e) (e) Cooperate in developing appropriate technical guidelines and/or codes of practice. 40. Article 10(4) 4. Taking into account the needs of developing countries, Parties shall encourage cooperation with

international organizations in order to promote, among other things, public awareness, the development of rational management of hazardous wastes, and the adoption of new technologies which are environmentally sound, including cleaner production technologies.

Bilateral, Regional or Multilateral Agreements or Arrangements 41. Article 11(1) 1. Notwithstanding the provisions of Article 4.4(g), Parties to this Convention may enter into

bilateral, regional or multilateral agreements or arrangements with non-Parties regarding the trans-boundary movement and management of hazardous wastes provided that such agreements or arrangements do not derogate from the provisions of Article 4.1 or from the environmentally sound management of such wastes as required by this Convention.

42. Article 11(2) 2. The Parties shall notify the Secretariat of any bilateral, regional or multilateral agreements or arrangements referred to in paragraph 1 of this Article and those which they have entered into prior to the entry into force of this Convention for them, for the purpose of controlling trans-boundary movements of hazardous wastes which take place entirely among the parties to such agreements or arrangements.

Amendments to the Convention 43. Article 16(3) 3. The Parties shall make every effort to reach agreement on any proposed amendment to this

Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall, as a last resort, be adopted by a two-thirds majority vote of Parties present and voting, each Party having one vote, and shall be submitted by the Depositary to all Parties for ratification, approval or acceptance.

Fiji and Waigani

Fiji ratified the Waigani Convention on 19 April 1996 and the Treaty was entered into force in 2001. In

relative term, ten (10) years of existence perhaps is not too long a period for one to make an educated,

accurate and credible judgment of how effective Waigani has been so far. In the case of Fiji, Waigani has

served as the only international instrument dealing with the control and management of wastes in general

and hazardous wastes in particular598. In addition, Waigani gives Fiji a legal framework to deal with the

trans-boundary movement of nuclear wastes599. Viewed from that perspective, Waigani for Fiji can be

said to have been a success.

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Activities, Programmes and Legislative Measures

By ratifying Waigani, Fiji like all other of its neighboring SIDS in the Pacific region, given the

vulnerability of their island ecosystems, recognized that waste management is one the single most

pressing issue that needs immediate action. Poor management of waste has the potential to cause negative

impacts on national development activities including public health, the environment, food security,

tourism and trade.

Increasing urbanization and importation of numerous consumer products ranging from cosmetics to

laboratory chemicals used in the education sector and chemicals imported mainly under the agriculture,

manufacturing and mining sectors contribute to accumulation of hazardous waste materials in Fiji.

The Agriculture sector for example has stockpiles of waste/obsolete agrochemicals. Given the absence of

appropriate disposal facilities and management mechanism, a lot of these hazardous chemicals have found

their way into Fiji’s ecosystems via leach ate from rubbish dumps like the Lami dump, or through

intentional dumping by some people600.

a. Legislative measures

With the promulgation of Environment Management Act (EMA) in March 2005, Fiji has established a

comprehensive legal and institutional framework for improving the conditions for waste management in

the country601. The purpose of the EMA is to apply the principles of sustainable use and development of

natural resources and to identify matters of national importance for Fiji with regards to the environment.

Part 5 of the Environment Management Act 2005 sets out the framework for Waste Management and

Pollution Control in the Fiji Islands. It prohibits any commercial or industrial facility from discharging

any waste or pollutant into the environment or handling or storing hazardous materials without a permit

and gives the Waste Management and Pollution Control (WPC) Administrator power to issue permits.

The WPC Administrator can also monitor discharges and issue orders to prevent illegal or excessive

discharges.

In December, 2007, Environment Management (Waste Disposal and Recycling) Regulations602 was

endorsed by cabinet which came into effect on 1st January, 2008 (grace period). The purpose of the

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regulation is to prevent the pollution of the environment by controlling the discharge of solid waste from

facilities, the discharge of liquid wastes, the emission of polluting gases, smoke, steam and dust, and

disposal of wastes and hazardous substances generally.

Other legislative measures in place in Fiji that deals with solid wastes management, i.e. improper

disposal, accumulation of refuse or littering, includes603:

i. The Public Health Act

ii. The Litter Promulgation

iii. The Municipal authorities waste management by-laws

iv. The Fijian Affairs Act

b. Policies

Fiji has also adopted a number of policies, strategies and action plans to deal with the regulation and

management of wastes including hazardous wastes. A couple of these are summarized below:

i. The Fiji National Solid Waste Management Strategy and Action Plan 2008 -2010

Fiji has devised its National Waste Management Strategy and Action for the period 2008-2010. This

initiative fulfills some of her obligations under Waigani604. The Strategy identifies ways to minimize

waste and improve its management in close partnership with local government and other key

stakeholders. The purpose of the strategy is to focus on waste reduction to ensure only residual waste goes

to the landfill. The strategy sets targets and identifies actions primarily for local authorities and producers

of industrial and commercial wastes605.

The strategy covers wastes such as household, commercial, industrial, agricultural, mines and quarries,

sewage treatment operations, demolition and construction, and special wastes. Liquid and gaseous wastes

are not covered in this strategy. The key objectives of the National Solid Waste Management Strategy are

to606:

i. reduce the amount of waste that each community generates;

ii. make best use of the waste that is generated;

iii. develop and implement economic and social incentive mechanisms to change wasteful behavior;

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iv. improve and upgrade existing waste management and disposal systems and encourage/ provide

waste management practices, which minimize the environmental risk and harm to human health;

and

v. Provide a guideline template for rural or community level solid waste management practices

work.

An example of a Solid Waste Management Initiative in Fiji is the Naboro landfill which is the first

sanitary landfill for Fiji. It is managed by the Ministry of Lands, Mineral Resources and Environment

and a New Zealand based company H.G Leach is operating it607. The landfill services the areas of Suva,

Navua, Pacific Harbour, Nasinu, Lami and Nausori. The Fiji Government is aware that in order to allow

the landfill to run for its expected lifespan, proper waste management as in separation, redirection of

green waste for composting etc needs to be practiced at the household level. This along with other aspects

has been the focus of the advertisements to educate people about the Naboro landfill608.

ii. Fiji National Liquid Waste Management and Action Plan

The Fiji Environmental Management Act 2005 (EMA) also calls for the development of a National

Liquid Waste Management Strategy. In 2007, with the financial support provided by the International

Waters Programme of the Global Environment Facility (GEF), the United Nations Development Program

(UNDP) and the Secretariat of the Pacific Regional Environment Programme (SPREP), the Fiji National

Liquid Waste Strategy was formulated and it sets the direction for sustainable liquid waste management

in Fiji.

The strategy and plan were developed through a process of wide consultation with all stakeholders

involved in the production and the management of liquid waste.

The key objectives of the Fiji National Liquid Waste Management Strategy609 are to:

i. Reduce the amount of wastewater produced in Fiji;

ii. Improve and upgrade waste management and disposal systems to improve wastewater

quality;

iii. Improve coordination of departments/stakeholders involved in regulating and managing

liquid waste; and

iv. Improve awareness and practices of public in relation to sanitation/wastewater management.

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The category of liquid waste covered in the National Strategy and Action Plan includes, includes: sewage

waste, industrial and commercial wastewater, wastewater from the tourism industry, animal wastewater,

marine shipping, urban storm water, leachate from sanitary landfill and solid waste dump sites and

Sludge.

The existing legislation listed below applies to liquid waste pollution from industry, tourism and other

commercial facilities and from liquid waste being discharged from domestic sources into the

environment.

i. Public Health Act 1955

ii. Ports Authority of Fiji Regulations 1990

iii. Water Supply Act 1955

iv. Town Planning Act

v. Mining Act

vi. Sewerage (Amendment) Act 1974

c. Programme & Other Activities

The Government of Fiji is aware that waste cannot be reduced without a system that manages waste from

the point of generation through to disposal. In cooperation with other governments and international

organizations, several programs or projects are currently being implemented by the Department of

Environment in the effort to minimize waste at a National level are as follows:

i. EU Funded ‘Lami Rehabilitation Project’610

Following the opening of the Naboro Landfill in October 2005, the Lami Dump, which constituted the

main site of rubbish disposal for the greater Suva area, has been closed. However, serious environmental

risks remain at the dump including emission of leachates, gas and the risk of fire or tidal wave.

To assist the Fiji Government, the European Union granted EU 550 000 for the rehabilitation of the Lami

dump.

ii. Waste Minimization and Recycling Promotion Project611

The request for assistance for a “Waste Minimization and Recycling Promotion Project” was proposed to

the Government of Japan and the project was considered by JICA to be initiated in the western division

(Lautoka City and Nadi Town. JICA have selected the consultants Kokusai Kogyo Co., Ltd and Ex

Corporation to jointly implement the project. First team arrived on 17th October 2008. �� B��)�� )��" � ��M��0�� )�=��C� ��)��%��.�� B��)�� )��)� ��C� ��)��%��.�

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The overall goal of the project is to develop and promote the idea of 3R (in this case, Reduce, Reuse,

Return) mainly in the western division of Fiji.

The outputs of the project are:

1) Solid Waste Management Plans focusing on 3R are developed respectively in Lautoka City and

Nadi Town.

2) Lautoka City and Nadi Town obtain the capacity for proper Solid Waste Management (SWM)

through the implementation of Pilot projects.

3) Lautoka City and Nadi Town obtain the capacity for 3R promotion activities at whole is

implemented at whole area of Lautoka city and Nadi Town Council.

4) Awareness of residents in Lautoka City and Nadi Town is raised through implementation of

environmental education activities on 3R promotion.

5) 3R model for Fiji is developed and recommended.

iii. Container Deposit Legislation and Sustainable Solid Waste Management in Suva, Fiji

(Project by the United Nations Development Programme (UNDP)612

The project started in April 2009 with a Feasibility study on Managing Solid Waste in Fiji using the CDL

System and a Litter Survey in the Suva area. The surveys were conducted respectively by two

independent consultants. Phase I ended on March 4th 2009. Phase II involve the development and

execution of a public campaign to inform the public of the new system, and attack the widespread

behavior of indiscriminate littering, using the leverage in public attention to this issue provided by the

introduction of the deposit & refund recycling system.

An Implementation Plan has been produced which provides considerable detail concerning the individual

activities required, and the coordination of those activities. In addition, a comprehensive Communications

Strategy has been developed which also contains considerable detail concerning media outlets and costs

in Fiji, as well as an analysis of the potential means of broadcasting the public awareness message to be

promoted in Phase II.

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Analysis and Observations

Despite not being party to the Basel Convention, Waigani has provided Fiji with a tool for regional

cooperation to assist in introducing and implementing measures to address, control and manage the

production, storage and disposal of hazardous wastes. While it may not be possible to completely

eliminate the production of hazardous wastes, Waigani has at least provided the framework wherein what

would have otherwise been an area of neglect, is now been protected and addressed.

In a regional sense, Waigani provides an effective protective mechanism to stop waste traders from

making the Pacific an international waste dump, it prevent ships from using the Pacific as a highway for

hazardous waste and it creates a regional mechanism to facilitate the cleanup of hazardous and radioactive

wastes in the region. The major benefit of the Convention is the establishment of a system to prevent

hazardous and radioactive waste entering the region or being dumped in the Pacific and in Fiji for that

matter.

In a national sense, Waigani has contributed to ensuring that, through cooperation with others, and in line

with the various national legislative measures, policies, strategies and plans, the people of Fiji are safe

and free from exposure to the harmful effects of toxic, hazardous and radioactive wastes.

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4.4 Biodiversity

Section 4.4 will examine Fiji’s implementation of the regional Biodiversity related MEAs. Under this cluster, examination will be made on the implementation of the obligations contained in the 1976 Convention on the Conservation of Nature in the South Pacific, also known as the Apia Convention.

4.4.1 1976 Convention on the Conservation of Nature in the South Pacific (Apia Convention)613

Introduction

The 1976 Convention on the Conservation of Nature in the South Pacific (the Apia Convention) is the

region’s oldest conservation treaty, that was entered into force in 1990 after a fourteen-year wait to obtain

ratification from four member countries. A fifth country also joined in 1990. The Apia encourages

establishment of protected areas and national reserves to protect and conserve endangered species,

migratory species, superlative scenery, striking geological formations and regions and objects of aesthetic

interest or historical, cultural or scientific value614.

In 1971 a Pacific regional symposium on conservation of reefs and lagoons was initiated by IUCN,

following similar work in other parts of the world. In 1974, the South Pacific Commission (now

Secretariat for the Pacific Community (SPC)) initiated a special project on the conservation of nature. A

regional ecological advisor was appointed to ensure that protected areas were a key part of the SPC’s

programme. The IUCN drafted a Convention on the Conservation of Nature in the South Pacific and

tabled this for discussion at the first South Pacific Conference on national parks and reserves held in

Wellington in 1975615.

In June 1976, a regional meeting in Apia, Samoa, jointly sponsored by IUCN and the SPC, considered

and adopted the Convention on the Conservation of Nature in the South Pacific. This was the first major

attempt in the Pacific region to bring about a regional approach to the management of natural resources in

the region.616

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The Apia Convention is concerned with the establishment of protected areas for nature conservation in

the South Pacific region, as well as superlative scenery, striking geological formations, and regions and

objects of aesthetic interest of historic, cultural or scientific value. As the first regional convention in the

World to recognize the customary use of areas and species in accordance with traditional cultural

practices within protected areas, the Convention was considered progressive for its time617.

Obligations

Tabulated below is a summary of the obligations under the Apia Convention

TABLE 34: OBLIGATIONS UNDER THE APIA CONVENTION

FIJI’S OBLIGATIONS UNDER THE CONVENTION ON CONSERVATION OF NATURE IN THE SOUTH

PACIFIC 1 Article 2(1) 1. Each Contracting Party shall, to the extent that it is itself involved, encourage the creation of

protected areas which together with existing protected areas will safeguard representative samples of the natural ecosystems occurring therein (particular attention being given to endangered species), as well as superlative scenery, striking geological formations, and regions and objects of aesthetic interest or historic, cultural or scientific value.

2. Article 2(2) 2. Each Contracting Party shall notify the body charged with the continuing bureau duties under this Convention of the establishment of any protected area and of the legislation and the methods of administrative control adopted in connection therewith.

3. Article 3(1) 1. The boundaries of national parks shall not be altered so as to reduce their areas, nor shall any portions of such parks be capable of alienation, except after the fullest examination.

4. Article 3(2) 2. The resources of national parks shall not be subject to exploitation for commercial profit, except after the fullest examination.

5. Article 3(3) 3. The hunting, killing, capture or collection of specimens (including eggs and shells) of the fauna and destruction or collection of specimens of the flora in national parks shall be prohibited, except when carried out by or under the direction or control of the appropriate authorities or for duly authorized scientific investigations.

6. Article 3(4) 4. Provision shall be made for visitors to enter and use national parks, under appropriate conditions, for inspirational, educative, cultural and recreative purposes.

7. Article 4 National reserves shall be maintained inviolate, as far as practicable, it being understood that in addition to such uses as are consistent with the purposes for which a national reserve was established, permission may be given to carry out scientific investigations.

8. Article 5(1) 1. The Contracting Parties shall, in addition to the protection given to indigenous fauna and flora in protected areas, use their best endeavors to protect such fauna and flora (special attention being given to migratory species)so as to safeguard them from unwise exploitation and other threats that may lead to their extinction.

8. Article 5(2) 2. Each Contracting Party shall establish and maintain a list of species of its indigenous fauna and flora that are threatened with extinction. Such lists shall be prepared as soon as possible after this Convention has come into force and shall be communicated to the body charged with the continuing bureau duties under this Convention.

9. Article 5(3) 3. Each Contracting Party shall protect as completely as possible as a matter of special urgency and importance the species included in the list it has established in accordance with the provisions of the last preceding paragraph. The hunting, killing, capture or collection of specimens (including eggs and shells) of such species shall be allowed only with the permission of the appropriate authority. Such permission shall be granted only under special circumstances, in order to further scientific purposes or when essential for the maintenance of the equilibrium of the ecosystem or for the administration of the area in which the animal or plant is found.

10 Article 5(4) 4. Each Contracting Party shall carefully consider the consequences of the deliberate introduction into ecosystems of species which have not previously occurred therein.

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11. Article 6 Notwithstanding the provisions of Articles III, IV and V, a Contracting Party may make appropriate provision for customary use of areas and species in accordance with traditional cultural practices.

12. Article 7(1) 1. The Contracting Parties shall co-operate amongst themselves in promoting the objectives of this Convention, especially within the framework .of the South Pacific Commission.

2. The Contracting Parties shall wherever practicable conduct research relating to the conservation of nature. They shall as appropriate co-ordinate such research with research carried out by other Parties. They shall co-operate in the exchange of information on the results of such research and on the management of protected areas and of protected species.

13. Article 7(3) 3. The Contracting Parties shall co-operate in the interchange and training of personnel for the conservation of nature.

14. Article 7(4) 4. The Contracting Parties shall work towards harmonization of objectives relating to the conservation of nature.

15. Article 7(5) 5. With a view to attaining the objectives of this Convention the Contracting Parties shall examine the possibility of developing programmes of education and public awareness relating to conservation of nature.

16. Article 8(1) 1. The Contracting Parties shall maintain consultations with one another with the object of giving effect to the provisions of this Convention.

17. Article 9 A State may at the time of deposit of its instrument of ratification, acceptance, approval or accession declare that the provisions of this Convention on conservation of nature in the South Pacific do not apply to its territories outside the territorial scope of the South Pacific Commission.

18 Article 14 Any Contracting Party may denounce this Convention by written notification to the Depositary at any time after five years from the date of entry into force of the Convention. The denunciation shall take effect twelve months after the Depositary has received the notification.


Fiji and the Apia Convention

The Apia Convention has five parties: Australia, Cook Islands, Fiji, France and Samoa. There have been

no new Parties since and reasons for the lack of interest in the Convention have been identified as:

• its failure to address the modern nature conservation legal and policy needs of the region;

• its definition of protected areas is outdated and does not reflect regional practice;

• its treatment of endangered and migratory species is limited;

• international conventions like the Convention on Biological Diversity (CBD) cover the same

issues;

• all the benefits available to Parties are deliverable under the SPREP work programme;

• its less than rigorous scientific foundation;

• territories have not been accommodated.618

Operation and activities under the Apia Convention was suspended by all the parties in 2006, though the

Convention has not been disbanded and is the subject of revision. It was felt that the Convention on

Biological Diversity, while a newer instrument, covers the same subject matter and is more universally

applied.619

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Due to similarity of the nature of the obligations under the Apia Convention to the UNCBD, most of the

activities, initiatives and programmes adopted by Fiji as measures for the implementation of obligations

under the UNCBD Convention can be replicated as fulfillments also of the obligations under the Apia

Convention. The Author therefore invites readers to refer to pages 58 to 64 above for the narrative on

Fiji’s implementation of the UNCBD Convention

4.5 Land and Marine Resources

This section discusses the final thematic grouping of Regional MEAs relating to land and marine resources. There is only one regional MEA relevant to this thematic cluster, namely the Noumea Convention.

4.5.1 Convention for the Protection of the Natural Resources and Environment of the South

Pacific Region 1986 (Noumea Convention)620

Introduction

The challenge of environmental protection in the South Pacific is as varied and complex as the tens of

thousands of islands, islets, atolls, motu, reefs, rocks, skerries, and sandbanks that make up the terrestrial

portion of this vast region. Its landforms range from Papua New Guinea’s ‘continental’ geography, with

ice-capped mountains, through coral atolls, to jack-in-the-box volcanic cinder cones in Tonga that

routinely rise and fall below sea level621.

Notwithstanding these geographic and perceived environmental management complexities,

representatives of the Pacific Small Island States gathering in the New Caledonian Capital of Noumea,

fully aware of the economic and social value of the natural resources of the environment of the South

Pacific Region622; taking into account the traditions and cultures of the Pacific people as expressed in

accepted customs and practices623; conscious of their responsibility to preserve their natural heritage for

the benefit and enjoyment of present and future generations624; and recognizing the special hydrological,

geological and ecological characteristics of the region which requires special care and responsible

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management625 inter alia, agreed to adopt and bind themselves to the Convention for the Protection of

the Natural Resources and Environment of the South Pacific Region 1986 (the Noumea Convention).

The Convention

The Noumea Convention was adopted in 1986, together with protocols on cooperation in combating

pollution emergencies and on the prevention of pollution by dumping. It came into force in 1990626. The

Noumea Convention is the most significant regional convention operating in the South Pacific in terms of

the broad duties it places on countries in relation to the marine environment627.

The Convention notes that existing international agreements about the marine and coastal environment do

not cover all aspects and sources of marine pollution and environmental degradation and do not entirely

meet the special requirements of the Pacific Region628; and seeks to ensure that resource development will

be in harmony with the maintenance of the unique environmental quality of the region and the evolving

principles of sustained resource management629.

The Convention covers pollution from boats, land-based sources, sea-bed activities, air-borne sources,

disposal of wastes, the storage of toxic and hazardous substances and the testing of nuclear devices. It

also covers mining and coastal erosion. It puts an obligation on member countries to take all appropriate

measures to protect and preserve rare and fragile ecosystems and depleted, threatened or endangered flora

and fauna as well as their habitat in the convention area630.

It is noted that the Noumea Convention applies generally to the marine environment and has no specific

application to the land. However, land-based activities related to the marine environment are covered.

Further, Article 3 allows any Party to add areas under its jurisdiction "within the Pacific Ocean", which

means that land could be included in the future.

Obligations

The Noumea Convention bestowed a number of obligations on Fiji. These ranges from the requirement

for harmonization of policies at regional level to the obligation for establishing protected areas, such as

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parks and reserves, and prohibit or regulate any activity likely to have adverse effects on the species,

ecosystems or biological processes that such areas are designed to protect. Tabulated below are the

obligations under the Noumea Convention.

TABLE 35: OBLIGATIONS UNDER THE NOUMEA CONVENTION

Fiji’s Obligations under the Convention for the Protection of the Natural Resources and

Environment of the South Pacific Region General Provisions

1. Article 4(1) 1. The Parties shall Endeavour to conclude bilateral or multilateral agreements, including regional or sub-regional agreements, for the protection, development and management of the marine and coastal environment of the Convention Area. Such agreements shall be consistent with this Convention and in accordance with international law. Copies of such agreements shall be communicated to the Organization and through it to all Parties to this Convention.

General Obligations 2. Article 5(1) 1. The Parties shall endeavor, either individually or jointly, to take all appropriate measures in

conformity with international law and in accordance with this Convention and those Protocols in force to which they are party to prevent, reduce and control pollution of the Convention Area, from any source, and to ensure sound environmental management and development of natural resources, using for this purpose the best practicable means at their disposal, and in accordance with their capabilities. In doing so the Parties shall endeavour to harmonise their policies at the regional level.

3. Article 5(2) 2. The Parties shall use their best endeavours to ensure that the implementation of this Convention shall not result in an increase in pollution in the marine environment outside the Convention Area.

4. Article 5(3) 3. In addition to the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping and the Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region, the Parties shall co-operate in the formulation and adoption of other Protocols prescribing agreed measures, procedures and standards to prevent, reduce and control pollution from all sources or in promoting environmental management in conformity with the objectives of this Convention.

5. Article 5(4) 4. The Parties shall, taking into account existing internationally recognised rules, standards, practices and procedures, co-operate with competent global, regional and sub-regional organisations to establish and adopt recommended practices, procedures and measures to prevent, reduce and control pollution from all sources and to promote sustained resource management and to ensure the sound development of natural resources in conformity with the objectives of this Convention and its Protocols, and to assist each other in fulfilling their obligations under this Convention and its Protocols.

6. Article 5(5) 5. The Parties shall endeavour to establish laws and regulations for the effective discharge of the obligations prescribed in this Convention. Such laws and regulations shall be no less effective than international rules, standards and recommended practices and procedures.

Pollution from Vessels 7. Article 6 The Parties shall take all appropriate measures to prevent, reduce and control pollution in the

Convention Area caused by discharges from vessels, and to ensure the effective application in the Convention Area of the generally accepted international rules and standards established through the competent international organization or general diplomatic conference relating to the control of pollution from vessels.

Pollution from Land-based Sources 8. Article 7 The Parties shall take all appropriate measures to prevent, reduce and control pollution in the

Convention Area caused by coastal disposal or by discharges emanating from rivers, estuaries, coastal establishments, outfall structures, or any other sources in their territory.

Pollution from Sea-bed Activities 9. Article 8 The Parties shall take all appropriate measures to prevent, reduce and control pollution in the

Convention Area resulting directly or indirectly from exploration and exploitation of the sea-bed and its subsoil.

Airborne Pollution 10. Article 9 The Parties shall take all appropriate measures to prevent, reduce and control pollution in the

Convention Area resulting from discharges into the atmosphere from activities under their jurisdiction. Disposal of Wastes

11. Article 10(1) 1. The Parties shall take all appropriate measures to prevent, reduce and control pollution in the Convention Area caused by dumping from vessels, aircraft, or man-made structures at sea, including the effective application of the relevant internationally recognised rules and procedures relating to the control of dumping of wastes and other matter. The Parties agree to prohibit the dumping of radioactive wastes or other radioactive matter in the Convention Area. Without prejudice to whether

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or not disposal into the seabed and subsoil of wastes or other matter is "dumping", the Parties agree to prohibit the disposal into the seabed and subsoil of the Convention area of radioactive wastes or other radioactive matter.

Storage of Toxic and Hazardous Wastes 12. Article 11 The Parties shall take all appropriate measures to prevent, reduce and control pollution in the

Convention Area resulting from the storage of toxic and hazardous wastes. In particular, the Parties shall prohibit the storage of radioactive wastes or other radioactive matter in the Convention Area.

Testing of Nuclear Devices 13. Article 12 The Parties shall take all appropriate measures to prevent, reduce and control pollution in the

Convention Area which might result from the testing of nuclear devices. Mining and Coastal Erosion

14. Article 13 The Parties shall take all appropriate measures to prevent, reduce and control environmental damage in the Convention Area, in particular coastal erosion caused by coastal engineering, mining activities, sand removal, land reclamation and dredging.

Specially Protected Areas and Protection of Wild Flora and Fauna 15. Article 14 The Parties shall, individually or jointly, take all appropriate measures to protect and preserve rare or

fragile ecosystems and depleted, threatened or endangered flora and fauna as well as their habitat in the Convention Area. To this end, the Parties shall, as appropriate, establish protected areas, such as parks and reserves, and prohibit or regulate any activity likely to have adverse effects on the species, ecosystems or biological processes that such areas are designed to protect. The establishment of such areas shall not affect the rights of other Parties or third States under international law. In addition, the Parties shall exchange information concerning the administration and management of such areas.

Co-operation in Combating Pollution in cases of emergency 16. Article 15(1) 1. The Parties shall co-operate in taking all necessary measures to deal with pollution emergencies in

the Convention Area, whatever the cause of such emergencies, and to prevent, reduce and control pollution or the threat of pollution resulting therefrom. To this end, the Parties shall develop and promote individual contingency plans and joint contingency plans for responding to incidents involving pollution or the threat thereof in the Convention Area.

17. Article 15(2) 2. When a Party becomes aware of a case in which the Convention Area is in imminent danger of being polluted or has been polluted, it shall immediately notify other countries and territories it deems likely to be affected by such pollution, as well as the Organisation. Furthermore it shall inform, as soon as feasible, such other countries and territories and the Organisation of any measures it has itself taken to reduce or control pollution or the threat thereof.

Environmental Impact Assessment 18. Article 16(1) 1. The Parties agree to develop and maintain, with the assistance of competent global, regional and

sub-regional organisations as requested, technical guidelines and legislation giving adequate emphasis to environmental and social factors to facilitate balanced development of their natural resources and planning of their major projects which might affect the marine environment in such a way as to prevent or minimise harmful impacts on the Convention Area.

19. Article 16(2) 2. Each Party shall, within its capabilities, assess the potential effects of such projects on the marine environment, so that appropriate measures can be taken to prevent any substantial pollution of, or significant and harmful changes within, the Convention Area.

20. Article 16(3) 3. With respect to the assessment referred to in paragraph 2, each Party shall, where appropriate, invite: (a) public comment according to its national procedures,

(b) other Parties that may be affected to consult with it and submit comments.

The results of these assessments shall be communicated to the Organisation, which shall make them available to interested Parties.

Scientific and Technical Co-operation 21. Article 17(1) 1. The Parties shall co-operate, either directly or with the assistance of competent global, regional and

sub-regional organisations, in scientific research, environmental monitoring, and the exchange of data and other scientific and technical information related to the purposes of the Convention.

22. Article 17(2) 2. In addition, the Parties shall, for the purposes of this Convention, develop and co-ordinate research and monitoring programmes relating to the Convention Area and co-operate, as far as practicable, in the establishment and implementation of regional, sub-regional and international research programmes.

Technical and Other Assistance 23. Article 18 The Parties undertake to co-operate, directly and when appropriate through the competent global,

regional and sub-regional organisations, in the provision to other Parties of technical and other assistance in fields relating to pollution and sound environmental management of the Convention Area, taking into account the special needs of the island developing countries and territories.

Transmission of Information 24. Article 19 The Parties shall transmit to the Organisation information on the measures adopted by them in the

implementation of this Convention and of Protocols to which they are Parties, in such form and at such

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intervals as the Parties may determine. Liability and Compensation

25 Article 20 The Parties shall co-operate in the formulation and adoption of appropriate rules and procedures in conformity with international law in respect of liability and compensation for damage resulting from pollution of the Convention Area.

Institutional Arrangement 26. Article 21(2) 2. Each Party shall designate an appropriate national authority to serve as the channel of

communication with the Organisation for the purposes of this Convention. Amendment of the Convention and its Protocols

27. Article 24(1) 1. Any Party may propose amendments to this Convention. Amendments shall be adopted by a conference of plenipotentiaries which shall be convened by the Organization at the request of two-thirds of the Parties.

28. Article 24(2) 2. Any Party to this Convention may propose amendments to any Protocol. Such amendments shall be adopted by a conference of plenipotentiaries which shall be convened by the Organization at the request of two-thirds of the Parties to the Protocol concerned.

Fiji and the Noumea Convention

While most of the obligations contained in the Noumea Convention can also be found in the text of other

multilateral conventions, in relations to the obligation to establish protected areas, such as parks and

reserves, and to prohibit or regulate any activity likely to have adverse effects on the species, ecosystems

or biological processes that such areas are designed to protect, Fiji has established the following

conservations sites throughout Fiji:631

National Parks

Lower Vunivia Catchment , Mount Tomanivi, Nadrau Plateau (Western Sector), Sigatoka Sand Dunes

and Sovi Basin

Nature Reserves

Draunibota and Labiko Island, Garrick Memorial, Nadarivatu, Naqarabuluti, Ravilevu, Rokosalase,

Tomaniivi, Vunimoli, Vuo Island and Wabu Forest

Marine Parks

Koroyanitu National Park

Marine Protected Areas

Bukatatanoa Barrier Reef, Fulaga, Great Astrolobe Lagoon, Makogai Island, Malolo Project, Manava

Island, Namenalala Resort Marine Reserve, Sawaieke, Tavarua Island, Vuata Ono, Vuna (Waitabu) and

Yanuca Marine Park

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Forest Reserves

Vunia Forest Conservation and Wailevu

Forest Parks

Bouma National, Colo-I-Suva, Mount Evans Forest Park and Waikatakata Cultural

Marine Sanctuaries

Treasure Island

Faunal Reserves

Bird Island, Beqa Lagoon, Gau, Moturiki, Mount Washington, Kadavu, Mubulau Island, Namena Lala

Island, Nanuku Islet, Naulu-Lokia Swamps, Navua Swamp, Neoveitchia Storckii Palm Reserve,

Nukubasaga and Bukubalati, Nukutolu Islets, Ogea Levu, Selala Mangrove Reserve, Silktail Reserve,

Sovu Islands, Taqua Rocks, Vatu-i-Lami Island, Vatu-i-Ra Island, White Rock, Yabu Island

Recreation Reserves

Turtle Island MPA

Other Areas

Kadavu, Kioba, Koroutari, Lower Vunivia, Mount Evans, Nadrau Plateau, Rokosalase, Sovi Basin

Conservation Area, Tunuloa, Wabu Creek

Wildlife Sanctuaries

Yadua Taba Island Crested Iguana Reserve, Cultural Heritage, Tavuni Hill Fortification Project

Reserved Forests

Buretolu, Colo-i-Suva, Kalobo Water Catchment, Korotari, Maranisaga and Wainiveiota, Naboro,

Nadarivatu/Nadala, Naitasiri, Rewa, Savura Forest, Taveuni, Tavua, Vago, Vunimoli, Yarawa

Wetlands of International Importance (Ramsar)

Upper Navua Conservation Area

Cloud Forest Sites

Kadavu, Nau, Taveuni, Vanua Levu and Viti Levu

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Chapter Five: Implementation Challenges

Introduction

Throughout this Paper, while assessing Fiji’s performance in terms of the implementation of its

obligations under the 25 MEAs, it became clear that there exist a number of challenges that directly

confronts and affects Fiji’s ability to fulfill the implementation of her obligations satisfactorily. This

Chapter attempts to highlight these challenges.

5.1 Capacity

One of the commonly cited challenges or constraints facing Fiji’s implementation of MEAs is Capacity or

the lack of it. Almost all of the Reports submitted by Fiji, be it a report for the UNCBD, UNCCD,

UNFCCC, CITES or the Vienna Convention on Ozone Depleting Substances, the lack of capacity has

been highlighted as one of the primary factors affecting implementation. It is difficult to deny this fact;

however, overcoming the capacity challenge ought not to be insurmountable and the responsibility to

improve matters lies squarely with the Government of Fiji.

5.1.1 Systemic Capacity Constrains

Management of Resources

The lack of capacity in government to manage natural resources on a sustainable basis because of

inadequate policies, legislation, forward planning and administration continues to see:

� pollution effectively uncontrolled and now emerging as a serious issue;

� municipal waste management continuing as an obvious national dilemma;

� serious soil degradation is more prevalent in the marginal hill lands which are Fiji’s agricultural

resource base of the future;

� deficiencies in national planning are being compounded by significant urban drift resulting in

widespread informal development in peri-urban areas which host many environmental and social

problems;

� Heritage and biodiversity values inadequately appreciated while losses are increasing through ill-

directed development activities and lack of management’.632

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Legislative Reforms

Most legislation governing natural resources in Fiji is very old and outdated, and very little attention is

given to environmental issues in these statutes. The absence of a legislative environmental policy results

in an absence of statutes with an express or implied environmental mandate, while laws governing

resource development fail to recognize the environmental basis of natural resources. As a result,

legislation provides little in the way of capacity to protect the environment from the impacts of

development activities. There is certainly no mandate or legislative capacity to pursue the goal of

sustainable development.633

Good governance provisions are generally absent from in the existing resources legislation; for example,

there are few opportunities available for public input to decision making. The protection of private rights

in existing environment legislations is also seen to be inadequate634.

Enforcement of existing legislation is another constraint. The Fisheries Act and Marine Spaces Act for

instance are both old pieces of legislation that were drafted in a time when integration and holistic

approaches to regulation were not considered best practice635. Capacity for Government to strictly

supervise the application of laws and regulations of behaviors relating to the environments has been

inadequate.

Fiji needs a thorough visitation of all its environmental legislations to take into account the shortfalls

highlighted above. There is a need to reform the manner in which Fiji conducts and prioritise its dealings

of environmental issues. She needs to mainstream climate change and environmental considerations into

its sustainable development agenda. If this suggested excersice is carried out with relevant and

appropriate amendments reflected in its legislations, national sustainable development aspirations that

takes cognizant of the opportunities of climate finance offered under international instruments such as the

United Nations Framework of Climate Change (UNFCCC) and other international sources of finance, Fiji

will be well poised to absorb finance from outside sources to supplement its own national budget.

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Political Will

Another vital Systemic Constraint is the Lack of Political Will. The old adage “where there’s a will

there’s a way” rings true in this instance. Successive Fijian Governments have never really gave

prominent emphasis on the environment and probably to a larger extent, never really had a practical

appreciation of the potential that can be realized when environmentally related projects and initiatives is

realigned to mainstream sustainable development planning. Fiji’s political culture and cycles of coups

has also contributed adversely to the overall status of political will needed to advance matters through.

5.1.2 Institutional Level Capacity Constrains

Lack of Departmental Capacity & Coordination

The capacity gaps at the Department of Environment – because of resource limitations – to effectively

coordinate conservation and environment activities in Fiji is one significant cause of the scattered

response to those issues in Fiji.

Weak government structure has led to:

� imprecise linkages between government bodies;

� absence of clear mandates,

� weak inter-government communication,

� vague or too-broad mission and vision statements,

� competition between stakeholders

To illustrate the above, Fiji’s Thematic Assessment on the UNCBD concluded that636:

“Capacity in the government focal point (Department of Environment) for the CBD is clearly

suboptimal: the capacity to utilize funding, facilitate and deliver needs to improve. The

Department is not capable to perform its mandate satisfactorily, and that Fiji’s environment

and biodiversity have not deteriorated further is due to the support of a variety of local and

regional Non-Government Organizations (NGOs), donors, sections within the University of

the South Pacific, other government departments (forestry and fisheries, quarantine) and the

National Trust.”

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In terms of the implementation of the National Biodiversity Strategy and Action Plan, Fiji’s Thematic

Assessment report concluded that implementation are: “incompletely fulfilled and conservation initiatives

in Fiji are weakening”. The Report states that:

“This is largely because of the Department of Environment’s incapacity to prioritize its

activities, to strategize, and to coordinate national effort. Lack of a comprehensive national

action plan with identified outcomes, indicators, specific objectives, and timelines is a major

impediment to biodiversity conservation in Fiji. To be fair however, the Department has been

asked to carry out many activities: it simply does not have the financial, technical, management

and coordination skills to perform them”.637

Reports written on this subject have also revealed that at institutional level, the following is rampant:

• Inefficient communication between stakeholder related to coordination, strategizing,

implementing

• Weak institutional capacity and infrastructure (DOE, Forestry, Fisheries. Land use)

• Unclear mandates and definitions for implementation for government and non government

stakeholders

• Relevant information tending to be centralized

• Unsustainable funding mechanism

• Lack of funding of relevant activities undertaken by Agriculture, Forestry, and fisheries

Human Resource Retention

Another serious institutional challenge is the ability of government to identify, train and retain core group

of human resources that would assist and ensure the building of a stronger and credible institutional

knowledge for the Department of the Environment. High staff turnover due to lucrative job offers outside

of government and the infiltration of volunteers and international attaché as a short fix solution have been

detrimental to the building of consistent and lasting institutional knowledge and capability within the

Department of the Environment.

5.1.3 Individual Level Capacity Constraints

Discussion held with relevant officials at the Department of the Environment reveals that in terms of

individual level capacity, the following attitudinal and intellectual characteristic exists:

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• Lack of accountability on international conventions reporting

• Lack of capacity building and professional training of relevant stakeholders including DOE staff

• Lack of effective public awareness

• Lack of relevant information and limited scientific research

• Lack of career paths and incentives and relatively low salaries

• Lack of relevant technical knowledge amongst officers on specific MEAs etc.

All of the above capacity factors, when combined give Fiji a diluted image in the international arena.

There is a dire need for Government to undertake a thorough appraisal of its institutional capability with

the aim of improving the Department of Environment’s ability in overseeing Fiji’s environment and

conservation of biodiversity needs. It is clear that the Department of Environment needs to cater more

strategically, communicate more, operate as a team, and needs to take a lead role in conservation efforts

and programmes in Fiji rather than yielding to Non Governmental Organizations, if they need to keep

justifying their existence. The time is indeed ripe for government, non-government, academic and other

conservation partners to work together in an environment where there is an absence of competition and

animosity to achieve what, after all, they say they are working towards: the conservation of Fiji’s unique

and valued biodiversity.

5.2 Funding Constraints

Prioritization

Funding constrains is endemic amongst Small Island Developing State. Fiji is not immune from this.

However, unlike others, Fiji’s funding problem could be more to do with management and prioritization

than the lack of funds in the true sense. For instance, government sees perfect logic in allocating the most

substantial amount of its annual budgetary provisions to the maintenance and upkeep of a military

institution and pays secondary or lesser degree of concern including funding allocation to environment

protection and conservation638.

Funding Mechanism & Management

Assessment of the various environment legislations reveals the creation of a number of Trust Funds to

assist implementation of the Act concerned639. Also evident is the lack of clear capacity to maintain and

sustain these various funds. The ad hoc nature of these small funding sources exhibits little visibility

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when assessed in terms of concrete output delivered. There are suggestions in the next Chapter of how

this issue can be rectified.

5.3 Research and Data Management

Studies and reports also highlight serious lack of capacity in the area of data collection and in-depth

scientific research in Fiji. Data collection and research are the foundation of good management decisions

and effective policy development. It is therefore extremely important that the government of Fiji assesses

the existing structures and systems for environmental research and data collection, and considers the

potential for re-focusing its attentions towards the introduction of data collection systems and research

programs that will better promote environmental management efforts in Fiji.

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Chapter Six: Opportunities

“Never doubt that a small group of thoughtful- committed citizens can change the world;

indeed, it's the only thing that ever has.”640

An advantage of making a holistic assessment of a particular issue or a matter is that, if done well, one is

usually placed in a position to better evaluate and critique the matter or issues under consideration thus

presenting it with an opportunity for suggested improvements. Having analyzed the relevant MEAs and

the obligations they bestow on Fiji in this paper; and having had an opportunity to assess Fiji’s endeavor

at implementation and having had the benefit of identifying the challenges and constraints faced by Fiji,

this Chapter accounts for some of the opportunities that could be adopted to assist in the better delivery

and enhanced performance of Fiji efforts in the implementation of her multilateral environmental

Agreements obligations.

The Author wishes to clarify at the outset that the institutional reform proposals contained in this Chapter

are offered merely as illustrations of the opportunities that could be explored and implemented by

Government. A detailed cost and benefit analysis of the proposal has not been undertaken.

6.1 Attitudinal Reform

The first of these opportunities is the opportunity for attitudinal reform. Assessment of the various

literatures and Reports officially submitted by the Government of Fiji in response to its reporting

obligations under each appropriate MEAs appears to portray an impression that environmental

conservation in Fiji is the sole and primary responsibility of the Government and as such, ability to fulfill

Treaty obligations in as far as conservation is concern, will be impacted, dictated and limited primarily by

the Government’s ability to perform.

While such an attitude is an accurate one when viewed from the strict premise that obligations to fulfill

international commitments lies squarely with Government, conservation and preservation of the

environment is the responsibility of all of citizens. After all, it is the citizen that gets to benefit of

enjoying the comforts of his or her environment.

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Therefore, the Government, conscious of its limitations and capacity must encourage fuller participation

by all stakeholders in the community. Government could encourage citizens to take active role in

conservation. Conservation initiatives could adopt “bottom up’ approaches” where citizens, through their

own initiatives, guided by Government’s guidelines and policies are encouraged and rewarded for

innovation. Treaty implementation efforts must be driven at and from grassroots level because more

often, it is at that level where most of the environmental harms are inflicted.

Major industries, the manufacturing and retail sector could also be encouraged by Government to assist.

Formulating innovative ideas to entice industrialists and entrepreneurs’ participation with modest reward

systems could go along way alleviating capacity issues.

Attitudinal changes must also be found in individual citizens. No substantive progress can be made if

individuals continue to neglect role or continue to yield their conservation responsibilities to others or to

their government.

Attitudinal changes ought also to be found amongst other stakeholders in the conservation field.

Conservation Groups compete for scarce resources when pursuing their stated conservation agenda or

other related purposes. A cooperative environment ought to be harnessed by Government and appropriate

leeway must be provided to allow NGOs and civil societies pursue their mandates within Government’s

overall conservation framework.

6.2 The Fiji National Environment Framework

Almost every study conducted on Fiji’s MEA implementation efforts reveals or have indeed

recommended that serious institutional reform is required to assist Fiji better perform its treaty

obligations. Viewed from such a perspective, this paper recommends an overhaul of Fiji’s current

environmental framework and suggests realignment of institutional responsibilities to ensure maximum

outputs.

Under this suggested new framework, eight (8) national institutions will coordinate efforts or will play

relevant roles and will form the core institutional framework as far as environmental issues or matters in

Fiji are concerned. These national institutions include:

1) Parliament 2) Cabinet 3) Minister for the Environment 4) National Environment Council 5) The Ministry of Environment 6) The Environment Protection Authority of Fiji

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7) The National Green Fund of Fiji 8) The Environment Court

The sections to follow will discuss the roles and functions of these institutions in a detailed fashion;

however, figure 6 (below) shows the flows of reporting obligations, coordination and directives between

these institutions.

Figure 6: Proposed Fiji National Environment Framework


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6.3 The National Environment Council

Under the suggested National Environment Framework, the National Environment Council (NEC) will

have an elevated statutory role which is hereby suggested to be one of high level oversight, advice and

even partial watchdog. Particular functions of the Council are to coordinate policy development and

delivery, approve environmental strategy, prioritize programs and procedures, advise on institutional

structure and projects implementation prioritization, and review the general operation of environment

related legislations.

High Level Oversight is achieved through reporting and regular updates from the Ministry of

Environment on the general status of Fiji’s environment and of the implementation of approved activities

and projects. The Ministry of the Environment under the new framework will also act as the Secretariat to

the NEC.

The NEC will be the only forum that is mandated to advice the Minister and through him or her- the

Cabinet, and Parliament of any matters relating to the Environment. This will include Fiji’s international

reporting obligations and Fiji’s ratifications or accession to new international environment instruments.

The NEC will act as a watchdog through its overall supervisory role of the Fiji National Environment

Protection Agency. The Agency will be required to report its activities annually to the NEC and to

implement any directive issued to it by the NEC or by the Ministry of the Environment.

The functions of the NEC

Under the current Environment Management Act, at Section 8, the NEC‘s statutory functions are as

follows:

Functions of the Council 8. (1) The functions of the Council are: (a) to approve the National Report; (b) to approve the National Environment Strategy; (c) to monitor and oversee the implementation of the National Environment Strategy; (d) to facilitate a forum for discussion of environmental issues; (e) to make resolutions on public and private sector efforts on environmental issues; (f) to ensure that commitments made at regional and international fora on environment and development are implemented; (g) to advise the Government on international and regional treaties, conventions and agreements relating to the environment;

and (h) to perform any other functions conferred under this Act or any other written law. (2) The National Council may appoint any technical committee necessary to advise it on matters affecting environmental protection and resource management. (3) The Council may appoint a committee for coastal zone management to prepare a coastal zone management plan.

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Section 7 of the Environmental Management Act stipulates the membership of the NEC as follows:

(a) the Chief Executive Officer, as Chairperson; (b) the Chief Executive Officers for the Ministries responsible for land, mineral resources, agriculture, fisheries or forests; (c) the Chief Executive Officer for the Ministry responsible for Fijian Affairs; (d) the General Manager of the Native Land Trust Board; (e) the Chief Executive Officer of the Fiji Islands Trade and Investment Bureau; (f) the President of the Local Government Association; (g) a member to represent the interests of non-governmental organisations; (h) 2 members, one to represent the interests of the general business community and one to represent the manufacturing

industries; and (i) a member to represent the interests of the academic community. (2) The Director shall act as the Secretary of the National Council.

Kailola641 in assessing the performance of the current NEC observed the following:

“Sadly, the slow (yet careful) responses of the NEC may also lie in the circular nature of the

‘system’ considering that: (a) Each member of the NEC has other duties, and the majority of the members are at very senior

level (Director, or Permanent Secretary). They have a large workload and – as identified in the NCSA Cross-cutting report (for convention reporting) – attendance at and following up on positions taken by the NEC may not be addressed in their engagement contracts; hence attention to NEC matters may only come about at or just prior to the next NEC meeting; (b) The lack of resources of the Department of Environment: if the Department does not perform the task required of it by the NEC, there is no penalty;

(c) since the EMA was enacted, the NEC has met fewer than five times (in nearly four years) even though the EMA instructs that it should meet four times each year. Faces change and time passes – all adding up to the difficulty of following up on instructions, and receiving feedback;

(d) Perhaps at the ‘top of the tree’ lies the incomplete appreciation of the importance of the environment at senior levels of Government, and with that incomplete appreciation a non-realization of the link between environment, poverty and sustainable development.

The above observation reveals institutional decays that must be immediately remedied.

Therefore, the Government ought to revisit the membership of the NEC and ensure that individuals

appointed to the Council have appropriate credentials preferably in the field of environmental laws,

environmental science and economics. Heads of existing Government Ministries and Statutory

Authorities could be roped into the equation in an advisory capacity when matters relating to their

particular field or institutions are affected.

NEC proposed Membership & Functions

The NEC membership could be reduced to a five (5) member forum of environment (and other suitable

qualification) experts, equipped with proper statutory authority and functions to carry out their roles and

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functions in an independent and accountable manner. The model could be based on the Fiji Public Service

Commission Model with similar powers relating specifically to environmental issues. The NEC could

meet on a fortnightly basis.

Apart from its current functions (some of which requires amendments), this Paper recommends the

following to be the additional or new functions of the NEC:

1. Determine and approve prioritization of environment protection related project proposals;

2. Solicit/ Request or collect/look for Funding to finance the Fiji National Green Fund;

3. Report to Donor Agencies, Cabinet & Parliament on the progress of projects of Fiji National

Green Fund approved projects etc.

4. Supervise implementation of the Environment Court orders

5. Liaise with the Fiji National Green Fund & ensure fiduciary obligations are maintained.

Figure 7: Proposed new National Environment Council


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6.4 The Ministry of the Environment

Highly prominent in the discussion on constraints and challenges is the admission by Government over

the lack of capacity with the Department of Environment in Fiji. History reveals that no other

Government Department in recent time has had the experience of moving from one Ministry to another

then the Department of the Environment. In hindsight, one could almost be justified to conclude that the

Department of the Environment has always been an afterthought642.

The Government of Fiji ought to consider seriously establishing the Department of Environment as a

separate stand alone Ministry. This institutional reform will enhance the Government’s ability to identify

suitable human resources to monitor, implement and report on the various treaty obligations under their

respective responsibility and other routine work of relevant national importance.

To date, one cannot realistically be expected to receive consistent and continuous high quality output and

performance from lowly paid, over worked and unappreciated officers many of whom in their own right

are qualified in their respective fields but are often dished a little too many responsibilities for their

comfortable swallow. Further, the high volume of volunteers passing through the Department does little

to gather the “moss” of institutional knowledge and capacity required for the long term operation of the

Department.

Current composition & Costing of the Department of the Environment

Interview and discussions held with the Director of the Environment reveals the following to be the

current composition and human resource costs for the Fiji Department of Environment.

TABLE 36: CURRENT COMPOSITION AND COSTS OF THE DEPARTMENT OF ENVIRONMENT

Srl. Post Cost 1. Director x 1 $45,198.00 2. Principal Environment Officer x 2 $72,474.00 3. Senior Environment Officers x 5 $137, 985.00 4. Environment Officer x 6 $122,010.00 5. Environment Inspector x 1 $20,335.00 6. Legal Specialist x 1 $24,013.00 7. Administrative Officer x 1 $20,335.00 8. Assistant Account Officer x 1 $17,687.00 9. Secretary x 1 $17,503.00 10. Clerical Officer x 1 $8,092.00 11. Typist x 1 $8,092.00 12. Total Staff 21 $479,724

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The above Table shows a very small unit with even few lesser officers directly involved in the substantive

environment related work.

The Ministry of the Environment

The first recommended solution is for the Government to consider reconstituting the Department of

Environment to be a separate and stand alone Ministry headed by a Permanent Secretary who assumes all

current statutory and administrative authorities, powers and functions of the Director of the Environment.

The proposed Ministry is envisaged to be a streamlined Ministry occupied only by Officers of “Principal”

level and above. The idea behind this proposition is that when officers are offered attractive salary

packages, higher and quality output can be demanded off them.

Figure 8: Recommended staffing structure of the proposed Fiji Ministry of the Environment


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The new look Ministry of the Environment, without going into much in-depth examination, will be

supervised by 4 thematic issues Directors and manned by 12 principal level advisors. These personal’s

employment are expected to be on contractual arrangement with maximum 6 years of service at a

particular post.

TABLE 37: THE NEW STRUCTURE AND PROPOSED COSTING OF THE NEW MINISTRY OF THE

ENVIRONMENT

Srl. Post Cost 1. Secretary for the Environment x 1 $70,198.00 2. Directors x 4 $180,792.00 3. Principal Environment Officers x12 $434,844.00 4. Principal Admin Officer x 1 $34,000.00 5. Senior Accountant x 1 $20,335.00 6. Administrative Officer x 1 $20,335.00 7. Secretary x 1 $17,503.00 8. Executive Officer x 1 $8,092.00 9. Driver x 1 $8,092.00 10. Total Staff 21 $760,225.00

Functions of the Ministry of the Environment

In addition to its current functions, the new Ministry could also perform the following additional

functions within Fiji’s National Environment Framework:

a. Act as Secretariat to the NEC; b. Screen project proposals to be submitted through the NEC to the National Green Fund of Fiji; c. Analyse and recommend EIA submitted from the National Environment Protection Authority for

NEC approval; d. Provide experts and technical advice to the National Environment Protection Authority;

Other responsibilities could include:

• Coordinate formulation and review of National Report • Coordinate formulation, review and implementation of National Environment Strategy, including

National Environment and Resource Management Policies • Coordinate conservation and management of natural resources • Implement treaties and conventions on environment and resource management • Formulate, implement, monitor and review National Resource Management Plan • Formulate and review a Natural Resources Inventory after consulting interested persons • Coordinate natural resources management activities • Maintain a natural resources information database • Evaluate environment and resource management implications of major economic and sectoral

policies • Review environmental and resources data and environmental audit report • Maintain a natural resources information database

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• Provide education and awareness on resource management issues • Liaise with the public, business community and NGOs on resource management issues

Specific functions relating to particular thematic issues of the Ministry of the Environment could include

but not limited to the following:

• Design and implement policies and programmes on pollution and waste management, abatement

and reduction • Provide technical advice on pollution control and abatement methods • Formulate and monitor the national solid waste management strategy • Develop criteria and guidelines for landfill sites and dumps • Develop standards for management of sanitary landfill • Formulate and monitor strategies for minimization of packaging wastes, special wastes, liquid

wastes and any other types of wastes • Establish the national chemical management plan based on the national chemical profile • Formulate strategy and action plan for phasing out any controlled substances • Formulate a national policy for the protection of the ozone layer • Analyse possible future demands for any controlled substance • Accredit services that may be permitted to recover, recycle and handle any controlled substance • Review Fiji’s programme and action plan under the Vienna Convention for the protection of the

ozone layer and the Montreal Protocol on substances that deplete the ozone layer • Facilitation , management and policy advices on climate change policies, action plans and

programmes under the UN Framework Convention on Climate Change • Development of the National Communications (SNC) Project – National Circumstances on

Geography, Climate, Population and Economy) • Coordination of Clean Development Mechanism (CDM) • Coordinate and monitor climate change project implementation by all public and private

stakeholders • Drafting of National Climate Change Adaptation Strategy and review of all related documents • Facilitation for SOPAN implementation of Joint National Action Plan for Climate Change

Adaptation (CCA) & Disaster Risk Management (DRM)

6.5 The National Environment Protection Authority of Fiji

Under the proposed Fiji National Environment Framework, the National Environment Protection

Authority of Fiji will be the implementation arm of the environment strategies and policies of the

Government of Fiji.

Headed by the Conservator of the Environment, the structure of the National Environment Protection

Authority will see the establishment of Divisions within the Authority as follows:

1. Field Operation Division;

2. Chemical Control & Management Division;

3. Environment Compliance & Enforcement Division;

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4. Inter-sectoral Division; and

5. Finance, Administration and Information Division.

The Fiji National Environment Protection Authority aims to enhance the participation of all stakeholders

and individual communities through the establishment of its Field Operation Division. It is envisaged that

this Division will have environment protection operatives at village, community and settlement levels as

well as district and provincial level.

The Environment Compliance and Enforcement Division of the Authority is envisaged to perform

functions ensuring compliance to best environment management practices including proper and

economical implementation of the Government’s strategic action plans, policies and directives. This

Division will also be empowered to conduct investigations and prosecutions.

Inter linkages between relevant government stakeholders, is to be enhanced through the establishment of

the Inter-sectoral Division. This Division will oversee the implementation of environmental projects

activities through coordination with other Government Ministries and Statutory Bodies. This set up will

assist address the current coordination problems between stakeholders in Fiji .

The Finance, Administration and Information Division will oversee the overall financing and

administration of the Authority. An important role of this Division will be the conduct of environmental

education and the collection and management of environmental data.

Figure 9: Structure of the proposed National Environment Protection Authority of Fiji


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While there will be a need for proper study to ascertain and allocate the specific roles and detailed

functions for each of the Divisions of the Authority, the following could be some of the generic functions

allocated to it:

• Undertake periodic inspection of any ministry, department, statutory authority, local authority or facility relating to environment or resource management

• Institute and conduct legal proceedings in the Environmental court • Advise on issuance of permits and approvals for resource use activities within the National

Resource Management Plan • Establish and maintain a coastal sensitivity atlas for disaster response planning and management • Undertake periodic inspections of suspected resource management irregularities • Provide education and awareness on resource management issues • Liaise with the public, business community and NGOs on resource management issues • Issues permits for discharge of wastes or pollutants after inspection with continuous inspection to

ensure compliance of conditions • Inspect and audit environment related projects • Codes of practice, standards, guidelines and operational procedures to manage use of any

controlled substance • Administer the license or permit requirements or conditions under the provisions of this Act • Establish and maintain storage facilities for the deposit of halons • Implement and monitor the national solid waste management strategy • Implement and monitor strategies for minimization of packaging wastes, special wastes, liquid

wastes and any other types of wastes • Implement the strategy and action plan for phasing out any controlled substances • Survey, assess and analyze consumption and use of any controlled substance • Establish regular monitoring and audit process for data collection on the use of controlled

substances and monitor compliance with the phase out date as specified in the National Policy • Promote public and industry awareness and training programmes concerning the management of

any controlled substances • Implement Fiji’s programme and action plan under the Vienna Convention for the protection of

the ozone layer and the Montreal Protocol on substances that deplete the ozone layer

6.6 The National Green Fund of Fiji

Another reform initiative under the proposed National Environment Framework is the establishment of

the National Green Fund of Fiji. The idea of establishing such a fund stems from a number of sources one

of which is the realization of the existence in Fiji of a number of Trust Funds which purports to address

specific areas of implementation of Fiji’s MEA obligations. Fiji has an Ozone Layer Protection Fund

established by the Ozone Act. There also exists a Environment Trust Fund under the Environment

Management Act.

The idea of setting up a National Green Fund also stems from the realization of the potential benefit such

an arrangement would render to Fiji’s development agenda especially when one considers the precedents

that has been set by other countries in relation to their own National Environment or Climate Funds.

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The Model for the Fiji National Green Fund

The Author wishes to convey at the outset that the discussion on the Fiji National Green Fund as

suggested in this Paper is not and out not be viewed as an exhaustive or in-depth professional analysis of

the viability of the setting up of such fund. It must be clarified again that this proposition is being offered

only to highlight the opportunity that is available to the Government of Fiji if it so decided to act and

address the challenges of implementing MEA obligations.

FIGURE 10: THE NATIONAL GREEN FUND OF FIJI


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Purpose of the National Green Fund643

Under the National Environment Framework, the suggested Fiji National Green fund will be a mechanism

that supports Fiji to direct "Finance” toward environment and climate change projects and programmes.

The four suggested purposes of the fund are:644

a. Collection & Distribution of Funds;

b. Blending of Funds;

c. Coordination of Funds

d. Support Implementation of Projects

The Green Funds four goals provide the foundation for its programmatic and operational components.

First, by collecting and distributing funds to environment conservation and climate change activities that

promotes national priorities, the Green Fund provides a unified engagement point where the government,

donors, development partners, civil society and other stakeholders can engage on and make decisions

about environment issue.645

Second, the National Green Fund is envisaged to facilitate the blending of public, private, multilateral and

bilateral sources of climate finance in a coordinated and streamlined way that is strategic and can further

catalyze more resources.646

Third, the National Green Funds is envisaged to coordinate and supervise progress of funded country-

wide environment and climate change activities, and also approved development projects and

programmes. The fund provides a flexible, coordinated and predictable funding to support the

achievement of national priorities on environment conservation and development. By its envisaged and

proposed structure and mode of operations, the purpose of the Fund, as envisaged here, is consistent with

several principles of the Paris Declaration on Aid Effectiveness and the Accra Agenda for Action647,

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including national ownership and alignment with national priorities; harmonization and coordination;

effective and inclusive partnerships; and achieving development results and accounting for them.648 Fourth, by strengthening national institutions and financial management, the Green Fund can also support

National Implementing Entities (NIEs) and other entities using the “direct access” modality to deliver

finance to NEC approved projects. The Fund is envisaged to support the strengthening of existing

national institutions that drive development and aid effectiveness to reduce fragmentation and deliver

results649.

Access to the Fiji National Green Fund Facilities

The procedure for access to the Fiji National Green Fund finance, as depicted in Figure 10 above, will

commence through submission of project proposals from “Requesting Entities” which could include, all

sectors of society namely; village councils, tikina (District) Councils, Provincial Councils, NGOs, Private

Companies, Civil Societies and Government Departments etc.

All proposals for funding of projects and activities from the Fiji National Green Fund are to be submitted

to the Fiji National Environment Council who will be responsible for accessing, prioritization, and

approving proposals. Criteria for approval could be the relevance and applicability of the proposed

project, activity or programme to the national Government overall development agenda. Having approved

the projects, the National Environment Council will refer approved requests to the Fiji National Green

Fund who will then be responsible for the disbursement of funds and supervision of progress of the

implementation of the approved projects.

Sources of Funding

The National Environment Council (see: discussion at 6.3 above) will be the national entity responsible

for soliciting funds and securing finance from all sources of funding available, including bilateral and

multilateral sources. The Council will also be responsible for reporting to these sources on the utilization

of funds.

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Potential sources of funds to finance the National Green Fund of Fiji include650:

a. Treaty Body Sources

MEAs with special Funding Mechanism that can be accessed by the Council are:

� Montreal Protocol on Substances that Deplete the Ozone Layer 1987 � UN Framework Convention on Climate Change 1992; � UN Convention on Biological Diversity; � UN Convention to Combat Desertification 1994; � Kyoto Protocol to the UN Framework Convention on Climate Change 1997; � Cartagena Protocol on Biosafety 2000; and � Stockholm Convention on Persistent Organic Pollutants 2001.

b. Multilateral Funding Sources

� Global Environmental Facility (GEF) � Climate Investment Funds (CIFs) � Clean Technology Fund � Strategic Climate Fund � Pilot Program for Climate Resilience (PPCR) � Forest Investment Program (FIP), � Scaling-Up Renewable Energy Program for Low Income Countries (SREP). � Adaptation Fund (AF) � UN-REDD

c. Bilateral Fund Sources

� AFD French Development Agency � AusAID Australian Agency for International Development � BMZ Federal Ministry for Economic Cooperation and Development � CCPO Climate Change Projects Office � CIDA Canadian International Development Agency � DFID Department for International Development � EU REDDF European Union REDD Facility � Ex-Im Export-Import Bank of the United States � FFEM French Global Environment Facility � GCCA Global Climate Change Alliance � GIZ German Technical Cooperation � JBIC Japan Bank of International Cooperation � JICA Japan International Cooperation Agency � KfW German Development Bank (KFW) � MIES Inter ministerial Taskforce on Climate Change

��650 B�� "� �� )*� �� B")��)*� �"��+� �� -��+� � �� D�� E� 6�� & � �� $�Q9�� (��97� B��9�8�4�8��787��;� 3.�� /.��) � �)� � " +� ,G� ��

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� MOFA Ministry of Foreign Affairs � NORAD Norwegian Agency for Development Cooperation � ODIN Ministry of Foreign Affairs � OPIC Overseas Private Investment Corporation � RECP Africa-EU Renewable Energy Cooperation Programme � USAID U.S. Agency for International Development

d. UN & Int’l Financial Institution Sources

� AfDB African Development Bank � AsDB Asian Development Bank � CIF Climate Investment Funds (implemented through World Bank, ADB, AfDB,

EBRD, and IDB)) � EBRD European Bank for Reconstruction and Development � EIB European Investment Bank � FAO Food and Agriculture Organization � UNDP United Nations Development Programme � UNEP United Nations Environment Programme � UNREDD United Nations Collaborative Programme on Reducing Emissions from

Deforestation and Forest Degradation � WB World Bank

e. National Sources

� National Budget

� Special Government Grants

� Other nationally approved sources e.g. Environment Tax, levy etc

� Donations

� Fees

� Penalties

� etc

Fiduciary Management of the National Green Fund of Fiji

Sound fiduciary management provides the foundation for the efficient movement and tracking of funds

flowing to and from the National Green Fund. As the number of sources in the climate finance landscape

continues to expand, the Green Fund must have a system of

fiduciary management that accommodates the multiple

standards, project cycles and scale of risks of the projects651.

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In that respect, and to ensure its independence, the Green Fund is envisaged and recommended that

Government considers having the fund to be managed by a Board of Directors comprising of

representatives of Multilateral Organizations and Funding Institutions, local financial institutions and

Government representative.

Having representatives of Donor Agencies, Multilateral Organizations and International Financial

Institutions sitting at the Board of the National Green Fund of Fiji will assist portray a credible image that

will attract financiers to channel funds to Fiji knowing that good governance principles and fiduciary

obligations will be safe guarded and observed in the management of funds.

General comments

The setting up of the National Green Fund of Fiji will involve greater in-depth study and assessment. It

ought to be emphasized nevertheless that a number of countries652 have set up their own national funds

and narratives available on their existence confirms that National Funds provides a credible options for

the channeling of financial resources available from various multiple sources into a consolidated pull of

fund that is well regulated and managed.

With Climate Change big on the international agenda and Climate Financing the hottest negotiations topic

to date, Fiji could take an early advantage by setting up her own National Green Fund drawing widely

from the lessons learnt in other jurisdictions who have similar type arrangements and put in place the best

possible platform to attract the much needed funding to assist in her effort to implement Climate Change

and environment conservation, adaptation and mitigation projects and initiatives in Fiji.

6.7 The Environment Court

The final institution in the proposed Fiji National Environment Framework is the Environmental Court.

The idea of an Environmental Court for Fiji is not necessarily new when one examines the relevant

provision of the Environment Management Act at Section. 56 which states:

Environmental Tribunal

56. (1) This section establishes an Environmental Tribunal comprising of: (a) a legal practitioner qualified for appointment as a judge, as Chairperson, appointed by the Judicial Service

Commission; and (b) 2 other members, appointed by the Minister. (2) The Tribunal may hear and determine any appeal referred to it under this Act or any other written law. ��&�*��!��X��D!�9=��9��-97��9��B��(��97�(�9��E+�!�)*��D��!9��9��(��97�P��8�B��E+�(��)��

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(3) The Tribunal may confirm or dismiss the appeal. (4) In hearing an appeal, the Tribunal may state a case to the High Court for its opinion. (5) The Chairperson and members of the Tribunal are entitled to allowances fixed by the Minister after consulting the Higher Salaries Commission. (6) The Chief Justice may make rules and procedures of the Tribunal.

While there are not many studies or literatures available assessing the operational success of the current

Tribunal arrangement, it is envisaged that with the creation of a specialized court, Fiji will exhibit to her

citizens and the outside world the seriousness it accords to environment conservation and preservation.

Jurisdiction

The Fiji Environment Court is envisaged to be a specialist court and has the same powers as the District

Court.

Advantages

Increasingly, it is being recognized that a court with special expertise in environmental matters is best

placed to play this role in the achievement of ecologically sustainable development. Amongst the

advantages of a specialist environment courts are653:

� Having a comprehensive, integrated jurisdiction to deal with a range of environmental matters,

frequently providing a “one stop shop” for merit appeals, judicial review and criminal and civil

enforcement;

� Bringing together in the one court, officers (both judges and non-lawyer specialists) with

knowledge and expertise in environmental law. This creates a center of excellence, a think tank

on environmental law. Bringing experts together creates a synergy. It facilitates free and

beneficial exchange of ideas and information;

� Where the design enables the appointment of multidisciplinary officers (both judges and non-

lawyer specialists), being able to construct panels of officers with expertise relevant to the issues

in the matter so as to facilitate interdisciplinary decision-making;

��=�� )�!�1�(��1"� ��+�D�� E�63��97��9�� 7�8��7:�7��8��7��M9��9��&� ��7�(��7�

�� -�� 7��9�� 9�� SR� Q��7�� 8�9�� 8�9��97�� 79�� 9�;� G&�-3�&� 4//0&# 0)��)*�&).��)�) �� M�� 4� (�)��)�� ="�� ) �� &).��)�) �� M�� =�� )�� ,)�.�� >� �� 2�� &).��)�) �� M�� () �+� I� � (�� &).��)�) �� M�� )�� &��C"� ��+� 2�)��".�+� (�)�� ).��"�� )J�>)� ��

� ��

� Facilitating lawyers who bring environmental matters and officers who hear these matters

continuing to develop a specialised knowledge of environmental law and issues;

� Adopting a holistic approach to the resolution of environmental matters, both by reason of the

comprehensive jurisdiction and of interdisciplinary decision-making;

� Developing innovative practice and procedure so as to facilitate access to justice, including public

interest litigation;

� Being better positioned to develop innovative remedies and solutions to environmental problems;

� Being better positioned and having more opportunity to develop a coherent and consistent body

of precedent and environmental jurisprudence;

� Being better positioned to move more quickly through complex environmental cases, achieving

efficiencies and reducing the overall cost of litigation; and

� Relieving backlog in other courts by separating from the body of pending cases and then

resolving more efficiently matters involving environmental issues.

General Comment

A specialist Environment Court does indeed attract budgetary implications for Fiji’s already stretched

coffers. However, as alluded to earlier, prioritization in the allocation of Government resources has been

Fiji’s major challenge. Fiji’s coup culture and the maintenance of a military establishment is consuming

far too much of the resources that could be divested to other areas of governance which for the time being

are suffering droughts of neglect.

Klaus Toepfer, former Executive Director of the United Nations Environment Program (UNEP), stated in

his message to the UNEP Global Judges Program said654: “Success in tackling environmental degradation relies on the full participation of everyone in society. It is essential, therefore, to forge a global partnership among all relevant stakeholders for the protection of the environment based on the affirmation of the human values set out in the United Nations Millennium Declaration: freedom, equality, solidarity, tolerance, respect for nature and shared responsibility. The judiciary plays a key role in weaving these values into the fabric of our societies. The judiciary is also a crucial partner in promoting environmental governance, upholding the rule of law and in ensuring a fair balance between environmental, social and developmental considerations through its judgments and declarations”

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Chapter Seven: Conclusion

7.1 Conclusion

This paper has attempted to assess Fiji’s implementation of the 25 global and regional MEAs to which

she is a party. In that process, the paper has also revealed some of the major challenges and constraints

confronting Fiji’s implementation efforts and has identified some of the shortfalls in the system which

could be seen as contributory factors to Fiji’s performance. In summary the following has been

established:

a. Environment Legislations

Most legislation governing natural resources in Fiji and those that are environmentally related are old and

to a large extent outdated. There are clear division between the first generation laws, that is, those that

were drafted during colonial times or immediately after Independence and the second generation

“Targeted Laws”. The later are distinguished by their cognition of environmental issues and the necessity

of managing natural resources for sustainability. Further, first generation laws are seen to be grossly

inadequate in encouraging public involvement. Refreshingly, the marginalization of stakeholders evident

in the first generation statutes are being rectified in the second generation legislations which were

formulated specifically to facilitate the implementation of the various obligations contained in the MEAs

which were subsequently ratified in later years, by Fiji.

b. Multilateral Environmental Agreements (MEAs)

MEAs have proliferated quite considerably since the first environmental treaty was signed in 1868. The

pre Stockholm Agreements were restricted in scope to specific subject areas and were regional in focus.

As was the case in the pre Stockholm Conference era, a great number of MEAs which were adopted in the

20 years that followed the Stockholm Conference were also regional in scope. The latest group of MEAs

which were formulated as the result of the 1992 Rio Earth Summit had their focus fixed firmly on

environment conservation and sustainable development. This shift in focus was declared as the way to

ensure that economic development would not endanger the ability of future generations to enjoy the fruits

of the earth.

c. Fiji and the MEAs

During the thirty year period commencing in 1979, Fiji has signed and ratified a total of 25 global and

regional environment related Treaties. For Fiji, joining multi-lateral arrangements is deemed to be a

visible exhibition, a manifestation and an acknowledgement of her sovereign independent existence.

��

Further, signing up to MEAs brings to Fiji the much needed financial assistance and technical expertise

required to implement activities, programmes and initiatives considered as priority and necessary for the

reduction of environmental degradation and increased capacity building.

d. Fiji’s Implementation Efforts

Fiji appears to have exerted deliberate and genuine efforts within the ambits of her capacity in

implementing her MEAs obligations. However, in a number of Agreements, reporting has been

inconsistent and there is evidence to suggest that reports required in a number of Agreements have not

once been submitted. Some of the challenges and constraints to implementation includes: old legislation

requiring urgent updating; inefficient communication between stakeholder related to coordination,

strategizing & implementing; weak systemic, institutional and individual capacity and serious lack of

funding.

Of the 25 MEAs which Fiji has ratified, there are seven hundred and one (701) specific obligations to be

fulfilled. As depicted in the Figure 11 below, the numbers of obligations contained in each of the MEAs

varies quite considerably between each agreement.

FIGURE 11: FIJI’S MEAS OBLIGATION GRAPH


� ��

The general observation of Fiji implementation efforts suggests that there exists different level of

commitment to the fulfillment of obligations. Factors contributing to this are varied though the

availability of funding and accessibility to outside technical assistance are two identified reasons for the

advance implementation in some of the MEAs.

Overall, Fiji’s implementation effort paints a mixed picture, when ranked, would range from a “not so

good” to a “good enough” performance. Fiji suffers from serious lack of capacity, which has over the

years been confounded by uncoordinated institutional arrangements and inhibited by legislative

boundaries in need of serious updating. Fiji’s picture does indeed suggests that a lot more could be done

to strengthen and improve Fiji’s implementation efforts.

Attitudinal and structural reforms as suggested in Chapter 6 of this paper could facilitate improvements in

Fiji’s implementation efforts. As an officer who has had the benefit overseeing Fiji’s Treaty

obligations655, I could confidently testify that there are no shortages of desire in the Fiji Government

(across the board) to implement Fiji’s international obligations. Challenges and constraints identified in

this paper are the real factors adversely affecting this aspiration.

As a Small Island Developing State, Fiji needs to relook at its institutional arrangement, there is still a fair

way to go. Innovative lateral thinking, identification, training and retention of qualified personnel and a

deliberate attempt at improving institutional capacity through empowerment of all stakeholders will also

contribute positively to this endeavor. Coordination and channeling of resources to identified appropriate

objectives also would assist.

Fiji’s reasoning for becoming party to MEAs is well founded, her implementation efforts are genuine, her

institutional capacity is challenged. The onus is squarely on Fiji to improve her performance, the recipe

for this could largely be found within Fiji.

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47. Smita Nakhooda, et al (2011) “The Evolving Global Climate Finance Architecture” Overseas

Development Institute, UK.http://www.odi.org.uk/resources/details.asp?id=5159&title=evolving-

global-climate-finance-architecture

48. SPREP (2004) “Priority environmental concerns in Fiji” Institute of Marine Resources

(University of the South Pacific); IWP-Pacific Technical Report (International Waters Project)

no.6 Apia, Samoa.Techera, E.J. and Troniak, S. (2009) Marine Protected Areas Policy and

Legislation Gap Analysis: Fiji Islands, IUCN Regional Office for Oceania, Suva, Fiji.

49. SPREP (2001) “Ad Hoc Meeting of Experts to examine the potential need to amend the Apia

Convention on Conservation of Nature in the South Pacific (Apia Convention)” Apia, Samoa

50. SPREP (2011) “Regional Wetlands Action Plan for the Pacific Island 2011-2013: SPREP: 2011,

Apia, Samoa. http://www.sprep.org/att/publication/000909_Wetlands_ActionPlan_Pacific_2011-

2013.pdf

51. SPREP (undated) Document: 8AC/8SC/WP.6.1.1/Att.1 “Concept Paper on the relationship

between the Apia Convention and other relevant conventions”

52. Thaman, R. 1998. “Island life: plants, animals and Pacific peoples: our endangered Varivoce –

the humphead or napoleon wrasse”. FIJI TIMES 10/1/98 pp 4-5

53. Timothy Smith. R (2001) “Gases That Compose Our Atmosphere” Michigan State University

(1993-2001) See also: http://elsci.lansingschools.net/rtsmith/wind/n_gases.htm

54. Tongjin Wang (2010) “Towards an Egalitarian Global Environmental Ethics” in UNESCO’s Henk A.

edited Ethic Series: ENVIRONMENTAL ETHICS AND INTERNATIONAL POLICY, UNESCO,

Nairobi, Kenya.

55. Tuinivanua. O et al. (2010) “Fiji Forestry Outlook Study” Working Paper No: APFSOS II/ WP/

2009/ 20 WORKING PAPER SERIES, FAO, Bangkok.

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56. UNEP, (2007). “Multilateral Environmental Agreement” NEGOTIATOR’S HANDBOOK 2ed,

Nairobi, Kenya. See also:

http://www.unfccc.int/resource/docs/publications/negotiators_handbook.pdf

57. UNEP (2005) “Handbook of the Convention on Biological Diversity Including its Cartagena Protocol on

Biosafety” 3rd Ed. UNEP Publication. Québec, Canada

58. UNEP, (2007) “Negotiating and Implementing Multilateral Environmental Agreements (MEAs):

A Manual For NGOs” Published UNEP, Nairobi, Kenya.

59. Vanualailai P. (2008) “Final Report: Thematic Assessment, Climate Change (UNFCCC” Suva,

Fiji. See Also www.sprep.org/att/irc/ecopies/countries/fiji/122.pdf

60. Walter Hoffmann and Lydia Swart eds. “Global Environmental Governance” (Center for UN

Reform Education, May 2007) New York, USA.

61. Watling, D. and S. P. Chape. (1992). Environment Fiji - The National State of the Environment

Report. IUCN. Gland, Switzerland. 154.

62. Watlin D. (2009) “National CITES- related Legislation and its impact on Opportunity for Native

Floriculture” University of Queensland, Brisbane, Australia.

63. Woods J, at el. (2003) “Individual Country Biomass Resource Assessment Profiles for Fiji,

Kiribati, Samoa, Tonga, Tuvalu & Vanuatu” SOPAC TECHNICAL REPORT 364, SOPAC,

Suva, Fiji. See also: http://dev.sopac.org.fj/VirLib/TR0364.pdf

UN & Other International Organization and Bodies- Document & Official Articles

1. CITES World “Official Newsletter of the Parties” Special Edition (Web Only) 3 March, 2003 p.6

see also: http://www.cites.org/eng/news/world/30special.pdf

2. CITES World “Official Newsletter of the Parties” Special Edition (Web Only) 3 March, 2003 p.1

see also: http://www.cites.org/eng/news/world/30special.pdf

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3. FAO Resolution 8/83, ftp://ftp.fao.org/ag/cgrfa/Res/C8-83E.pdf.

4. FAO Resolutions 4/89 and 5/89. See: ftp://ftp.fao.org/ag/cgrfa/Res/C8-83E.pdf.

5. United Nations Conference on Desertification (UNCOD). 1978. Round-up, plan of action and

resolutions. New York: United Nations. See also: http://www.ciesin.columbia.edu/docs/002-

478/002-478.html

6. UN Doc: A/42/427 Annex “Report of the World Commission on Environment and Development:

Our Common Future” see: http://www.un-documents.net/wced-ocf.htm

7. UN Doc: ENV/DEV/RIO/29, Boutros- Ghali. B. (1992) “Extract from Closing Statement”,

United Nations Conference on Environment and Development Rio de Jeneiro, 14 June.

8. UNEP/CBD/COP/DEC/II/3 “DECISION ADOPTED BY THE CONFERENCE OF THE

PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY” at its Second meeting.

See Also: http://www.cbd.int/decision/cop/?id=7090

9. UNEP/IGM/1/INF/1 (2001) “International Environmental Governance Multilateral

Environmental Agreements: A Summary, U.N. Environment Programmed”, 1st mtg., Provisional

Agenda Item 3 at pg. 3, Nairobi, Kenya. See also at:

http://www.unep.org/IEG/docs/working%20documents/MEA_summary/IGM-1-INF-1.doc

10. UNEP/IGM/1/INF/3 (2001). “International Environmental Governance: Multilateral

Environmental Agreements (MEAs) , Meeting of the Open-ended Intergovernmental Group of

Ministers or their Representatives on International Environmental Governance , New York, USA.

See also: www.gdrc.org/uem/mea/un-mea-full.pdf

11. UNEP/POPS/INC.1/INF/4, 30 April 1998

12. UNEP “Status of Desertification and Implementation of the United Nations Plan of Action to

Combat Desertification” REPORT OF THE EXECUTIVE DIRECTOR, Nairobi, Kenya. See

also: www.iisd.ca/vol04/0401018e.html

13. UNGA Resolution: A/RES/38/161 at http://www.un.org/depts/dhl/resguide/r38.htm

14. U.N. Publication DPI/111 8-40437 “In Our Hands," EARTH SUMMIT, -May 1991-50M

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Judgment

1. “Legality of the Threat or Use of Nuclear Weapons”, Advisory Opinion, 1. C.J. Reports 1996, p.

226

Official Websites Visited

1. “Better World Quotes. http://www.betterworld.net/quotes/biodiversity-quotes-2.htm

2. Department of Ecology, Washington State: www.ecy.wa.gov/climatechange/whatis.htm

3. Encyclopedia of Nations. See: http://www.nationsencyclopedia.com/economies/Asia-and-the-

Pacific/Fiji.html

4. Fiji Meteorological Services. See: http://www.met.gov.fj/climate_fiji.html

5. http://www.flickr.com/photos/aspidistra/3207407614/

6. Organization for Economic Co-operation and Development (OECD): Statistic Web page:

http://www.oecd.org/document/0,3746,en_2649_201185_46462759_1_1_1_1,00.html

7. http://www.parks.it/world/FJ/Eindex.html

8. Secretariat of the Pacific Regional Environment Programme (SPREP) http://www.sprep.org

9. The Ecolex Project. http://www.ecolex.org/indexen.php.

10. The Plant Treaty Website at http://www.planttreaty.org/

11. Traffic- Wildlife Trade (Traffic): www.traffic.org/trade

12. United Nations Convention on Biological Diversity (UNCBD)Website: http://www.cbd.int

13. United Nations Convention to Combat Desertification in those Countries Experiencing Serious

Drought and/or Desertification, Particularly in Africa (UNCCD) Website: http://www.unccd.int

14. United Nations Environment Programme (UNEP) : http://www.unep.org

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15. US Environmental Protection Agency: http://www.epa.gov/ozone/awards/winners_2008.html

16. World Wild Life Conservation (WWF) : http://www.worldwildlife.org

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List of Figures

1. Figure One: The Map of Fiji

2. Figure Two: Fiji Population Graph

3. Figure Three: Ex Situ Plant Genetic Research Stations in Fiji

4. Figure Four: National Trust Sites of Fiji

5. Figure Five: Map of the WCPFC Convention Area

6. Figure Six: The Proposed Fiji National Environment Framework

7. Figure Seven: Proposed new National Environment Council

8. Figure Eight: Recommended staffing structure of the proposed Fiji Ministry of the

Environment

9. Figure Nine: Structure of the proposed National Environment Protection

Authority of Fiji

10. Figure Ten: The National Green Fund of Fiji

11. Figure Eleven: Fiji’s MEAs Obligation Graph

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List of Tables

TABLE 1: FIJI’S CURRENT LEGISLATIONS ON TENURE & JURISDICTION OVER LAND & SEA

TABLE 2: FIJI’S CURRENT LEGISLATIONS ON MAJOR INFRASTRUCTURES AND LAND USE LAWS

TABLE 3: FIJI’S CURRENT LEGISLATIONS DESIGNED TO PROTECT THE ENVIRONMENT

TABLE 4: FIJI’S CURRENT LEGISLATIONS ON RESOURCES DEVELOPMENT

TABLE 5: FIJI’S CURRENT LEGISLATIONS RELEVANT TO BIODIVERSITY CONSERVATION

TABLE 6: GLOBAL & REGIONAL MEAS TO WHICH FIJI IS A PARTY

TABLE 7: TABLE OF FIJI’S OBLIGATION IN THE UNITED NATIONS CONVENTION ON BIOLOGICAL

DIVERSITY (UNCBD)

TABLE 8: OBLIGATIONS UNDER THE UN CONVENTION TO COMBAT DESERTIFICATION

TABLE 9: CAUSES OF LAND DEGRADATION IN FIJI

TABLE 10: OTHER FIJI PROGRAMMES AND INITIATIVES FOR IMPLEMENTATION OF THE UNCCD

TABLE 11: OBLIGATIONS OF THE SCIENTIFIC AUTHORITY OF CITES

TABLE 12: OBLIGATIONS OF THE MANAGEMENT AUTHORITY UNDER CITES

TABLE 13: LIST OF FIJI’S OBLIGATIONS UNDER THE RAMSAR CONVENTION

TABLE 14: THREATS TO WETLAND ECOSYSTEM (FIJI)

TABLE 15: FIJI’S OBLIGATION UNDER THE INTERNATIONAL TROPICAL TIMBER AGREEMENT 2006

TABLE 16: FIJI’S OBLIGATION UNDER THE INTERNATIONAL TREATY ON PLANT GENETIC

RESOURCES FOR FOOD AND AGRICULTURE

TABLE 17: OBLIGATION UNDER THE CONVENTION CONCERNING THE PROTECTION OF THE

WORLD CULTURAL AND NATURAL HERITAGE

TABLE 18: FIJI’S OBLIGATIONS UNDER THE CARTAGENA PROTOCOL ON BIO-SAFETY TO THE

CONVENTION ON BIOLOGICAL DIVERSITY

TABLE 19: LIST OF DUTIES AND OBLIGATIONS UNDER THE STOCKHOLM CONVENTION ON

PERSISTENT ORGANIC POLLUTANTS

TABLE 20: SUMMARY OF KEY LEGISLATION RELATING TO PROTECTION OF HUMAN HEALTH AND

ENVIRONMENT AND THE SOUND MANAGEMENT OF CHEMICALS

TABLE 21: OBLIGATIONS UNDER THE VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE

LAYER

TABLE 22: OBLIGATIONS UNDER THE UNFCCC

TABLE 23: OBLIGATIONS UNDER THE KYOTO PROTOCOL

TABLE 24: FIJI’S ENVIRONMENTAL PROTECTION & PRESERVATION OBLIGATIONS UNDER PART XII

OF UNCLOS

TABLE 25: FIJI’S OBLIGATIONS UNDER THE UN FISH STOCKS AGREEMENT

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TABLE 26: FIJI’S OBLIGATIONS UNDER THE FORUM FISHERIES AGENCY CONVENTION

TABLE 27: FIJI’S OBLIGATIONS UNDER THE DRIFTNET CONVENTION

TABLE 28: FIJI’S OBLIGATIONS UNDER THE NIUE TREATY

TABLE 29: FIJI’S OBLIGATIONS UNDER THE WCPFC

TABLE 30: OBLIGATIONS UNDER THE TREATY OF RAROTONGA

TABLE 31: OBLIGATIONS UNDER THE SPREP DUMPING PROTOCOL

TABLE 32: OBLIGATIONS UNDER THE SPREP EMERGENCY PROTOCOL

TABLE 33: FIJI’S OBLIGATIONS UNDER THE WAIGANI CONVENTION

TABLE 34: OBLIGATIONS UNDER THE APIA CONVENTION

TABLE 35: OBLIGATIONS UNDER THE NOUMEA CONVENTION

TABLE 36: CURRENT COMPOSITION AND COSTS OF THE DEPARTMENT OF ENVIRONMENT

TABLE 37: THE NEW STRUCTURE AND PROPOSED COSTING OF THE NEW MINISTRY OF THE

ENVIRONMENT

fiji: implimenting multilateral environmental agreements...

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