International treaty examination of the Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region

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1 International treaty examination of the Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region Report of the Primary Production Committee The Primary Production Committee has conducted an international treaty examination of the Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region and has no matters to bring to the attention of the House. The National Interest Analysis for the treaty is appended to this report. Hon David Carter Chairperson

2 INTERNATIONAL TREATY EXAMINATION OF THE TREATY ON THE COOPERATION IN FISHERIES NATIONAL INTEREST ANALYSIS Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, concluded in Honiara on 9 July 1992 Date of Proposed Binding Treaty Action 1 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 The Niue Treaty entered into force on 20 May 1993, following receipt by the depositary (the Government of Niue) of the fourth instrument of ratification. 3 New Zealand proposes to ratify the Niue Treaty by December Reasons for New Zealand to Become Party to the Treaty 4 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 enforcement and deterrence. The overall objective is to promote maximum effectiveness in regional and sub-regional surveillance and enforcement through cooperation between countries on a reciprocal or joint basis. 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. 5 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 mechanisms designed to encourage greater cooperation and coordination in the regional surveillance effort. 6 New Zealand has played an active role regionally and internationally to promote the effective conservation and management of high seas fisheries and to address illegal, unreported and unregulated (IUU) fishing. Cooperation in fisheries surveillance and law enforcement measures is a key role in the management of regional fisheries. Since the entry into force of the Niue Treaty, New Zealand has been encouraged by other FFA member countries to become Party to it, in order to build support for the Treaty and its objectives. New Zealand ratification of the Treaty would also reinforce our reputation as a responsible fishing nation and a leader in international fisheries management. 2

3 INTERNATIONAL TREATY EXAMINATION OF THE TREATY ON COOPERATION IN FISHERIES Advantages and Disadvantages to New Zealand of the Treaty Entering into Force 7 The Niue Treaty entered into force in To date, all FFA member countries have signed the Treaty, while all but three of these (New Zealand, Tokelau and Tuvalu) have ratified it. 8 The advantages of the Treaty entering into force have included: 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 region; enhanced coordination and exchange of information regarding foreign fishing vessels in the region; increased availability of information about vessels authorised to fish on the high seas; and the implementation of harmonised terms and conditions in relation to fisheries access agreements. 9 These factors contribute to the elimination of IUU fishing. In light of New Zealand s recent strong stance on IUU fishing activity, including the Minister of Fisheries membership of the High Seas Task Force, it would be appropriate to join other States Parties to this Treaty. 10 The Niue Treaty is also considered to offer an ideal mechanism for increasing the current level of surveillance operation in the Western and Central Pacific. Being a party to the Treaty would reinforce New Zealand s commitment in this area, as well as showing solidarity with our Pacific partners. Ratification of the Niue Treaty would also be timely in light of recent reinvigorated interest within New Zealand with respect to bilateral (e.g. with Australia) and trilateral (e.g. with Australia and France) maritime cooperation and surveillance options and opportunities. 11 There are no perceived disadvantages to New Zealand from ratification of the Treaty. As a head agreement intended to provide flexible arrangements for cooperation in fisheries surveillance, the Treaty is enabling rather than prescriptive. Obligations General Cooperation 12 In accordance with Article III, Parties shall cooperate in the enforcement of their fisheries laws and regulations in accordance with the Treaty, and may agree on forms of assistance for that purpose. The Parties shall also cooperate to develop regionally agreed procedures for the conduct of fisheries surveillance and law enforcement. Cooperation in the implementation of harmonised minimum terms and conditions of access 3

4 INTERNATIONAL TREATY EXAMINATION OF THE TREATY ON THE COOPERATION IN FISHERIES 13 In accordance with Article IV, the Parties shall cooperate in the implementation of harmonised minimum terms and conditions of fisheries access as may be agreed upon from time to time. 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 Forum Fisheries Agency. 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 harmonised minimum terms and conditions of fisheries access. 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. 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 laws. 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 laws. 14 New Zealand is already implementing the requirements contained in this Article of the Treaty. Exchange of information 15 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, including: The location and movement of foreign fishing vessels; Foreign fishing vessel licensing; Fisheries surveillance and law enforcement activities. Cooperation in fisheries surveillance and law enforcement 16 In accordance with Article VI, Parties may permit another Party to extend its fisheries surveillance and law enforcement activities to the territorial sea and archipelagic waters of that Party. 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 Party. Any Party wishing to authorise 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 accordingly. Cooperation in prosecutions 17 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 4

5 INTERNATIONAL TREATY EXAMINATION OF THE TREATY ON COOPERATION IN FISHERIES 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 Notification 18 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 Parties. Reservations 19 There is no provision in the text of the Niue Treaty allowing for reservations. While not expressly prohibited by the Treaty either, New Zealand is not planning to formulate any reservations to the Niue Treaty. Economic, Social, Cultural and Environmental Effects 20 At the time of its adoption, the Niue Treaty was acclaimed as an illustration of the commitment of Forum countries to issues that are beneficial to the conservation and management of regional resources. Becoming party to the Niue Treaty would underscore New Zealand s on-going commitment in this area. This treaty action would also complement New Zealand s participation as a party to other regional fisheries conventions, including the South Pacific Forum Fisheries Agency Convention, the US Tuna Treaty, and the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean. 21 New Zealand s ratification of the Niue Treaty will not have any adverse effects on Maori interests or be inconsistent with our human rights obligations. Costs 22 There are no financial implications for New Zealand of compliance with the Niue Treaty. Future Protocols 23 While it is unlikely that any subsequent protocols (or other amendments) will be made to the Niue Treaty, there is specific provision in the treaty for Subsidiary Agreements to be entered into by any two or more Parties. 24 While the Niue Treaty provides the overarching framework under which regional cooperation on fisheries surveillance and law enforcement can take place, most of the operational details which need to be addressed in order to implement the Treaty are spelt out in Subsidiary Agreements containing clauses facilitating closer cooperation in more concrete ways. These include the physical sharing of surveillance and enforcement equipment, the empowerment of each other s officers to perform enforcement duties, enhancement of extradition procedures and evidentiary provisions. Given that the rationale behind the Niue Treaty is to encourage closer regional cooperation, it was 5

6 INTERNATIONAL TREATY EXAMINATION OF THE TREATY ON THE COOPERATION IN FISHERIES considered desirable for the provisions of Subsidiary Agreements to be harmonised. For this reason, the FFA held regional consultations in 1995 to develop a Model Subsidiary Agreement. Implementation 25 There is no need for amendment of primary legislation to enable domestic implementation of the Niue Treaty. As outlined above, the Niue Treaty establishes an enabling framework for enhancing cooperation between the parties. The specifics of such cooperation is left to Subsidiary Agreements that are agreed between two or more Parties. While the implementation of Subsidiary Agreements may require the making of regulations this will depend on the nature and extent of any such agreement that New Zealand may enter into in the future. 26 The Treaty requires the Parties to cooperate in the implementation of agreed minimum terms and conditions for the licensing of Foreign Fishing Vessels. The only Foreign Fishing Vessels authorised to fish in New Zealand s exclusive economic zone are United States purse seine vessels fishing pursuant to the US Tuna Treaty. The operation of those vessels is dictated by the terms of the US Tuna Treaty and by domestic regulations and is consistent with the minimum terms and conditions referred to under the Niue Treaty. Foreign flagged vessels that fish in New Zealand waters under charter arrangements to New Zealand companies must be registered as New Zealand Fishing Vessels and do not fall within the definition of foreign fishing vessel as defined in the Niue Treaty. 27 The requirements of the Treaty not implemented through legislation, for example the provision of information to the FFA, can be implemented through the development of new processes within the Ministry of Fisheries. Consultation 28 New Zealand signed the Niue Treaty on 9 July 1992, both in its own right and on behalf of Tokelau. To date, all FFA member countries have signed the Treaty, while all but three of these (New Zealand, Tokelau and Tuvalu) have ratified it. The General Fono agreed at its November 1994 meeting that Tokelau should ask New Zealand to ratify the Niue Treaty on its behalf at the same time New Zealand deposited its instrument of ratification. In light of ongoing consultations and work between New Zealand and Tokelau that is anticipated to lead to a United Nations (UN) supervised act of selfdetermination by the people of Tokelau later this year (in which they may opt for a change of status from non self-governing territory to self-governing state in free association with New Zealand), officials checked again with Tokelau to confirm its wishes in this respect. The General Fono subsequently agreed at its May 2005 meeting to request New Zealand not to take this treaty action on its behalf at this time. 29 The following Government agencies have been consulted in the preparation of this paper: Ministry of Foreign Affairs and Trade, Ministry of Fisheries, Ministry of Defence, New Zealand Defence Force, New Zealand Customs Service, New Zealand Police, Maritime Safety Authority, Ministry of Justice, the Treasury, National Maritime Coordination Centre. 6

7 INTERNATIONAL TREATY EXAMINATION OF THE TREATY ON COOPERATION IN FISHERIES Withdrawal or Denunciation 30 There is no express provision in the Niue Treaty allowing for withdrawal or denunciation. In the absence of withdrawal provisions in the Treaty, the ability to withdraw is governed by Article 56 of the Vienna Convention on the Law of Treaties. Article 56 codifies the customary international law position, that withdrawal is not possible unless it is established that the parties intended to admit the possibility of withdrawal, or the right of withdrawal may be implied from the treaty. By its nature a cooperative agreement, it is considered that the Niue Treaty is likely to fall within these exceptions. A party may also withdraw from a treaty at any time by consent of all the parties (Article 54(b) of the Vienna Convention). On this basis, it is considered that it should be possible for New Zealand to withdraw from the Niue Treaty. 7