New Zealand Yearbook of International Law
Last Updated: 27 January 2014
LAW OF THE SEA AND FISHERIES
A. South Pacific Regional Fisheries Management Organisation
The Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean1 was opened for signature on 1 February 2010, and New Zealand (depository for the Convention and host of the Interim Secretariat) was the first country to sign it. The Convention is to come into force following the eighth instrument of ratification, accession, acceptance or approval, provided that at least three coastal states and three distant water fishing states are among the eight ratifications. The Convention was signed by nine states or entities during 2010,2 but only Denmark in respect of the Faroe Islands approved it during the year. The Convention establishes the South Pacific Regional Fisheries Management Organisation (SPRFMO), which aims to manage fishing for non-highly migratory species in the South Pacific Ocean. The Convention is notable for its attempt to introduce more robust environmental protection and decision making procedures.3
New Zealand hosted the first session of the Preparatory Conference for SPRFMO in July 2010. The session focused on drafting the Rules of Procedure and Financial Regulations for the Commission to adopt once the Convention has entered into force.
As part of the negotiations for the Convention, participants agreed on
interim measures that would be undertaken to control fishing
in the SPRFMO area
prior to the entry into force of the Convention.4 Among these interim measures
was an agreement to limit the
gross tonnage of vessels fishing for jack
mackerel, to limit the catch, to 2007-2009 levels, and to improve the monitoring
vessels. Reports were received from Belize, Chile, the European Union,
Faroe Islands, Korea, Peru and Russia in relation to catches
in 2010. The
reports varied in their detail from a bare declaration of compliance (Russia) to
information about catch, vessels and
implementation of observer and/or Vessel
Monitoring Systems.5 Interestingly, of those reporting catches, the 2010 catch
of jack mackerel
tended to be lower
1 Not yet in force.
2 Australia, Republic of Chile, People’s Republic of China, Republic of Colombia, Cook Islands, European Union, Kingdom of Denmark in respect of the Faroe Islands, New Zealand and Peru.
3 A discussion of the Convention’s provisions is found in J Mossop “Year in Review: Law of the Sea and Fisheries”  NZYbkIntLaw 17; (2009) 7 NZYIL 336.
4 See J Mossop “Year in Review: Law of the Sea and Fisheries” (2007-8) 5 NZYIL 217 and “Year in Review: Law of the Sea and Fisheries (2008) 6 NZYIL 324.
5 Available at <www.southpacificrfmo.org>.
than in the years immediately preceding it. Some concern remains that not all
states with active fishing vessels are ensuring compliance
with the interim
B. Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)6
Spurred by concerns that the level of illegal and unregulated fishing in the
Southern Ocean is not decreasing, New Zealand sponsored
a resolution on the
matter that was adopted by the CCAMLR Commission in October 2010. Resolution
32/X XIX7 focuses on the
problems with ensuring Contracting Party flag
state control, as well as fishing by vessels flagged to non-Contracting Parties.
The Resolution calls on Contracting Parties to strengthen their efforts to
ensure compliance with CCAMLR conservation measures.
In addition, Contracting
Parties are to liaise with non-Contracting Parties in order to encourage them to
investigate vessels fishing
under their flag and take action to ensure they do
not fish illegally in the CCAMLR area. Non-Contracting Parties are also to be
encouraged to: conduct port state inspections; implement the CCAMLR catch
documentation scheme; and grant permission for boarding
and inspection by
CCAMLR-designated inspectors in the Convention area. New Zealand announced its
intention to increase its monitoring
of IUU fishing in the Southern Ocean
following the recent addition of two new Offshore Patrol Vessels.
C. Convention for the Conservation of Southern Bluefin Tuna8
The 17th Annual Meeting of the Commission for the Conservation of Southern Bluefin Tuna was held in Taipei from 11 to 14 October 2010. One of the key issues for consideration in 2010 was the adoption of a science-based “Management Procedure” which will provide guidance to the Commission when setting future Total Allowable Catch limits for southern bluefin tuna. While Members were not able to agree on which Management Procedure should be adopted and what parameters should be applied, further analysis has been requested from the Scientific Committee so that a Management Procedure can be adopted at a Special Meeting of the Commission scheduled for August 2011.
In 2010, New Zealand’s quota for Southern Bluefin Tuna increased
despite an overall decrease in the total allowable catch under
This is intended to correct an historical situation in which New Zealand was
allocated less than other states in
the early years of the Commission. Although
New Zealand was allocated 754 tonnes, it set a total allowable catch for its
industry of 532 tonnes.
6 Opened for signature 1 August 1980, entered into force on 7 April 1982.
7 Prevention, Deterrence and Elimination of IUU Fishing in the Convention Area Res 32/X XIX (2010).
8 Opened for signature 10 May 1993, entered into force 20 May
D. Other Fisheries Developments
In January 2010, the Te Vaka Moana Arrangement was finalised. This Arrangement, which New Zealand signed in December 2009,9 has a number of goals for developing Polynesian fisheries management capacity including: institutional strengthening and formalising cooperation between fisheries administrations; developing enduring management frameworks for Polynesian longline fisheries, including effective deterrence of non- compliance; identifying barriers to improving economic outcomes and exploring opportunities to increase the capacity of the Polynesian private sector to catch, process and export fish (which will include opportunities to address bycatch issues); and promoting linkages with New Zealand’s broader economic development assistance in the region, such as work on business mentoring and partnership opportunities with the New Zealand fishing industry.10
Work was conducted throughout the year under the Arrangement, including on the development of zone based limits for albacore, skipjack, bigeye and yellowfin tunas. One goal is to focus on issues that are relevant to the work of the Western and Central Pacific Convention11 to protect the interests of the participating members. Progress was also made on a joint subsidiary agreement under the Niue Treaty12 called the Te Vaka Toa Arrangement to provide for cooperation in enforcement of fisheries measures in the South Pacific Region. It is expected that this Arrangement will be ready for signing in 2011.
Regarding domestic law relating to fisheries and coastal law, considerable work continued on a number of important bills. During 2010, the Marine and Coastal Area (Takutai Moana) Bill was debated, which is intended to replace the controversial Foreshore and Seabed Act 2004. The latter Act reversed the effect of the Court of Appeal decision in Attorney-General v Ngāti Apa,13 which established that Māori interests in the foreshore and seabed were not necessarily extinguished by existing legislation and that Māori may seek recognition of legal rights in those areas. The Marine and Coastal Area (Takutai Moana) Bill, initiated by the ruling National Party’s coalition agreement with the Māori Party, is expected to pass in 2011.
In addition, work continued in 2010 on reforms to aquaculture law intended
to streamline the application process for new projects.
Legislation is expected
to pass in 2011.
9 See J Mossop “Year in Review: Law of the Sea and Fisheries” (2009) 7 NZYIL 340.
10 Available at <www.pimrisportal.org>.
11 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (opened for signature 5 September 2000, entered into force 19 June 2004).
12 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (opened for signature 9 July 1992, entered into force 20 May 1993).
13  NZCA 117;  3 NZLR 643 (CA).
In December, the Government issued the New Zealand Coastal Policy Statement 2010 (CPS). Coastal environmental planning and protection in New Zealand is handled by local authorities under the Resource Management Act 1991. National policy statements are intended to direct local authorities on how to exercise their powers in areas covered by these policy statements, although to date the CPS is the only compulsory national policy statement. The 2010 CPS replaces the Statement issued in 1994. Of interest is Policy 3 of the CPS, which requires local authorities to take a precautionary approach “towards proposed activities whose effects on the coastal environment are uncertain, unknown, or little understood, but potentially significantly adverse.” Special mention is made of the need to take a precautionary approach towards the use of resources vulnerable to climate change. The CPS identifies the need for special protection in certain areas as well as recognition of the importance of port and coastal infrastructure.
Foreign fishing vessels have admitted fishing illegally in New Zealand
waters and paid fines to the New Zealand Government. Two vessels,
the Fu Chun
126 flagged to Vanuatu, and the Ta Chun 101 flagged to Taiwan, were
located by a P3K Orion in late 2009 fishing approximately 70 nautical miles
within the northeastern part of
the New Zealand Exclusive Economic Zone. The
owners of the fishing vessels paid NZ$220,000 each in sanctions.14
2010 was a turbulent year for the International Whaling Commission. New Zealand was involved in discussions, begun in 2009, seeking a compromise solution to the deadlock between pro-whaling and anti-whaling nations, particularly relating to scientific whaling. The group came close to concluding an agreement in which harvests under the scientific whaling permit exception would be cut back to lower levels than are currently caught. New Zealand’s position was in favour of an outcome that reduced the number of whales caught in relation to the current catch, and ended the whaling in the Southern Ocean at the earliest possible time.15 However, divisions between states about the number of whales to be caught under scientific research permits meant that, at the 62nd meeting of the International Whaling Commission in Agadir, Morocco, the compromise attempt failed. The meeting ended with no concrete strategy to pursue further compromise solutions.
Prior to the Agadir meeting, Australia announced its intention to bring a
case against Japan in the International Court of Justice
Japan’s scientific research programme in the Southern Ocean is illegal.
The New Zealand Government considered
whether it would join the case as a party,
but announced in December, that it would instead intervene formally in
14 Ministry of Fisheries, “Foreign vessel admits fishing illegally in New Zealand waters” (press release, 26 November 2010).
15 Murray McCully “McCully disappointed by failure of IWC
process” (press release, 24 June 2010).
case.16 The reason given was that if New Zealand joined the case as a co-party, Australia would lose the opportunity to nominate a judge ad-hoc because of Sir Kenneth Keith’s current membership of the Court.17
New Zealand was an active member of the Southern Ocean Research Partnership
(SORP) in 2010. SORP is a collaborative research consortium
formed in 2009 to
conduct non-lethal whale research which involves participants from 12
countries.18 In February and March 2010,
New Zealand and Australia sponsored a
6 week research voyage in the Southern Ocean south of New Zealand to gather
population structure, distribution, movement patterns and
environmental linkages of whales. The researchers used skin samples, satellite
tagging, photographic identification and acoustic recordings to gather data.19
In addition, nine papers from SORP were presented
to the Scientific Committee at
the International Whaling Commission meeting in Agadir.
III. Marine Environment and Navigation
New Zealand, as well as other Antarctic Treaty Parties, has been concerned
about the potential for devastating environmental damage
caused by fuel spills
in the Southern Ocean as the result of shipping accidents. Larger vessels in the
area use heavy fuel oil, which
poses a greater risk in the event of a spill
because it is slow to break down in the water, especially in colder
2005, the Antarctic Treaty Parties requested the International
Maritime Organisation (IMO) to take steps to restrict the use of heavy
in the Southern Ocean, and the IMO has been conducting discussions in which New
Zealand has played an important role. Since
2007, two ships have grounded with
limited fuel leaks (Nordkapp in 2007 and MV Ushuaia in December
2008) and the M/S Explorer sank in November 2007 spilling an unknown, but
likely small, amount of fuel oil. In March 2010 the IMO adopted a ban on the
carriage of heavy fuel oil on vessels operating in Antarctic waters,
which will come into effect from 1 August 2011. The ban takes
the form of an
amendment to MARPOL Annex I (Regulations for the prevention of pollution by
oil), chapter 9 on special requirements
for the use or carriage of oils in the
16 Murray McCully “Joint statement: Australia and New Zealand agree on strategy for whaling legal case” (press release, 11 December 2010).
18 Australia, Argentina, Brazil, Chile, Costa Rica, France, Italy, Mexico, New Zealand, South Africa, Uruguay and the United States of America.
19 Australian Government “The Southern Ocean Non-Lethal Research Partnership Australia- New Zealand Antarctic Whale Expedition” (2010) Australian Marine Mammal Centre <www.marinemammals.gov.au>.
20 International Convention for the Prevention of Pollution From Ships as
modified by the Protocol of 1978 (opened for signature
17 February 1973, entered
into force 2 October 1983). See <www.imo.org>.
New Zealand officials have been heavily involved in aspects of the IMO’s work. In particular, New Zealand has significant interests in the development of a mandatory Polar code to regulate the design and environmental impact of ships operating within polar regions. Additionally, New Zealand has contributed to IMO work on greenhouse gas emissions from ships.
New Zealand maritime rules were amended in September 2010 tightening rules on
pilotage in New Zealand waters.21 The rules identify
a number of areas in
which compulsory pilotage applies unless the pilot holds a Pilotage Exemption
Certificate (PEC). The PEC may
be obtained by pilots of ships regularly
navigating in pilotage areas. However, foreign vessels will need to be aware of
areas and comply with the requirements to use an appropriately
licenced pilot. New compulsory pilotage areas have been established
Island and in the Pelorus Sound/Admiralty Bay/ French Pass areas. In some
cases the pilotage area limits and the criteria
for pilotage in those areas have
also changed. The changes to the rules take effect on 1 April 2011.
IV. Maritime Delimitation Treaty Between Cook Islands and Tokelau
The Agreement between the Government of New Zealand and the Government of the Cook Islands concerning the Delimitation of the Maritime Boundaries between Tokelau and the Cook Islands (‘the Agreement’) was concluded in 2010. Tokelau is a non-self-governing territory of New Zealand. The group of islands is small and highly dependent on fisheries resources for revenue. Therefore, the delimitation of its maritime boundaries with its neighbours has been seen as important to the islands’ future. Maritime boundary treaties have already been concluded with the United States (in respect of American Samoa in 1980) and France (in respect of Wallis and Futuna in 2003). The 2010 treaty boundary between the Cook Islands and Tokelau is based on equidistance, with no special circumstances that might justify a departure from that method.22 The Agreement provides for a potential adjustment to the delimitation line if Tokelau establishes the case for an extended continental shelf. Preliminary information on Tokelau’s extended continental shelf was provided by New Zealand to the Commission on the Limits of the Continental Shelf in May 2009.
The Agreement was endorsed by the Council for the Ongoing Government of
Tokelau, and signed by a Tokelauan leader on behalf of New
Agreement enters into force once both Governments have notified the
21 Maritime Transport Act 1994, Maritime Rules (Part 90: Pilotage) 2010. Available at <www. maritimenz.govt.nz>.
22 National Interest Analysis, Agreement between the Government of New
Zealand and the Government of the Cook Islands concerning
the Delimitation of
the Maritime Boundaries between Tokelau and the Cook Islands (2010) New Zealand
other of the completion of the constitutional procedures required for the entry into force of the treaty. The New Zealand Foreign Affairs and Trade Select Committee reported to Parliament on 15 October 2010 that it had no objections to the conclusion of the Agreement.
One interesting development was that, during the preparation work for the
treaty, New Zealand experts concluded that there is an
error in the way in which
one of the islands of the Cook Islands is shown on official charts.23 The
Agreement utilises the official
base points shown on existing charts, but
further investigation will be conducted into the correct position of the Cook
This may result in adjustment to boundary lines under the Agreement and
other maritime boundary treaties.
Victoria University of Wellington