LAW OF THE SEA

I have reviewed the cases under the heading of “Law of the Sea” in the interns’ reports and have found a few more in the PACLII website. There are not many of them but present some points of interest: The federated states face some different jurisdictional issues given their federal division of powers. There is an issue of ownership of resources which must be distinguished from exclusive right to exploit and may carry with it the concomitant duty to preserve and protect. Custom ownership of resources may give clans and villages standing to sue for damage to reefs. Environmental concerns are an issue to be addressed. Cases may give an indication of legal issues that are important to the Pacific Islands. They also may point to a difficulty to interpret new legislature such as those dealing with the environment, fisheries and boundary delimitation.

CASES

Foreshore development, coastal management, environment-

Browne v Bastien [2002] VUSC 2
Jonah v Kosrae [2000] FMKSC 3- road widening, seawall, foreshore
People of Rull ex rel Ruepong v MV Kyowa Violet [2006] FMSC 53
People of Welroy ex rel v MV CEC Ace [2007] FMSC 28
Damarlane [1995] FMPSC 2 dredging damaging fishing / custom owners have right to compensation
Tokyo Corp. v Mago Island Estate Ltd. [1992] FJHC 76 foreshore, water and seabed are vested in the state
ENE Land Grp. Inc. v Fonsen Logging (PNG) Pty. [1998] PNGLR 1- seek charge for transshipment of logs thru coastal water

Jurisdiction and rights to resources

Chuuk v Secretary of Department of Finance [2000] FMSC 36 claims to resources in EEZ- clarifies nation’s claim to resources in EEZ
Fed. States of Micronesia v Oliver [1988] FMSC 29 jurisdictional issue within 12 miles
People of Rull ex rel Ruepong v MV Kyowa Violet [2006] FMSC 53 recognise traditional rights and ownership of natural resources and areas within the 12 miles from baselinesalso do chiefs have standing
People of Satawal ex rel Ramoliolug v Mina Maru No. 3 [2001] class action- fishing trips less productive as result of damage to reef
People of Welroy ex rel v MV CEC Ace [2007] FMSC 28
Pohnpei v KSVI No. 3 [2001] FMSC 58 who owns reef- state or municipality Damarlane [1995] FMPSC 2 dredging damaging fishing / custom owners have right to compensation
ENE Land Grp. Inc. v Fonsen Logging (PNG) Pty. [1998] PNGLR 1- seek charge for transshipment of logs thru coastal water
Ulelio v Nelulu Land Group [1998] PGNC 176 no power of authority under laws of PNG to grant absolute ownership over the high seas

DISCUSSION

The question of who has the rights to the resources of the coastal sea and seabed was considered in People of Rull ex rel Ruepong v MV Kyowa Violet¹. In this case from Micronesia a cargo vessel was damaged when it collided with a reef while navigating into the harbor. The collision resulted in damage to the reef as well as an oil spill into the harbor waters. There was a subsequent ban on fishing and swimming in the harbor. An action for damages for maritime tort and nuisance was brought by 3 traditional chiefs as representatives of the people of the affected coastal municipalities. The court decided that the plaintiffs had standing to sue for damages on the basis of the constitutional provision that recognized the traditional rights and ownership of natural resources and areas within the marine space of the State within 12 miles from the island baselines. The court understood the “ownership” of the resources to mean an exclusive right to use and exploit the resources of the area. A further constitutional provision preserved existing private rights for civil damages to coral reefs, seagrass areas and mangroves. The “ownership” of the rights to resources was based on membership in a tabinaw. This traditional concept gave its members exclusive rights to marine resources in particular areas of the lagoon, and importantly, the court found that the tabinaw included an estate in identifiable land and specific areas of the fringing reef. The tabinaw concept was again applied in People of Weloy ex rel v MV CEC Ace^² where chiefs were allowed to represent the tabinaw and were given requisite standing to seek damages as a result of a vessel collision on their reef.

Earlier cases from the FSM had muddied the issue. In Pohnpei v KSVI No. 3³ the court was asked to decide whether the State or the Municipality was entitled to damages resulting from the grounding of a vessel on a reef. The court narrowly interpreted a provision of the Trust Territory Code⁴ which provided that all marine areas below the ordinary high water mark belonged to the State. (At the time of the MV Kyowa Violet grounding case discussed above, the court held that this provision had been superseded by subsequent legislative provisions and was no longer the law.) The court also posited that the State should recover because under fisheries legislation the State bore the costs associated with enforcing State laws related to natural resources. Further, in spite of wording that preserved traditional rights to fishing, the Court would not allow the municipality to recover on the grounds that this might have excluded some landowners, clans or families who had suffered a loss. The court distinguished an earlier decision Damarlane v United States⁵ . In this case the court extensively reviewed the applicable customary law to decide whether the owners of land adjacent to the lagoon had sufficient property rights so as to entitle them to monetary compensation for damage to fishing structures caused by dredging in their abutting lagoon. In this case the court found that there were customary rights to maritime resources, but these rights were not enough to establish a compensable right of recovery for damages to fishing structures built on the
¹ [2006] FMSC 53
² [2007] FMSC 28
³ [2001] FMSC 58
⁴ 67TTC2
⁵ [1995] FMPSC 2
reef. Perhaps a tabinaw concept which later decisions defined would have been helpful
here.

There was early recognition by the courts in PNG of the principle that there exist customary rights to reefs and marine resources,⁶ and legislation since Independence has preserved traditional coastal fishing rights. However, the rights to the sea are limited. In ENE Land Grp. Inc. v Fonsen Logging (PNG)⁷ land owners sought to enlarge their traditional rights when they pursued a claim that they were entitled to be paid rental fees for the passage of the defendants’ shipping through the coastal area. The defendants’ ships passed through the coastal area to load logs from logging activities which were conducted inland. The plaintiff’s action failed as the court was unable to find the requisite possessory title to the sea for the purpose sought. There was another unusual case out of PNG. In Ulelio v Nelulu Land Group⁸ the defendant had obtained a certificate of title through the customary land tenure conversion process to absolute ownership over 12.5 hectares of the sea. The plaintiffs challenged the validity of the ownership of the sea and coastal area. The court reviewed the history of common law and customary rights and concluded that at no time had there been any recognition of any absolute possessory title in individuals or groups to the sea.

There have been a few reported cases which deal with a private individuals’ proprietary interest in the foreshore. In Tokyo Corp. v Mago Island Estate Ltd⁹ the Fijian High Court decided that rights to the foreshore, water and seabed are vested in the state. The judgement includes an interesting historical perspective, but unfortunately the parties decided not to have the rights to the fisheries issue adjudicated. In the FSM, a resort owner brought a claim against Kosrae State for damage to his beachfront allegedly caused by state road works.¹⁰ The court held that the private landowner had no standing to sue the state with respect to rocks deposited below the ordinary high water mark because that is state land. In Browne v Bastien¹¹ a private coastal property owner sought a declaratory order from the Vanuatu court to have his neighbour’s seawall dismantled. The plaintiff was somewhat successful in his nuisance claim; however, counsel for the plaintiff would have been wiser to have approached the Minister for an order pursuant to the Foreshore Development Act as the sea wall did not comply with this legislation.

There are a few cases concerning the EEZ and the jurisdiction therein. In Fed. States of Micronesia v Oliver¹² the defendant was charged with killing 5 sea turtles contrary to State law. The difficulty in this case arose because of the separated state and national jurisdictions in the FSM. The court found that the legislation under which the charge was laid was State law which could give the national government jurisdiction outside the 12 mile territorial sea zone. The prosecution could not prove that the turtles had been killed outside of the 12 mile zone and thus the case was dismissed as the court had no
⁶ see Tolain & Os v Administration [1965-66] PNGLR 232,.
⁷ [1998] PNGLR 1
⁸ [1998] PGNC 176
⁹ [1992] FJHC 76
¹⁰ Jonah v Kosrae, [2000] FMKSC 3
¹¹ [2002] VUSC 2
¹² [1988] FMSC 29
jurisdiction. In Chuuk v Secretary of Finance¹³ federalism was again at issue along with a customary rights argument. In this action, the four states of the FSM requested a declaratory judgement that they were entitled to ownership and control over the living marine resources in the FSM’s EEZ and as such they were entitled to revenues from the sale of fishing licenses which permitted fishing in the EEZ. At trial the states asserted that traditional and customary practices of the Micronesian people vested ownership of off-shore fishing resources in the island community adjacent to those waters. The States’ claim failed based on language in the Constitution and the UN Convention on the Law of the Sea which had been ratified by the FSM. The constitution granted the national government the exclusive right to regulate the exploitation of the natural resources within the EEZ. There was no “ownership” of the resources but the national government’s position was consistent with the international treaty obligations that it had assumed. It is interesting to note that the FSM Constitution requires that of the EEZ generated revenues, half of the net revenues derived from ocean floor mineral resources be given to the state governments- there is no such provision as to the living resources.

SUGGESTED FURTHER RESEARCH

Clearly this synopsis of the reported cases gives an incomplete picture of the state of law of the sea in the region. Up to date analysis of the various international treaties and legislative enactments in every country as to boundary delimitation, fisheries, and the environment would definitely be of value.

Other cases

Pohnpei v KSVI No 3 [2001] FMSC 58; 10 FSM Intrm. 53 (Pon. 2001) (16 February 2001)
MARITIME TORTS- State is party to recover for losses suffered as a result of reef grounding. A vessel grounded on the outside edge of the reef which surrounds Pohnpei. The state of Pohnpei and the municipality of Kitti filed separate complaints seeking compensation for damage to the reef, submerged lands and marine resources. The state filed a motion to dismiss the municipality’s complaint stating that the state was entitled to damages from the grounding because the state is the owner of the reef,
submerged lands and affected marine resources. The parties requested that the court determine before trial the legal ownership of the submerged areas allegedly damaged by the grounding.
DECISION: Pohnpei is the legal owner of the submerged lands and living resources and is the party entitled to recover for any injury to these resources.
Motion to dismiss not granted because municipality may be able to recover other losses (such as damaged nets and traps).
HELD: The court looked to the Constitution to decide that the state was the owner of the submerged reef and marine resources. However the Constitution also guaranteed traditional rights to fishing and to the use of the marine resources. As such, damages recovered by the state for injury to this property should be placed in a trust for the people and the funds are to be used to repair harm done to damaged

¹³ [1996] FMSC 59 aff’d [2000] FMSC 36

areas. The municipality failed to define the specific group within a specific area that had suffered the loss as a result of the grounding. The municipality had no general right to recovery for damages to the reef whose ownership rested in the state.