Paradise Preserved - The Contribution of the SPREP Convention to the Environmental Welfare of the South Pacific

Ecology Law Quarterly Volume 19 | Issue 4 Article 3 September 1992 Paradise Preserved - The Contribution of the SPREP Convention to the Environment...
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Ecology Law Quarterly Volume 19 | Issue 4

Article 3

September 1992

Paradise Preserved - The Contribution of the SPREP Convention to the Environmental Welfare of the South Pacific Lori Osmundsen

Follow this and additional works at: http://scholarship.law.berkeley.edu/elq Recommended Citation Lori Osmundsen, Paradise Preserved - The Contribution of the SPREP Convention to the Environmental Welfare of the South Pacific, 19 Ecology L.Q. (1992). Available at: http://scholarship.law.berkeley.edu/elq/vol19/iss4/3

Link to publisher version (DOI) http://dx.doi.org/doi:10.15779/Z38KR8J This Article is brought to you for free and open access by the Law Journals and Related Materials at Berkeley Law Scholarship Repository. It has been accepted for inclusion in Ecology Law Quarterly by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected].

Paradise Preserved? The Contribution of the SPREP Convention to the Environmental Welfare of the South Pacific Lori Osmundsen * CONTENTS

Introduction ................................................... I. South Pacific Environmental History ....................... A. The Environmental Culture of the South Pacific ........ B. The Presence of Metropolitan Powers .................. C. The Shift From Colonialism to Independence ........... D. The Growth of Regional Institutions and New Identity. II. Background to the Establishment of the SPREP Convention for the Protection of the Natural Resources and Environment of the South Pacific Region .......................... A. Beginnings of a Regional Environmental Agenda ....... B. The Conference on the Human Environment in the South Pacific, Rarotonga, Cook Islands, March 8-11, 1982 .................................................. C. Experts Meetings and Negotiations ..................... III. Evaluation of the SPREP Convention and Protocols ........ A. General Overview ..................................... B. Substantive Provisions ................................. 1. Absolute Prohibitions .............................. 2. Affirmative Duties of Parties ....................... 3. Dispute Resolution ................................. 4. Amendment Procedure ............................. 5. Permit System and Annexes ........................ C. Gaps and W eaknesses ................................. 1. The Nuclear Testing Compromise .................. 2. Environmental Assessment .........................

728 730 730 731 735 738

740 740

743 746 753 753 755 755 756 757 758 759 760 760 763

Copyright © 1992 by ECOLOGY LAW QUARTERLY * J.D. 1992, Harvard Law School; B.A. 1984, Yale. The author wishes to thank Professor Abram Chayes of Harvard Law School and Professor David D. Caron of Boalt Hall School of Law for their assistance, expertise, and encouragement in bringing this article to fruition.

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3. Import of Hazardous Wastes ....................... 4. Technical Assistance and Funding .................. 5. Compliance and Enforcement ...................... D. Interaction of the SPREP Convention With Other South Pacific Regional Environmental Agreements ............ 1. The South Pacific Nuclear Free Zone Treaty ........ 2. The Convention on the Conservation of Nature in the South Pacific ................................... 3. Convention for the Prohibition of Fishing With Long Drift Nets in the South Pacific ............... E. The SPREP Convention as Compared With Other Regional Seas Agreements ............................. IV. Strengthening the South Pacific Environmental Regime ..... A. NGO Activities and Involvement ...................... B. Land-Based Problems and Waste Trade Prevention ..... 1. The Johnston Atoll Debacle ........................ 2. Trading for Trouble: Hazardous Waste Import ..... C. Participation in Global Conventions .................... V . C onclusion ................................................

766 767 768 770 771 773 774 777 780 780 783 784 786 788 791

E nga waka E nga hau e wha E nga mana E nga iwi E nga manu korero o runga i nga marae Whakarongo! Whakarongo! Whakarongo! Kite tangi a te manu e karanga nei, "Tui, tui, tuituia!" ...

I hono kite wairua, ki te whai Ao, kite Ao marama

0 canoes, four winds, great ones Tribes, distinguished elders Listen! Listen! Listen! To the cry of the kotuku calling "Unite, unite, be one!" ...The

past and the present with the future1

We do not think of ourselves as small islands separated by great empty spaces. The ocean has been and always will be our great provider. Its bounty alone is our principal resource for economic survival, and we are 2 conscious of our need to live in constant harmony with it. -President Bailey Olter, Federated States of Micronesia INTRODUCTION

"Fragile" is not the first term that leaps to mind to describe the Pacific Ocean, the world's largest body of water. Yet, as the twentieth century comes to a close, people have become increasingly aware that the 1. A Maori chant quoted and translated in Witi Imihaera, The Long Dark Tea-time of the South, in THE SOUTH PACIFIC: PROBLEMS, ISSUES AND PROSPECTS 133, 134, 143 (Ramesh Thakur ed., 1991) [hereinafter SOUTH PACIFIC]. 2. Ian Williams, Islands Unite at the UN., PAC. ISLANDS MONTHLY, Nov. 1991, at 20.

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various environments of the Pacific are no less at risk of permanent harm from human activity than is any other marine region. The people inhabiting the sparsely populated South Pacific are faced with the task of guarding their region's delicate ecological balance against the accelerating forces of modern technology that threaten this fragile environment. The emerging system for the protection of the South Pacific environment depends heavily on regional cooperation and international agreeThe most ments establishing resource management regimes. comprehensive and authoritative element of the system is the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP Convention). 3 This Comment examines the SPREP Convention and its appurtenant institutional components in light of the environmental history and challenges of the South Pacific to determine whether the regime thus established accomplishes its goal of environmental protection. The primary thesis of the Comment is that while the SPREP Convention furthers the objective of regional environmental protection, it fails to achieve the level of protection that the region requires and must continue to evolve to meet present and future 4 environmental problems. A parallel theme is that Pacific Islanders stand in a unique position to use the SPREP Convention and other environmental platforms as a means of asserting a Pacific identity in the international community and achieving broader political recognition in the process. This Comment is comprised of five parts. Part I provides an overview of South Pacific history as it relates to environmental impacts and changes. Part II describes the series of events culminating in the South Pacific Regional Environmental Program and the negotiations resulting in the SPREP Convention itself. Detailed discussion of these negotia3. Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Nov. 25, 1986, 26 I.L.M. 38 (1987) [hereinafter SPREP Convention]. The SPREP legal regime consists of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region and two accompanying protocols, the Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region, 26 I.L.M. at 59 [hereinafter Pollution Emergencies Protocol] and the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, 26 I.L.M. at 65 [hereinafter Dumping Protocol]. All three agreements entered into force on Aug. 18, 1990. See infra note 174 and accompanying text. 4. The term "Pacific Islanders" in this article refers to the indigenous peoples of Micronesia, Melanesia and Polynesia as distinct from people of Western ethno-cultural background (Europeans, North Americans, Australians, and New Zealanders) who are also present in the South Pacific. The author does not wish to imply, however, that the three ethnic groups of Pacific peoples are in any way monolithic. For a description of the origins of and distinctions between the Pacific Island ethnic groups, see IAN C. CAMPBELL, A HISTORY OF THE PACIFIC ISLANDS (1989) (discussing Polynesian, Melanesian, and Micronesian peoples); RON CROCOMBE, THE SOUTH

PACIFIC -

AN

INTRODUCTION

(4th ed.

1987)

[hereinafter

(discussing people, culture, personality, and language of the South Pacific); PETER BELLWOOD, MAN'S CONQUEST OF THE PACIFIC (1978) (discussing the prehistoric past of this region).

CROCOMBE, SOUTH PACIFIC -

INTRODUCTION]

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tions uncovers the tensions at issue in concluding the treaty. Part III critically analyzes the Convention, both on its own terms and in comparison with similar regional and international agreements, in order to highlight deficiencies and possible remedies. Part IV develops the theme of improvement, discussing three areas of future growth for the regional regime in terms of the benefits of collective action. Finally, Part V concludes the discussion with several observations about the lessons that the SPREP Convention and associated developments offer with respect to environmental cooperation and management. I SOUTH PACIFIC ENVIRONMENTAL HISTORY

A.

The Environmental Culture of the South Pacific

Traditional management of natural resources by Pacific Islanders was far superior in several respects to the modern practices that have replaced it. Researchers have noted that: Traditional management practices were either related to some religious or superstitious beliefs, or were clearly intended to conserve resources. A number were developed to minimize waste associated with periodic and predictable gluts, such as during spawning seasons. It appears that almost every basic fisheries conservation measure devised in the West was 5 in use in the tropical Pacific for centuries. Conservation practices included land and reef tenure systems; local "taboos" on certain species or habitats, closed fishing areas, and closed seasons; quotas on catches of certain species; prohibitions on taking juvenile or gravid animals; agroforestry, fallowing, and other soil replenishment techniques; and protection of natural windbreaks such as mangroves.

6

These conservation measures developed as a logical response to challenges affecting life on a typically small land base surrounded by sensitive reef ecosystems. Hierarchical social systems addressed practical environmental realities by developing land and reef tenure systems in which farming and gathering rights were allotted chiefly by tribal or family ownership. 7 Traditional practices thus regulated resource use to provide relatively efficient, sustainable benefit for the community. 5.

Edgardo D. Gomez and Helen T. Yap, CoralReefs in the Pacific -

and Their Limitations, in

ENVIRONMENT AND RESOURCES IN THE PACIFIC

Their Potentials

89, 97 (Arthur L.

Dahl, Jeremy Carew-Reid eds.) (United Nations Environment Programme (UNEP) Regional

Seas Reports and Studies No. 69, 1985) [hereinafter 6.

See

ENVIRONMENT AND RESOURCES].

I.L. BAUMGART, THE STATE OF THE ENVIRONMENT IN THE SOUTH PACIFIC 4 (UNEP Regional Seas Reports and Studies No. 31, 1983); Gomez & Yap, supra note 5, at 98. 7. Arthur L. Dal, The Potentialfor Management of Island Ecosystems, in ENVIRONARTHUR L. DAHL &

MENT AND RESOURCES,

supra note 5, at 16.

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However, abundant evidence demonstrates that pre-European Oceania provided a less than perfect model of resource use. Early Maoris hunted the flightless moa to extinction within fifty years of their arrival in New Zealand and burned vast areas of forested land tA grow crops.8 Indigenous peoples often practiced deforestation through burning, eventually creating areas both infertile and highly prone to erosion. 9 Pacific Islanders also killed large numbers of birds, porpoises, and turtles to provide decorative items prized by ruling elites. s0 These exploitative practices by Pacific peoples shatter the image of a traditicnal conservation ethic. However, the traditional Pacific way of life incorporated aspects of both exploitation and conservation. As colonizers of areas never before touched by humans, the early Pacific Islanders "did what all peoples, especially pioneers, do: in their efforts to make a living they actively manipulated, modified, and, at times, degraded the ecosystems they lived in, producing environmental changes that in turn required ecological adaptations and social adjustments."" Local populations were thus forced to develop response measures to correct the ecological imbalances that they had caused. 12 A shifting, tenuous equilibrium between humans and nature evolved for centuries until disturbed by the entry of an entirely different culture and way of life from Europe. This Comment analyzes the SPREP Convention's attempt to establish a new equilibrium after this second wave of human development in the South Pacific. B.

The Presence of Metropolitan Powers

There are two main chapters in the history of colonialism in the South Pacific. Discovery and trade characterized the first chapter: as they searched for the East and its fabled riches, European explorers encountered many of the islands. Economic exploitation quickly followed as fortune-hunters and would-be entrepreneurs attempted to develop new markets for goods and to exploit valuable natural resources. The second chapter witnessed political encroachment and, in many cases, domination by Western powers over indigenous authority, preceded generally by the nineteenth century's sweeping conversion of native peoples to Christianity. Both chapters triggered a series of environmental impacts which 8.

ANDREW MITCHELL, THE FRAGILE SOUTH PACIFIC 193-94 (1989).

9. William C. Clarke, Learningfrom the Past: TraditionalKnowledge and Sustainable Development, in 2 THE CONTEMPORARY PACIFIC 233, 235 (1990). Specific South Pacific locations where this phenomenon has been documented include Fiji, Vanuatu, New Caledonia, Futunu, Uvea and Tahiti. See id. at 236 (citing published research).

10. Id. at 235, 243. 11. Id. at 235. -

12. Populations that failed to develop such mechanisms - such as the Easter Islanders were brought to the verge of extinction. See MITCHELL, supra note 8, at 220-28.

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would all but destroy the delicate balance between humans and nature that existed in the Pacific prior to Western influence. The amazing feats of exploration accomplished by Captain Cook and others in the Pacific during the Age of Discovery are well chronicled. 13 Less well known is the aftermath of this exploration, when business-minded individuals, acting for governments or acting alone, sought to establish profitable trading ventures in the newly discovered lands. For example, Captain William Bligh, while still in charge of the Bounty, successfully inaugurated the trade of breadfruit from Tahiti for European iron and cloth. 14 Within a few years, a Tahitian pork trade also developed, and the island experienced increasing port traffic from whaling vessels. 15

Meanwhile, at the turn of the nineteenth century, European wayfarers discovered valuable, high quality sandalwood in Fiji. 16 By this time, the "convicts colony" in New South Wales, Australia had become a respectable trading port, which welcomed vessels laden with Fijian sandalwood destined for Asian and European markets. 17 This lucrative commerce quickly depleted the resources that fueled it. Within a dozen 18 years, traders had clear cut most of the stands of sandalwood in Fiji, and, by 1920, they had cut down most of the sandalwood in the Marquesas as well. 19 Traders also set their sights on a marine animal: the sea slug, or b~che-de-mer. East Asians valued this common Pacific marine invertebrate as a delicacy. 20 Lasting from 1828 to 1850, the b8che-de-mer trade involved protracted negotiations between Europeans and the Fijian chiefs who controlled both the reefs where the sea slugs were found and the laborers needed to collect the animals. 2 ' Although the b~che-de-mer survived its commercial exploitation, this episode established a precedent for opening previously unexploited, community-controlled areas to the demands of foreign trade. 13. See, e.g., CAMPBELL, supra note 4; IAN CAMERON, LOST PARADISE (3d ed. 1966); J.C. BEAGLEHOLE, THE EXPLORATION OF THE PACIFIC (3rd ed. 1966). 14. CAMPBELL, supra note 4, at 58-59. The British intended to plant the breadfruit in the Caribbean as a food staple for slaves on the plantations of the West Indies. Id. 15. Id. at 61.

16. ERNEST S. DODGE, ISLANDS AND EMPIRES: WESTERN IMPACT ON THE PACIFIC AND EAST ASIA 62-63 (1976). 17.

See

18.

Id.

CAMPBELL,

supra note 4, at 61.

19. Id. at 62. A similar fate befell Vanuatu and New Caledonia. MITCHELL, supra note 8, at 199; DODGE, supra note 16, at 158. 20.

DODGE, supra note 16, at 65.

21. Id. at 65-67. As part of their "cut," the chiefs received muskets and gunpowder. CAMPBELL, supra note 4, at 65.

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Perhaps the most wide-ranging and devastating extractive trade during the nineteenth century was the whaling industry. 22 While trade in sandalwood and the b~che-de-mer was brief and sporadic, commercial whaling in the Pacific proved to be more persistent and long-lived. In contrast to the earlier ventures, whaling was dominated by Americans rather than Europeans. 2 3 Large-scale exploitation of whales profoundly affected life in the islands: Trade of all kinds was the mechanism of change in Polynesian society, and the whaling trade, because of its comparative longevity and the great scale of its operation, was the most potent instrument of them all. The whaling industry was to become for about forty years the mainstay of the new Pacific economies. Like sandalwood and other extractive trades, it was to be ephemeral, for it would last only as long as the Pacific whale populations could sustain the onslaught being made on them. 24 Throughout the early decades of the nineteenth century, Pacific trade was conducted mainly between individual shipmasters and local chiefs. 25 In mid-century, two converging circumstances revolutionized traditional trading practices, drastically affecting the future of the South Pacific. First, increasing ship traffic required that a number of ship handlers become semi-permanent residents in Pacific ports; many of these handlers acquired property and became political as well as economic advisers to tribal leaders. 26 Second, the missionary wave firmly established itself in every major island group in the South Pacific. 27 Both of these events presaged the formal political entry and settlement of Europeans and Americans in the South Pacific and the ensuing century of colonialism. How a handful of European countries and the United States gained control over the affairs and economies of the South Pacific islands is a complex subject beyond the scope of this paper. However, a basic understanding of this history facilitates comprehension of the emergence of regional cooperation in the late twentieth century. This history also provides a basis for understanding the tensions between the island states and the West that permeate environmental issues today. The metropolitan powers that transformed the environment of the South Pacific included France, Great Britain, Germany, and the United States. Through a combination of trade, missionary expansion, and political turmoil generated by competition among rival chiefs, the authority of these four powers extended over all Pacific island groups by 22. 23. 24.

For a vivid account of nineteenth century whaling in the Pacific and its effects, see supra note 13, at 201-08. DODGE, supra note 16, at 83. CAMPBELL, supra note 4, at 63.

25.

Id. at 66.

26. 27.

Id. at 67. See DODGE, supra note 16, at 85-101.

CAMERON,

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Pacific Islanders generally did not oppose and in some cases even welcomed this development, which imposed order on the often chaotic 29 and ill-fated interchanges between foreigners and islanders. Colonialist control of the South Pacific began with the annexation of New Zealand by Great Britain in 1840, the product of the Treaty of Waitangi with the Maoris. 30 France annexed the Marquesas in 1842, and soon thereafter declared Tahiti a French protectorate. 31 Eyeing each other's Pacific designs warily, Great Britain and France consolidated claims sporadically throughout the middle of the century. France took possession of New Caledonia in 1853.32 Great Britain annexed Fiji "by request" in 1874. 33 Shortly thereafter, the French consolidated their protectorate claims over the islands that would become known as French Polynesia.34 Vanuatu (formerly New Hebrides) became the site of a protracted territorial battle between Great Britain and France, which even35 tually resulted in a joint "condominium" sharing of power. The emergence of Germany as a powerful naval and commercial force in the Pacific in the latter half of the nineteenth century spawned further partitioning. Germany's conclusion of treaties with Tonga and Samoa and its assertion of interests in Papua New Guinea and Micronesia prompted Great Britain and the United States to act decisively in these areas. 36 The metropolitan powers divided the region as Great Britain established Tonga as a British protectorate, Germany annexed Western Samoa, the United States annexed Eastern Samoa, and Great Britain and Germany defined Anglo-German zones of interest in Papua New Guinea and Micronesia. 37 Rarotonga (the Cook Islands) requested and was granted protectorate status by Great Britain in 1888.38 The Solomon Islands, previously split between German and British claims, were ceded by treaty to Great Britain in 1900. 39 The United States, as a result of its success in the Spanish-American war, took possession of Guam in 1898.40 1900.28

28. Id. at 183. 29. See id. at 136, 143. 30. Id. at 149. 31. CAMPBELL, supra note 4, at 139. Tahiti was formally annexed by France in 1881. Id. at 144. 32. DODGE, supra note 16, at 170. 33. Id. at 173-74. 34. Id. at 169. 35. CAMPBELL, supra note 4, at 145. 36. Id. at 143-46. 37. Id. at 143-47. Germany later bought out Spanish interests in the Marshall Mariana and Caroline Islands, while Kiribati and Tuvalu (formerly the Gilbert and Ellice Islands) became British protectorates. DODGE, supra note 16, at 180-81. 38. CAMPBELL, supra note 4, at 147. The Cook Islands were later annexed by New Zea-

land in 1901. CROCOMBE, SOUTH PACIFIC 39. DODGE, supra note 16, at 178-79. 40.

Id. at 180.

-

INTRODUCTION,

supra note 4, at 233.

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In most cases, annexation was not by design. In the nineteenth century, the Western powers, excluding Germany, did not plan to acquire Pacific territories as part of their agenda; they considered the administrative burden of maintaining satellite colonies on remote islands too great to warrant exploitation of island resources. 4' As a result, the early years of European and American expansion in the Pacific did not precipitate severe changes in the lifestyle or the physical environment of the 42 islands. C. The Shift from Colonialism to Independence After World War I, foreign influence affected the South Pacific more profoundly. The foreign possessions of the German Empire were reallocated. Because the Western nations considered the island countries incapable of self-governance, a special League of Nations mandate provided for their administration under victor nations. 43 Thus, Japan asserted authority over the former German colonies in Micronesia, New Zealand acquired jurisdiction over Western Samoa, and Australia controlled Nauru and New Guinea as its dependents. 4 World War II destroyed this new status quo. Within three months of the bombing of Pearl Harbor, the metropolitan powers erected battlefields throughout the western Pacific and prepared the eastern Pacific to 45 be used as staging grounds for the Allied forces. World War II dealt an astonishingly swift and devastating blow to the South Pacific environment, from which the region has yet to recover. Stored or dumped munitions, particularly chemical weapons, were simply left behind. 46 Worse yet, the Pacific became the testing ground of the new nuclear age. The United States conducted nuclear tests on the Bi47 kini and Eniwetak atolls in the Marshall Islands from 1946 to 1958. Great Britain tested nuclear weapons on Christmas Island and in Austra41. See CAMPBELL, supra note 4, at 147-48. 42. It should be noted, however, that depopulation caused by introduced diseases occurred on virtually all islands and in some places reached shocking proportions. See DODGE, supra note 16, at 198-200; CAMPBELL, supra note 4, at 152-54. 43. DODGE, supra note 16, at 178, 181.

44.

CAMPBELL,

45. 46.

See id. at 183.

supra note 4, at 170.

JEREMY CAREW-REID, ENVIRONMENT, AID AND REGIONALISM IN THE SOUTH PA-

(1989). Decaying canisters of mustard gas were recently removed from the Solomon Islands. Live ammunition and booby traps are still found in Palau. PAC. MAG., Jan.-Feb. 1992, at 58. 47. Ramesh Thakur, Introduction to the South Pacific, in SOUTH PACIFIC, supra note 1, at 1, 25. These atolls had been inhabited. The people of Eniwetak returned to their island in 1980. Id. But Bikinians who returned to their atoll in the early 1970's, after American assurances of safety, were exposed to high levels of radiation. Giff Johnson, Bikinians want UN. help with cleanup, PAC. DAILY NEWS, Nov. 17, 1992, at 7. Recent U.S. reports of the safety of one Bikini Island have prompted the Bikinians to seek independent verification from the International Atomic Energy Agency. Id. CIFIC 15

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lia in the 1950's.4

France shifted its nuclear testing program from the Sahara to the South Pacific in the mid-1960's, conducting over forty atmospheric tests between 1966 and 1974 and over one hundred under49 ground tests on the islands of Moruroa and Fangataufa since 1974. The postwar Pacific was different politically as well; the new United Nations was far more receptive to arguments for self-determination or at least trusteeship for the island states than its predecessor, the League of Nations, had been.50 Great Britain, New Zealand, and Australia, the nations most responsive to the idea of indigenous control, embarked on a path of conversion to local autonomy. 51 In contrast, France and the United States thought of their island strongholds as overseas territories rather than colonies, and in light of perceived security and economic interests in the islands, refused to divest themselves of authority in those areas.52 Western Samoa regained its independence in 1962, the first of the South Pacific countries to do so. 53 Other South Pacific states achieved

independence thereafter: the Cook Islands (1965); Nauru (1968); Fiji (1970); Tonga (1970); Niue (1974); Papua New Guinea (1975); Tuvalu (1977); the Solomon Islands (1978); Kiribati (1979); Vanuatu (1980); the Marshall Islands (1981); Palau (1984); and the Federated States of Micronesia (FSM) (1987). 54 The United States retains two unincorporated territories, Guam and American Samoa, and maintains a commonwealth 55 relationship with the semi-independent Northern Mariana Islands. France retains three overseas territories: French Polynesia, Wallis and Futuna, and New Caledonia. 5 6 Tokelau continues to be a dependent of 48. Thakur, supra note 47, at 25. 49. Id. at 30-32. The French abandoned North Africa as a testing site after Algeria, upon gaining independence, objected. Id. at 32. 50. CAMPBELL, supra note 4, at 189-90. 51. See id. at 188, 190, 198, 207; CROCOMBE, SOUTH PACIFIC - INTRODUCTION, supra note 4, at 146. 52. See CAMPBELL, supra note 4, at 190, 205, 209-10; CROCOMBE, SOUTH PACIFIC INTRODUCTION, supra note 4, at 146-47. 53. CAREW-REID, supra note 46, at 15. Technically, Tonga was the first since it had never really lost its independence - the Tongan monarchy and parliamentary government had never lapsed, even though Tonga was under strong British influence. Id. However, Tonga did not gain full control over its foreign affairs until 1970. IAN C. CAMPBELL, ISLAND KINGDOM: TONGA ANCIENT AND MODERN 193 (1992). 54.

CAREW-REID, supra note 46, at 16; CROCOMBE, SOUTH PACIFIC -

INTRODUCTION,

supra note 4, at 154. The Cook Islands and Niue are in free association with New Zealand; FSM, the Marshall Islands, and Palau are in free association with the United States. PACIFIC ISLAND YEARBOOK 2-5 (Norman and Ngaire Douglas eds., 16th ed. 1989). "Free association" means that the country is self-governing with its own constitution, but the previous administrative state is responsible for military defense and often for external affairs. Biliana Cicin-Sain & Robert W. Knecht, The Emergence of a Regional Ocean Regime in the South Pacific, 16 ECOLOGY L.Q. 171, 178 n.23 (1989). 55, PACIFIC ISLAND YEARBOOK, supra note 54, at 2-5. 56. Id.

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New Zealand, while Pitcairn Island remains a dependent of Great 7 Britain." Struggles for true independence continue today. All of the former United States Trust Territories (FSM, the Marshall Islands, the Northern Mariana Islands, and Palau) have complicated "compacts" of free association with the United States with considerable military and financial strings attached. 58 Palau, in particular, has vigorously pursued separatism and refuses to compromise its constitutional stance against allowing vessels with nuclear arms in its port, provoking heated confrontations with the United States Government.5 9 The Kanak independence movement in New Caledonia has prompted brutal repression in the past by French authorities; 6° France has not clarified whether it will cede control of the country if, under the Matignon accords, it is asked to do so by popular referendum. 6 1 French Polynesians have become increasingly vo62 a phenomenon that France cal in their call for absolute autonomy, 63 sentiment. downplays as minority The incomplete decolonization and uncertain political status which characterize the South Pacific islands today are highly relevant to any analysis of the island states' attempts to assert regional control over the environment. Small island states have had little success in escaping the larger designs of foreign powers. The slow movement toward independence illustrates this lack of self-determination: Examining the history of any one island group can give the impression that the islanders themselves shared a large measure of responsibility for reclaiming their independence. In fact, in this, as in the beginning of colonial rule, their fate was determined largely by events beyond their control. The history of decolonization has simply shown that the great powers serve their own interests first, and allow the island64communities only as much as is compatible with those wider interests. 57. 58.

59.

Id.

supra note 4, at 210-11. Id. (Palau is also known as Belau). CAMPBELL,

60. See Peter King, Redefining South Pacific Security, in SOUTH PACIFIC, supra note 1, at 58; Georges Martin, France as a South PacificActor, in SOUTH PACIFIC, supra note 1, at 107. 61. See Martin, supra note 60, at 106. The Matignon accords were concluded in 1988 between French Prime Minister Jacques Lafleur and Jean-Marie Tjibaou, leader of the Front de Liberation Nationale Kanake et Socialiste (FLNKS). Under the accords New Caledonia is

committed to a program of promoting greater cultural and economic opportunities for the Melanesian majority and must hold a national vote on self-determination in 1998. Id. 62. LUELLA S. CHRISTOPHER, PACIFIC ISLAND NATIONS: OVERVIEW OF TRENDS AND PROBLEMS IN THE SOUTH AND WEST PACIFIC, at CRS-I 1 (Cong. Res. Serv. Rep. for Cong., 1989) [hereinafter CRS REPORT]. 63. See CROCOMBE, SOUTH PACIFIC - INTRODUCTION, supra note 4, at 147 (discussing both direct and subtle instruments of French policy aimed at deflating pro-independence sentiments, ranging from media manipulation to outright intimidation). 64. CAMPBELL, supra note 4, at 211.

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As the Pacific Islanders searched for independence and control over their environment, regional alliances developed in the South Pacific for postwar and Cold War security purposes. These alliances have provided the foundation for environmental protection in the region. D. The Growth of Regional Institutions and New Identity A convention for the protection of the South Pacific environment would have been unlikely absent the institutional infrastructure of strong regional organizations that developed after World War II. Without technical and political collaboration of some sort, individual Pacific Island states could not have been aware of, much less combatted, common environmental dangers. Regional alliances initially established for security purposes have expanded in ways unanticipated by Western administrative powers. The islands have demonstrated solidarity in asserting their environmental concerns and in confronting industrialized countries who exported goods and services not tolerated in their own territories. Formed in 1947 by Australia, France, the Netherlands, New Zealand, the United Kingdom, and the United States, the South Pacific Commission (SPC) is the oldest and largest regional organization in the South Pacific. 65 Originally planned as a regional collective security organization in the wake of World War II, SPC evolved to become a research body and advisor to the six administrative powers on social and economic matters. 66 In recent years it has played a facilitative role in bringing the leaders of Pacific Island nations together to discuss regional development issues. The South Pacific Conference, a group of ministerial officials and delegates from the Commission's twenty-seven Member States, meets annually and serves as the governing body of the Commission. 67 The South Pacific Regional Environment Program (SPREP) was 68 formed in 1982 as a sub-agency of SPC. The regional organizations that are most concerned with environmental issues have primarily technical mandates. In addition to SPREP, they include the Forum Fisheries Agency (FFA), the Committee for the Coordination of Offshore Prospecting in the South Pacific (CCOP/SOPAC), and the Association of South Pacific Environmental Institutions (ASPEI). 69 In addition, a political body, the South Pacific Forum (the Forum), has focused increasingly on promoting environmen65. PACIFIC ISLAND YEARBOOK, supra note 54, at 658. The Netherlands withdrew from the Commission in 1962. Id.

66. MICHAEL HAAS, THE PACIFIC WAY, REGIONAL COOPERATION IN THE SOUTH PACIFIC 32 (1989). 67. 68. 69.

Thakur, supra note 47, at 13. See infra notes 89-90 and accompanying text. See Thakur, supra note 47, at 11-14; CAREW-REID, supra note 46, at 72-74.

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tal goals and criticizing controversial environmental practices of the 70 United States and France. SPC's primary handicap in its first two decades of operation was the colonial powers' complete control over its decisions. 7 1 Pacific Island leaders succeeded in attaining equal representation and authority within SPC in the early 1970's. However, Pacific Islanders continued to be dissatisfied with the organization because of SPC's paternalistic origins and bar on political debate. 72 This discontent led to the formation of the South Pacific Forum, an organization of heads of governments of independent and self-governing countries, in Wellington, New Zealand in 1971.73 The 1973 meeting of the Forum in Apia, Western Samoa led to the formation of the South Pacific Bureau for Economic Cooperation 74 (SPEC), which became the Forum's secretariat body in 1976. The Forum pursues a varied program encompassing the fields of regional trade, transportation, telecommunications, energy, aid coordination, and the environment and natural resources. In the last category, it has jointly sponsored SPREP activities with SPC and United Nation pursue collective protecagencies and, in 1979, established the FFA 7to 5 tion and promotion of the region's fisheries. In addition to the political/nonpolitical distinction, the Forum and SPC differ significantly in membership. Most Western nations are excluded from Forum membership. Australia and New Zealand are allowed to participate by virtue of being geographically situated in the region and somewhat attuned to Pacific Island viewpoints. Thus, the Forum is a smaller inner circle of regionalism than is SPC. Some suggest that the more natural affinity that exists among Forum members exemplifies "the Pacific Way," a phrase coined by Fijian Prime Minister Ratu Sir Kamisese Mara in an address to the United Nations General Assembly in the early 1970's.76 The Pacific Way, which is more a pool of shared values than a set of specific cultural similarities, incorporates a desire to promote local, rather than Western, solutions to local problems, as well as a mode of decision making labeled "unanimous compro70. See infra parts III.C.1. and III.D.1. 71. Greg Fry, The Politics of South Pacific Regional Cooperation, in SOUTH PACIFIC, supra note 1, at 172. 72. See id. at 173-74 (discussing the establishment of the South Pacific Forum to avoid the political restrictions imposed by SPC). 73. PACIFIC ISLAND YEARBOOK, supra note 54, at 655. The Forum gives observer status membership to governments of not-yet-independent countries. Id. at 656. 74. Id. at 655. Since 1988, SPEC has simply been called the "Forum Secretariat" although the continued appearance in print of the former name causes some confusion. 75. Thakur, supra note 47, at 11; Roy Ferguson, Environmental Problems in the Pacific Island Region: Challenges and Responses, in SOUTH PACIFIC, supra note 1, at 65, 66-68, 76. 76. Fran Wilde, New Zealand and the South Pacific, in SOUTH PACIFIC, supra note 1, at 35, 36. See generally, RON CROCOMBE, THE PACIFIC WAY: AN EMERGING IDENTITY 1 (1976) [hereinafter PACIFIC WAY].

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mise."' 77 In negotiating the regional environmental treaty that became known as the "SPREP Convention," unanimous compromise prevailed, but at substantial cost. II BACKGROUND TO THE ESTABLISHMENT OF THE CONVENTION FOR THE PROTECTION OF THE NATURAL RESOURCES AND ENVIRONMENT OF THE SOUTH PACIFIC REGION

A. Beginnings of a Regional EnvironmentalAgenda The events that culminated in the SPREP Convention began in the early 1970's. The first regional environmental management activity in the South Pacific occurred in 1971, in the form of a symposium on coral reefs and lagoons organized by SPC and the International Union for Conservation of Nature and Natural Resources. 78 Acting on a symposium recommendation, in 1974, SPC appointed a Regional Ecological Advisor and continued discussions on the status of the South Pacific environment. 79 In 1975, the Executive Director of the United Nations Environment Programme (UNEP) proposed a South Pacific Conference on the Human Environment. 80 Further support for this idea came from the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP). 81 In 1976, the South Pacific Forum and the South Pacific Conference requested proposals for a comprehensive regional approach 82 to environmental management from SPEC and SPC.

Enthusiasm in the regional organizations for an environmental management plan spurred concrete steps toward its development. A technical meeting held in 1977 with UNEP assistance resulted in a draft environmental management program which circulated through SPEC, the Forum, and the South Pacific Conference.8 3 Governments attending these meetings reaffirmed the principle of regional coordination and suggested that another technical meeting be arranged to discuss administrative and financial details. The next technical meeting took place in 1978, 77. HAAS, supra note 66, at 11. The phrase refers to a consensus mode of reaching decisions whereby all participants and views are heard and solicitous gestures often overcome disagreements. 78. Iosefatu Reti, Achievements of the South PacificRegional Environment Programme,in COOPERATION FOR ENVIRONMENTAL PROTECTION IN THE PACIFIC 167 (UNEP Regional Seas Reports and Studies No. 97, 1988). 79. CAREW-REID, supra note 46, at 69. 80. Id. at 69. 81. Arthur L. Dahl, The South Pacific Regional Environment Programme, in ENVIRONMENT AND RESOURCES, supra note 5, at 4. 82. Background- South Pacific Regional Environment Programme 1, SPREP/SPC Doc. 1335/81 (Jan. 21, 1982) [hereinafter Background]. 83. Id.

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and in October 1978, the Forum and the Eighteenth South Pacific Conference approved a project document for the first phase of the manage84 ment program. After negotiations with ESCAP and UNEP, all the parties agreed on the program and sent it to the Nineteenth South Pacific Conference in October 1979. The Conference recommended rapid implementation. 8 5 Representatives from SPC, SPEC, ESCAP, and UNEP quickly established a coordinating group, which met in January 1980.86 The group sent a questionnaire to all Pacific Island governments to ascertain each country's chief environmental problems, development plans, environmental policies, and existing legislation. 87 From these country reports, common problems and invited specialthe coordinating group identified 88 ists to review these topics. A third technical meeting took place in June 1981 to prepare documents for the March 1982 South Pacific Conference on the Human Environment.8 9 By this time, the collaborative efforts of UNEP, ESCAP, SPEC, and SPC and the resulting regional environmental management plan had become known as SPREP. 9° The June 1981 technical meeting was the first formal gathering of experts from an array of interested institutions brought together to settle the substantive and procedural details of SPREP. 91 The Technical Meeting grappled with two extremely important but undeveloped areas: the program's administration and its constitutive documents. 92 Working groups formed around both issues. A jurisdictional battle between SPC and the Forum developed over control of SPREP. 93 An uneasy truce had existed since 1978, when plans for the project had begun in earnest. The rapid pace of negotiations postponed resolution of the problem. However, it was clear by 1981 that 84. 85. 86. 87.

Id. Id. CAREW-REID, supra note 46, at 72. Background, supra note 82, at 2.

88.

ACTION PLAN FOR MANAGING THE NATURAL RESOURCES AND ENVIRONMENT OF

THE SOUTH PACIFIC REGION 3 (UNEP Regional Seas Reports and Studies No. 29, 1983) [hereinafter ACTION PLAN].

89. 90.

Background, supra note 82, at 2. Arthur L. Dahl, The South Pacific Regional Environment Programme, in ENVIRON-

MENT AND RESOURCES, supra note 5, at 3, 4. 91. In addition to the SPREP coordinators (SPC, SPEC, ESCAP, and UNEP), partici-

pants included country representatives from environmental or land ministries, expert scientific consultants from the metropolitan member countries, and representatives from IMCO, ORSTOM (Office de la Recherche Scientifique et Technique d'Outre-Mer), UNESCO, WHO, the University of the South Pacific, and the University of Hawaii's Urban and Regional Planning Program. 92. See Report of the Technical Meeting 5, 10 SPREP/SPC Doc. 1056/81 (Noumea, New Caledonia, June 22-26, 1981) [hereinafter Technical Meeting Report]. 93. See CAREW-REID, supra note 46, at 77.

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SPREP could not be successfully institutionalized without allocating the program's administrative functions between SPC and SPEC. 94 A compromise suggested by the New Zealand delegation resulted in joint authority, whereby SPC would provide all technical supervision and coordination as the SPREP "Secretariat," while SPEC, at the Forum's behest, would chair the program's Coordinating Group. 9 5 Another administrative concern involved funding sources for SPREP. UNEP agreed to make significant financial contributions during the first five years of the program, with the understanding that member 96 countries would also make contributions according to their capabilities. Participants in the Technical Meeting evinced a keen desire to find regional legal bases for environmental protection. 9 7 The working group had already canvassed existing environmental legislation and pinpointed gaps in such legislation through its 1980 country reports. 98 From those reports, the working group ascertained that most countries had some environmental laws in force. However, none had statutes that sufficiently met the unique ecological challenges faced by the Pacific Island states. Existing laws generally emphasized aesthetics (e.g., the creation of parks), rather than resource management and conservation.9 9 In some countries, systems had evolved that combined new laws with traditional customs and rules of social behavior. 100 All countries recognized the potential influence of international conventions on national policy. In light of this background, SPREP faced the challenge of developing a system for environmental protection that integrated a regional legal framework with national legislation. The technical meeting used information gathered from the country and special topic reports to revise the SPREP Action Plan for Managing the Natural Resources and Environment (Action Plan). Thus, the revised Action Plan addressed the concerns of a majority of states. These concerns included solid waste disposal, energy supplies, nuclear residues from weapons testing and nuclear waste dumping, coastal zone protection, and erosion control (mostly a consequence of deforestation, itself a prevalent local problem).101 94. Id. 95. Id. 96. UNEP provided about 30 percent of the funding (approximately $1.55 million) for Phase I of the Program, covering the first five years of operation. Id. at 74-75. 97. Technical Meeting Report, supra note 92, at 10. 98. See DAHL & BAUMGART, supra note 6, at 17-18. 99. See Technical Meeting Report, supra note 92, Working Paper No. 1 (Summary of Country Reports), at 4. 100. Seeid. 101. See generally DAHL & BAUMGART, supra note 6 (describing the state of the environment of the South Pacific and common environmental management approaches).

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B.

The Conference on the Human Environment in the South Pacific, Rarotonga, Cook Islands, March 8-11, 1982

The Conference on the Human Environment in the South Pacific adopted two major documents: the South Pacific Declaration on Natural Resources and the Environment (Rarotonga Declaration) and the Action Plan. Together, these documents acted as the operating papers for the official launching of the regional program. The Rarotonga Declaration envisioned responsible and sustainable resource management as the guiding principle of SPREP. 10 2 Toward this end, the Declaration urged the development of economic, environmental, and social planning in conjunction with public education, training, and participation. Other goals included enforceable legal instruments, establishment of natural parks and reserves, national and regional contingency plans for natural and man-made disasters, use of traditional conservation practices, and population growth management. 103 Although the Declaration imposes few absolute requirements, and generally discusses measures that "should" be implemented, it bans nuclear weapons testing and storage in absolute terms.'°4 This mandatory ban was included, despite the objections of the French delegation, who also lodged a reservation to an analogous provision in the Action Plan. 105 The Action Plan was engineered as the framework for regional environmental projects. 1°6 The Plan's principal objective was "to help the countries of the South Pacific to maintain and improve their shared environment and to enhance their capacity to provide a present and future resource base to support the needs and maintain the quality of life of the people." 10 7 This objective anticipated that of the United Nations World Commission on Environment and Development: to promote sustainable development "that meets the needs of the present without compromising the ability of future generations to meet their own needs." 10 8 To meet these ends, the Action Plan identified four initial targets: assessment of 102. "The resources of land, sea and air which are the basis of life and cultures for South Pacific peoples must be controlled with responsibility, and safeguarded for the benefit of present and future generations, through sustained resource management." Rarotonga Declaration para. 1, reprintedin Report of the Conference On the Human Environment in the South Pacific 33, SPREP/SPC Doc. 466/82 (Rarotonga, Cook Islands, Mar. 8-11, 1982) [hereinafter Conference Report].

103.

See

ACTION PLAN,

supra note 88, at 13-14.

104. "The storage and release of nuclear wastes in the Pacific regional environment shall be prevented." Rarotonga Declaration para. 9, reprintedin Conference Report, supra note 102, at 34. "The testing of nuclear devices against the wishes of the majority of the people in the region will not be permitted." Id. para. 10, at 34.

105. Id. at 1. 106. CAREW-REID, supra note 46, at 72-73. 107. ACTION PLAN, supra note 88, at 2. 108. WORLD COMMISSION ON ENVIRONMENT AND TURE 43 (1987) [hereinafter OUR COMMON FUTURE].

DEVELOPMENT, OUR COMMON

FU-

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human activity's environmental impacts, development of sustainable management methods for the region, promotion of national legislation agreements, and securing institutional arrangements and and regional 1 9 financing. 0

The Plan did not provide specific directives for implementing any of its four objectives, but merely established a general template for further work in each area. It did so mainly by strengthening several key administrative arrangements. A Coordinating Group, consisting of representatives from UNEP, ESCAP, SPC, and SPEC, undertook the task of preparing specific proposals based on the Action Plan." l0 The Group, open to all South Pacific governments, planned to meet twice a year to review and update proposals.I 1 SPC retained its role as SPREP Secretariat, serving as the main referral and exchange center for information. Each country nominated a state official or other representative to serve as a national "Focal Point" to channel communications between the Secretariat and the national government and to coordinate the participation of 12 institutions and agencies in country projects.' 13 UNEP initially provided much of the budget for the program.' Starting in 1983, however, the participating countries were expected to match UNEP's contribution.'1 4 SPC and SPEC, the metropolitan states, other UN organizations, other international organizations, and the private sector were to contribute as well. 115 The Action Plan created three funding mechanisms. The first and largest was the South Pacific Regional Trust Fund, designed to cover16 common expenses and project costs agreed on by the participants.' Another subgroup of funds would go to SPREP itself for the program's administrative expenses. 117 Third, the Plan designated a specific activity fund to cover special expenses not covered under common costs."18 The Action Plan designated government representatives, meeting every two years through SPC and the Forum, to make all policy decisions regarding SPREP budgetary matters. 19 This biennial intergovernmental conference also had the final say on all substantive SPREP ACTION PLAN, supra note 88, at 2. 110. CAREW-REID, supra note 46, at 72; see also Conference Report, supra note 102. 111. Conference Report, supra note 102. 112. Id. 113. See CAREW-REID, supra note 46, at 74-75. 114. Conference Report, supra note 102, Working Paper No. 4 (Proposed Institutional and Financial Arrangements), at 6. The financial support from each country was assessed on the basis of a mutually agreed formula. Id.

109.

115. 116. 117. 118.

Id. Id. Id. Id.

119.

Conference Report, supra note 102, at 20.

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project and programmatic proposals. 120 Though the Coordinating Group met twice a year, any proposals it formulated could be delayed for as long as two years until the next intergovernmental conference authorized their implementation. Because governments controlled the cash flow from SPREP, large projects drawing upon the Regional Trust Fund required formal approval at the conference level. A controversy over nuclear testing and dumping developed at the Conference on the Human Environment and returned to haunt all subsequent negotiations. Proposals by the United States and Japan to dump large quantities of low-level nuclear waste in the Pacific Ocean and possibly to use remote Pacific Islands for storing high-level waste generated widespread regional concern.1 21 As a result, the Action Plan included two planks pledging further study aimed toward the elimination of both 122 nuclear testing and ocean disposal of nuclear wastes. The Conference issued a separate resolution in which it explicitly called upon the governments of the United States and Japan to abandon all proposals to store or dispose of nuclear wastes in the Pacific.1 23 In addition, the resolution urged that each Member State accede to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the "London Dumping Convention"), and that there be a common regional agreement prohibiting storage and dumping of nuclear waste.'

24

This approach enabled the parties at the Conference to invoke Article VIII of the London Dumping Convention, which allows for contracting parties to develop regional agreements to prevent pollution "taking into account characteristic regional features," with the assurance that such agreements will be respected by other contracting parties outside the particular region. 25 By this mechanism, the SPREP Member States could presumably enforce the prohibition of nuclear waste dis120. CAREW-REID, supra note 46, at 72. 121. See Thakur, supra note 47, at 27; Japan Equivocal on Nuclear Dumping, PAC. ISLANDS MONTHLY, Mar. 1985, at 22; G.P. Glasby, Pacific is Favoredfor Sub-Seabed Radioactive Waste Disposal, PAC. ISLANDS MONTHLY, Apr. 1983, at 15-16. 122. The two provisions pledged the following: 20.10 The development of a strategy for prohibiting the storage and disposal of nuclear waste in the region. 20.11 The development of strategies to prohibit the testing of nuclear devices within the Pacific region against the wishes of the majority of the people. Id. at 43. France lodged a formal reservation regarding paragraph 20.11. See supra note 105 and accompanying text. 123. Conference Report, supra note 102, Resolution 1, at 25. 124. Id. 125. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, art. VIII, 26 U.S.T. 2403, 2410, 1046 U.N.T.S. 120, 142 [hereinafter London Dumping Convention].

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posal against non-SPREP states who were parties to the London 26 Dumping Convention. C. Experts Meetings and Negotiations Following the Conference on the Human Environment, SPREP designated as one of its top priorities preparation for a legal convention to solidify the principles of the Rarotonga Declaration and the Action Plan. In January 1983, a first meeting of experts began drafting the legal document in Noumea, New Caledonia, the site of both SPREP and SPC headquarters. 1 27 Dr. Stjepan Keckes, Director of UNEP's Regional Seas Programme Activity Center, opened the meeting by stressing the need to consider existing global agreements, such as the London Dumping Convention and the Law of the Sea Convention, when drafting the SPREP agreement. Echoing the reasoning of the Rarotonga Conference, Keckes also emphasized the general need for wider participation in international conventions: by becoming parties to other treaties, SPREP member states ensure that non-Pacific states are aware of and are obligated to respect the provisions of the Pacific regional agreement. Although the parties hoped that the drafting of the SPREP Convention would be completed at this meeting and ready for signature at a plenipotentiary conference by the end of 1983, it became clear at the outset that progress would not be so swift. Several country delegates announced that their governments would firmly oppose any weakening of the prohibition on nuclear testing and dumping as stated in the Rarotonga Declaration, while France and the United States stated that they could not accede to any agreement that included such an absolute condition.12 Other differences arose with respect to the geographical limits of Convention jurisdiction as well as the definitions of "pollution" and "dumping."' 1 29 Not only was a second meeting needed to work out problems, but third, fourth, and fifth meetings ensued over the following 130 three years before a final product emerged. Four major areas of discussion dominated the Second Experts Meeting in November 1983: a ban on nuclear testing, the comprehensiveness of the Convention and Protocols, the scope of the Convention Area, and 126. There is an interpretive question, however, over the strength of the obligation of nonMember States, since Article VIII simply urges parties to "endeavour to act consistently with the objectives and provisions of such regional agreements." Id. 127. Report of the Expert Meeting on a Convention for the Protection and Development of the Natural Resources and Environment of the Pacific Region, SPREP/SPC Doc. 177/83 (Noumea, New Caledonia, Jan. 24-28, 1983) [hereinafter First Experts Meeting]. 128. See id. at 6. 129. See id. at 6-7. A number of delegates, for example, expressed their governments' wish that the high seas be included in the definition of the Convention Area. Id. at 5. This view was vigorously opposed by the United States. See infra note 135 and accompanying text. 130. See infra text accompanying notes 140-64.

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radioactive dumping. 1 3 1 Although this session yielded final drafts of most Convention provisions, the wording of articles concerning these four areas continued to cause both tension and intransigence at the negotiations. The French delegate announced that France would not accept an outright nuclear prohibition in the Convention or any Convention protocols, and that insistence upon such a provision would jeopardize the entire negotiations. 3 2 Meanwhile, the representatives of Palau and Vanuatu stated that their governments refused to sign any agreement that did not include a nuclear testing ban. 133 The Second Experts Meeting made no progress toward resolution of this issue. While France pledged that it would not negotiate on its nuclear activities, the United States firmly opposed expanding the Convention Area beyond the 200-mile coastal zones of Member States. Almost all the island states favored including high seas areas beyond the 200-mile zones. 134 Article 2 of the Convention provided for delimiting boundaries by using straight lines linking coordinates agreed upon in a separate annex. No one seemed entirely satisfied with this solution, however. 3 5 The issue of how comprehensive the treaty should be was bound in large part to the issue of how stringent its dumping restrictions should be. Drafters were concerned that the Convention would be made overregulatory and unwieldy by inclusion of provisions on land-based source pollution and hazardous substances. 1 36 The main subject of debate concerning the Convention's dumping provisions and the Dumping Protocol, however, was the extent of the prohibition on dumping low-level radioactive wastes. Both the United States and France opposed a total ban, arguing that no scientific evidence existed proving that proper dispo137 sal of low-level nuclear wastes is harmful to the environment. Seeking to allay growing resentment toward the United States negotiating position on this point, the United States delegate assured the meeting that: [T]he United States of America is not dumping radioactive waste at this time nor has it since 1970 and has no intention to dump low level radio131. See Report of the Second Expert Meeting on a Convention for the Protectionand Development of the Natural Resources and Environment of the South Pacific Region, SPC Doc. 1056/83, Dec. 1983 (Nov. 7-16, 1983) [hereinafter Second Experts Meeting]. 132. Id. at 5. 133. Id. at 8. Other delegates expressing similar strong opposition to nuclear testing at

this meeting included those from Australia, the Cook Islands, Guam, New Zealand, Niue, Tonga, Western Samoa, Papua New Guinea, Fiji, Kiribati, and the Federated States of Micronesia. Id. at 14. 134. Id. at 13. 135. At least four other delimitation options were debated. Id. at 13; Working Paper No. 1, at 4 (appended to Second Experts Meeting Report). 136. See id. at 6, 14. 137. Id. at 5, 15.

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active waste in the South Pacific, something it has stated often in the past. As a Party to the London Dumping Convention and pursuant to its law, the United States of America cannot dump high level radioactive waste. 138

However, neither this statement nor the United States declaration of a two-year moratorium on low-level radioactive waste dumping succeeded in dispelling the concerns of the island states. The delegation asserted that the island states had adequate protection based on the island states' ability to control dumping within their own exclusive economic zones, and that such protection nullified the need for a total ban. Despite these 139

assertions, France was the only country to concur. The rift in the Convention negotiations between the independent Pacific Island states and the United States and France widened. Shortly before the Third Meeting of Experts convened in September 1984, the Forum met in Tuvalu and announced a firm stand against any nuclear activities in the region. 14 0 The Forum appointed a committee to draft what was to become the South Pacific Nuclear Free Zone Treaty (SPNFZ), imposing a complete ban on nuclear testing by Member States. 141 Meanwhile, reports surfaced of potential radioactive leakage from French underground nuclear tests at Moruroa and of the continued plight of islanders suffering the effects of the atmospheric testing fallout at Bikini and Eniwetak Atolls, stiffening the resolve of Pacific Island leaders to oppose dumping of nuclear materials anywhere in the Convention. 142 The Secretary General of SPC remarked at the opening of the Third Meeting: [T]here have been no other issues which have so galvanized our island communities into a collective response and which have caused such widespread and animated debate as those addressed in this Convention before us. Of course, the two major issues are the continued testing of nuclear devices and the proposed dumping of radioactive materials within the region. These issues are interwoven in complex ways with our aspirations for genuine political independence and social well-being. On these issues and the third, that of geographic coverage of the Convention, our opinions are well known .... Let us accept at the outset that, at this stage, we are polarized in our positions. But let us also recognize that we are not here to waste our time. 143 138. Id. at 14. 139. Id. at 14-15. 140. Report of the Third Meeting of Experts on a Convention for the Protection and Development of the Natural Resources and Environment of the South Pacific Region 3, SPC Library Doc., (Noumea, New Caledonia, Sept. 18-28, 1984) [hereinafter Third Experts Meeting]. 141. See infra Part III.D.1. 142. See STEPHEN BATES, THE SOUTH PACIFIC ISLAND COUNTRIES AND FRANCE STUDY IN INTER-STATE RELATIONS 37 (1990); Thakur, supra note 47, at 25. 143. CAREW-REID, supra note 46, at 81.

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The trenches dug along Article 12, the nuclear testing provision, remained throughout the Third Meeting. SPEC suggested that the testing issue could be left out of the SPREP Convention altogether, since a separate treaty on the subject was in the making; this suggestion, however, did not gain many adherents. 1 " Regardless of the existence of a separate treaty, several states felt that anything short of a blanket prohibition in the Convention would condone nuclear tests in the region, in 45 direct contradiction to the long-held wishes of Pacific Islanders. 1 Some progress was made toward resolving the dumping dispute, however, once the Member States began formal consideration of the physical suitability of high-seas areas for nuclear waste disposal. 146 The United States, in particular, "examined with great interest" evidence that high-seas areas enclosed on all sides by the 200 mile zones would be unsuitable for the dumping of low-level radioactive wastes.147 Another advance in the negotiations, though it did not appear so at first, was the United States desire to link the dumping issue with the question of Convention Area delimitation. 148 Abandoning its earlier invocation of security interests, the United States delegation stressed the need to define the Convention Area "realistically," since the bulk of monitoring and enforcement would have to be carried out by individual states pursuant to national legislation. 149 While the United States viewed the 200-nauticalmile zone surrounding states and territories as most realistic, it conceded some flexibility on the delimitation, depending on the resolution of the 150 radioactive dumping question. The French delegation also proposed a solution to the radioactive dumping gridlock. The French proposal consisted of a special annex on radioactive wastes, in conjunction with Article 10 of the Convention.15 1 The annex would prohibit all dumping of high-level waste, while leaving low-level waste dumping within 200-mile zones in the control of the coastal state.' 52 In addition, the French supported the United States pro144. 145. 146. working 147.

148.

See Third Experts Meeting, supra note 140, 25. Id. at 25-26. A SPREP Technical Report on Radioactivity had been commissioned at an earlier group session. See Second Experts Meeting, supra note 131, at 15. Third Experts Meeting, supra note 140, app. 10 at 144.

See id. at 144-46.

149. Id. at 143. 150. Id. Specifically, the United States was willing to consider acceptance of a larger Convention Area if any of the three following options regarding radioactive dumping were adopted: (1) an explicit recognition of the right under international law of coastal states to regulate dumping within their EEZ's and the duty of other states to abide by such regulations; (2) a moratorium on radioactive waste dumping in the high seas areas beyond any one 200mile zone but enclosed by adjacent 200-mile zones, pending the results of a study on these

areas; or (3) a U.S. moratorium on radioactive waste dumping in the U.S. EEZ within the Convention Area. Id. 151. Id. app. 10, at 137. 152. Id.

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posal for a study of physical characteristics of high-seas areas, but with53 out a moratorium. Participants in the Fourth SPREP Meeting of Experts in November 1985 wrestled with the same outstanding areas of disagreement, without progressing much further toward a resolution. 54 The delegate from the Federated States of Micronesia, responding to the United States attempts to minimize the Convention Area, suggested that it was foolish to talk about boundaries in the Pacific when atmospheric and oceanic pollution obviously knew no borders. The delegate stated that if the negotiators were serious about pollution prevention and control, the entire Pacific Ocean should be included. 55 The French, exasperated that several countries insisted on the inclusion of a nuclear testing ban, declared at the end of the meeting that France was issuing a blanket reservation on the entire draft Convention and Protocols. 56 These comments demonstrated the wide gulf that still separated the smaller island nations from the industrial metropolitan powers in their attitudes toward the contentious issues of the SPREP Convention. To some extent, Australia and New Zealand played the role of broker, but they generally sided with their island neighbors. Eleven different options concerning Article 12, the nuclear testing 7 provision, were drafted and discussed at the Fourth Experts Meeting.15 These ranged from deleting all references to nuclear testing in the Convention, to the simple statement, "[t]he Parties shall prohibit the testing of nuclear devices in the Convention area."' 58 The other options included adding a preamble and modifying Article 12 to address pollution from testing but not testing itself.' 59 Because none of these options garnered enough support to build a consensus, Article 12 remained in limbo. The drafters conceded that a decision on Article 12's language would have to come from the political representatives at the Plenipotentiary Conference the following year.' 60 153. See id. 154. See Report of the Fourth Meeting of Experts on a Draft Convention for the Protection and Development of the Natural Resources and Environment of the South Pacific Region, 4-12, 20-21, SPC Library Doc., (Noumea, New Caledonia, Nov. 18-28, 1985) [hereinafter Fourth Experts Meeting]. 155. Id. at 6. 156. Id. at 33. At this meeting, the countries expressing unequivocal opposition to any nuclear testing included Vanuatu, Tuvalu, the Solomon Islands, New Zealand, Papua New Guinea, Fiji, Kiribati, Australia, Federated States of Micronesia, and the Cook Islands. Id. at 5-14, 26-27. However, Australia, New Zealand and the Cook Islands resurrected an earlier SPEC suggestion that discussion of nuclear testing be deferred to the South Pacific Nuclear Free Zone Treaty. Id. at 5-6, 27. 157. Id. app. 5, at 104-06. 158. Id. app. 5, at 105. 159. Id. app. 5, at 104-06.

160. Id. at 28.

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The linkage between the dumping and Convention Area issues, alluded to by the United States in previous meetings, began to foster positive results at the Fourth Experts Meeting. In exchange for an agreement to keep the geographic extent of the Convention Area to the 200-mile zones of Member States plus any high-seas portions they enclosed, the United States accepted a clause prohibiting all radioactive waste dumping. '61 France eventually agreed to this arrangement, but issued a reservation and extracted a concessionary addendum to the definition of "pollution" in Article 2.162 Between the Fourth and Fifth Experts Meetings, the South Pacific Forum held its seventeenth annual meeting and agreed to compromise on nuclear testing. Realizing that the entire negotiation was precariously balanced and that the participation of France and its Pacific territories was crucial to the success of the Convention, Forum members decided that a general provision emphasizing environmental pollution from nuclear testing would be acceptable. 163 There would be no change in the Forum's official stance firmly opposing all nuclear testing and dumping. Given that the South Pacific Nuclear Free Zone Treaty had entered into force and contained very clear prohibitions, 164 the Forum deemed a compromise on Article 12 to be a worthwhile price to pay in exchange for securing overall agreement on the SPREP Convention. At the Fifth Meeting of Senior Officials and the subsequent Plenipotentiary Conference in November 1986, France accepted the Forum's proposal concerning Article 12.165 According to the French view, the obligation to control pollution from testing presented no problem, for the 161.

Id. at 12-13.

162. The French reservation reads: The Government of the French Republic, in signing the present Convention, declares that, as far as France is concerned, the provisions of the said Convention do not cover wastes and other matter entailing radioactive pollution to a degree less than

that prescribed by the recommendations of the International Atomic Energy Agency (IAEA). See Report of the High Level Conference to Adopt a Convention for the Protectionof the Natural Resources and Environment of the South PacificRegion 19, SPREP/SPC Feb. 1987 (Noumea, New Caledonia, Nov. 17-25, 1986) [hereinafter High Level Conference]. Note that the SPREP Convention itself is silent as to reservations. At least one state, Vanuatu, has rejected the French reservation. Id. at 70. The added clause to the definition of "pollution" reads: in applying this definition to the Convention obligations, the Parties shall use their best endeavours to comply with the appropriate standards and recommendations established by competent international organisations, including the International Atomic Energy Agency .... SPREP Convention, supra note 3, art. 2(0. 163. CAREw-REID, supra note 46, at 90. 164. The Forum noted that, once in force, the two treaties would be complementary in that Article 7 of the SPNFZ prohibited dumping of radioactive wastes in areas not included in the SPREP Convention. Extract of the Communique of the Seventeenth South Pacific Forum (Suva, Fiji, Aug. 8-11, 1986), reprintedin 3 OCEAN AFFAIRS: ANNUAL REVIEW OF LAW AND POLICY, MAIN DOCUMENTS 1985-1987, at 689 (1989) [hereinafter Communique]. 165. See High Level Conference, supra note 162, at 19 (describing the French position).

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French continued to deny that there had ever been pollution from its underground tests. A French delegate at the Conference stated that "a unique team of experts led by renowned and independent specialists has confirmed the harmlessness of these tests and thus proved that the criticisms claiming that they are pollutant are not founded on objective criteria." 16 6 The matter did not end there; sixteen Pacific nations insisted that the record of the Meeting of Senior Officials reflect a167declaration urging no nuclear testing or dumping in the South Pacific. Also at the conference, the United States explained for the record its view of Articles 10 and 11 concerning disposal and storage of wastes. Reluctant to abandon the idea that low-level radioactive waste could be safely disposed of at sea, the United States delegation emphasized that this agreement should not be perceived as a precedent for other regions. 168 Concerned with the viability of dumping beyond the 200-mile zone, the United States stated that its interpretation of continental-shelf limits under the Convention would be based on international law. 16 9 The United States noted further that Article 11 did not prohibit the carriage of radioactive materials on vessels, and that nothing in the Convention altered the sovereignty of military ships. 170 These two statements served as a reminder that the United States would not negotiate its policy of transporting nuclear weapons on navy ships. The Plenipotentiary Conference closed with numerous references to the final negotiations' "spirit of accommodation" that allowed the emergence of a Convention and Protocols palatable to all. 17 1 Yet, the compromises in the Convention conceded merely for the sake of agreement did not automatically dispel underlying tensions and unresolved questions. The next section of this Comment examines in more detail the achievements and shortcomings of the SPREP Convention and Protocols. 166. Id. at 59. 167. See id. at 57-58. Several Pacific Island officials made clear in their opening statements that nuclear testing, while not banned in this treaty, was contrary to the spirit of the convention regime. Id. at 6-8. Moreover, the non-metropolitan countries made the greatest accommodations, as reflected in the remarks of the Papua New Guinea representative: I wish to reaffirm that Papua New Guinea does not accept cheap arguments advanced in an attempt to justify that the activities of nuclear testing and dumping is [sic] not harmful .... We therefore note with regret that the good will and pacific nature of the Island peoples have been compromised to further the interests of the nuclear powers. Id. at 64. 168. Id. at 68. 169. Id. The United States had accepted New Zealand's argument that it was entitled under customary international law to regulate dumping on its continental shelf beyond the 200 nautical mile zone. Fourth Experts Meeting, supra note 154, at 25. However, the United States maintained that such a right did not automatically adhere to all states and that a case-by-case determination would be necessary. High Level Conference, supra note 162, at 68. 170. High Level Conference, supra note 162, at 68. 171. See id. at 54-71.

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A.

General Overview

The SPREP legal regime consists of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region and two accompanying protocols: the Protocol concerning Cooperation in Combating Pollution Emergencies in the South Pacific Region (Pollution Emergencies Protocol) 72 and the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping (Dumping Protocol). 173 The three agreements entered into force on August 18, 1990.174 Countries that have ratified the Convention and Protocols include Fiji, the Solomon Islands, New Zealand, Western Samoa, the Marshall Islands, France, Papua New Guinea, the Cook Islands, Australia, the Federated States of Micronesia, and the United States.1 75 In its final form, the SPREP Convention is short on specifics, such as the duties of states and the precise standards to apply. Instead, it takes a very broad-brush approach to environmental protection and management in the South Pacific region. Although it directly addresses nuclear dumping and hazardous waste pollution, two of the Member States' chief concerns, the Convention focuses primarily on procedures and suggestions for future work on other issues. The Convention Area includes the 200-mile exclusive economic zones (EEZ's) of 23 states and territories, plus the areas of high seas enclosed on all sides by such zones. 176 At a total of 29 million square kilometers, it is the largest of UNEP's regional seas regimes. 177 This fact was not lost on the participants to the negotiating sessions who envisioned what could be proscribed and prescribed for such a vast portion of the globe. Articles 1 through 5 lay out the basic boundaries of the Convention in terms of geographic scope and procedures for expansion (Articles 1, 2(a) and 3), definitions of terms (Article 2), and general provisions and obligations (Articles 4 and 5).178 The Convention Area, as noted above, 172. Pollution Emergencies Protocol, supra note 3. 173. Dumping Protocol, supra note 3. 174. Register of InternationalTreaties and Other Agreements in the Field of the Environment 232-37, UNEP/GC.16/Inf.4 (1991) [hereinafter UNEP Register]. 175. The U.S. Senate gave its advice and consent to the Convention and Protocols on June 10, 1991, and the instruments entered into force as to the United States as of July 10, 1991. Telephone Interview with Mary Brandt, Office of the Legal Advisor, United States Dep't of State (Sept. 4, 1991). 176. SPREP Convention, supra note 3, art. 2(a), 26 I.L.M. at 42. 177. Reti, supra note 78, at 168. 178. SPREP Convention, supra note 3, 26 I.L.M. at 42-45.

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encompasses Member States' EEZ's; countries may enlarge coverage by 179 notifying the Depository that they seek to add other areas. The key definitions in Article 2, upon which much of the Convention and the Protocols hinge, are "dumping," "wastes," and "pollution."1 80 Dumping is defined broadly as "deliberate disposal at sea of Wastes include "material and substances of any kind, form wastes."'' or description."' 18 2 Behind these general definitions there are exceptions. For example, "dumping" includes neither wastes from normal vessel operations nor the "placement of matter for a purpose other than mere disposal thereof, provided that such placement is not contrary to the aims of this Convention." 183 In addition, wastes are classified as radioactive or non-radioactive. In cases of uncertainty regarding classification, the respective national authorities are to determine if the dumping would exceed the appropriate dose limits and to abide by the limits, recommendations, standards, and guidelines of the International Atomic Energy Agency.1 84 The significance of this waste classification comes into play in Articles 10 and 11 of the Convention, which prohibit the dumping and storage of radioactive wastes in the Convention Area, and in the Dumping Protocol, which places radioactive and non-radioactive wastes in separate annexes carrying different restrictions. Several articles of the Convention and Protocols refer to the prevention and control of "pollution," which is defined in terms of harm to the marine environment from human-introduced substances or energy. 185 This definition was adopted from the 1982 Law of the Sea Convention and matches verbatim the definition of "pollution" in Article 2 of the Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific, concluded in Lima, Peru in 1981.186 Articles 4 and 5 borrow the general aims and duties of parties from 187 other existing international environmental declarations and treaties. 179. Id., art. 3, 26 I.L.M. at 44. If there are no objections by other parties within 90 days of notification, the new area will be added. If there are any objections, the parties must attempt to resolve the dispute. Id. 26 I.L.M. at 42-43. 180. Id., art. 2(b)-(d), (f), 181. Id., art. 2(b). 182. Id., art. 2(c), 26 I.L.M. at 42-43.

183.

Id.

184. 185.

Id., art. 2(d), 26 I.L.M. at 43. Id., art. 2(0, 26 I.L.M. at 43.

186. Compare U.N. Convention on the Law of the Sea, Dec. 10, 1982, art. 1, 21 I.L.M. 1261, 1271 (1982) [hereinafter Law of the Sea Convention] with Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific, Nov. 12, 1981, art. 2, U.N. Doc. UNEP-CPPS/I.G. 32/4 (1981) [hereinafter Lima Convention] reprintedin 2 MULTILATERAL TREATIES IN THE FIELD OF THE ENVIRONMENT 130 (Iwona Rummel-Bulska &

Seth Osafo eds., United Nations Environment Programme 1991). For a discussion of the origins of this definition, see ALEXANDRE KIss & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW 116-18 (1991). 187. See, e.g., Report of the U.N. Conference on the Human Environment [Stockholm

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The major goals of the Convention include negotiation of other bilateral and regional agreements to prevent pollution and promote sound environmental management, development of additional protocols to the current Convention, development of regional procedures for implementing Convention objectives, and establishment of domestic laws for fulfilling Member States' duties under the Convention.1 S These goals constitute the cornerstone of future cooperation and coordinated efforts between Member States. The next section of this Comment discusses the degree to which the Convention and Protocols actually advance these aims. B. 1.

Substantive Provisions

Absolute Prohibitions

The SPREP Convention, as a general framework treaty, includes few express prohibitions. However, the Convention imposes outright bans on dumping and storage of radioactive material and certain other wastes, based on the strong desire of all South Pacific nations to prevent the serious damage to the marine environment that hazardous materials may cause. Article 10 of the Convention prohibits dumping of any amount of radioactive materials anywhere in the Convention Area, including the seabed, subsoil, and the continental shelf of any party that extends beyond the Convention Area. 189 This provision exceeds its nearest counterparts, Articles III and IV of the London Dumping Convention, which do not apply to low-level radioactive wastes disposed of outside the Contracting Parties' EEZ's.' 90 Article 11 of the Convention prohibits the storage of radioactive material anywhere in the Convention Area. 19 1 Articles 10 and 11 effectively restrict the development of nuclear power in the South Pacific states, because the availability of offshore storage or disposal of radioactive matter is generally a prerequisite for such 92 development. 1 Declaration], U.N. Doc. A/Conf. 48/14/Rev. 1 (1972), reprintedin 11 I.L.M. 1416 (1972); the Convention for the Protection of the Mediterranean Sea Against Pollution, Feb. 16, 1976, 15 I.L.M. 290 [hereinafter Barcelona Convention]; the London Dumping Convention, supra note 125; and the Law of the Sea Convention, supra note 186. Expert legal advisers brought provisions of many existing international conventions to the attention of the working group. See Second Experts Meeting, supra note 131, Working Paper No. 1, at 1-4. 188. See SPREP Convention, supra note 3, arts. 4, 5, 26 I.L.M. at 44-45. 189. Id., art. 10, 26 I.L.M. at 46. 190. See London Dumping Convention, supra note 125, arts. III, IV, 26 U.S.T. at 2407-08, 1046 U.N.T.S. at 140-41. 191. The SPREP Convention negotiators agreed that "storage" did not include dry land or carriage on vessels within the Convention Area. See High Level Conference, supra note 162, at 17, 68 (describing U.S. satisfaction with the exclusion). 192. Given the fact that most Pacific islands are subject to frequent seismic and cyclonic activity, long-term terrestrial storage of radioactive wastes does not seem a prudent option. See BRUNO WAUTHY, PHYSICAL OCEAN ENVIRONMENT IN THE SOUTH PACIFIC COMMIS-

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The Dumping Protocol also includes two express prohibitions complementing Articles 10 and 11 of the Convention. First, no dumping of any wastes can be carried out in the territorial sea, in the EEZ, or on the continental shelf of a party without that party's express prior approval. 193 In addition, in the absence of an emergency, certain wastes and substances listed in Annex I to the Protocol may not be dumped in the Protocol Area, regardless of states' general authority to regulate and permit dumping of other substances in protocol areas under their 194 jurisdiction. 2. Affirmative Duties of Parties The Convention consists, primarily, of pledges to undertake future actions of a very general nature. It basically requires that parties "take all appropriate measures to prevent, reduce and control pollution in the 195 Convention Area caused by" or "resulting from" various sources. These sources include discharges from vessels (Article 6), discharges from land-based sources (Article 7), exploration and exploitation of the seabed and subsoil (Article 8), discharges into the atmosphere (Article 9), dumping from ships, aircraft, and structures at sea (Article 10), storage of toxic and hazardous wastes (Article 11), and testing of nuclear devices (Article 12)..196 In addition, the parties are to adopt measures preventing or mitigating "environmental damage" from activities causing coastal erosion, an increasingly serious problem in many parts of the Pacific. 197 The parties are also charged with protecting and preserving "rare or fragile ecosystems and depleted, threatened or endangered flora and fauna," chiefly through the mechanism of designating protected 198 areas. In keeping with the spirit of regional cooperation embodied by the Convention, affirmative duties of Member States also include specific collective measures concerning pollution emergency notification and cooperation, scientific and technical assistance, and liability and compensation for pollution damage. States must develop joint as well as national contingency plans for handling pollution accidents, and must warn one another (and SPC) of pollution affecting the Convention SION AREA 40-41 (UNEP Regional Seas Reports and Studies No. 83, 1986) (describing cyclonic activity); MITCHELL, supra note 8, at 20. 193. Dumping Protocol, supra note 3, art. 3(2), 26 I.L.M. at 66. 194. See infra notes 217-24 and accompanying text. 195. See SPREP Convention, supra note 3, arts. 5-12, 26 I.L.M. at 44-47. 196. Id. 197. Id., art. 13, 26 I.L.M. at 47. Most of the country reports to the 1982 Rarotonga Conference cited erosion from mining, sand removal, and dredging/reclamation activities as pressing environmental problems. See DAHL & BAUMGART, supra note 6, at 5. 198. SPREP Convention, supra note 3, art. 14, 26 I.L.M. at 47. A number of Pacific island countries have already designated such areas under national legislation, but very few of these areas are strictly regulated. CAREW-REID, supra note 46, at 96-98.

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Area. 199 Parties must engage in coordinated research, monitoring, and information exchange programs to the best of their2 ability, with the assistance of regional and international organizations. 00 Parties also must cooperate in providing technical assistance in pollution control and environmental management to the developing states and territories, 20 in essence transferring technology from Australia, New Zealand, France, and the United States to the smaller island countries. As a future collective duty, the parties must develop rules and procedures conforming with international law on liability and remedies for 20 2 damage. This area is likely to be the subject of a separate protocol. 3.

Dispute Resolution

The Convention includes a two-step process for settling disputes. Parties must first attempt to resolve any disagreement concerning interpretation or application of a provision through negotiation. Failing that, they have recourse to third-party mediation. 20 3 Finally, although not obliged to do so, the parties may choose to submit to binding arbitration. 20 4 The parties are expected to persist in resolving their differences through the means described in the first step. 20 5 Normally, disputes arising between the Pacific Island states will work out through simple bilateral discussion and compromise, so that arbitration would rarely come into play. However, a dispute involving one of the metropolitan powers less accustomed to Pacific Way consensus-building might require formal third-party intervention. A separate annex to the Convention elaborates the procedures for arbitration. This Arbitration Annex details the methods for selecting an arbitral tribunal, the scope of authority of this tribunal, and the procedural compliance required of parties. 20 6 The tribunal may adopt its own 199. SPREP Convention, supra note 3, art. 15, 26 I.L.M. at 47-48. 200. Id., art. 17, 26 I.L.M. at 48. 201. Id., art. 18, 26 I.L.M. at 48. 202. Id., art. 20, 26 1.L.M. at 49. An earlier version of Article 20 had included the establishment of a compensation fund, see Fourth Experts Meeting, supra note 154, at 65; this idea was postponed to be discussed after the Convention entered in force. See High Level Conference, supra note 162, at 8. 203. SPREP Convention, supra note 3, art. 26(1), 26 I.L.M. at 53. 204. Id., art. 26(2)-(3), 26 I.L.M. at 53. The parties may have made a prior written agreement to submit to arbitration or they may so choose at the time of the disagreement. If one or both parties refuse to submit to arbitration, no mechanism in the Convention forces them to do

so. Id. 205. Id. 206. Generally, the tribunal consists of one arbitrator mutually agreed upon by the disputants. Id., Annex on Arbitration, art. 3, 26 I.L.M. at 56. Failing agreement on one person, each party then chooses one arbitrator and the two arbitrators designated then choose a third arbitrator to act as chairperson. Id., Annex on Arbitration, art. 4(1), 26 I.L.M. at 57. The Secretary-General of SPC selects a third arbitrator if one is not nominated within 30 days of the designation of the second arbitrator. Id., Annex on Arbitration, art. 4(2), 26 I.L.M. at 57.

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rules of procedure, and its decisions are final and binding. 20 7 It also may 20 8 rule upon counterclaims arising directly from a dispute. France's nuclear testing activities could conceivably result in an interesting and controversial situation stemming from Article 10 of the Annex, which requires the disputants to "facilitate the work of the Tribunal. ' ' 20 9 In particular, Article 10 requires parties to furnish, upon request, "all necessary documents and information, and [permission for the tribunal] to enter their territory, to hear witnesses or experts, and to visit the scene of the subject matter of the arbitration. ' 21 0 Convention members, may, if France resumes nuclear testing in French Polynesia, allege violation of Article 12, which regulates nuclear testing pollution. If the matter were to go to arbitration, a tribunal would likely seek access to the test site, and consult witnesses and independent experts pursuant to Article 10. However, France has resisted outside monitoring and evaluation of its underground tests at Moruroa. 21 1 The issue of French compliance with such requests would truly test the efficacy of the Convention and its dispute resolution mechanism. 4.

Amendment Procedure

The procedures for changing the Convention and Protocols are fairly typical. All amendments must be adopted by a three-fourths majority of the parties at a conference of plenipotentiaries, convened at the request of at least two-thirds of the parties. 2 12 Adopted amendments are 2 13 only in force between those parties having accepted them in writing. Similar standards of adoption apply to amendments to existing annexes 21 4 and the creation of new annexes. Unlike many multilateral agreements, the SPREP Convention and Protocols may be fairly simple to amend, because a three-fourths or better majority would emerge if the Pacific Island states vote as a bloc. Thus, if New Zealand and Australia vote with the island nations, revisions to the Convention could be adopted even over the objections of France and the United States. Of course, objectors would not be bound by any amendments without their express written acceptance. As a The Secretary-General also has the authority to nominate an arbitrator for a party if the party fails to do so. Id., Annex on Arbitration, art. 4(3), 26 I.L.M. at 57. 207. Id., Annex on Arbitration, arts. 9, 11, 26 I.L.M. at 58-59. 208. Id., Annex on Arbitration, art. 5, 26 I.L.M. at 57. 209. Id., Annex on Arbitration, art. 10(2), 26 I.L.M. at 58. 210. Id. 211. STEWART G. FIRTH, NUCLEAR PLAYGROUND 104-06 (1987); see also supra note 49 and accompanying text. 212. SPREP Convention, supra note 3, art. 24 (1)-(5), 26 I.L.M. at 51. 213. Id., art. 24(6), 26 I.L.M. at 51. 214. Id., art. 25, 26 I.L.M. at 52.

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worst-case scenario, objectors might denounce and withdraw from the treaty. Permit System and Annexes

5.

The Dumping Protocol employs a permit-system approach to pollution control, a strategy popular in international environmental conventions. 21 5 Each state monitors and controls waste dumping in any territory within the Protocol Area over which it exercises jurisdiction. Each state also issues permits to all vessels loaded at its terminals2 16and to vessels of its registry loaded at states not party to the Protocol. Annex I lists substances that may not be dumped in the Protocol Area, and Annex II lists those substances that require a "prior special permit" to be dumped. 2 17 To dump wastes that are not listed in these 21 8 annexes, one must obtain a "prior general permit.1 The Protocol does not further define prior special and general permits, but it provides for recordkeeping and for monitoring of the Protocol Area. 21 9 Annex III sets forth criteria for issuing permits, including the physical characteristics and composition of regulated substances as measured along several parameters such as toxicity, persistence, and bioaccumulation; the characteristics of proposed dumping sites; the dumping method; and the potential effects on marine life and uses of the sea.

2 20

The Convention Working Group debated the methodology for classifying a substance under Annex I or Annex II: the Protocol and Annexes reflect the parties' desire to incorporate some flexibility, as well as definition, in the permit process. This intent is achieved in two principal ways. First, Annex IV outlines criteria for allocating substances to either Annex I (prohibited) or Annex II (prior special permit). 22 1 These criteria are meant to guide parties amending Annex I or Annex II to include additional substances. Second, Article 10 of the Dumping Protocol establishes a consultative mechanism to permit dumping of a prohibited (Annex I) substance in emergencies, 222 or in circumstances where the sea 215. See, e.g., Daniel Suman, Comment, Regulation of Ocean Dumping by the European Economic Community, 18 ECOLOGY L.Q. 559, 568 (1991) (describing the approach of the London Dumping Convention).

216. 217. 218. 219. 220.

Dumping Protocol, supra note 3, arts. 3, 11.2, 26 I.L.M. at 66, 69. Id., arts. 4, 5, 26 I.L.M. at 66-67. Id., art. 6, 26 I.L.M. at 67. Id., art. 11, 26 I.L.M. at 68. Id., Annex III, 26 I.L.M. at 74-75.

221. Id., Annex IV, 26 I.L.M. at 76. Prohibited (Annex I) substances are those that combine a high degree of persistence with the potential for harmful bioaccumulation or other serious interference with marine life and uses of the sea. Id. Prior Special Permit (Annex II) substances are those that possess any combination of these characteristics but do not rise to the level of Annex 1. Id.

222.

Id., art. 10, 26 I.L.M. at 68. The Protocol excepts only those emergencies "posing

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arguably renders the substance harmless by natural processes. 223 In such cases, states must consult SPC and states likely to be affected by the dumping. SPC in turn consults with other parties and appropriate organizations to recommend procedures for the dumping party to follow.224

The scope of Annex I coverage reflects specific regional concerns. Persistent plastics and synthetics are listed in what seems to be a direct response to the hazards posed by drift nets in the Pacific. 22 5 The Annex makes absolutely no exception, even for emergencies, to the ban on dumping materials used to make biological or chemical weapons. 226 Individual parties may also go beyond Annex I by banning the dumping of 227 other non-listed wastes in their jurisdictions. Enforcement of the dumping provisions depends largely on national action. Each party to the Dumping Protocol must apply the Protocol's provisions not only to its own vessels, but also to those of other states loading in its territory or on its platforms and to foreign vessels believed to be dumping within its jurisdiction. 228 However, as the United States emphasized during treaty negotiations, state military vessels accorded sovereign immunity under international law are not subject to enforcement of the Protocol provisions by other states. 229 The Protocol also imposes an internal reporting duty on parties: each party's maritime inspection vessels must report directly to designated state officials any inci2 30 dents suggesting illegal dumping in the Protocol Area. C. Gaps and Weaknesses 1.

The Nuclear Testing Compromise

Most Pacific Island states have expressed deep-seated fear and resentment of nuclear activities in the South Pacific. Since the founding of the South Pacific Forum in 1971, atmospheric testing of nuclear weapons in French Polynesia has generated considerable concern among Pacific Island heads of state.23 1 The fact that nuclear fallout poses potential dangers to marine ecosystems as well as human life has been long understood; in fact, Western Samoa and the Cook Islands lodged formal prounacceptable risk relating to human health and admitting no other feasible solution." Id. 223. Id., Annex I, 26 I.L.M. at 73. 224. Id., art. 10, 26 I.L.M. at 68. 225. Id., Annex I, 26 I.L.M. at 72. 226. Id.,art. 10, 26 I.L.M. at 68, and Annex I, 26 I.L.M. at 72. 227. Id., art. 4, 26 I.L.M. at 67. 228. Id., art. 12(1), 26 I.L.M. at 69. 229. Id., art. 12(4), 26 I.L.M at 69. The flag state has the duty to enact and apply measures designed to make sure its own ships do not contravene the purposes of the Protocol. Id. 230. Id., art. 14, 26 I.L.M. at 70. The party may then forward the report to SPC and other

parties. Id. 231.

Ferguson, supra note 75, at 66.

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tests against British and American tests in the region as early as 1956.232 Although Australia and New Zealand were the lone petitioners against France in the Nuclear Tests cases before the International Court of Justice in 1974,233 the South Pacific Forum members firmly supported the 234 effort launched in The Hague to prohibit atmospheric testing. When France began to conduct underground tests in 1975, formal protests temporarily ceased. However, science soon verified the risks of detonating nuclear devices beneath coral ledges, and regional concerns were reignited. 235 Researchers speculated that the blasts would lead to cracks in the underwater bases of the atolls, eventually resulting in two devastating effects: collapse of the atolls themselves and leakage of radioactive material into the surrounding sea. 236 However, in order to deter-

mine whether the blasts were causing cracks and leakage in the coral base, researchers needed to perform independent on-site inspections, which the French refused to allow until 1983.237 Three separate research teams conducted investigations at Moruroa between 1983 and 1987, the last of which was led by Jacques Cousteau. 238 Cousteau's report warned that deep cracks existed in the atoll.

While he found no dangerous levels of radioactivity, Cousteau was un239 willing to dismiss the risk of potential contamination in the future. These findings led in large part to the French decision in March 1989 to shift testing to the Fangataufa atoll to prevent the already-existing cracks in Moruroa from expanding. 240 During the SPREP Convention negotiations, France adamantly rejected all suggestions that the underground tests posed risks to the marine environment. 24 1 However, of the Pacific Island states, only New Caledonia shared France's confidence that a serious risk did not exist. Even the French Polynesian local Territorial Assembly repeatedly requested that the tests be stopped. 242 232. BATES, supra note 142, at 36. 233. Nuclear Tests (N.Z. & Austl. v. Fr.), 1974 I.C.J. 253, 457 (Dec. 20). 234. BATES, supra note 142, at 36. 235. See M.P. Bacon et al., Radioactivity in the South Pacific Region, in ENVIRONMENT AND RESOURCES, supra note 5, at 151, 155 (concluding that the amount of radioactivity released in underground testing is not cause for alarm, but calling for the release of additional

information). 236. FIRTH, supra note 211, at 102-04. 237. See BATES, supra note 142, at 37. 238. Id. The reports issued from these investigations were heavily criticized for their lack of thoroughness and overdependence on existing French military data. Id. at 37-38. See Thakur, supra note 47, at 32 (describing limitations placed on one study team). 239. David Robie, Paradisein Peril, PACIFIC ISLANDS MONTHLY, July 1990, at 8, 12. 240. BATES, supra note 142, at 38. 241. See supra note 166 and accompanying text. 242. BATES, supra note 142, at 34.

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As noted above, after several years of staunch opposition to any weakening of Article 12, the Forum Member States offered to compromise on the wording of the provision. 243 It is unlikely that France would have signed the Convention without this concession. Nonetheless, it would have been possible for the Convention to enter into force without the participation of France, as did the SPNFZ Treaty. Parties were forced to decide whether the benefits of a treaty that strongly prohibited nuclear testing outweighed the refusal by France and the French territories to participate in the entire regime under such a treaty. The choice was extremely difficult. By compromising, the SPREP Convention implicitly allows nuclear testing to continue. The admonition in Article 12 that parties "take all appropriate measures to prevent, reduce and control pollution in the Convention Area which might result from the testing of nuclear devices" presumes that such testing will indeed occur. 244 Another option considered at the Fourth Experts Meeting stated that the majority of people in the South Pacific desired a complete halt to all testing. 245 However, the final version of the Convention mentions neither this desire nor the SPNFZ Treaty. Because the SPNFZ Treaty was already in place, the Forum believed that its position on nuclear testing was preserved; thus, opting for compromise in the SPREP Convention would be a tolerable price to pay for French participation. The compromise position on nuclear testing seemed inconsistent with the stance taken by countries that were parties to the SPNFZ Treaty. However, the parties recognized that a nuclear testing provision that emphasized pollution fit the general focus of the entire SPREP Convention, preventing and controlling pollution of the marine environment. Unfortunately, these goals may not be achieved. The consequences of underground nuclear tests may not become evident until tens, hundreds, or even thousands of years after testing, making leakage of radio243. See supra note 167. Before the last meeting of experts and the plenipotentiary conference, the Forum instructed officials involved with the SPREP Convention that: (a) They should ensure that the Conference made clear that the opposition of Forum countries to testing continues unchanged. (b) They should endeavour to negotiate general agreement, including the agreement from France, that the SPREP Convention will prohibit environmental pollution from nuclear testing. (c) If (b) is not acceptable to all, officials should revert to pressing for a complete ban on testing as such. Communique, supra note 164, at 689. 244. SPREP Convention, supra note 3, 26 I.L.M. at 47. 245. Options I and 2 would have added preambulary paragraphs noting that the Rarotonga Declaration of 1982 asserted that "the testing of nuclear devices against the wishes of the

majority of the people in the region would not be permitted." Option 11 would have included a preambulary reference to "the determination of the members of the South Pacific Forum that the testing of nuclear explosive devices in the region should cease forthwith." Fourth Experts Meeting, supra note 154, app. 5, at 104. See supra notes 140-45 and accompanying text.

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active substances very difficult to detect in the short term. 246 Since

France's only obligations under Article 12 are to prevent, reduce, and control pollution that "might result" 247 from testing, it is difficult to see how France might be held responsible now for the future effects of its testing. Pacific Island states could make France more accountable by outlining in greater detail the procedures and safeguards that must be followed with respect to nuclear testing effects. This outline could be added to Article 12 or included in an additional protocol. While amending Article 12 in this manner is unlikely to occur while testing in the Pacific continues, a protocol containing guidelines governing nuclear testing effects may be feasible. SPREP could facilitate and monitor periodic investigations of the effects of nuclear testing. France might prefer supervision by SPREP, an independent regional body, to oversight by organizations such as Greenpeace, the main environmental watchdog in the Pacific. 248 2. EnvironmentalAssessment. A second shortcoming of the SPREP regime involves the weakness of its environmental assessment provisions. The original draft of Article 16 of the Convention, which provides for environmental assessment of major projects within the Convention Area, contained stronger language than the final version. The original draft required a party undertaking an activity that might cause pollution to provide information to other parties upon request and, if necessary, to consult with these parties. However, the final version of Article 16 requires only that such a party 24 9 "invite" comment from other parties "where appropriate. 246. See C. Michael Hall & Inga Batterham, Trouble in Paradise, ALTERNATIVES, June/July 1991, at 14. 247. SPREP Convention, supra note 3, art. 12, 26 L.L.M. at 47. 248. Two French agents derailed a planned protest cruise to the Moruroa test site by bombing the Greenpeace vessel Rainbow Warrior in Auckland harbor the night of July 10, 1985. FIRTH, supra note 211, at 83-85. Far from stifling criticism of French nuclear tests, the sinking of the Rainbow Warrior enhanced the visibility of Greenpeace in the region and contributed to increased suspicion of French reports that there were no serious environmental impacts from the testing program in French Polynesia. A scientific crew aboard Greenpeace's Rainbow Warrior 2 was arrested and deported by officials in Tahiti in December 1990 for attempting to test the waters around Moruroa for traces of radionuclides. Fran Dieudonne, Scientific Team Runs Afoul of the French, PAC. MAG., Mar.-Apr. 1991, at 60. 249. SPREP Convention, supra note 3, art. 16(3), 26 I.L.M. at 48. Compare with the original version of paragraph 3: The Organization, or any other Contracting Party concerned, may request information and, if necessary, enter into consultations with the Contracting Party in order to ensure that the proposed activity be undertaken without causing pollution to the Convention Area. Draft Convention for the Protection and Development of the Natural Resources and Environment of the South Pacific Region 10, SPC Doc. 1513/82 (1982) (appended to First Experts Meeting, supra note 127).

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The environmental assessment process as outlined by the final version of Article 16 consists of four steps. First, the parties are to adopt technical guidelines and laws "giving adequate emphasis to environmental and social factors" in their development planning. 250 Second, a party contemplating a major project potentially affecting the marine environment must assess as completely as possible the project's environmental impacts. 25

1

Third, the party must solicit comments from the public and

other parties when suitable. 2 52 Finally, the party must communicate the results of any such impact assessment to the South Pacific Commission 253 as secretariat. The requirements of the environmental assessment process are quite demanding for most Pacific Island countries. Merely taking the first step would be a considerable undertaking for these nations. Obstacles to developing effective environmental assessment programs fall into two general categories: inadequate institutional infrastructure and insufficient resources. 254 First, Pacific Island nations generally lack trained personnel with authority to oversee the assessment process, national legislation providing for such procedures, and experience in allowing meaningful public participation and oversight. Second, Pacific Island governments, like the rest of the developing world, do not have the financial resources to carry out the kind of technical analysis common in the United States. In most cases the "developer" is a government entity, which is unwilling or unable to allocate scarce fiscal resources to the collection of environ255 mental impact data and the development of mitigation measures. Article 16 calls for support of the environmental assessment process from competent global or regional organizations. 256 SPREP, the agency, has performed this function to the best of its ability, particularly in instructing local authorities in proper environmental assessment techniques. 25 7 However, South Pacific governments have not adopted a systematic approach to performing assessments and incorporating them into development planning. The Convention does not clearly define the type of project that requires an assessment, and calls for outside over25 8 sight only at the discretion of the Member State. 250. 251. 252. 253. 254.

SPREP Convention, supra note 3, art. 16(1), 26 I.L.M. at 48. Id., art. 16(1)-(2), 26 I.L.M. at 48. Id., art. 16(3), 26 I.L.M. at 48. Id., art. 2(g), 16(3), 26 I.L.M. at 43, 48. See DAHL & BAUMGART, supra note 6, at 19-20; UNITED NATIONS ENVIRONMENT

PROGRAMME, AN APPROACH TO ENVIRONMENTAL IMPACT ASSESSMENT FOR PROJECTS AFFECTING THE COASTAL AND MARINE ENVIRONMENT 2 (UNEP Regional Seas Reports and Studies No. 122, 1990); CAREW-REID, supra note 46, at 29, 36-37. 255. See CAREW-REID, supra note 46 (describing how projects contributing to economic

growth 256. 257. 258.

are favored over those that are concerned with the environment). SPREP Convention, supra note 3, art. 16, 26 I.L.M. at 48. Ferguson, supra note 75, at 65, 76. SPREP Convention, supra note 3, art. 16, 26 I.L.M. at 48.

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Pacific Island nations may have wished to keep the environmental assessment requirement vague based on a realistic appraisal of their limited resources and technical constraints. Yet, these very limitations argue for increased consultation with other parties who may have more information and expertise on particular environmental problems. Article 16 essentially mirrors the environmental assessment provision of the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region, the UNEP Regional Seas Agreement most directly preceding the SPREP Convention. 2 59 It also resembles the environmental assessment language of the Law of the Sea Convention and several other regional seas agreements. 260 UNEP, the prime architect of these conventions, notes that more than just a policy statement is needed to make environ261 mental impact assessment part of development planning. Although the SPREP Convention is concerned primarily with pollution prevention, it neglects a strong preventative measure: thorough impact analysis of planned activities prior to their commencement. Here, as in the nuclear testing provision, a separate protocol appears necessary. Such a protocol should reflect, to some extent, the abilities and resources of the least developed countries. These countries are more likely to perform environmental assessments if those assessments involve a manageable level of analysis. While outside assistance may be helpful in conducting highly sophisticated technical evaluations, the environmental assessment process can be adapted to local capabilities through simple, non-resource-intensive procedures. This subsequent protocol should also establish guidelines for determining when an assessment is necessary, based on project type, probable impact, and a list of elements to be covered in assessments. Such guidelines would represent a significant step in building a systematic approach to environmental assessment, 259. See Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region, June 21, 1985, art. 13, reprinted in 5 INTERNATIONAL ENVIRONMENTAL LAW 46 (W.E. Burhenne ed., 1985). 260. Cf Law of the Sea Convention, supra note 186, arts. 205, 206, 21 TL.M. at 1309; Convention for Co-Operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, Mar. 23, 1981, art. 13, 20 I.L.M. 746, 750 (1981) [Abidjan Convention]; Kuwait Regional Convention for Co-Operation in the Protection of the Marine Environment from Pollution, Apr. 24, 1978, art. XI, 17 I.L.M. 501, 516 (1978) [Kuwait Convention]; Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Mar. 24, 1983, art. 12, 22 I.L.M. 227, 230 (1983) [Cartegena Convention]; Lima Convention, supra note 186, art. 8; Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, Feb. 14, 1982, art. XI, reprinted in 9 ENVT'L POL. & LAW 56 (1982) [Jeddah Convention]. 261. See YUSUF J. AHMAD & GEORGES K. SAMMY, GUIDELINES TO ENVIRONMENTAL IMPACT ASSESSMENT IN DEVELOPING COUNTRIES 35, 43-44 (UNEP Regional Seas Reports and Studies No. 85, 1987) (exploring necessary factors such as commitment from national leadership and local control of environmental impact assessment).

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which would better achieve the Convention's objective of pollution prevention and control in the South Pacific. 3. Import of Hazardous Wastes Trade in toxic or hazardous wastes is not addressed by the SPREP Convention. While parties may not dump certain toxic substances in the sea under Article 4 and Annex I of the Dumping Protocol, 262 nothing

seems to prevent a state from importing these substances for land-based use or disposal. Having accepted the toxic material, a country must either indefinitely store or eventually dispose of it. Improper handling and disposal enables these hazardous substances to find their way into groundwater, lagoons, and estuaries. The Convention also fails to address the threat of pollution from land-based sources. Because internal waters are expressly excluded from the Convention Area, 263 states appear to be entirely free to pollute waters wholly within their national boundaries. In reality, however, this freedom is limited by the likelihood that such pollution would affect the Convention Area, a result forbidden by the Convention. Most activities on the small land areas in the South 264 Pacific ultimately affect the ocean. The drafters of the Convention did not intend to address comprehensively land-based pollution in this marine environment treaty. However, the risk that future island activities could have a major impact on the surrounding ocean warranted the inclusion of Article 7 which governs land-based pollution. 265 Article 7 opens the door to coverage of internal waters: countries are not treaty-bound to prevent damage from toxic wastes to their own internal waters, yet they must ensure that damage does not spread to external waters. This connection would be more apparent if the Convention specifically identified imported hazardous materials as a potential source of land-based pollution and discouraged 266 or prohibited the import of such materials into the region. 262. Dumping Protocol, supra note 3, art. 4, & Annex I, 26 I.L.M. at 66-67, 72-73. 263. The Convention Area expressly excludes "internal waters or archipelagic waters." SPREP Convention, supra note 3, art. 1, 26 I.L.M. at 42. A proposal by Kiribati would have included internal waters for purposes of radioactive waste dumping and nuclear testing pollution only; however, even this modest extension was eventually withdrawn. Fourth Experts Meeting, supra note 154, at 107. 264. For example, this relationship is demonstrated by the effects of soil erosion, siltation, and coral limestone mining on coral reef ecosystems and mangrove areas. See generally DAHL & BAUMGART, supra note 6. 265. At the Fourth Experts Meeting, Tonga and several other Pacific Island states successfully lobbied for leaving "marine" out of the title of the Convention so as not to preclude the terrestrial environment from its purview. Fourth Experts Meeting, supra note 154, at 17. 266. The issue of imported hazardous materials is only tangentially addressed by the Pollution Emergencies Protocol, which lists as one of the organization's duties the establishment of contacts with "appropriate private organizations, including producers and transporters of substances which could give rise to a pollution incident in the South Pacific Region . Pollution Emergencies Protocol, supra note 3, art. 9(e)(ii), 26 I.L.M. at 63.

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Technical Assistance and Funding

The SPREP Convention goal, minimizing pollution in the South Pacific, requires considerable technical activity. Article 17 of the Convention obligates parties to form research and monitoring programs and to cooperate in the exchange of data and other information. 267 Under the Pollution Emergencies Protocol, parties must draft national emergency response plans and ensure the "development or strengthening of the capability to respond to a pollution incident .... ,,268 This Protocol also requires parties to lend assistance upon request to any state attempting to 269 combat or thwart a pollution incident. States may request that "competent global, regional and sub-regional organizations" aid them in these efforts. 270 Other sections of the Convention and Protocols repeat this call for outside assistance, recognizing that without such support small island states would not be able to participate as fully as the SPREP regime envisioned. The only organization required to provide technical assistance is SPC, which has certain 27 1 specific technical duties under the Convention. The larger, more developed states that are party to the Convention are also obligated to assist lesser developed states. Article 18 of the Convention clearly refers to the more developed states when it directs "the Parties" to "undertake to co-operate... in the provision to other Parties of technical and other assistance in fields relating to pollution and sound environmental management of the Convention Area. . -272 Only France, Australia, New Zealand, and the United States are in a position to "tak[e] into account the special needs of the island developing countries and territories" in furnishing technical aid. 2 73 However, the Convention offers neither a mechanism for accomplishing this broad mandate, nor a means by which to determine what the "special needs" of island countries are. Perhaps it would have been unwise and unduly formalistic to include specific requirements regarding technical assistance in the SPREP Convention. UNEP, ESCAP, other international organizations, and all of the metropolitan powers have provided direct support in scientific research and assessment projects throughout the region without any formal contractual agreements. 274 267. 268. 269.

SPREP Convention, supra note 3, art. 17, 26 I.L.M. at 48. Pollution Emergencies Protocol, supra note 3, art. 3, 26 I.L.M. at 60-61. Id., art. 6(1), 26 I.L.M. at 62.

270.

SPREP Convention, supra note 3, art. 17, 26 I.L.M. at 48.

271.

SPC's technical duties include, for example, maintaining an inventory of available

emergency response equipment, maintaining emergency response communications systems, and assisting in preparing states' contingency plans. Pollution Emergencies Protocol, supra

note 3, art. 9, 26 I.L.M. at 63-64. 272.

SPREP Convention, supra note 3, art. 18, 26 I.L.M. at 48-49.

273. Id. at 49. 274.

CAREW-REID,

supra note 46, at 199-23.

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However, the management and protection of the vast area covered by the SPREP regime require more commitment and systematic consideration than the current ad hoc arrangements provide. 5.

Compliance and Enforcement

If the SPREP Convention is to be more than a mere statement of principles, it must include binding affirmative obligations and incentives for participation. The Convention preamble reiterates a goal of SPREP's founders: that the Convention give legal effect to the Action Plan adopted at Rarotonga in 1982 and engage all Pacific States in implementing the Plan's objectives. 275 There are several mechanisms under the Treaty and the Protocols aimed at securing this level of involvement. These mechanisms vary in detail and potential effectiveness. First, various reporting requirements serve to engage Pacific states in the Convention scheme. The most extensive obligations involve pollution incidents. Under a warning system established by Article 15, any party discovering present or potential pollution in the Convention Area must immediately notify other countries or territories likely to be affected reby such pollution. 276 This surveillance function is part of the larger 277 sponse system delineated in the Pollution Emergencies Protocol. The Dumping Protocol is the other major source of reporting obligations. Under this protocol, a party must report prohibited dumping that may be excused by force majeure.278 In addition, a party must report to other parties its intent to issue a special permit for dumping of 279 Curiprohibited substances in response to a human health emergency. ously, however, the reporting of other non-emergency dumping is left to the discretion of the party aware of the dumping. 28 0 A state must instruct its vessel operators to report to it any incidents indicating improper dumping in the Convention Area, but the state is not obliged to 275. SPREP Convention, supra note 3, 26 I.L.M. at 41. 276. The reporting party must also inform SPC as soon as practicable of any mitigation measures it has taken with respect to the pollution threat. Id., art. 15, 26 I.L.M. at 47-48. 277. Article 5 of the Protocol states: Each Party shall establish appropriate procedures to ensure that information regarding pollution incidents is reported as rapidly as possible .... 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. Pollution Emergencies Protocol, supra note 3, art. 5, 26 I.L.M. at 61. 278. Dumping Protocol, supra note 3, art. 9, 26 I.L.M. at 67. 279. Id., art. 10, 26 I.L.M. at 68. 280. A party receiving a report of suspected dumping "shall, if it considers it appropriate, report accordingly to [SPC] and to any other Party concerned." Id., art. 14, 26 I.L.M. at 70.

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report such dumping to other states or SPC.281 This may be a minor loophole, considering the general emphasis on notification throughout the Convention and Protocols, but a requirement to report serious dumping threats or incidents to SPC would be more consistent with other Convention notification requirements. The Convention also requires that parties report on their progress in implementing the Convention and Protocols. Not surprisingly, this duty to report is very open-ended; Article 19 merely requires parties to transmit information to SPC on implementation measures they have adopted 28 2 "in such form and at such intervals as the Parties may determine. Similar provisions exist in both Protocols. 28 3 Although it is unclear what SPC, the reports happens to these reports once they are transmitted to 284 must be reviewed at biennial meetings of the parties. SPREP, the agency, as SPC's delegate, acts as the coordinator of compliance. It is the only body given any real oversight authority under the Convention. 2 85 It is not only the main conduit of information between parties and other organizations, but also a major interpreter of the 287 Convention's terms 2 86 and an organizer of cooperative activities. However, SPREP does not exercise any enforcement power. In fact, there are no formal enforcement mechanisms under any of the Convention's institutional arrangements. Major noncompliance with any provito arbitration, but only sions of the treaty or protocols may be submitted 28 8 party. noncomplying the by upon agreement 281. A party has discretion on whether to report contraventions of the Protocol to the SPC and other parties. Id. 282. SPREP Convention, supra note 3, art. 19, 26 I.L.M. at 49. 283. Pollution Emergencies Protocol, supra note 3, art. 15, 26 I.L.M. at 47; see also Dumping Protocol, supra note 3, art. 14, 26 I.L.M. at 70. 284. The parties will hold ordinary meetings every two years to assess the progress of both the Convention and the Protocols. SPREP Convention, supra note 3, art. 22, 26 I.L.M. at 50. The first meeting of the parties was held in New Caledonia in July 1991. See Report of the First Meeting of the Contracting Parties to the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region and Related Protocols, SPREP/SPC 1991 (Noumea, New Caledonia, July 10-11, 1991) [hereinafter First Meeting of Contracting Parties]. 285. SPC has formally announced and the contracting parties to the SPREP Convention have agreed that SPREP will assume SPC's duties under the Convention, although the text itself has not yet been modified to reflect this change. See FirstMeeting of ContractingParties, supra note 284, at 2, 6. 286. SPREP Convention, supra note 3, art. 21(d), 26 I.L.M. at 49. 287. Id., art. 2 1(e), 26 I.L.M. at 50; see also Pollution Emergencies Protocol, supra note 3, art. 9, 26 I.L.M. at 63 (describing SPREP's role in organizing response actions, developing contingency plans, identifying training programs, providing discussion forums, and maintaining liaisons with other organizations). 288. SPREP Convention, supra note 3, art. 26, 26 I.L.M. at 53. Under Article 26, governing settlement of disputes, a disagreement that is not resolved in negotiation "shall, upon common agreement, except as may be otherwise provided in any Protocolto this Convention, be submitted to arbitration..." (emphasis added). Id. Therefore, if a noncomplying party does not agree to arbitration, the dispute may not be resolved unless the nature of the violation has

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Two provisions deal indirectly with enforcement. The first provision, part of Article 20 of the Convention, concerns liability and compensation for pollution damage. The threat of liability may act as an effective incentive for compliance but only if judgments can be enforced. At present, no institution is capable of carrying out this enforcement function in the South Pacific. Article 20 defers the procedural issue to party cooperation, in other words, to a future additional protocol. 28 9 A permanent arbitration panel involving South Pacific jurists could be created for this purpose. However, it would likely be quite some time before a liability system could be established because the region has little experience with such procedures. Another indirect reference to enforcement appears in Article 12 of the Dumping Protocol. Each party is directed to take "appropriate measures to prevent and punish conduct in contravention of the provisions of this Protocol" occurring within its territory. 2 9° Each party must also adopt measures to ensure compliance with the Dumping Protocol by its own vessels and aircraft in the entire Convention Area. 29 1 Implicit in this approach is the development of a variety of regulatory standards among the Member States. Enforcement of the Convention and Protocols could be quite difficult in practice. Isolated dumping incidents, especially in the high seas areas, may be nearly impossible to detect. The SPREP Convention is generally predicated on an honor system. Thus, the Convention's effectiveness will depend on the pressures for compliance that are generated from within by members of the regime, and the regime's capacity to withstand subversion by outsiders. D.

Interaction of the SPREP Convention with Other South Pacific Regional EnvironmentalAgreements

The SPREP Convention was not the first South Pacific environmental agreement. The South Pacific Nuclear Free Zone Treaty, discussed above, was concluded before the Plenipotentiary Conference which adopted the SPREP Convention. 292 The Apia Convention on the Conservation of Nature preceded SPREP by several years. 29 3 In the mid1980's, intense negotiations over tuna rights and the international outcry been specifically made the subject of mandatory arbitration through a protocol. Neither of the two existing Protocols include such a provision for any specific matter. 289. SPREP Convention, supra note 3, art. 20, 26 I.L.M. at 49. 290. Dumping Protocol, supra note 3, art. 12(2), 26 I.L.M. at 69. 291. Id., art. 12(4), 26 I.L.M. at 69. 292. South Pacific Nuclear Free Zone Treaty, Aug. 6, 1985, 24 I.L.M. 1442 [hereinafter SPNFZ Treaty]. 293. Convention on Conservation of Nature in the South Pacific, June 12, 1976, reprinted in SELECTED MULTILATERAL TREATIES IN THE FIELD OF THE ENVIRONMENT 463 (UNEP Reference Series No. 3, Alexandre Kiss ed. 1983) [hereinafter Apia Convention].

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over driftnet fishing led to the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific in 1989.294 Each of these agreements complements portions of the comprehensive SPREP Convention and the SPREP Action Plan, though this relationship is informal. To the extent that the SPREP Convention and other treaties work together, they serve the region as a "package" for environmental security across several sectors. 1.

The South Pacific Nuclear Free Zone Treaty

The South Pacific Nuclear Free Zone Treaty fulfilled the communique issued by the Fifteenth South Pacific Forum at Tuvalu, which called for the establishment of a regional nuclear-free zone. 295 Signed by all but two of the Forum Member States, the treaty entered into force on December 11, 1986, less than one month after the conclusion of the SPREP Convention in Noumea. 296 Two protocols accompanying the treaty digarnered the signatures of rected at the five regional nuclear powers have 297 only China and the former Soviet Union. The SPNFZ Treaty seeks to prohibit several activities. The Treaty requires state parties to prevent the manufacture and possession of nuclear explosive devices, the provision of fissionable material to another state, and the stationing or testing of any nuclear explosive devices within their territories. 29 8 The Treaty also prohibits the dumping of radioactive wastes anywhere in the Treaty Zone, but notes that the prohibition will not apply to areas covered by the SPREP Convention upon its entry into force. 299 This limited prohibition bolsters the dumping controls in the SPREP Convention and the Dumping Protocol, but at the same time provides a safety net in case SPREP falters. The dumping provisions of the SPREP Convention and the SPNFZ Treaty complement each other. The SPREP Convention embraces the SPNFZ Treaty's total ban on dumping of radioactive materials, and goes one step further by prohibiting storage of such materials. 30° There is a tremendous difference, however, in the geographic scope of the two treaties. The Nuclear Free Zone created under the SPNFZ Treaty is an immense rectangle stretching 130 degrees in longitude, including vast areas of the high seas in addition to virtually all of the SPREP Convention 294. Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, Nov. 24, 1989, 29 I.L.M. 1449 [hereinafter Driftnets Convention]. 295. Cicin-Sain & Knecht, supra note 54, at 194. 296. Vanuatu and Tonga did not sign the Treaty, the former because of dissatisfaction with the strength of the Treaty. PACIFIC ISLAND YEARBOOK, supra note 54, at 672. 297. Id. 298. SPNFZ Treaty, supra note 292, arts. 3-5, 24 I.L.M. at 1444-46. 299. Id., art. 7(1)(a)-(2), 24 I.L.M. at 1447. 300. SPREP Convention, supra note 3, art. 11, 26 I.L.M. at 48.

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area. 10 Thus, the dumping ban is in place well outside the SPREP Convention boundaries - but without the acquiescence of the United States and France, who are not parties to the SPNFZ Treaty. This raises a question about applicability of the regional treaty restrictions to nonSPREP members. The two treaties diverge in their treatment of nuclear testing. The SPREP Convention assumes that nuclear testing will continue, while the SPNFZ Treaty seeks to abolish it. Though political considerations dictated that SPREP cede the "radical" position to SPNFZ, the tension between the two treaties has not been resolved, particularly in those states that are parties to both. At least a cross reference to the SPNFZ Treaty should have been inserted into the SPREP Convention. 30 2 The current compromise language of Article 12 of SPREP implies a begrudging tolerance of nuclear testing, a position that conflicts with the SPNFZ Treaty. In ensuring compliance, the SPNFZ Treaty goes beyond the SPREP Convention by establishing a "complaints procedure" as part of the "control system. ' 30 3 When one party receives a complaint of an alleged breach by another party, the Director convenes a consultative committee to handle the matter. 30 4 The Committee reviews the complaint and any response by the parties and may appoint a special team of inspectors to conduct an on-site investigation. 30 5 The state accused of breach must6 30 provide full and free access to all information and areas of relevance. The team reports in writing to the Committee, which then reports the findings and its decision to the Forum members. 30 7 If the Committee decides that there has been a violation of the SPNFZ Treaty, all parties 30 8 meet at the Forum to discuss the breach. The arbitration procedures described in the SPREP Convention resemble the SPNFZ procedures outlined above. However, it is conceivable that, under SPREP, one party could refuse arbitration and scuttle the entire complaint review process. This loophole could be closed either by amending the Arbitration Annex to make arbitration compulsory in certain types of cases or by developing a protocol similar to the SPNFZ 301. Cicin-Sain & Knecht, supra note 54, at 194 n.101. The only section of the SPREP Convention Area that is not included in the Nuclear Free Zone is the area above the equator in the northwest Pacific Ocean encompassing the Federated States of Micronesia, Palau, the Marshall Islands, and the Northern Mariana Islands. CAREW-REID, supra note 46, at 91. 302. See supra notes 156-59 and accompanying text (discussing consideration of the relationship of the two treaties at the fourth experts meeting). 303. Article 8 of SPNFZ sets out the control system which consists of reports, consultations, and the complaint procedure further detailed in Annex 4 of SPNFZ. SPNFZ Treaty, supra note 292, Annex 4, 24 I.L.M. at 1456-59. 304. Id., Annex 4, paras. (1)-(2), 24 I.L.M. at 1456-57. 305. Id., Annex 4, para. 4, 24 I.L.M. at 1457. 306. Id., Annex 4, para. 6, 24 I.L.M. at 1458. 307. Id., Annex 4, para. 8, 24 I.L.M. at 1458. 308. Id., Annex 4, para. 9, 24 I.L.M. at 1458-59.

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Treaty's complaint procedure. Though the two conventions remain somewhat at cross purposes on the subject of nuclear testing, the borrowing of well-conceived procedural elements should be encouraged in order to strengthen the regime as a whole. 2. The Convention on the Conservation of Nature in the South Pacific The Apia Convention on the Conservation of Nature in the South Pacific, sponsored by SPC and the International Union for Conservation of Nature and Natural Resources, was adopted at a regional meeting in June 1976.309 However, it did not garner the necessary four ratifications until June 1990.310 This long delay may have been due in part to a lack of publicity. SPREP's comprehensive approach to the protection of the entire Pacific environment may have overshadowed the Apia Convention whose provisions were essentially addressed in the SPREP Action Plan. The delay may also have been caused by the Pacific Islanders' perception that nature conservation was the province of national regulation, to be implemented consistent with each state's development needs, and 3which 11 could be compromised by agreeing to a set of regional standards. The Apia Convention imposes few substantial obligations on parties. Its major provisions encourage creation of protected areas (Article II) and protection of native flora and fauna (Article V); prohibit the killing, capturing, or collecting of flora and fauna within protected areas (Article III); and promote the exchange of information, research, and training (Article VII).312 In the main, the Convention urges action but does not require it. Even the two direct prohibitions in the Convention, which forbid commercial exploitation of natural resources in national parks and are qualified by the phrase, alteration of park boundaries to reduce' 31area, "except after the fullest examination. 3 Any reluctance concerning regional measures to protect plants, animals, and natural areas had faded by the time that SPREP negotiations took place, and parties agreed that the Apia Convention should be implemented within the SPREP framework. 31 4 To make the connection clear, Article 14 of the SPREP Convention reiterates the main goals of the replacing the term "encourage" with the more forceful Apia Convention, "shall. ' 31 5 However, Article 14 allows regulated commercial exploitaCAREW-REID, supra note 46, at 93. 310. UNEP Register, supra note 174, at 140. 311. See Mere Pulea, Legal Measuresfor Implementation of EnvironmentalPolicies in the Pacific Region, in ENVIRONMENT AND RESOURCES, supra note 5, at 161. Several South Pacific countries have had conservation laws in place since the early 1970's. Id. 312. See generally Apia Convention, supra note 293. 313. Id., art. III(l)-(2). 314. CAREW-REID, supra note 46, at 78. 315. SPREP Convention, supra note 3, art. 14, 26 I.L.M. at 47. In particular, parties are directed to "establish [as appropriate] protected areas, such as parks and reserves, and prohibit 309.

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tion in protected areas, rather than completely banning such commercial use. This apparent clash with Article III of the Apia Convention merits prompt attention because disruptive and illegal practices are now occur316 ring in South Pacific parks and reserves. Like the SPNFZ Treaty, the Apia Convention covers a different geographic area than the SPREP Convention. Unlike SPNFZ, the Apia Convention area is smaller than the SPREP area. The Apia Convention applies only to national parks, natural resources, and areas "under the control of the appropriate public authority" for resource conservation and aesthetic preservation. 31 7 Fortunately, this variation in coverage is not significant because it does not interfere with the common goal of the Apia Convention and the SPREP Convention: to encourage island states to establish systems for natural resource protection in their own backyards. With both Conventions now in force and wedded to each other through informal stipulation, the focus shifts to integration and implementation of the Conventions. Institutionally, this responsibility will fall largely on SPREP because SPC has no direct experience in resource conservation.3"" Parties may find it necessary to identify SPREP as the coordinating body in a protocol to the SPREP Convention, making specific financial arrangements for the conservation component of the SPREP program. 31 9 In addition, as one observer and former SPREP official noted, such a protocol should "provide detailed legal recognition of the importance of tradition and conservation approaches which embrace the multiple and subsistence uses of natural resources by island communities."'3 20 Such recognition would assure island communities that traditional land practices would not be endangered by the conservation area approach. 3. Convention for the Prohibitionof Fishing with Long Driftnets in the South Pacific Of the four existing regional environmental treaties in the South Pacific, the Driftnets Convention struck the deepest and most immediate chord among Pacific Island states. While the impact of underground or regulate any activity likely to have adverse effects on the species, ecosystems or biological processes that such areas are designed to protect." Id. 316. See CAREW-REID, supra note 46, at 96. 317. Apia Convention, supra note 293, art. I.

318. See UENTABO NEEMIA, COOPERATION AND CONFLICTS: COSTS, BENEFITS AND NATIONAL INTERESTS IN PACIFIC REGIONAL COOPERATION 28 (1986). 319. As with the SPREP Convention, SPC has delegated its secretariat functions under the APIA Convention to SPREP; the contracting parties approved the delegation. FirstMeeting of Contracting Parties to the Convention on Conservation of Nature in the South Pacific (Apia Convention), SPREP/SPC 1991 (Noumea, New Caledonia, July 12, 1991). 320. CAREW-REID, supra note 46, at 109.

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nuclear testing was somewhat uncertain, the SPNFZ Treaty notwithstanding, the effects of driftnet fishing were readily observable and frighteningly severe.3 2' Pacific Islanders recognized a grave threat to their national economies and personal livelihoods in this mining of the sea's living resources. The Driftnets Convention was swiftly enacted. The treaty was completed approximately four months after it was proposed at the 1989 Forum meeting at Tarawa. Fourteen countries and territories had signed the agreement by December 1990, including the United States and France.3 22 Two additional protocols were adopted on October 20, 1990, aimed at all Pacific Rim nations and other countries with fleets fishing in 3 23 the South Pacific. The Convention obliges each party to prohibit its nationals and ves324 sels from engaging in driftnet fishing or transporting driftnet catches. Every party must also take all measures, within the bounds of international law, to impede such practice by others within areas under its jurisdiction.3 25 Each party is free to prohibit the landing, processing, and importation of driftnet catches; to restrict port access and facilities to driftnet vessels; and to outlaw the possession of driftnets on board any 326 vessel within its jurisdiction. The Convention Area covers all ocean territory between 10 degrees North latitude and 50 degrees South latitude, and 120 degrees West longitude and 130 degrees East longitude. 327 This area stretches from the Philippines to just west of Easter Island and from the Marshall Islands to well south of New Zealand. 328 The Convention drafters realized that, in practice, enforcement would be primarily a local jurisdictional matter. Thus, the anti-driftnet measures are all phrased in terms of parties' obligations within their own marine areas. However, the wide coverage of the Convention Area and the two Protocols directed at "outsiders" are not merely hopeful gestures lacking any potential effect. Parties are to arrange collectively for surveillance and enforcement. 329 Accordingly, shortly after the treaty's adoption, 321.

See generally Michael Hagler, Driftnet Fishing in the South Pacific, in SOUTH PA-

CIFIC, supra note 1, at 95, 97-98 (discussing harm of driftnet fishing and Greenpeace's efforts to

educate the public about it); CRS REPORT, supra note 62, at CRS-9 (discussing international efforts to stop driftnet fishing and effects on islanders). 322. Driftnets Convention, supra note 294, 29 I.L.M. at 1450. Four ratifications are needed for the convention to enter into force. Id. 323. Id. at 1462-63. 324. Id., arts. 2, 3, 29 I.L.M. at 1456-57. 325. Id., art. 3, 29 I.L.M. at 1456-57. 326. Id., preamble, 29 I.L.M. at 1453. 327. Id., art. 1; A helpful map of the SPREP and SPNFZ areas is given on page 91 of CAREW-REID, supra note 46.

328. Id. 329. Driftnets Convention, supra note 294, art. 4, 29 I.L.M. at 1457.

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Australia and New Zealand pledged to expand their military surveillance in the South Pacific specifically to monitor driftnet activity. 330 Also, under the treaty's enforcement provision, parties can sanction any vessel caught driftnetting by withdrawing its good standing from the Regional Register of Foreign Fishing Vessels kept by the Forum Fisheries Agency, the administrator of the Convention. 33 ' A "black mark" in the Regional Register could have political ramifications for a violator because SPC 332 keeps up to date on FFA activities through a review process. The treaty showed the world that South Pacific nations were prepared to take any means necessary, consistent with international law, to protect the region's vital marine resources, both within and beyond the territory of individual states. The Driftnets Convention was complemented by a United Nations General Assembly resolution calling for a moratorium on all large-scale pelagic driftnet fishing by the end of June, 1992. 33 3 As a result of this strong regional and international resolve, the

major driftnet users in the Pacific announced that they would voluntarily 334 cease driftnet fishing in 1992.

The Driftnets Convention furthers an important objective of the SPREP Convention. Article 8 of the Driftnets Convention requires parties to cooperate with each other and with other fishing nations and organizations to develop conservation and management strategies for the South Pacific albacore tuna fishery. 335 This requirement is consistent with the emphasis placed in both the SPREP Convention and the Apia Convention on protecting threatened flora and fauna. Although the Driftnets Convention is concerned primarily with tuna, driftnetting threatens not only tuna but also a myriad of other marine life forms. Another benefit of the Driftnets Convention is the role that the Forum Fisheries Agency plays in promoting marine conservation. FFA, an administrative and technical expert, is the institutional facilitator of the Convention. It possesses comprehensive knowledge, often including statistical information, of the region's biology, its marine resources, and, especially, the migratory species that pass through. 336 Any future efforts under the SPREP/Apia Convention regime to preserve marine life will benefit from FFA's expertise. In sum, the region has been successful in pursuing a broad framework approach while also concluding individual resource sector agree330. Kiss & SHELTON, supra note 186, at 300. 331. Driftnets Convention, supra note 294, art. 4, 29 I.L.M. at 1457-58. 332. See David J. Doulman, FisheriesManagement in the South Pacific, in SOUTH PACIFIC, supra note 1, at 81, 85. 333. G.A. Res. 44/225, U.N. GAOR, 44th Sess., Supp. No. 49, at 147, U.N. Doc. A/44/49 (1989). 334. Pacific Notes, PAC. MAG., Jan./Feb. 1992, at 46. 335. Driftnets Convention, supra note 294, art. 8, 29 I.L.M. at 1459. 336. See NEEMIA, supra note 318, at 36.

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ments. These agreements have responded to an acute threat (the Driftnets Convention), a chronic threat (the SPNFZ Treaty), and a longterm management concern (the Apia Convention). The region's approach allows it to set comprehensive goals to be implemented in stages while retaining the flexibility to address more immediate problems as they arise. However, the drawback of this approach is inconsistency: some states may be party to some agreements but not others. E.

The SPREP Convention as Compared with Other Regional Seas Agreements

The SPREP Convention is the latest in a long line of regional seas agreements. Since 1976, these agreements have been spearheaded by UNEP. 337 In addition to the South Pacific program, there are ten other UNEP-sponsored regional seas programs; they cover the Mediterranean Sea, the Persian Gulf, the Atlantic coast of West and Central Africa, the Eastern African seaboard, the Caribbean, the Red Sea and Gulf of Aden, the East Asian Seas, the South Asian Seas, the Pacific coast of South 33s America, and the Black Sea. Three basic premises drive the formulation of regional seas agreements. The first is that different geographic regions have unique physical marine characteristics and that states within those regions will know best what those distinct traits are. Second, marine pollution problems are better managed and rules are more easily enforced on a regional rather than an international scale. Third, the marine environment must be managed regionally to overcome the problem of conflicting coastal state policies since the sea is a shared and borderless resource, it benefits all states within a region to act jointly in its protection. All the UNEP regional seas agreements employ a standard approach - an action plan plus a legally binding framework convention with specific protocols - and share similar language. However, the fact that the agreements are region-specific leads to differences between them in substantive issues, priorities, and procedural and institutional mechanisms. For instance, the Barcelona and Lima Conventions are the only UNEP agreements with separate protocols regulating land-based sources of pollution. 339 Although mentioned in all the regional seas treaties, pollution from seabed exploration and exploitation is treated in detail only in a protocol to the Kuwait Convention. 340 The regional agreements also 337. Prior to UNEP's involvement, two regional marine protection treaties had been concluded: The Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil, June 9, 1969, 704 U.N.T.S. 3 (1970); and The Convention on the Protection of the Marine Environment of the Baltic Sea Area, March 22, 1974, 13 I.L.M. 546 (1974). 338. UNEP, UNEP PROFILE 10, U.N. Doc. UNEP/Z/Misc. (1990). Eight of these regions are governed by multilateral conventions. Id 339. Kiss & SHELTON, supra note 186, at 192. 340. Id. at 187.

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differ in the institution chosen to act as secretariat: some of the conventions employ UNEP as secretariat, 34 1 while others use regional organiza342 tions as lead institutions. The SPREP Convention's reliance on SPC as its coordinating institution made sense for two reasons: SPC is the most inclusive, stable, and well-financed organization in the region, and it has two decades of experience in addressing environmental issues. In practice, however, SPREP, the agency, stands in a better position to perform many of the secretariat functions, particularly in the areas of monitoring and data collection. Recognition of this fact has led to SPREP's assumption of SPC's duties 343 under the Convention. Other unique features of the South Pacific distinguish the SPREP Convention from the seas agreements of other regions. The massive expanse of the Convention Area reflects the power of the exclusive economic zones and the extension of oceanic jurisdiction of small states to a greater extent than in any other region. No other regional seas area has faced the effects of both atmospheric and underground nuclear testing. The external threats posed by Japanese and American proposals to dump low-level radioactive wastes directly motivated a heightened emphasis in the Convention on the restriction of dumping. The SPREP Convention illustrates the tension between inclusivity and exclusivity of membership. It includes as parties all metropolitan powers active in the region, as well as the Pacific Island states. There is little doubt as to the wisdom of this approach, given the substantial economic and political presence of the larger countries. However, the Convention also aims to protect the South Pacific against further intrusion by nations outside the region that may threaten the political autonomy of the island states or devastate the Pacific marine environment. The development of the SPREP Convention differed from that of the Barcelona Convention and Mediterranean Plan. The latter plans were initiated by a community of scientists and regulators who entered political arenas to enact a regional agreement. 344 With SPREP, in contrast, it was Pacific island politicians who promoted environmental themes, even in the absence of scientific proof of harm, thereby solidifying regional sovereignty over their most important resource base. While conscious of the need to negotiate with Western powers, the small 341. See, e.g., the Barcelona Convention, supra note 187, Cartagena Convention, supra note 260, art. 15, 22 I.L.M. at 342. See, e.g., the Lima Convention, supra note 186, art. supra note 3,' arts. 2(g) and 21, 26 I.L.M. at 43, 49-50. 343. See FirstMeeting of Contracting Parties,supra note 344. See PETER HAAS, SAVING THE MEDITERRANEAN: TIONAL ENVIRONMENTAL COOPERATION (1990).

art. 13, 5 I.L.M. at 293, and the 230-31. 13, and the SPREP Convention, 284, and accompanying text. THE POLITICS OF INTERNA-

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Pacific nations seek to thwart neocolonialism through environmental treaties: Islanders fear that outside powers will use the region for disposal of nuclear wastes and that continued nuclear testing will adversely affect the area. Viewed this way, the characteristics that define the South Pacific as an ocean region thus have much more to do with shared political and environmental concerns, both largely of a defensive nature, rather than 345 with any geographical, economic, or cultural aspects. International environmental treaties have been described as falling into four policy-making categories: cooperation, prevention, response, and compensation. 34 6 The first two categories involve attempts to forestall environmental damage; the latter two concern measures to be taken once damage has occurred. Treaties tend to embrace only one of these areas, 34 7 although this pattern may be changing as the international community becomes more committed to systemic approaches to global envi348 ronmental problems. The SPREP Convention falls into the cooperation category by creating a template for further cooperation between the parties in protecting the marine resource regime. It also takes steps in the direction of both prevention and response, and suggests compensation as an issue of future collaboration. Thus, the treaty can be characterized as a framework convention which aspires to be comprehensive. The treaty provides legal grounds for the Action Plan, which in turn reflects the wide-ranging, recurring problems noted in the SPREP Country Reports. The SPREP Convention is comprehensive in scope but not in detail, addressing a broad variety of issues in very general terms. The problems engendered by this approach are certainly not trivial. However, the Convention's obstacles and weaknesses are not insurmountable. The SPREP Convention and regional environmental system will succeed if it can keep external pollution out of the region while controlling internal activities that adversely affect the Pacific enclave. The next section of this Comment evaluates the current challenges facing the SPREP Convention regime as well as the methods by which to build upon the Convention's framework. 345. Cicin-Sain & Knecht, supra note 54, at 184. 346. David D. Caron, The Law of the Environment: A Symbolic Step of Modest Value, 14 YALE J. INT'L L. 528, 532 (1989). 347. Id at 532. 348. For example, the Montreal Protocol on Substances that Deplete the Ozone Layer, Nov. 25, 1986, 26 I.L.M. 1541 (1987) combines categories (1) and (2). The recent Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, 30 I.L.M. 1455, contains

elements of all four categories.

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IV STRENGTHENING THE SOUTH PACIFIC ENVIRONMENTAL REGIME

Although the SPREP Convention is limited by the generality of its language and other shortcomings, it is nevertheless a significant achievement which serves as a useful legal tool to coordinate environmental protection and sustainable development in the South Pacific. Yet, this framework convention is only a starting point for achieving these goals, and some necessary countries have not yet committed themselves to joining the regime. 349 The present membership includes only four metropoli350 tan countries and seven island states. To make the program truly regional, it is imperative that more states ratify or accede to the Convention and Protocols. The importance of greater participation must be acknowledged and acted upon by Pacific Island governments and by Pacific Islanders themselves. To a large extent, this has already occurred in the areas of nuclear testing/dumping and tuna fishing. The regional environmental regime can become stronger by addressing other areas that are ripe for development. These areas include nongovernmental organization (NGO) activation and involvement, land-based pollution, waste trade prevention, and participation in global conventions. A.

NGO Activities and Involvement

The need for increased participation of nongovernmental organizations in environmental management, planning, public awareness, and education exists in developing and developed countries. Simply stated, well-organized NGO's are often more adept at putting environmental objectives into practice than are governments. 351 Working locally, domestic NGO's can implement and coordinate projects efficiently by drawing on special expertise and social/cultural ties to communities. Re349. Pacific Island countries that are not yet parties to the SPREP Convention include Kiribati, Nauru, Niue, Palau, Tonga, Tuvalu, and Vanuatu. Compare SPREP Convention, supra note 3, Background, Contents, Summary, 26 I.L.M. at 38 (list of eligible countries) with text accompanying supra note 175 (the list of parties to the Convention). The United Kingdom may also become a party. SPREP Convention, supra note 3, Background, Contents, Summary, 26 I.L.M. at 38. States that were not government invitees to the Plenipotentiary Meeting of the High Level Conference because of their political status - American Samoa, Guam, New Caledonia, Northern Mariana Islands, Pitcairn Islands, Tokelau, and Wallis and Futuna - are nonetheless eligible to accede to the Convention and Protocols if approved by three-fourths of the parties. Id., art. 30, 26 I.L.M. at 54. However, in the case of former U.S. Trust Territories it is unclear whether their current status vis-a-vis the United States allows them to enter into treaties. Letter from Wesley Ward, SPREP Information and Publications Officer to author (July 16, 1992)(on file with author). 350. See supra note 175 and accompanying text. 351. This view was endorsed by the World Commission on Environment and Development. See OUR COMMON FUTURE, supra note 108, at 326-29.

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gional and international NGO's, though a step removed from the concerned communities, can function as effective advocates and intermediaries between local groups, governments, and other organizations and can provide specific technical assistance. The growth in the number and activities of environmental NGO's may be the most distinctive feature of the modern global environmental movement. However, some caution that, far from being a panacea, NGO's can sometimes hinder that movement. 352 Critics commonly complain that NGO's tend to pursue narrow special interests and that they operate above the rigorous accountability that presumably applies to governmental agencies. Although the charges may be justified in individual cases, these problems are no more common in NGO's than in any other group. Legitimate, successful NGO's are those that establish a solid reputation for accuracy, are open to scrutiny, and tap into an existing but underrepresented constituent base. NGO's have the potential to contribute significantly toward the realization of the goals of the SPREP Convention and other environmental agreements. The region is too vast and its island economies too small for any South Pacific government to undertake the environmental assessment and monitoring required under the Convention without the assistance that NGO's can provide. SPREP, the organization, has provided invaluable technical assistance and governmental education in fulfilling the mandate of the SPREP Convention. In the past ten years, the Program has become so wellrespected and appreciated that Member States recently decided to reincorporate it as a completely independent body, moving it out of SPC headquarters in Noumea to its own headquarters in Apia, Western Samoa. 353 SPREP has answered research and information requests from governments and assisted in preparing environmental assessments of development projects. 3 54 It has also become increasingly involved with ed3 55 ucational curriculum development and training workshops. Lack of staff and resources have limited the program's activities, such as providing management and planning advice to governments and educational outreach to villages. Since its founding in 1982, SPREP has been funded by voluntary contributions from member countries and 352. See, e.g., Richard A. Herr, Concluding Observations,in SOUTH PACIFIC, supra note 1, at 203, 203-08 (reporting observation by a South Pacific commentator that NGO's cannot always be assumed to act selflessly). 353. EnvironmentalConference Opened by Minister,TONGA CHRONICLE, July 25, 1991, at 1. Dr. Ma'afu Tupou, then Tonga's Acting Minister of Lands, Survey, and Natural Resources, called SPREP "an important expression of regional solidarity in matters concerning the environment." Id. 354. "What is SPREP", PAC. MAG., July/Aug 1992, at 40. 355. See Saving the Environment, ISLANDs BUSINESS, Dec. 1990, at 33.

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UNEP, which often cover only administrative overhead costs. 35 6 However, other non-Pacific countries, multilateral banks and development assistance agencies have pledged support to SPREP since it gained its independent status. 3 "7 With more secure long-term funding, the Agency could develop into one of the preeminent regional environmental organizations in the world, acting as a South Pacific UNEP. As SPREP enlarges its staff and strengthens its capabilities, it can increasingly coordinate its activities in the region with universities, nongovernmental 35 8 organizations, and other regional and international organizations. As vital as SPREP's work is, the agency does not fulfill a muchneeded NGO role: that of environmental activist. In the Pacific, the major environmental battles of the past two decades have been tied to the highly charged political issues of self-determination and sovereignty. Father John Momis, former Deputy Prime Minister of Papua New Guinea, declared in a 1985 address at the University of the South Pacific: [French nuclear testing] is a direct denial of our right to determine what we do in our part of the world. It assumes that others, with little moral right, may make use at will of our unique facilities and environment for purposes which most of us openly condemn.... It is a relic of the exercise of that centralized power which most of us have fought or are fight359 ing to eradicate from our region. SPREP consciously avoids politics and attempts to be completely 36 objective in order to maintain open contact with all governments. Political confrontation will inevitably occur, however, as difficult development decisions are made and long-standing tensions addressed. In this arena, advocacy-oriented NGO's and an informed public must remind decision-makers of the moral, social, and cultural values at stake, as well as the relevant technical factors. The role of NGO's as political actors is still nascent in the South Pacific. Greenpeace has been the most active political participant in the region, mounting protest campaigns throughout the region against nuclear testing, dumping, and export of hazardous wastes, export of banned pesticides, and driftnet fishing. 36 1 Accustomed to acting as a catalyst for popular action in other parts of the world, Greenpeace has pursued a 356. 1990, at 357. 358.

Interview with Dr. Viii Fuavao, SPREP Director, PACIFIC ISLANDS MONTHLY, Dec. 53 [hereinafter Interview]. Ferguson, supra note 75, at 77. See Interview, supra note 356, at 53.

359. BATES, supra note 142, at 40. 360. However, this may change now that SPREP no longer operates under SPC - it has been suggested, for example, that SPREP step in to monitor the environmental impacts of French nuclear testing at Moruroa and Fangataufa. Brendon Bums, 20 Years Later, PACIFIC ISLANDS MONTHLY, Sept. 1991, at 22-23. 361. Hagler, supra note 321, at 96.

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low-key approach in the Pacific by attempting to build Pacific Island 362 NGO's and providing information to governments. NGO activation is increasing in the South Pacific, both by local organizations and Pacific Islanders participating in larger NGO's. The Wau Ecology Institute in Papua New Guinea, the Solomon Islands Development Trust, and the South Pacific Action Committee for Human Ecology and Education (SPACHEE) at the University of the South Pacific are examples of burgeoning environmental groups. 363 A number of Pacific Islanders have been crew members on Greenpeace vessels, and a Fijian woman, Adi Asenaca, serves on the policy-making board of Greenpeace, New Zealand. However, Asenaca points out that having a large international NGO of European origin present in the Pacific is not enough: Resources would be better used if Greenpeace is actually in island nations. And we need to do it ourselves. Greenpeace needs to listen to island people. We need to set up our own branches from the grassroots. It would be more effective politically with our own people talking to Pa364 cific governments. Although not generally considered to be NGO's, churches are some of the most influential authorities in Pacific Island communities. Condemnation of nuclear testing, toxic waste dumping, and incineration of chemical munitions by a body such as the Pacific Conference of Churches strongly influences most Pacific Islanders because of the respect accorded religious leaders. 365 Thus, the involvement of the church as a powerful environmental advocate is probably one of the most important means of increasing public awareness and activating local groups to participate in preserving the South Pacific environment. B.

Land-Based Problems and Waste Trade Prevention

As discussed in Part III, the issues of land-based pollution and toxic waste importation receive minimal attention in the SPREP Convention and Protocols. Deferring these problems can only be detrimental to the 362.

Robie, supra note 239, at 9.

363. 364. 365.

Id. at 11. Id. at 10-11. The Pacific Conference of Churches first passed a resolution urging all governments

to pressure France to discontinue nuclear testing in 1974. BATES, supra note 142, at 39. It has likewise recently spoken out strongly against nuclear and chemical waste dumping. Robie, supra note 239, at 10. The Catholic Bishops Conference expressed its solidarity with this posi-

tion in 1988: Specifically we deplore any activity which, according to serious scientific opinion, is gravely harmful to the natural environment, and we therefore condemn the testing of nuclear and other toxic wastes, and the incineration and disposal of such wastes in the islands or waters of the Pacific Ocean.

Fr. Seluini Akau'ola, Chemical Weapons at Johnston Atoll, TAUMU'A LELEI (Catholic Newspaper of Tonga, Taulua Press, Nuku'alofa, Tonga), Sept. 1990, at 5.

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region. Indeed, the most controversial environmental scandals in the Pacific following the adoption of the Convention concerned these two hazards. 1.

The Johnston Atoll Debacle

The United States Army has completed construction of the Johnston Atoll Chemical Agent Disposal System ("JACADS") on Johnston Island, located 717 nautical miles southwest of Hawaii. 366 The facility was constructed as part of the United States chemical demilitarization program and was intended to destroy 300,000 munitions containing nerve gas agents and mustard gas which had been transported to the island from Okinawa, Japan in 1971.367 Shortly before JACADS' completion, the Army announced that it intended to transport an additional 102,000 rounds of nerve gas munitions from a storage depot in Germany to Johnston Island for incineration. This decision was made without testing the facility over a 16month period as required by law.3 68 Moreover, none of the Pacific countries was consulted or notified of this plan in advance, despite the fact that the ships carrying munitions from Germany would have to pass 369 through the region en route to Johnston. The Army and the United States Government severely miscalculated the effect that this last-minute announcement would produce in the Pacific. The uproar was immediate and widespread. Government leaders and NGO's from Micronesia to the Cook Islands loudly denounced the plan, which dominated discussion at the Twenty-First South Pacific Forum in Port Vila, Vanuatu. 370 The Forum issued a Communique opposing the shipment of the German stockpile to Johnston Atoll for disposal, calling the shipment "another example of the Pacific being used by 366. Johnston Island has been administered by the U.S. Department of Defense since World War II and was the site of atmospheric nuclear bomb tests in the 1950's. See Jon M. Van Dyke et al., The Legal Status of Johnston Atoll and Its Exclusive Economic Zone, 10 U. HAW. L. REV. 183, 183-204 (1988) for an account of the history of the island. 367. David Lauter, Bush Tries to Soothe Pacific Fears on Weapons Dump, L.A. TIMES, Oct. 28, 1990, at A13. 368. Jim Borg, Johnston Chemical Disposal Halt Urged, HONOLULU ADVERTISER, Aug. 9, 1990, at Al. 369. The Pacific nations had been assured when the first environmental impact statement for JACADS was released in 1983 that the facility would only be used for the destruction of munitions already on Johnston Atoll. Alfred Picardi et al., Alternative Technologies for the Detoxification of Chemical Weapons: An Information Document (Greenpeace International, Washington, D.C.), May 24, 1991, at 15. In addition to this reversal of policy, the U.S. Congress in November 1989 directed the Army to investigate the possibility of using JACADS for purposes beyond incineration of chemical munitions, an action which would contradict Public Law 99-145, requiring the demilitarization plants to be dismantled upon completion of their

original mission. Id. 370. Nervous About Nerve Gas, TIME, Aug. 6, 1990, at 28; Karen Mangnall, A Tale of Two Hotels, PACIFIC ISLANDS MONTHLY, Sept. 1990, at 10-13 [hereinafter Two Hotels].

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the major weapons producing states as an experimental area."'37 ' The Communique also called on the United States to ensure that no additional chemical weapons or other toxic materials would be transferred to JACADS, and to shut down the facility after destruction of the current becoming "the permanent toxic stockpile to prevent Johnston Atoll from 372 waste disposal centre of the world." The United States' action touched a sensitive nerve and added insult to injury by failing to address the Pacific Island nations' concerns until the transport of the German weapons was underway. Not until the United States realized that it was in jeopardy of losing all credibility in the Pacific did the United States government attempt to allay the Pacific Islanders' fears. 373 At the Forum dialogue session in August 1990, the United States delegation invited Forum scientists to inspect JACADS in November. This suggestion met with little enthusiasm as similar invitations in the past by the French to visit Moruroa had resulted only in limited access and biased data. 374 Unimpressed by the American presentation on JACADS' safety, Papua New Guinea announced that it was considering bringing the issue to the United Nations. 375 Mounting criticism of the United States for its lack of consultation and handling of the situation prompted President Bush to schedule a personal meeting with South Pacific heads of state in Hawaii in October 1990.376 The President mollified those present by promising that JACADS would not become a toxic waste disposal site and that no post-World War II chemical weap371. Two Hotels, supra note 370, at 13. 372. Id 373. The Environmental Impact Statements for both the original JACADS operations and the additional German stockpile plan had concluded that there was insignificant risk of harm to either the terrestrial or marine environment from the incineration of the chemical weapons. Johnston Chemical-Arms Burning OK'd, HONOLULU ADVERTISER, July 19, 1990, at A2. These findings were vigorously contested by several experts in chemical demilitarization, and were challenged in a lawsuit brought by Greenpeace and Hawaiian environmental groups seeking an injunction against the German stockpile transfer. Greenpeace v. Stone, 748 F. Supp. 749 (D. Haw. 1990). Although the court declined to enjoin the European shipment on National Environmental Policy Act (NEPA) grounds, trial on the merits of JACADS' compliance with NEPA is still pending. Id. at 768. The facility was shut down for eight months in 1991 due to operating problems. Weapons Disposal Resumes at Johnston, PAC. MAG., Jan.Feb. 1992, at 49. 374. See supra note 211 and accompanying text. 375. Karen Mangnall, Dialogue with the Big Boys, PAC. ISLANDS MONTHLY, Sept. 1990 at 15. Nauru had suggested that the JACADS action would fall under the prohibitions of the SPNFZ Treaty. Two Hotels, supra note 370, at 11. This claim was not pursued since Johnston Atoll was not part of the Convention Area and the United States was not a party to the treaty or its protocols, and thus not bound by its terms. 376. See President Reassures Pacific Leaders, GANNETT WESTCHESTER NEWSPAPERS, Oct. 28, 1990, at Cl.

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ons from outside the Pacific would be shipped there.3 77 President Bush's assurances were considered binding by the Pacific community. 378 This flurry of diplomatic activity did not alter the fact that the island states had been forced once again to accept a condition not of their choosing, with potentially grave future consequences. The Forum states made little headway in convincing world leaders to accept their main concern: that because the sea and air know no boundaries, the oceanic and atmospheric conditions near Johnston Island are important to them. Consistent with this view, the Forum members urged the United States to include Johnston Island under the SPREP Convention.3 79 Without clear, tangible evidence, it would be difficult for Forum members to persuade the Army's environmental analysts that the environmental effects of JACADS might be felt in other countries. As dissatisfying as the Johnston Island episode was to those who sought to prevent the German transshipment, the affair did generate some benefits. First, the threat of future outside intervention was decreased when President Bush promised that JACADS would not become a toxic waste disposal site. The reliability of this promise may, however, depend on the progress of American demilitarization and the unpredictable dictates of executive and congressional politics. Second, within the SPREP region, the episode acted as a catalyst to draw the parties' attention to the effects of land activity on the marine environment. Future meetings of parties to the SPREP Convention should consider developing a land-based pollution protocol or similar measures to address this 3 80 problem, common to all island states. 2.

Tradingfor Trouble: Hazardous Waste Import

The commercial disposal of toxic chemicals and materials in developing countries, colloquially known as "trash for cash" or "garbage imperialism," has received significant global media attention with respect to Africa and Latin America. 381 Similar transactions of dubious legality have been attempted in the Pacific. South Pacific Island states are particularly vulnerable to arrangements of this sort, because most have neither the technical capacity to evaluate the potential environmental impacts of 377.

'Pool of Goodwill' Refilled at Leaders'PacificSummit, PAC. MAG., Jan./Feb. 1991, at

8. 378. The 22nd South Pacific Forum at Palikir, Pohnpei, Federated States of Micronesia, reaffirmed its stance on the issue of chemical incineration as declared in the 1990 Communique and the Bush pledges. Bums, supra note 360, at 23. 379. Id. 380. Discussion of this issue is on the agenda for the Second Meeting of Contracting Parties in 1993. See First Meeting of ContractingParties,supra note 284, Annex 5, art. 7, at 44. 381. See, e.g., William Touhy, 116 Nations Adopt Treaty on Toxic Waste, L.A. TiMEs, Mar. 23, 1989, at 6; Giff Johnson, MarshallIslands Hope to Profit on Imported Garbage; U.S. Trash may be Their Treasure, L.A. TIMEs, May 7, 1989 at 2.

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such transactions nor the resources to investigate transnational companies. To many Pacific nations with cash-poor economies and few natural assets, the temptation to earn substantial sums of money by accepting other countries' rubbish is understandably great. After the environmental costs of the transnational waste trade were publicized in the mid-1980's, specific transactions in the Pacific came to light. U.S. companies have recently attempted to enter into agreements with the governments of the Marshall Islands, Tonga, Papua New Guinea, the Solomon Islands, and Western Samoa, which would allow for regular dumping of large quantities of hazardous wastes in exchange for cash payments. 38 2 In many cases, companies wage an extensive propaganda campaign extolling the economic and other benefits that would accrue from these projects, while providing deficient analyses of their environmental impacts.3 8 3 The companies often fail to disclose38 information 4 such as past criminal convictions for fraud or tax evasion. The importation of waste materials into the South Pacific is closely related to the issue of incinerator construction. Companies sometimes offer to finance the building of an incinerator plant as part of a package to entice a government to accept hazardous waste shipments, maintaining that the incinerator provides the government with a means of waste claims of energy-producing disposal.38 5 They sometimes make dubious 38 6 projects. incinerator potential to promote These examples indicate that the South Pacific requires a stronger regional policy regarding hazardous waste importation. Currently, the only South Pacific nations that ban the importation or transshipment of 382. See CAREW-REID supra note 46, at 142; Robie, supra note 239, at 11-13. 383. One of the non-economic benefits suggested was that by accepting garbage to be used as landfill, a low-lying atoll could raise its elevation above sea-level and thereby counteract sea level rise caused by greenhouse global warming. Hall & Batterham, supra note 246, at 15. Upon rejection of this idea, the same company revised its strategy to suggest that the imported, supposedly non-toxic waste mountain could improve local lagoon fisheries by serving as an artificial reef. Robie, supra note 239, at 13. Recently a company calling itself "Greenline Pacific" proposed to dump 10 million tons of "liquid organic fertilizer" into the caldera of a dormant volcano on the populated Tongan island of Niua Fo'ou. A closer look at the application revealed that the "fertilizer" contained high levels of toxic heavy metals of the sort banned from ocean dumping under the SPREP Convention. Dumpers Want Niua Fo'ou, MATANGI TONGA (Tongan National Newsmagazine, Vava'u Press), Jan.-Feb. 1992, at 38. 384. See Robie, supra note 239, at 11-13. 385. A California company, Global Telesis, has been pursuing this plan in the South Pacific since 1988 and claims to have deals with Papua New Guinea and Vanuatu, despite the membership of both countries in the Lome Convention, which expressly prohibits importing wastes from abroad. Id. at 13. 386. Tonga has recently negotiated with companies in Seattle to import and burn 30 million discarded tires from the United States in an "energy co-generation" project. Bid to Build Tonga Tyre Incinerator,MATANGI TONGA (Tongan National News Magazine, Vava'u Press), May-June 1991, at 5.

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foreign hazardous wastes are the Solomon Islands and Vanuatu.38 7 Pacific Islanders may have recourse to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.38 8 However, there are two problems with relying on the Basel Convention to regulate such transactions. First, no Pacific Island states are parties to the Basel Convention, which has yet to enter into force, and second, the Convention imposes few substantive obligations on an exporting country once the consent of the importing state has been obtained. A better model on which to base a South Pacific agreement may be the Bamako Convention on the Ban of the Import Into Africa of Hazardous Wastes, adopted by the Council of Ministers of the Organization of African Unity in 1991.39 However, under this model, countries must give up the right to receive foreign-originating wastes, no matter how minimal the environmental risks. This model so strictly limits waste import that some Pacific Island countries might find its provisions too costly. A second alternative is the regional establishment of a stringent set of regulations governing waste trade. Such a system could be implemented through the creation of a regulatory board to oversee a permit system similar to that established under the SPREP Convention for the dumping of non-radioactive wastes. The South Pacific must take prompt action to address the import of foreign toxic wastes that no Pacific Island country is equipped to handle. C.

Participationin Global Conventions

Although some South Pacific countries are parties to international environmental agreements, the region as a whole is poorly represented in the membership of global conventions. 390 A number of factors may explain this low participation level: the island nations' recent independence, their financial inability to attend international treaty drafting 387. Kiss & SHELTON, supra note 186, at 321 n.56. 388. Mar. 22, 1989, 28 I.L.M. 657 (1989). 389. Bamako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, Jan. 29, 1991, 30 I.L.M. 773 (1991). The Bamako Convention prohibits the import into Africa of all hazardous

wastes from non-African countries for any reason. Id., art. 4, 30 I.L.M. at 780. "Hazardous waste" is defined to include specific substances prohibited by the Annex to the Convention; substances defined under national laws of contracting states as hazardous; unclassified wastes possessing certain characteristics; substances banned or refused registration in the country of manufacture; and radioactive wastes. Id., art. 2, 30 I.L.M. at 778-79. 390. International environmental treaties with the most South Pacific representation include the Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 559 U.N.T.S. 286 (Tonga, Fiji, Solomon Islands); the London Dumping Convention, supra note 125, 26 U.S.T. at 2403 (Kiribati, Nauru, Papua New Guinea, Solomon Islands, Tuvalu); and the Law of the Sea Convention, supra note 186, 21 I.L.M. at 1261 (Papua New Guinea, Vanuatu, Fiji). The only South Pacific party to the Montreal Protocol to date is Fiji. UNEP Register, supra note 174, at 32-33, 109-10, 112-13, 212.

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conferences, their fear of incurring affirmative and costly legal obligations, and their preoccupation with domestic affairs. The most likely explanation is that Pacific Island countries, cognizant of their isolation from and neglect by the international community, doubt the importance of signing treaties that have little bearing on their quiet existence. However, the Pacific nations may well find it in their collective interest to expand their participation in international environmental negotiations having current or potential regional repercussions. Two examples demonstrate the collective benefits of increased participation. Early in the negotiations of the SPREP Convention, delegates agreed not only to advocate accession to the London Dumping Convention (LDC) for those states not already parties, but also to take advantage of Article 8 of that convention which provides for regional agreements imposing stricter controls. 39 1 At a subsequent meeting of the parties to the LDC, Kiribati and Nauru led an active campaign supporting the extension of the LDC ban on dumping of radioactive wastes to include low-level wastes, as is the case in the SPREP Convention.3 92 As a result, the firm commitment by Pacific Islanders to a total ban on radioactive waste dumping is now well known in the international community and may serve to show other small nations that they can achieve the same degree of protection for their marine resources. The most compelling case for a South Pacific voice in international environmental negotiations involves global warming. 39 3 No Pacific Island state will be immune from the effects of any rise in the sea level, and some countries are likely to be completely obliterated. In addition to 391. See supra notes 124-25 and accompanying text. As the preamble to the Dumping Protocol states: The Parties to the Protocol... desiring to enter into a regional agreement consistent with the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 as provided in article VIII thereof according to which the Contracting Parties to that Convention have undertaken to endeavour to act consistently with the objectives and provisions of such regional agreement.... Dumping Protocol, supra note 3, 26 I.L.M. at 65. 392. CAREW-REID, supra note 46, at 77. Most Pacific delegates were suspicious of the LDC, believing that it encouraged the dumping of low-level radioactive wastes. Id. 393. Overview of PotentialImpacts of Climatic Change in the SPREP Region, in IMPLICATIONS OF EXPECTED CLIMATE CHANGES IN THE SOUTH PACIFIC REGION: AN OVERVIEW 1 (John C. Pernetta & Phillip J. Hughes eds.) (UNEP Regional Seas Reports and Studies No. 128, 1990). [hereinafter Impacts] Countries at risk of becoming submerged are Kiribati, Tuvalu, Tokelau, and some of the Marshall Islands. Hall & Batterham, supra note 246, at 15. As Solomon Islands Foreign Minister Sir Peter Kenilorea told the 22d South Pacific Forum in 1991: In a business-as-usual world - a concept harboured and jealously protected by one or two of the most industrialised nations for political and economic reasons ... it is now well established that it is we, the inhabitants of the island countries of the Pacific, Caribbean and Indian Oceans and our children of the future, who live four feet above the sea-water level, who will first disappear from the face of this earth in the event of sea-level rise. Williams, supra note 2, at 21.

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inundation, the South Pacific may experience negative effects of temperature change in the form of coral reef bleaching and increased severity and frequency of tropical storms. 394 In this context, the successful completion of a strong global climate change agreement may be necessary for the very survival of South Pacific countries. The Alliance of Small Island States (AOSIS) successfully met the daunting challenge of capturing the attention of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC). Formed in 1990 after the Second World Climate Conference, AOSIS unites the island states of the Pacific, Caribbean, and Indian Oceans and Malta under a common agenda - to ensure that negotiators, particularly those from large, industrialized countries, do not lose sight of the grave consequences facing vulnerable island countries. 39 5 AOSIS's progress in achieving this goal has been remarkable. The United Nations General Assembly has referred to its work, and the INC granted it con396 sultative status, indicating a widespread respect for the organization. In the two years after its inception, AOSIS grew from 28 members to 34, building political clout with the addition of larger members like 397 Singapore. AOSIS's success is attributable to pooled resources, shared responsibilities, and solid organization under an energetic chairman, Vanuatu's United Nations Ambassador Robert Van Lierop.3 98 As a body, AOSIS has performed tasks that most of its members could never have shouldered on their own, such as gathering legal and scientific support and maintaining a highly visible presence at all important meetings. It even formulated its own "Six Point Plan for the Environment," a check399 list of minimum conditions for the climate convention. AOSIS and the SPREP ocean dumping initiative demonstrate the achievements that can be made through collective action. 40° All nations 394. 395.

See Impacts, supra note 393, at 6-10. Williams, supra note 2, at 20.

396. Id.; Ian Williams, Islands' Big Pitch at Climate Conference, PAC. ISLANDS MONTHLY, Mar. 1991, at 54 [hereinafter Islands' Big Pitch]. 397. Jemima Garrett, Greenhouse: the State of Play, PACIFIC ISLANDS MONTHLY, Sept. 1991, at 27. 398. Williams, supra note 2, at 20. 399. The six points are: (1) significant emission reductions of greenhouse gases by industrialized countries; (2) exercise of the "precautionary principle," i.e., immediate global action despite scientific uncertainties; (3) funding mechanisms to compensate vulnerable island countries; (4) technology transfers to developing countries; (5) application of the "polluter pays" principle of compensation; (6) binding commitment to energy conservation and alternative energy development. Islands' Big Pitch, supra note 396, at 54. 400. The South Pacific states have also successfully used the collective solidarity approach

in bilateral fisheries negotiations. Although the Tuna Treaty with the United States involved 16 countries and is thus technically a multilateral agreement, from the outset it was clear there were two contracting groups: the U.S. and the Forum states, as ably represented by the Forum Fisheries Agency. After years of confrontation with the U.S. tuna industry and acrimonious

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are equal according to international law, 40 1 but, in practice, this theoretical presumption has not helped nations with little political or economic influence overcome the barriers to meaningful participation in international agreements. By defining common objectives and agreeing on costsharing and work-sharing arrangements, coalitions of otherwise internationally invisible states can work effectively to raise otherwise unheard concerns. V CONCLUSION

A basic two-pronged dilemma generally arises with respect to international environmental treaty-making. First, the process of trading compromises tends toward an overall "lowest common denominator" effect in substantive outcome. Second, the process of collective negotiation, drafting, and individual state ratification consumes enormous amounts of time.40 2 With regard to the latter problem, the SPREP Convention conforms to the trend. The Treaty took four years to conclude and another four years to obtain the requisite number of ratifications to enter into force. Ten years after the process began, only about half of those eligible to join the Convention are now members. The SPREP Convention fares better with respect to the first problem. The concluded agreement spans a range of greater and lesser compromises. Clearly, Article 12 on nuclear testing represents the lowest common denominator, but the definition of the Convention Area reflects a decided shift in favor of the Pacific Islanders' position. Moreover, the dumping restrictions constitute virtually a complete vindication of the island states' demands. The fact that a treaty is in place does not guarantee the ultimate achievement of its goals. However, the chances for success may be improved if the treaty regime includes viable noncoercive means of ensuring compliance and the capacity for adaptability and institutional learndebate with U.S. officials, the Pacific Island states ultimately persuaded the United States to abandon its insistence on treating tuna as a highly migratory species not subject to the jurisdiction of any coastal state. Under the Treaty's terms, the Forum states will share $12 million per year in access fees paid by the U.S. Government and tuna operators. See Treaty Ends Tuna War, PACIFIC ISLANDS MONTHLY, June 1987, at 22-23. The essence of the victory upon the treaty's conclusion was summed up by Marshall Islands Foreign Minister Charles Dominick: What we see here today is the result of a regional, common approach towards a superpower. Indeed, only a few years ago such a treaty would have been said by many to be unobtainable .... We would not compromise on issues of sovereignty. And we did not. And the U.S. fishermen when fishing in our zones will fish under our law and our penalties. Id. at 22. 401.

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 287 (4th ed. 1990).

402.

See Peter Sand, International Cooperation: The Environmental Experience, in PRE-

SERVING THE GLOBAL ENVIRONMENT: THE CHALLENGE OF SHARED LEADERSHIP 240

(1991).

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ing.4 0 3 Compliance is enhanced by establishing mechanisms within the

Convention to make parties accountable for their actions and to make their behavior transparent to others; the objective is to encourage "mutual coercion mutually accepted." 40 4 These mechanisms can include reporting and monitoring requirements as well as target-setting activities. Adaptability to changing circumstances can be achieved through amendments, review procedures, and creative institutional development which allows for delegated legislative or planning authority. The SPREP Convention incorporates all of these elements to some degree. The Convention employs environmental auditing, reporting, permitting, monitoring, and transfer of information to facilitate cooperation and coordination between the parties. However, effective implementation of the SPREP Convention objectives requires continued commitment and vigilance by all states in the region. Activation of the regime necessitates activation of NGO's. Independent public participation can expose laxity in treaty compliance and can pressure recalcitrant actors. In addition, more technically-oriented NGO's can provide valuable expertise in planning and implementing actions. Some of these activities are being undertaken in the South Pacific; the region requires much more. Three current features of the South Pacific environmental initiatives may inform future efforts at regional environmental cooperation and management. First, the region has been successful in pursuing a broad framework approach while also concluding individual resource sector agreements. These individual agreements have responded to an acute threat (the Driftnets Convention), a chronic threat (the SPNFZ Treaty), and a long-term management concern (the Apia Convention). Combining a broad framework with specific agreements allows the region to set comprehensive goals to be implemented in stages while addressing more immediate problems as they arise. However, this system also allows states to be party to some agreements but not others, creating inconsistent state obligations. Adept institutional oversight is required to resolve this potentially harmful incongruity. A second instructive feature of the South Pacific regime is its ongoing informal experimentation with regional institutions. The SPREP Convention is administered on two levels: general oversight through meetings of parties and logistical coordination to facilitate compliance by SPREP, the agency. SPREP is itself an experiment in regional environmental management, with ever brighter prospects now that financial sup403. See Abram Chayes & Antonia H. Chayes, Adjustment and Compliance Processes in InternationalRegulatory Regimes, in PRESERVING THE GLOBAL ENVIRONMENT, supra note 402, at 289. 404. LYNTON K. CALDWELL, BETWEEN Two WORLDS: SCIENCE, THE ENVIRONMENTAL MOVEMENT, AND POLICY CHOICE 160 (1990).

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port has increased. If it is granted regulatory authority and expanded capacity to serve as an input channel for NGO's, SPREP could become a global model for translating international convention goals into effective programs. The final and perhaps the most interesting lesson presented by the emerging environmental regime of the South Pacific involves the power generated by consolidation and the increasing voice of small, developing countries in environmental protection. The Pacific Island states, acting together, were able to secure one of the strongest ocean dumping bans in existence while boosting recognition of their EEZ jurisdiction in the SPREP Convention. Although they have been less successful in securing other agenda items, such as halting chemical weapon incineration and nuclear testing, 405 Pacific Islanders are now working together to ensure that their protests are heard internationally. It will become increasingly difficult for non-Pacific states to justify activities condemned by those most affected. An interregional collaboration has recently emerged between the South Pacific and Pacific South American countries. The Comision Permanente del Pacifico Sur (Permanent Commission for the South Pacific or CPPS) and SPREP, SOPAC, and FFA have occasionally worked together on concerns ranging from ocean pollution, to seabed exploitation, to tuna fisheries. 406 This burgeoning alliance in environmental affairs promises to become a powerful force defending the interests of South Pacific nations. Pacific Islanders have the opportunity to shed the last vestiges of colonialism and take permanent control of their affairs by taking control of their environment. Their challenge is to combine the best of traditional ways with innovative thinking and collective response in fashioning a "Pacific Way of the environment" that will serve the needs of the region into the next century.

405. In the beginning of 1992, French Defense Minister Pierre Joxe reiterated France's intention to continue nuclear tests in the South Pacific for as long as France possesses nuclear weapons. French Say They Will Continue Nuclear Tests, PAC. MAG., Jan.-Feb. 1992, at 8. However, in a surprise move in April 1992 French Prime Minister Pierre Beregovoy announced that France would suspend its Pacific testing program at least through the end of the year and would consider extending the moratorium if other nuclear powers took similar actions. France Suspending South Pacific A-Tests, S.F. CHRON., Apr. 9, 1992, at A16. 406. Ron Crocombe, Latin America and the Pacific Islands, in 3 THE CONTEMPORARY PACIFIC 115, 133 (1991). CPPS members include Chile, Peru, Ecuador, and Colombia. Id. at

132.

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