How the islands negotiated the first US Treaty

LES CLARK






The Fisheries Treaty with the United States is one of the FFA’s flagship accomplishments.  It has its origins in the adoption by the global community of the 1982 United Nations Convention on the Law of the Sea. That convention provides for coastal states to exercise sovereign rights over living resources in their 200-nautical mile Exclusive Economic Zones (EEZs), subject to certain obligations to manage those resources responsibly, including the obligation to cooperate with other states involved in fisheries for stocks such as tuna that are shared.  In response, the United States took a sound position—that there should be cooperation in the management of tuna stocks—and honed it to serve the economic interests of its tuna industry, declining to assert national jurisdiction over tuna in United States waters and refusing to recognise the rights of others to manage tuna stocks in their waters under their national laws.  
In the early 1980s, this brought the United States into direct conflict with member countries of the Pacific Islands Forum Fisheries Agency (FFA), many of them recently independent and highly valuing the sovereign rights they were entitled to exercise under the UN Convention. United States vessels were arrested and seized and the United States applied sanctions to trade and aid in retaliation. Kiribati and Vanuatu licensed Russian vessels and relations between FFA members and the United States deteriorated sharply.  
FFA members and the United States entered into negotiations to remove the differences between them, responding to a number of economic and strategic interests. Through this process, FFA members sought recognition of their rights to their EEZs, a fair return for their fish, an end to United States government support for illegal fishing and removal of the threat of trade sanctions against their tuna exports, because this threat was deterring investment in domestic tuna industry development.
The negotiations were protracted and skilfully conducted. The outcome was both a neat balance of interests and an exercise in smoke and mirrors.   The treaty is in essence a regional arrangement that requires United States vessels to comply with FFA members’ national laws and the United States government to take responsibility for ensuring that they do. So, the United States could look at it from one angle and see the regional arrangement their policy required; while FFA Members could look at it from another angle and see a powerful exercise of their sovereign rights and effective application of their laws.
That original purpose of the treaty no longer applies. Attracted by the benefits of being able to manage tuna stocks in its own waters, the United States changed its law to assert its management authority over its tuna in 1992, and at the same time recognised the assertion of jurisdiction over tuna by other states. After that, the treaty became largely a valuable instrument of economic cooperation and a mechanism for control of US vessels in a way that established several important regional and global precedents. 
Negotiating the treaty was a major undertaking.  There were twelve sessions of negotiations  in all over four years—in Suva,  Wellington, Rarotonga, Honolulu, Nuku’alofa  (via Vava’u)  for the final sessions, and to Port Moresby for the signing. 
Robert Keith-Reid, founder of ISLANDS BUSINESS, travelled much of the route, cynical but supportive, chronicling the antics and the tactics of the participants. 
Phillip Mueller, the FFA director, carried the kava bowl and the considerable burden of chairing all the internal meetings of FFA Members. 
Ed Wolfe, the US Ambassador for Fisheries and an accomplished conjuror, during negotiations pulled an egg from his ear and over time made $60 million appear from his government’s budget for the first five years of funding.
Tony Slatyer and Don McKay led the lawyers in the design of the text.  Steve Muller led the singing, and the generosity of villagers of Tongatapu sustained the FFA delegations through the final stages.
Annual consultations between the United States and FFA members held in almost every Pacific Islands Country over time have continued the process. 
Now, over 20 years later, the delegations are preparing to negotiate for a third period of extension of the licensing arrangements under the treaty to take effect from June 2013.  Times have changed and the outlook is not certain—tuna management in the region is more complex and many Pacific Islands countries have wider choices for benefitting from their tuna resources.