Preserving the Ocean: Palau’s National Marine Sanctuary Act

By: Andrea Fogelsinger

Experts have said “[m]ankind may be causing the [next] mass extinction event.”[1] According to Dr. Stuart Pimm, a conservation ecologist at Duke university, “each year about one in a million species should expire naturally,”[2] however, in the next few decades humans will be “driving species to extinction a thousand times faster than they should be.”[3] Additionally, Dr.  Michael Novacek, the Curator of Paleontology at the American Museum of Natural History, estimates that in 100 years fifty percent of all species could be extinct.[4] Some countries and organizations are taking this threat of mass extinction very seriously. The small island nation of Palau is one such country.

President Tommy E. Remengesau Jr. signed Palau’s National Marine Sanctuary Act (PNMSA) into law on October 28, 2015.[5] PNMSA declares 80 percent of Palau’s maritime territory as a fully protected marine sanctuary.[6] The sanctuary is sixth largest marine protected area at 193,000 square miles, an area about the size of California.[7] The remaining 20 percent of Palau’s waters are reserved as a domestic fishing zone for small commercial fisheries and local fisherman.[8] Palau established a five-year plan for transforming its exclusive economic zone (EEZ) into a no take marine sanctuary.[9] During this time, Palau will annually decrease the number of a foreign vessels that are sold fishing licenses for Palau’s waters.[10] However, Palau’s sixteen states will still manage from shore to twelve nautical miles of coastal waters around the 250 islands of Palau.[11] This is only the most recent act in Palau’s long history of legal conservation milestones.[12] Even before Palau became and independent nation it declared 70 of its islands as the Ngerukeid Islands Wildlife Preserve.[13] Palau also has regulations protecting the bumphead parrotfish, sea turtles, and established the world’s first shark sanctuary in 2009.[14]

It is rare to see a country take such drastic legal measures to protect biodiversity. Especially on the water, where it is so easy for fishing vessels to cross borders. Often, acts like the PNMSA lack the “teeth” needed to enforce the act. However, Palau takes enforcement of the PNMSA very seriously. The country implements strict monitoring and enforcement actions and has a five-year plan for continuing strict surveillance, monitoring, and control of illegal fishing in their EEZ.[15] Boats that fish illegally in Palau’s waters are known to originate from Vietnam, Indonesia, and the Philippines, with the larger commercial vessels coming from Asia.[16] In response to finding illegal Vietnamese vessels fishing in a protected area, Palau evacuated the boats, recovered eight metric tons of marine life found on board, and then proceeded to burn four of vessels.[17] Clearly, Palau is very serious about enforcing the protection it has declared in its EEZ.

While it is amazing to see such forceful enforcement of a legal act intended to protect not just one species, but an entire area of the ocean, it does raise concerns about long Palau can sustain such a drastic action. Under PNMSA, Palau allows “innocent passage” of vessels through their EEZ.[18] This means that vessels are allowed to expeditiously move through Palau’s EEZ simply for the purpose of moving from one point to another.[19] By allowing passage, but not fishing in their waters, Palau is attempting to walk the delicate line of protecting its waters without interfering with the activities of other countries enough that countries seek sanctions against Palau. But how long will countries tolerate having their vessels burned before action is taken against Palau? While an in depth look at the potential legal minefield that could be in Palau’s future is outside the scope of a short article like this, it is interesting to consider what challenges may arise in the future. Currently, there do not appear to be any serious challenges to the restrictions of the PNMSA or Palau’s enforcement strategies.

International and single country agreements to regulate fishing and protect the ocean’s biodiversity are slowly implemented and often lack the monitoring and enforcement necessary to effect change.[20] Palau is making great progress to change that trend with its five year plan to establish effective surveillance, monitoring[21] and enforcement, and by working with other organizations that can assist Palau in its goals.[22] Sea Shepherd Legal has partnered with Palau to conduct workshops to outline how the provisions in PNMSA can be legally implemented under various international treaties and other regimes.[23] Sea Shepherd Legal[24] is a new extension of the Sea Shepherd Conservation Society popular for its efforts to disrupt illegal whaling as seen on Animal Planet’s show Whale Wars.[25] Over seventy participants attended the first workshop, including lawmakers, judges, lawyers, and law enforcement personnel.[26] There will be a series of these workshops to help Palau explore the practical implementation of PNMSA and Sea Shepherd Legal intends to provide a Legal Reference Guide to be used by prosecutors, the judiciary, and enforcement officers as more issues arise surrounding PNMSA.[27]

            For an excellent look at the mass extinction concern and a visual look at Palau’s efforts, watch the documentary Racing Extinction.[28]

[1] Racing Extinction (Lionsgate 2015).

[2] Id.

[3] Id.

[4] Id.

[5] Fact Sheet: Palau National Marin Sanctuary: Building Palau’s Future and Honoring Its Past, The Pew Charitable Trusts, 2 (Jan. 2016), http://www.pewtrusts.org/~/media/assets/2016/01/gol_palaunms_update_v3.pdf [hereinafter PNMS Fact Sheet].

[6] Press release, The Pew Charitable Trusts, Palau to Sign National Marine Sanctuary Into Law: Pacific Island Nation Now Leads the World in Highest Percentage of its Exclusive Economic Zone Set Aside for Full Protection (Oct. 22, 2015), http://www.pewtrusts.org/en/about/news-room/press-releases/2015/10/22/palau-to-sign-national-marine-sanctuary-into-law.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] PNMS Fact Sheet, supra note 5, at 6. f

[13] Id.

[14] Id.

[15] The Republic of Palau Exclusive Economic Zone: Monitoring, Control, and Surveillance: The Next Five Years 2016-2012 (Eric Terril, et al., eds., Nov. 2015), https://scripps.ucsd.edu/sites/scripps.ucsd.edu/files/communications-content/field_attachment/2016/Palau%20MCS%20Plan.pdf [hereinafter PNMSA Monitoring, Control, and Surveillance].

[16] Id. at 13.

[17] Id. at 13.

[18] Palau National Marine Sanctuary Act, SB No. 9-30, RPPL No. 9-49 (2015) (Palau), 3, http://palaugov.pw/wp-content/uploads/2015/10/RPPL-No.-9-49-Palau-National-Marine-Sanctuary-Act.pdf.

[19] Id. at 3.

[20] Genevieve Neilson, Palau Can Use Public Diplomacy to Combat Illegal Fishing – Genevieve Neilson, Islands Society (Jan. 19, 2016), http://islandssociety.org/2016/01/19/how-can-palau-use-public-diplomacy-to-combat-illegal-fishing/.

[21] PNMSA Monitoring, Control, and Surveillance, supra note 15.

[22] Pres Release, Sea Shepherd Legal, Seas Shepherd Legal Partners with the Palau National Marine Sanctuary and the Palau Bar Association to Secure Palau’s National Heritage (Nov. 22, 2016), https://seachangessl.files.wordpress.com/2017/01/palau-workshop-i-press-release.pdf [hereinafter Sea Shepherd Press Release].

[23] Id.

[24] Sea Shepherd Legal, http://www.seashepherdlegal.org/about.html (last visited Apr. 2, 2017).

[25] Whale Wars, Animal Planet, http://www.animalplanet.com/tv-shows/whale-wars/ (last visited Apr. 2, 2017).

[26] Sea Shepherd Press Release, supra note 22.

[27] Id.

[28] Racing Extinction, supra note 1.