By Dr Transform Aqorau
The recent public discussion surrounding Ship Rider Agreements has been healthy and important. It demonstrates that Solomon Islanders care deeply about our sovereignty, our oceans and our country’s place in an increasingly complex world.
However, as I have followed the discussion, it has become apparent that two very different issues are being debated as though they are one and the same. This has understandably created confusion for many members of the public.
The first issue is a question of “international law”: Are Ship Rider Agreements lawful, and are they consistent with the sovereignty of Solomon Islands?
The second is a question of “geopolitics and national policy: Should Solomon Islands choose to enter into such an agreement with a particular country, taking into account today’s international political environment?
These are fundamentally different questions. Unfortunately, much of the current debate treats them as though they are interchangeable. They are not.
The Legal Question
The legal question is actually the easier one to answer. International law has, for decades, recognised the sovereign rights of coastal States over their Exclusive Economic Zones (EEZs). Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), coastal States have sovereign rights to explore, conserve, manage and enforce laws relating to the living resources within their EEZ.
Importantly, international law also recognises that sovereign States may decide how they exercise those powers. A State may enforce its laws entirely by itself. It may cooperate with neighbouring States. It may enter into bilateral agreements. It may enter into regional agreements. Or it may invite another country to provide operational assistance under conditions determined by the coastal State.
None of these options diminish sovereignty. Indeed, the very ability to make those choices is one of the defining attributes of sovereignty itself. This is precisely why Ship Rider Agreements have existed successfully for decades throughout the Pacific and the Caribbean. The legal authority never belongs to the foreign vessel. The enforcement authority remains with the coastal State. The foreign vessel simply provides a platform from which the coastal State’s authorised officers can exercise their own legal powers.The law is relatively settled on this point.
The Pacific Did Not Inherit the Ship Rider Concept
One aspect often overlooked is that Ship Rider Agreements were not imposed upon the Pacific. They were developed because Pacific Island countries faced a practical problem. When Exclusive Economic Zones were created under UNCLOS, Pacific Island countries suddenly became custodians of some of the largest ocean jurisdictions on Earth.
But jurisdiction alone does not catch illegal fishing vessels. Our region simply did not possess sufficient patrol vessels, aircraft, personnel or financial resources to maintain a constant presence across millions of square kilometres of ocean.
Rather than accepting that reality, Pacific Island countries became innovators. The Forum Fisheries Agency pioneered regional cooperation. It introduced the Regional Register. It pioneered satellite Vessel Monitoring Systems. It developed regional information-sharing systems. It negotiated the Niue Treaty. It later developed the Niue Treaty Subsidiary Agreement.
Ship Rider arrangements evolved as another practical solution to a practical problem. They enabled Pacific countries to exercise their own sovereign authority more effectively by making use of the ships, aircraft and logistics of trusted partners while retaining complete legal control over enforcement decisions. That is an important distinction.
The Geopolitical Question
Where the discussion becomes more complex is not the legality of Ship Rider Agreements. It is geopolitics. Geopolitics asks an entirely different question. Not whether an agreement is lawful. But whether entering into such an agreement is strategically wise.
Reasonable people can disagree on this. Some argue that entering into security cooperation with one major power may be interpreted as alignment with that country’s broader strategic interests.
Others argue that practical cooperation to combat illegal fishing, drug trafficking, people smuggling and transnational crime is simply good governance and should not be interpreted as choosing sides in global politics.
Both perspectives deserve respectful consideration. Neither perspective changes the underlying legality of the agreement. This distinction is crucial.
International Law Does Not Choose Friends
One of the remarkable strengths of international law is that it is politically neutral. International law does not require States to cooperate only with governments that others approve of. Nor does it prohibit cooperation simply because another government is unpopular. Every sovereign State has the right to determine with whom it will enter into agreements, provided those agreements are themselves lawful. That principle applies equally to all countries.
It is worth remembering that Solomon Islands has entered into a wide variety of bilateral agreements over many decades with countries representing different political systems, strategic interests and economic priorities. These include development agreements, policing arrangements, fisheries agreements, trade agreements, defence cooperation, labour mobility arrangements and investment agreements.
More recently, Solomon Islands also entered into arrangements with the People’s Republic of China that permit Chinese law enforcement personnel to assist in protecting Chinese diplomatic premises, personnel and business interests under agreed circumstances.
Whether one supports or opposes those arrangements is ultimately a political judgement. The legal capacity of Solomon Islands to enter into such agreements, however, flows from exactly the same principle of sovereignty that underpins Ship Rider Agreements.
A sovereign State may conclude agreements with other sovereign States. That is one of the oldest principles of international law.
Politics and Law Are Not the Same
One concern I have observed in the current debate is that legal arguments sometimes become proxies for political preferences. Instead of discussing whether an agreement complies with international law, discussions sometimes shift towards whether one supports the government that negotiated it, or whether one supports the foreign country involved.
Those are perfectly legitimate political discussions. But they should not be confused with legal analysis. Law asks whether an agreement is valid. Politics asks whether entering into it is wise. These are different disciplines requiring different analytical frameworks. Confusing the two risks generating more heat than light.
Looking Through the Correct Lens
Perhaps the most important lesson for all of us is that we should first decide which lens we are using. If we are asking: “Is this agreement lawful?” then the discussion belongs within international law.
If we are asking: “Is this agreement in Solomon Islands’ national interest?” then the discussion belongs within politics, diplomacy and strategic policy.
Neither discussion is illegitimate. But they should not be conflated.
My Own Perspective
Over many years of working in international law, I have had the privilege of advising governments with different political philosophies and different strategic priorities.
Governments change. International law does not.
One reason I have been able to continue serving successive governments is because my advice has never been based on party politics. I have no political affiliation.
Thankfully, I have never lost my position because of a change of government. My responsibility has always been to explain what the law permits, what it prohibits, what options exist, and what the legal consequences may be.
The political choices that governments make within those lawful options are matters for elected leaders and, ultimately, for the people.
That distinction is worth preserving.
As citizens, we should continue to debate the geopolitical implications of our foreign policy with vigour and respect.
But as we do so, let us also recognise that international law provides the framework within which those political choices are made.
The real debate today is not whether Solomon Islands has the legal capacity to enter into Ship Rider Agreements or similar international arrangements. That question is largely settled.
The real debate is about which partnerships best serve our national interests in a rapidly changing world.
That is a debate worth having.
But it is a different debate altogether.
