Big fish to fry - international law and deterrence of the toothfish pirates

• Main Author: Lugten, GL
• Format: Article in Journal/Newspaper
• Language: English
• Published: The University of Sydney 2005
• Subjects: Law and Legal Studies; Law; Environmental and Natural Resources Law; Antarctic; Southern Ocean; The Antarctic; Uruguay; Heard; McDonald Islands; Banzare Bank; Antarc*; Ice Shelf; Patagonian Toothfish; South Atlantic Ocean
• Online Access: http://sydney.edu.au/law/criminology/journal/index.shtml; http://ecite.utas.edu.au/38006

In August 2003 the Australian public was given a daily account via all news media of thediscovery, pursuit, and eventual seizure, of an alleged illegal, unreported and unregulated(IUU) fishing vessel out of Uruguay the Viarsa (ABC News Online 2003; see alsoNews24.com 2003). The vessel had been found to be fishing in the remote AustralianFishing Zone that surrounds Australia's sub-Antarctic Heard and McDonald Islands (HIMI)(ABC News Online 2005; News24.com 2003). The Viarsa was subsequently chasedthrough 10 metre waves, 80-knot winds, and temperatures as low as -20 Celsius, for 6,300kilometres over 21 days, (the longest maritime chase in Australian history). The vessel waseventually captured in the South Atlantic Ocean on Thursday 21st August, 2003. The Viarsa , carrying 85 tonnes of Patagonian toothfish, was escorted to Fremantle for trial. Under contemporary international law, the captain and crew of the Viarsa were entitledto certain rights which are outlined in Article 73 of the 1982 United Nations Law of the SeaConvention (LOSC). This paper will submit that the current provisions within Article 73of the LOSC have no deterrence value. Thus, in January 2004, less than six months after the Viarsa was arrested, another Uruguayan vessel, the Maya 5 with 200 tonnes of unreportedtoothfish, was also arrested for illegally fishing in the Australian Fishing Zone. In thesouthern hemisphere summer of 2005, the problems of IUU fishing have continued toundermine sustainable fishery management quotas. At the time of writing this paper (March2005), Australia's Southern Ocean patrol vessel the Oceanic Viking has just reportedobserving six IUU fishing vessels operating on the Banzare Bank between HIMI and the Antarctic ice shelf (MacDonald & Ellison 2005). These are waters that are regulated by therelevant regional fishery body of which Australia is a member: the Committee for theConservation of Antarctic Marine Living Resources (CCAMLR), and the CCAMLR hadalready closed the Banzare Bank to fishing on 14th February, 2005 (MacDonald & Ellison2005). The problem of IUU fishing is not confined to pockets within the Southern Ocean. It isa global phenomenon and accordingly, attempts to understand the practice and deter thefishers have taken place across many disciplines, at all geopolitical levels: global, regionaland national. This paper takes one such discipline and one geopolitical level, that is,international law. The paper will evaluate the practical application of international law toIUU fishing, assess the Law of the Sea Convention for its ability to deter potential IUUfishers, and make recommendations to enhance the subject of deterrence in the current legalregime.