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Big fish to fry - international law and deterrence of the toothfish pirates
In August 2003 the Australian public was given a daily account via all news media of the discovery, pursuit, and eventual seizure, of an alleged illegal, unreported and unregulated (IUU) fishing vessel out of Uruguay — the Viarsa (ABC News Online 2003; see also News24.com 2003). The vessel had been found to be fishing in the remote Australian Fishing Zone that surrounds Australia's sub-Antarctic Heard and McDonald Islands (HIMI) (ABC News Online 2005; News24.com 2003). The Viarsa was subsequently chased through 10 metre waves, 80-knot winds, and temperatures as low as -20° Celsius, for 6,300 kilometres over 21 days, (the longest maritime chase in Australian history). The vessel was eventually 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 entitled to certain rights which are outlined in Article 73 of the 1982 United Nations Law of the Sea Convention (LOSC). This paper will submit that the current provisions within Article 73 of 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 unreported toothfish, was also arrested for illegally fishing in the Australian Fishing Zone. In the southern hemisphere summer of 2005, the problems of IUU fishing have continued to undermine sustainable fishery management quotas. At the time of writing this paper (March 2005), Australia's Southern Ocean patrol vessel the Oceanic Viking has just reported observing 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 the relevant regional fishery body of which Australia is a member: the Committee for the Conservation of Antarctic Marine Living Resources (CCAMLR), and the CCAMLR had already closed the Banzare Bank to fishing on 14th February, 2005 (MacDonald & Ellison 2005).The problem of IUU fishing is not confined to pockets within the Southern Ocean. It is a global phenomenon and accordingly, attempts to understand the practice and deter the fishers have taken place across many disciplines, at all geopolitical levels: global, regional and 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 to IUU fishing, assess the Law of the Sea Convention for its ability to deter potential IUU fishers, and make recommendations to enhance the subject of deterrence in the current legal regime.
Publication titleCurrent issues in criminal justice
Department/SchoolFaculty of Law
PublisherThe University of Sydney
Place of publicationSydney
Rights statementCopyright 2005 The University of Sydney