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Illegal Southern Ocean Fishing And Prompt Release: Balancing Coastal And Flag State Rights And Interests

Published online by Cambridge University Press:  17 January 2008

Donald R Rothwell  and
Tim Stephens
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Extract

A feature of the new law of the sea introduced by the 1982 United Nations Convention on the Law of the Sea (LOS Convention),1 was the capacity for coastal states to assert vast maritime claims over waters adjacent to their coastlines. A continental shelf could be claimed out to a minimum of 200 nautical miles,2 while the newly recognized Exclusive Economic Zone (EEZ) also extended out to 200 nautical miles.3 The continental shelf had previously been recognized under the 1958 Geneva Convention on the Continental Shelf4 and so the extension of coastal state sovereign rights over the seabed and subsoil was consistent with already existing law of the sea principles. However the EEZ, which gave to coastal states sovereign rights over the living and non-living resources of the sea-bed and adjacent waters,5 was a new initiative of the LOS Convention and represents one of the most significant contemporary expansions of state sovereignty. By contrast with the extended continental shelf, which did not affect any significant pre-existing activities on the sea-bed, the new EEZ had a major impact upon fishing activities. As coastal states around the world eagerly proclaimed EEZs, waters previously considered high seas areas available for fishing6 were now within the reach of state fisheries’ jurisdiction and control. The result has been that under contemporary international law those waters available for the exercise of the high seas ‘freedom’ of fishing,7 have gradually been reduced. This new regime, in combination with parallel initiatives to regulate some aspects of high seas fishing activities, has meant that ‘legal’ fishing on the high seas is now subject to extensive regulation.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 1 , January 2004 , pp. 171 - 187
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 In force 16 11 1994,1833 UNTS 396.Google Scholar

2 LOS Convention, Art 76.Google Scholar

3 Ibid, Art 57.

4 In force 10 06 1964, 499 UNTS 311.Google Scholar

5 LOS Convention, Art 56.Google Scholar

6 See 1958 Geneva Convention on the High Seas, in force 30 09 1962,450 UNTS 11, Art 2.Google Scholar

7 LOS Convention, Art 87.Google Scholar

8 See in particular LOS Convention, Art 73.Google Scholar

9 Ibid, Arts 73, 292.

10 See in particular the following five cases: (1) The M/V Saiga case (St Vincent and the Grenadines v Guinea), Case No 1, 4 12 1997 (1998) 37 ILM 1202;Google Scholar(2) The Camouco case (Panama v France), Case No 5, 7 02 2000 (2000) 39 ILM 666;Google Scholar(3) The Monte Confurco case (Seychelles v France), Case No 6, 18 12 2000, available at <http://www.itlos.org> (28 04 2003);+(28+04+2003);>Google Scholar(4) The Grand Prince case (Belize v France), Case No 8, 20 04 2001, available at <http://www.itlos.org> (28 Apr 2003);+(28+Apr+2003);>Google Scholar(5) The Volga case (Russian Federation v Australia), Case No 11, 23 12 2002, (2003) 42 ILM 159.Google Scholar

11 See Edeson, W, ‘The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument’ (2001) 16 International Journal of Marine and Coastal Law 603–23;CrossRefGoogle Scholarand for the response of the FAO, see ‘International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing Approved by the FAO Committee on Fisheries, 2 March 2001’ (2001) 16 International Journal of Marine and Coastal Law 660–78.CrossRefGoogle Scholar

12 The Camouco, the Monte Confurco, the Grand Prince, and the Volga cases, above n 10.Google Scholar

13 Those being the Indian, Pacific, and Atlantic Oceans.Google Scholar

14 Also known as ‘Chilean Sea Bass’, ‘Antarctic Sea Bass’, ‘Sea Bass’, ‘Bacalao de profundidad’, ‘Butterfish’, ‘Merluza negra’, ‘Mero’, and ‘Robalo’: M Lack and G Sant, ‘Patagonian Toothfish: Are Conservation Measures Working?’ (2001) 19 No 1 TRAFFIC Bulletin 1, at 11.Google Scholar

15 Lack and Sant, above n 14 at 1.Google Scholar

16 In force 7 04 1982,1329 UNTS 47.Google Scholar

17 See the discussion in Molenaar, EJ, ‘Southern Ocean Fisheries and the CCAMLR Regime’, in Elferink, AG Oude and Rothwell, DR (eds) The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague Kluwer Law International 2001) 293–315.Google Scholar

18 In force 23 06 1961, 402 UNTS 71.Google Scholar

19 The term ‘pirate’ is used because of the illegal activities these vessels engage in, and their tendency to re-flag and re-name in order to avoid arrest.Google Scholar

20 Lack and Sant, above n 14, at 1.Google Scholar

21 Molenaar, EJ, above n 17, at 306 has noted that ‘IUU fishing is mainly or exclusively aimed at toothfish and not at the more important target species krill, at least as regards quantity.’Google Scholar

22 Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 11 2002, 28 and Commission for the Conservation of Antarctic Marine Living Resources, Report of the Working Group on Fish Stock Assessment, SC-CAMLR-XX/4,17 Oct 2002, 42–3.Google Scholar

23 Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 11 2002, 38.Google Scholar

24 For an analysis of some of the responses see DJ Agnew, ‘The Illegal and Unreported Fishery for Toothfish in the Southern Ocean, and the CCAMLR Catch documentation Scheme’ (2000) 24 Marine Policy 361–74.Google Scholar

25 A satellite-based system that can be used to determine the position of a vessel at any time once the vessel is also fitted with a Automatic Location Communicator.Google Scholar

26 For a schedule of the many conservation measures in force for toothfish see, <http://www.ccamlr.Org/pu/e/pubs/cm/02-03/toc.htm> (28 04 2003).+(28+04+2003).>Google Scholar

27 Kaye, S, International Fisheries Management (The Hague Kluwer Law International 2001) 433.Google ScholarSee also the discussion in D Bialek, ‘Sink or Swim: Measures Under International Law for the Conservation of the Patagonian Toothfish in the Southern Ocean’ (2003) 34 Ocean Development and International Law 105–37.Google Scholar

28 Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 11 2002, para 7.1–7.18, 8.1–8.84.Google Scholar

29 For discussion see Vigni, P, ‘Antarctic Maritime Claims: “Frozen Sovereignty” and the New Law of the Sea’, in Oude, Elferink and Rothwell, (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague Kluwer Law International 2001) 85–104.Google Scholar

30 Gillian, Triggs, International Law and Australian Sovereignty in Antarctica (Sydney Legal Books 1986) 195, famously referred to this as the ‘bi-focal’ approach; see also discussion in Molenaar, above n 17, at 301–5.Google Scholar

31 See Prescott, V, ‘Australia's Proclamation of an Exclusive Economic Zone (EEZ)’ (1995) 10 International Journal of Marine and Coastal Law 95–105.CrossRefGoogle Scholar

32 Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twentieth Meeting of the Commission, CCAMLR-XX, 2 11 2001; available at <http://www.ccamlr.Org/pu/e/pubs/cr/01/all.pdf> (28 Apr 2003).+(28+Apr+2003).>Google Scholar

33 Senator the Hon Ian Macdonald and Senator the Hon Robert Hill, ‘Navy battles five metrehigh seas to apprehend suspected illegal fishing vessel’, Media Release, AFFA02/5MJ, 6 02 2002, <http://www.affa.gov/ministers/macdonald/releases/2002/02005.mj.html> (28 Apr 2003);+(28+Apr+2003);>Google ScholarSenator the Hon Ian Macdonald and Senator the Hon Robert Hill, ‘Navy apprehends second suspected illegal fishing vessel’ Media Release, AFFA02/8MJ, 12 02 2002, <http://www.affa.gov/ministers/masdonald/releases/2002/02008mj.html> (28 Apr 2003).+(28+Apr+2003).>Google Scholar

34 As was illustrated in 2001 by the 4,100 km hot pursuit of the South Tomi by Australian authorities from the Heard and McDonald Island EEZ across the Indian Ocean until arrest was completed with the assistance of the South African Defence Force 390 km south of Cape Town: The Hon.Google ScholarPeter, Reith, MP Minister for Defence—Media Release ‘Minister Congratulates ADF and AFMA on Successful Mission’ available at <http://www.minister.defence.gov.au/minreleases.cfm> (12 04 2001).+(12+04+2001).>Google Scholar

35 LOS Convention, Art 73(2).Google Scholar

36 See discussion in Yankov, A, ‘The International Tribunal for the Law of the Sea and the Comprehensive Dispute Settlement System of the Law of the Sea’, in Rao, P Chandrasekhara and Khan, R (eds) The International Tribunal for the Law of the Sea: Law and Practice (The Hague Kluwer Law International 2001) 33 at 45–6.Google Scholar

37 LOS Convention, Art 292(2).Google Scholar

38 Ibid, Art 292(3).

39 Ibid, Art 292(4).

40 Oda, S, ‘Dispute Settlement Prospects in the Law of the Sea’ (1995) 44 ICLQ 863, at 866–7.Google Scholar

41 In 1995 a workshop was convened to discuss these issues in Hamburg, resulting in a special issue of the International Journal of Marine and Coastal Law, see Lagoni, R, Heinrich-Noll, H, and Vogel, H, ‘The International Tribunal for the Law of the Sea: Establishment and “Prompt Release” Procedures’ (1996) 11 International Journal of Marine and Coastal Law 137, at 137.CrossRefGoogle Scholar

42 These are the Southern Bluefin Tuna cases (Australia v Japan; New Zealand v Japan) Provisional Measures, Cases No 3 & 4, 17 08 1999; case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) Case No 7, 15 Mar 2001; and the MOX Plant case (Ireland v United Kingdom) Provisional Measures, Case No 10, 3 Dec 2001; all available at <http://www.itlos.org> (28 July 2003).+(28+July+2003).>Google Scholar

43 The Volga case, above n 10, paras 32 and 33.Google Scholar

44 The Volga case, Statement in Response of Australia, (hereafter ‘Australian Statement in Response’), 6. The judgment, Application by the Russian Federation, Memorial of the Russian Federation (hereafter ‘Russian Memorial’) and the Australian Statement in Response are available at <http://www.itlos.org> (28 04 2003).+(28+04+2003).>Google Scholar

45 The Volga case, Australian Statement in Response, ibid, 5–6. Following later recalculations Australia conceded that at the time of this first broadcast, the Volga was in fact just beyond the AEEZ: Oral submissions by Mr Henry Burmester QC, counsel for Australia, 12 12 2002, 3 pm <http://www.itlos.org> (28 Apr 2003), 10. For its part the Russian Federation submitted that no communication was received prior to the boarding (Memorial of the Russian Federation, ibid, 4). On this basis Russia argued that the Volga was not arrested in conformity with the rules of hot pursuit set out in Art 111 of the LOS Convention.

46 The Volga case, Australian Statement in Response, ibid 7.

47 The Volga case, above n 10, para 34.Google Scholar

48 Macdonald and Hill, above n 33.Google Scholar

49 The Lena was subsequently forfeited: Senator the Hon Ian Macdonald ‘WA seabed to be final home for pirate fishing boat’, Media Release, AFFA02/258M, 20 12 2002 <http://www.affa.gov/ministers/macdonald/releases/2002/02258m.html> (28 Apr 2003).+(28+Apr+2003).>Google Scholar

50 Australian Statement in Response, above n 44, 6. The master, a Russian national, died after he consumed a bottle of cleaning fluid in the mistaken belief that it was alcohol. The three other crew members detained were the chief mate, the fishing master and the fishing pilot, all Spanish nationals.Google Scholar

51 The Volga case, above n 10, para 36.Google Scholar

52 Australian Statement in Response, Volga case, above n 44, p 7.Google Scholar

53 The Volga case, above n 10, paras 54, 72.Google Scholar

54 The Volga case, above n 10, para 72.Google Scholar

55 The Volga case, oral submissions by David, Bennett QC counsel for Australia, Verbatim Record of Oral Submissions, 13 12 2002,10 am, 11 <http://www.itlos.org> (28 04 2003).+(28+04+2003).>Google Scholar

56 On 6 03 2002 the three crew members were charged under s 100 of the FMA and were granted bail on a number of conditions, including that they each deposit amounts of AU$75,000 and that they not leave Perth, Western Australia (Volga case, above n 10, para 41).Google ScholarOn 23 03 2002 the Volga's owner deposited these amounts (Australian Statement in Response, above n 44).Google ScholarSeeking to return to Spain pending the trial, the crew successfully applied for variation of their bail conditions on 30 05 2002 (Volga case, above n 10, paras 42 and 43);Google Scholarsee appeal of this variation by the Australian government: Director of Public Prosecutions (Cth) v Lijo [2002] WASC 154.Google Scholar

57 This was the first occasion that the Russian Federation or its predecessor state, the USSR, had made an appearance before an international Tribunal.Google Scholar

58 The Volga case, above n 10, para 95(3) (Judge Anderson and Judge ad hoc Shearer dissenting).Google Scholar

59 The Volga case, above n 10, para 95(4), (5) & (6) (Judge Anderson and Judge ad hoc Shearer dissenting).Google Scholar

60 The Volga case above n 10, para 60.Google Scholar

61 Russian Memorial, above n 44, 13.Google Scholar

62 Ibid, 15.

63 Ibid, 16.

64 Ibid.

65 Australian Statement in Response, above n 44, 10, para 9.Google Scholar

66 Ibid, 11, para 12.

67 Australian Statement in Response, above n 44, p 13, paras 22 and 26; 17, para 42; and 19, para 54.Google Scholar

68 Ibid, 18, para 45.

69 Oral submissions by David Bennett QC, counsel for Australia, Verbatim Record of Oral Submissions 12 12 2002, 3 pm <http://www.itlos.org> (19 12 2002) 26.+(19+12+2002)+26.>Google Scholar

70 Ibid, 18–19, para 50.

71 The Volga case, above n 10, para 63. See the Camouco case, above n 10, para 67.Google Scholar

72 The Volga case, above n 10, para 64. See the Monte Confurco case, above n 10, para 76.Google Scholar

73 The Volga case, above n 10, para 65. See the Monte Confurco case, above n 10, para 72.Google Scholar

74 The Volga case, above n 10, para 68.Google Scholar

75 The Volga case, above n 10, para 69.Google Scholar

76 Ibid, Dissenting Opinion of Judge Anderson, para 2.

77 Professor Ivan Shearer AM was chosen by Australia to participate as judge ad hoc pursuant to Art 17(2) of the Statute of ITLOS.Google Scholar

78 The Volga case, above n 10, Dissenting Opinion of Judge ad hoc Shearer, para 7.Google Scholar

79 Ibid.

80 Ibid.

81 The Volga case, above n 10, paras 71 and 72.Google Scholar

82 Ibid, para 73.

83 Ibid, para 74.

84 Ibid, para 76.

85 Ibid, para 77. Emphasis added.

86 The Volga case, para 77.Google Scholar

87 Ibid, para 80.

88 Ibid, above n 10, Dissenting Opinion of Judge Anderson, para 7.

89 Ibid, para 13.

90 Ibid, para 14.

91 Ibid, para 23.

92 Ibid, above n 10, Dissenting Opinion of Judge ad hoc Shearer, para 17.

93 Ibid, para 18.

94 Ibid, above n 10, para 86.

95 Ibid.

96 See comments by Franckx, E, ‘“Reasonable Bond” in the Practice of the International Tribunal for the Law of the Sea’ (2002) 32 California Western International Law Journal 303, at 330–1.Google Scholar

97 Lowe, V, ‘The International Tribunal for the Law of the Sea: Survey for 2000’ (2001) 16 International Journal of Marine and Coastal Law 549, at 570.CrossRefGoogle Scholar

98 Volga case, above n 10, Declaration of Judge Marsit, para 4 noting: ‘Furthermore, it would be desirable for the Tribunal to pronounce clearly and explicitly at some stage or other on the meaning and significance of the expression“reasonable bond”.’Google Scholar

99 The Tribunal's response to the Russian contention that the Volga was arrested in breach of Art 111 of the LOS Convention which provides for a right of hot pursuit, is illustrative of this point. Instead (and without explaining its reasoning) the Tribunal held that the circumstances surrounding the arrest of the Volga were irrelevant to prompt release proceedings under Art 292. Accordingly it declined to consider the alleged illegality of the arrest in its assessment of the reasonableness of the bond: Volga case, above n 10, para. 83.Google Scholar

100 Lowe, above n 97, at 561.Google Scholar

101 In particular LOS Convention, Arts 287 and 297 conferring jurisdiction with respect to fisheries disputes.Google Scholar

102 Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 11 2002, paras 8.62–8.84, 10.1–10.75.Google Scholar

103 In force 1 07 1975, 993 UNTS 243.Google Scholar

104 Senator the Macdonald, Hon Ian, ‘French Navy Seizes Illegal Fishing Vessel Near Australian Waters’, Media Release AFFA 03/002M, 16 01 2003 <http://www.affa.gov.au/ministers/macdonald/releases/2003/03002m.html> (28 04 2003).+(28+04+2003).>Google Scholar

105 Senator The Macdonald, Hon Ian ‘Australia steps up the battle on illegal fishing’ Media Release AFFA03/017M (9 02 2003); available at <http://www.affa.gov.au/minister/masdonald/releases/2003/03017m.html> (28 04 2003).+(28+04+2003).>Google Scholar

106 Macdonald, above n 104.Google Scholar

107 In 02 2003, Australia made a submission to the FAO Committee on Fisheries arguing that IUU fishing was a form of ‘international criminal activity’ which is ‘targeted against countries, the environment and the sustainability of the world's fisheries resources’: Senator The Macdonald, Hon Ian ’ Media Release AFFA03/026M (26 02 2003); available at <http://www.affa.gov.au/ministers/macdonald/releases/2003/03026m.html> (28 Apr 2003).+(28+Apr+2003).>Google Scholar

108 At the Twelfth Meeting of the CITES Conference of Parties, Santiago, Chile, 2–15 11 2002, Resolution Conf 12.4 was adopted entitled ‘Cooperation between CITES and the Commission for the Conservation of Antarctic Marine Living Resources regarding trade in toothfish’, at <http://www.cites.org/end/resols/12/12–4.shtml> (7 05 2003) which partly addressed some of the issues raised by Australia at the 2002 C-CCAMLR meeting.+(7+05+2003)+which+partly+addressed+some+of+the+issues+raised+by+Australia+at+the+2002+C-CCAMLR+meeting.>Google Scholar

109 The United Nations Open-ended Informal Consultative Process on Ocean Affairs has in recent years given attention to IUU fishing; see ‘Illegal, unreported and unregulated fishing’ Submission by the Food and Agricultural Organization of the United Nations to United Nations Open-ended Informal Consultative Process on Oceans Affairs, First meeting, 30 05–2 06 2000, UN Doc A/AC.259/1.Google Scholar

110 See Franckx, E, above n 96, at 335 and the references in n 207.Google Scholar