The End of the Viarsa Saga and the Legality of Australia's Vessel Forfeiture Penalty for Illegal Fishing in Its Exclusive Economic Zone

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Abstract: The world's fish stocks are suffering from over-utilization. The earth's oceans are subject to exploitation by all nation states and very little preservation. Because of the nature of the international legal regime of the Law of the Sea, enforcement of what conservation and management measures exist is challenging. Boundaries, ephemeral on land, are even more so on water, making rights allocation and management particularly difficult. Nevertheless, as fish stocks continue to decrease and it becomes clearer that oceans require more effective management, coastal states have begun to undertake more significant enforcement procedures corresponding to their rights in their exclusive economic zones established under the 1982 United Nations Convention on the Law of the Sea.

In particular, Australia has recently implemented a series of measures aimed at improving the enforcement of fisheries regulations in its exclusive economic zone. Although the motive behind these measures is to attain more effective conservation and management of its living marine resources, Australia is pushing the boundaries of international law and must endeavor to ensure it acts in conformity with international law. In 1999, Australia amended its Fisheries Management Act to provide for the automatic forfeiture of any foreign vessel caught fishing illegally in its exclusive economic zone. Australia can and should interpret this provision to conform to the United Nations Convention on the Law of the Sea.

I. INTRODUCTION

In December 2007, the infamous Uruguayan-flagged longline fishing vessel Viarsa I finally came to rest on the shores of Mumbai and is presently standing-by to be demolished and sold as scrap in the Indian ship-breaking yards.1 Viarsa I was the object of one of the longest hot pursuits in history, and one so sensational that it was the subject of a widely successful novel by a journalist for the Wall Street Journal.3 In August 2003, the Australian Fisheries and Customs patrol vessel Southern Supporter chased Viarsa I for twenty-one days over almost 4,000 nautical miles, through an iceberg-strewn stormy Southern Ocean in the middle of winter.4 Having detected Viarsa I allegedly violating fisheries regulations in Australia's exclusive economic zone ("EEZ"), Southern Supporter initiated hot pursuit, finally catching up with Viarsa I in the South Atlantic Ocean and escorting her back to Australia.5 Although the crew was eventually acquitted of all criminal charges by an Australian jury because evidence of the violation was only circumstantial,6 the Commonwealth still confiscated the vessel as forfeited, pursuant to section 106A of the Fisheries Management Act ("FMA").7 The owners of the vessel challenged this forfeiture in Australian courts, as allowed by the FMA.8 Four years later, the Federal Court of Western Australia finally dismissed the Viarsa I owner's application challenging this forfeiture,9 enabling the Australian Fisheries Management Authority ("AFMA") to initiate the dismantling process and bring to a close the Viarsa saga.10

The saga, however, may yet continue. It remains unclear whether Australia's forfeiture provision, section 106A of the FMA, is consistent with international law. Although the 1982 United Nations Convention on the Law of the Sea ("LOSC") does not specifically address whether forfeiture is an allowable method of enforcement of a coastal state's fisheries regulations, in its most recent case, the Tomimaru, the International Tribunal for the Law of the Sea, ("ITLOS"), recognized the issue without resolving it.12 Presiding ITLOS Judge Rudiger Wolfrum, in his statement to the Plenary of the United Nations General Assembly in December 2007, described the Tomimaru case as raising questions concerning "the confiscation of a vessel and the relation between national and international rules."13 Judge Wolfrum noted on behalf of ITLOS that, although the Law of the Sea Convention makes no reference to confiscation provisions, "many States have provided for measures of confiscation of fishing vessels in their legislation with respect to the management and conservation of marine living resources. …