The End of the Viarsa Saga and the Legality of Australia's Vessel Forfeiture Penalty for Illegal Fishing in Its Exclusive Economic Zone
Blakely, Laurence, Washington International Law Journal
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."14 As such, ITLOS is primed to hear further cases regarding confiscation15 measures, rendering Australia's related enforcement actions susceptible to challenge.
This Comment argues that vessel forfeiture provisions are a valid mechanism for coastal states to enforce their laws and regulations as long as the provisions do not upset the balance between flag and coastal states rights established in Part V of LOSC.16 In particular, Australia's forfeiture provision should be interpreted so as to conform with LOSC. Part II of this Comment exposes illegal fishing and depleting fish stocks as a time sensitive worldwide issue and provides an overview of the EEZ, the legal regime through which coastal states effectively manage fisheries. It then introduces the ITLOS cases discussing the confiscation issue and lays out the Australian forfeiture legislation. Part III analyzes LOSC Article 73 and ITLOS case law to establish that forfeiture is an allowable coastal state enforcement measure, as long as it conforms to certain requirements. Part III then proposes a test to determine the legality of forfeiture provisions. Part IV applies this test to the Australian statute, concluding that the statute can, and should, be interpreted to conform with international law.
II. ITLOS CASES HAVE CENTERED AROUND COASTAL STATES' RSHERIES REGULATIONS ENACTED TO ADDRESS DEPLETING FISH STOCKS
Although many coastal states have adopted forfeiture provisions pursuant to their LOSC EEZ powers, ITLOS cases and LOSC articles demonstrate the importance of the balance between coastal and flag state rights. …