Pushing the limits of the Law of the Sea Convention in response to IUU fishing:

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Pushing the limits of the Law of the Sea
Convention in response to IUU fishing
developments in State practice in the
sub-Antarctic
Dr Warwick Gullett Australian National Centre for
Ocean Resources Security (ANCORS) wgullett_at_uow.
edu.au
(forthcoming paper with Dr Clive Schofield)
University of Wollongong
www.ancors.uow.edu.au
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IUU fishing
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(Photo courtesy of Australian Customs)
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Shuen Man Arrested 22 March 2007 35m 65nm inside
Australian EEZ north of Lord Howe Island
(Photo courtesy of Australian Customs)
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(No Transcript)
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Maya 5 Uruguay 2004
Viarsa Uruguay 2003
(Photo courtesy of Australian Customs)
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The pursuit of the Viarsa 2003
21 days 3,900nm
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(Photo courtesy of Australian Customs)
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South Tomi Togo 2001
(Photo courtesy of Australian Customs)
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ITLOS 2002
Russia v Australia
prompt release
Cannot set non-financial conditions for release
(Photo courtesy of Australian Customs)
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Australian operational response
Armed patrols
AU 300m 106m Ocean Viking Ice
strengthened Helicopters Joint patrols with
France 98m Trimaran Triton
(Photos courtesy of Australian Customs/AFMA)
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Australia-France treaties
2003 treaty on cooperation
to enhance cooperative surveillance of fishing
vessels
Consent regime allowing for the continuation of
hot pursuit into the other States territorial
sea
2007 treaty
formalises cooperation eg joint patrols
Allows French officers on Australian patrol
vessels to apprehend alleged illegal fishing
vessels in French EEZ (and vice versa)
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Not so hot pursuit?
Continuation of hot pursuit into other States
territorial sea?
LOSC Article 111(3) The right of hot pursuit
ceases as soon as the ship pursued enters the
territorial sea of its own State or of a third
State.
Can hot pursuit recommence?
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Innocent passage?
Can France arrest a suspected IUU vessel in its
territorial sea after a hot pursuit by Australia?
Arrest pursuant to French law only France might
deem vessels passage non-innocent because it is
attempting to flee an Australian vessel engaged
in its hot pursuit. (France would need to
establish the presence of the suspect vessel in
its waters is prejudicial to its peace, good
order or security).
LOSC Article 19(2)(l) Non-innocent passage
includes any activity not having a direct bearing
on passage
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Multilateral hot pursuit?
Can French officers onboard an Australian vessel
inside the French EEZ arrest a vessel for
violating French law?
LOSC Article 111(5) Hot pursuit can only be
exercised by vessels on government service
coastal State only?
Developing State practice of multilateral hot
pursuits but not yet on point of whether vessel
that commences pursuit is from another State.
Arguably multilateral hot pursuit does not
undermine LOSC.
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Australian legal response
Recovering hot pursuit costs
Fisheries Management Act 1991 (Cth), s 106J

• Practical problems
• ITLOS

(Photo courtesy of Australian Customs)
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Automatic forfeiture
Fisheries Management Act 1991 (Cth), s 106A

• No need for hot pursuit?

(Photo courtesy of Australian Customs)
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Developing State practice
Australian government is working towards a 21st
century definition of hot pursuit
(Photo courtesy of Australian Customs)