Illegal Fishing: The Current International and Australian Legal Framework19 December 2016
Illegal fishing is an all-too-common problem which has devastating effects on the environment and communities worldwide. It depletes fish stocks, damages ecosystems and disrupts the livelihood of legal fishers. Yet, despite its harmful consequences, it’s only been recently that more effective controls have been implemented to combat the problem. This article explains how both the International law and Australian law deal with the threat of illegal fishing. This includes an introduction to Federal and State/Territory legislation, as well as the bilateral and multilateral agreements Australia is party to.
Illegal fishing is recognised internationally as a serious problem. Most illegal fishing occurs in the oceans spanning between countries, and the effects of such practices are not confined to the areas in which they occur. In turn, enforcement actions have been developed at different jurisdictional levels to combat illegal fishing from all angles.
International recognition of illegal fishing practices began with the United Nations Convention on the Law of the Sea (UNCLOS). It is the agreement that resulted from the third UN Conference on the Law of the Sea, which took place between 1973 and 1982. UNCLOS defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources.
UNCLOS has designated coastal state rights to adjacent seas by designating areas into zones:
- Territorial seas
- Continental shelf
- Contiguous Zone
- High Seas
UNCLOS directs that States are required to prevent illegal fishing in their EEZs (extend 200 nautical miles from from shore) and they must seek permission before fishing in the EEZs of other States.
The high seas comprise all waters not captured within the other four sections. UNCLOS that expects that states actively participate in preventing overfishing in the high seas, however only flag states have jurisdiction over their vessels in these waters.
Over the decade following the creation of UNCLOS, these important developments were made:
- 1991 FAO Code of Conduct for Responsible Fisheries - The purpose was to outline principles and international standards for management, development and conservation of fisheries. It is voluntary, but parts of the code are based on important rules of international law, such as UNCLOS.
- 1993 FAO Compliance Agreement - This forms part of the 1995 FAO Code of Conduct, and it is legally binding. It calls for flag states to ensure all vessels carrying their flag are authorized to fish on the high seas. Authorisation depends on compliance with regional fishing laws.
- 1995 UN Fish Stocks Agreement - This represents the implementation of specifications in the 1982 UNCLOS on the conservation and management of fish stocks.
Clearly, over the past few decades, great strides have been made in the management and control of illegal fishing on the world stage. This is supported by significant decreases in illegal and unreported fishing in most regions across the globe, with most notable decreases in the Northwest Atlantic and Northeast Pacific regions. Unfortunately, however, they have not been entirely effective as some regions have experienced increases in illegal fishing, such as the Northwest Pacific and Antarctic regions.
Australia has sovereign rights over the conservation, use and management of fisheries within the Australian EEZ – also known as the Australian Fishing Zone (AFZ). The AFZ comprises 23 Commonwealth fisheries.
Australia has bilateral agreements with neighbouring countries relating to access and use of resources within the AFZ and contiguous waters. These include:
- Indonesia - The 1974 memorandum of understanding (MOU) regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Fishing Zone and Continental Shelf designates an area of Australia’s AFZ for Indonesian fishers to continue their traditional practice of fishing for certain species.
- Papua New Guinea - The Torres Strait Treaty determines sovereignty and boundaries for taking certain spaces and sets out cooperative action for the management and conservation of fisheries.
- New Zealand - The South Tasman Rise Arrangement is used as a management and conservation tool for responsible fishing of orange roughy. It includes parts of the AFZ and high seas near Tasmania.
On the national level, the conservation and management of fisheries is legislated in the Fisheries Management Act 1991 (Cth). The Australian Fisheries Management Authority is the primary agency responsible for fisheries management and enforcement of Commonwealth legislation. All other marine and inland fisheries are managed by state or territory governments through their own legislation. For example, the Fisheries Management Act 1994 (NSW) lays out the law in NSW for the management of all fisheries, as well as the penalties for breaking the law. An example is section 16 which makes it an offence to possess or sell prohibited size fish. The penalty is $22,000 and/or six months’ imprisonment for a natural person, or $110,000 for a body corporate.
A Step in the Right Direction
The management of illegal fishing has made great strides over the past few decades on both the international and Australian national levels. There have been notable increases in co-operation between countries, as well as between the different levels of government within Australia. This has led to a multi-dimensional management approach – one which has proven to be much more effective at solving the problem. While big reductions in illegal fishing have been seen in many regions around the word, there is still much more work to be done to reach the point where it no longer poses a serious threat.
Known as “The Fish Lawyer” for her specialisation in aquaculture, marine and fisheries law, Katherine Hawes is the principal of Aquarius Lawyers. With over 20 years’ legal and business experience, Katherine’s expertise lies in advising and representing organizations and businesses on issues pertaining to the marine environment. To find out more about Katherine, please see http://www.aquariuslawyers.com.au/