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Australia's Response to Illegal Foreign Fishing: A Case of winning the Battle but losing the Law?

Australia's Response to Illegal Foreign Fishing: A Case of winning the Battle but losing the Law? <jats:sec><jats:title>Abstract</jats:title><jats:p>The right of prompt release has been interpreted by the International Tribunal for the Law of the Sea as a safeguard, balancing the right of the coastal State to detain and deal with arrested fishing vessels and crew on the one hand, with the interests of the flag State to secure the release of detained vessels on the other. As the incidence of illegal fishing within national fishing zones has increased in the past decade, many coastal States, such as Australia, have implemented increasingly harsh penalties aimed at deterring the fishers. One such measure involves the operation of an automatic forfeiture regime whereby the detained vessel, gear and catch are forfeited to the Commonwealth. This regime operates in the absence of any judgement on the merits. This paper examines the details of the Australian legislation in addition to recent case law and concludes that the operation of the automatic forfeiture regime has the potential to upset the balance established in Article 73 of the 1982 United Nations Convention on the Law of the Sea.</jats:p> </jats:sec> http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The International Journal of Marine and Coastal Law Brill

Australia's Response to Illegal Foreign Fishing: A Case of winning the Battle but losing the Law?

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Publisher
Brill
Copyright
© 2008 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
0927-3522
eISSN
1571-8085
DOI
10.1163/092735208X272292
Publisher site
See Article on Publisher Site

Abstract

<jats:sec><jats:title>Abstract</jats:title><jats:p>The right of prompt release has been interpreted by the International Tribunal for the Law of the Sea as a safeguard, balancing the right of the coastal State to detain and deal with arrested fishing vessels and crew on the one hand, with the interests of the flag State to secure the release of detained vessels on the other. As the incidence of illegal fishing within national fishing zones has increased in the past decade, many coastal States, such as Australia, have implemented increasingly harsh penalties aimed at deterring the fishers. One such measure involves the operation of an automatic forfeiture regime whereby the detained vessel, gear and catch are forfeited to the Commonwealth. This regime operates in the absence of any judgement on the merits. This paper examines the details of the Australian legislation in addition to recent case law and concludes that the operation of the automatic forfeiture regime has the potential to upset the balance established in Article 73 of the 1982 United Nations Convention on the Law of the Sea.</jats:p> </jats:sec>

Journal

The International Journal of Marine and Coastal Law – Brill

Published: Jan 1, 2008

Keywords: AUSTRALIAN FISHERIES MANAGEMENT; ILLEGAL FISHING; PROMPT RELEASE; VESSEL FORFEITURE; IUU FISHING

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