Thursday, February 2, 2006

Big, ugly and very valuable: patagonian toothfish

People might remember the embarrassment for the Australian government, when the crew of the Viarsa 1 went free in November 2005 after being acquitted by a jury in Perth of illegal fishing in the Australian Exclusive Economic Zone off the Heard and MacDonald Islands north of Antarctica. It was the crew’s second trial, the first being abandoned when the jury failed to return a verdict. In the meantime they’d spent two years living in seaman’s hostel in Perth.

So, what’s all the fuss about fishing in Australian Antarctic waters?

Well, for a start the toothfish are supposed to be managed under the Convention for the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR). While not being endangered, they do take 10 years to mature and over-fishing risks taking juveniles before they can breed.

Secondly, it’s big business. These are big fish (they can grow to over 2 metres) and the meat is worth a lot in US ( where it is sold as “Chilean sea bass”) and Japanese markets. The economics of their over-exploitation is remarkable.

Treves has succinctly describes the “common pattern” of IUU (illegal, unregulated and unreported) fishing for Patagonian toothfish in the CCAMLR area:
Fishing vessels flying various flags and most often involving Spanish interests … engage in long-term fishing cruises in the waters of the Southern Ocean. The wealth of the fish – especially Patagonian toothfish – in the vast expanses of the Southern Ocean, and the relatively remote chance of being caught while fishing in the economic zones of France (Kerguelen and Crozet Islands) and Australia (Heard and McDonald Islands), are the main attraction for such expeditions. The financial stakes are considerable, given that a full cargo of Patagonian toothfish can equal or exceed the value of the fishing vessel involved.

In two cases before ITLOS (the International Tribunal for the Law of the Sea) this proposition has been starkly demonstrated. When the Monte Confuco was seized by France the evidence before the Tribunal was that the vessel was worth $US 345,000 while its cargo of toothfish was worth approximately $US 1.5 million. When the Volga was seized by Australia the vessel was valued at $AU 1.8 million, and its cargo of toothfish was sold at tender for $AU 1.9 million. (See Tullio Treves, “Flags of Convenience before the Law of the Sea Tribunal”, 6 San Diego Int’l L.J. 181 (2004-2005), 181-2).

However, law enforcement in this part of the world is hard. It’s extremely remote and inhospitable environment with weather conditions often making boarding vessels dangerous, if not impossible. It’s no coincidence that most Australian boardings of vessels found fishing illegally have usually required military assistance and boarding by fast rope from Navy helicopters.

Some of these cases often involved lenthy hot pursuits in difficult and dangerous conditions: the South Tomi was pursued for 15 days across 3,300 nautical miles, while the Viarsa pursuit lasted 21 days and covered 3,900 nautical miles. Third States provided military assistance the eventual boarding of both the South Tomi (South Africa) and Viarsa (South Africa and the United Kingdom).

Thus, Australian experience suggests IUU fishing vessels are willing to go to significant and dangerous lengths to evade capture and are often under instruction not to surrender to law-enforcement vessels unless absolutely necessary. The risk-taking appears to be related to the potential economic gain.

It has been said that the profits to be made, given that only one or two voyages may be needed for a significant return on the cost of the vessel, make IUU fishing for toothfish potentially more profitable than drug or people smuggling (see Baird, “Coastal State Fisheries Management”, (2004) 9 Deakin Law Review 91).

This has driven Australia to described the practice before the CCAMLR annual meetings as “a highly organised form of transnational crime”.

Indeed, when Australia stopped the Lena and the Volga on the same day, it appeared that the two vessels were in communication and Australia led evidence before ITLOS that suggested these two Russian-flagged vessels were part of a larger IUU fishing fleet owned by one family through a company in Jakarta (see the Volga Case transcript, ITLOS/PV.02/02, p. 28 at ITLOS).

It just goes to show if there's enough money in it, there's nothing disorganised about crime.

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