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The Foreign Defendant
A Municipal UNCLOS Prosecution
Phillip G. Laskaris
Opening Remarks
“Since man first took to the seas, territorial disputes have
raged over the world's oceans. Often, maritime laws grew
out of custom -- if there were no objections to a practice
then it became the norm. Eventually, the norm became law.
All that changed in the 1900s, however, when the world
went to war, and for the better part of a century, officials
have struggled with just how to carve up the seas.
With resources such as oil and gas being found in deeper waters, the struggle carried an
increasingly important price tag.
Which brings us to 1982, and the United Nations' Convention on the Law of the Sea
(UNCLOS), a regulatory framework for the definition of rights and responsibilities of
coastal states on maritime areas that has resulted in what some officials call among the
largest legitimate land grabs in the history of maritime space.”1
1. Introduction
Captain Ricardo Cabrera, First Officers Antonio Perez, Francisco Olveira and Jose
Gonzales-Perez and crewman Roberto Guerrero were the 5 crewmembers aboard the
fishing vessel Viarsa who were prosecuted in the District Court of Western Australia for
alleged breaches of sections 100 & 100A; and 101 & 101A of the Australian Fisheries
Management Act 1991(Cth) (‘FMA’) in October of 2004 and again in September, 2005,
Sections. 101 & 101A FMA create offences against foreign nationals based on the mere
presence of a foreign fishing vessel on the high seas: Olbers v Commonwealth of
Australia (No.4) [2004] FCA 229 per French J at para. 63/64 & 77; affirmed by the Full
Court of the Federal Court in Olbers Co Ltd v Commonwealth of Australia [2004] FCAFC
262 per Black CJ, Emmett & Selway JJ at 7 & 22.
On 7 August, 2003 the Australian Customs patrol vessel, Southern Supporter, came
across the Viarsa approximately 26 nautical miles off the south west coast of Heard
Island.
The prosecutor for the Commonwealth of Australia described the Heard & McDonald
Islands to the members of the Jury as follows:
“As I said to you, the Heard and McDonald Islands are very remote islands. The
seas around them are generally very rough. It's very cold; often a lot of snow
and sleet, varying inclement weather. Effective policing of the fishing zone
around the Heard and McDonald Islands requires that Australia take steps to
direct, intercept and intervene against those who may fish or intend to fish in the
AFZ without Australia's agreement; that is, without a licence.”2
The Senior Australian Fisheries and Customs officers aboard the Southern Supporter
demanded that the Viarsa stop, so that it could be boarded and inspected. Captain
Cabrera declined.
A hot pursuit of the Viarsa then commenced which last 21 days and covered 3,900
nautical miles. On 27 August, 2007 in the waters of the Southern Ocean about 1,200
nautical miles from the coast of Uruguay in South America the Viarsa was surrounded by
3 vessels, the Southern Supporter, the British flagged Dorada, and the South African
flagged John Ross. The Viarsa was boarded by South African armed private security
personnel. On board were found 96 tonnes of Patagonian toothfish.3
There are particular aspects of the 1982 UN Convention and the way that UN member
States, using Australia as the example,, have used the this new public international law
jurisdiction to extend their policing activities well beyond their traditionally understood
geographic jurisdictional limits and over persons who are in no way connected to the lex
locus of the coastal State either through citizenship, domicile or presence.
2. The Southern Ocean
2.1 A Brief Introduction to the Southern Ocean4
Antarctica is surrounded by a vast, unbroken and dynamic body of water – the Southern
Ocean – which constitutes about 15% of the world’s total ocean surface. Its northern
boundary – a very distinctive feature, physically and biologically – is the Antarctic
Convergence, or Antarctic Polar Front. This is a zone where cold, less saline,
northward-flowing Antarctic water encounters the warmer, southward-flowing, sub-
Antarctic waters of the Atlantic, Indian and Pacific Oceans. The waters around islands
lying in or near the Antarctic Polar Front, such as Macquarie Island and the Kerguelen,
Crozet and Prince Edward Islands, are usually considered to be part of the Southern
Ocean.
The Southern Ocean consists of a system of deep basins separated by three large midoceanic
ridges.
The continental shelf is narrow, except in parts of the Weddell, Ross, Amundsen and
Bellingshausen Seas: it accounts for only 3% to 5% of the total area of the Southern
Ocean.
2.2 The History of Exploitation of the Southern Ocean
The resources of the Southern Ocean have been harvested for at least 200 years.
Exploitation began in the 18th century, when populations of fur seals were reduced close
to extinction. In the 19th century, elephant seals, southern right whales and some sub-
Antarctic penguins were hunted. The 20th century saw whaling of baleen whales and
sperm whales, a limited harvest of male elephant seals, exploratory harvesting of ice
seals and the start of fishing for finfish and krill. In recent times, exploratory fishing for
stone crabs and squid has also begun.
2.3 The Convention on the Conservation of Antarctic Marine Living Resources
The exploitation of Antarctic marine living resources has been characterised by intense
and sporadic pulses, in many cases resulting in the severe depletion of harvested stocks
(as was the case for fur and elephant seals in the 19th century, and whales and finfish in
the 20th century). In the mid-1970s, scientists realised that the conservation of krill was
fundamental to the maintenance of the Antarctic marine ecosystem and vital to the
recovery of depleted whale populations. Serious concerns were raised about effective
management and sustainable utilisation of Antarctic marine living resources. These
concerns were taken up by the Antarctic Treaty Consultative Meeting in London in 1977.
In February 1978 international negotiations began. They resulted in the signing, in
Canberra in May 1980, of the Convention on the Conservation of Antarctic Marine Living
Resources (“CCAMLR”).
CCAMLR came into force in 1982. In common with other international agreements,
CCAMLR does not impose regulations, but rather attempts to reach agreement on
issues which Members of the Convention are then obliged to implement.
The political status of regions within the CCAMLR Convention Area is dependent on a
number of considerations. Under the agreements that make up the Antarctic Treaty
System, claims to Antarctic territory are not prejudiced by the Convention, but in
practical terms CCAMLR has jurisdiction (i.e. the authority to implement conservation
measures that are binding on its Members) over all marine areas between the Antarctic
continent in the south and 60°S (i.e. the northern boundary of the Antarctic Treaty).
North of 60°S, a number of states retain sovereign rights over sub-Antarctic islands
(France: the Kerguelen and Crozet Islands; Norway: Bouvet Island; South Africa: the
Prince Edward Islands; and Australia: Heard and McDonald Islands).
Most of the areas over which CCAMLR has conservation and management mandates
are high-seas areas. The United Nations Implementation Agreement on Fish Stocks
(UNIA)5, which was finalised in 1995, will, in the future, regulate exploitation on the high
seas. It contains, as does CCAMLR, the obligation to introduce measures to conserve
species that may not be targeted by a fishery, but may be indirectly affected by it.
2.4 The United Nations Convention on the Law of the Sea
The United Nations Convention of the Law of the Sea (“1982 UN Convention”) was
signed on 10 December 1982 at Montego Bay, Jamaica.�� It came into force
internationally on 16 November 1994.
In the Statement by Mr. Richard Butler, Permanent Representative of Australia, to the
48th Session of the United Nations General Assembly, New York, USA, 27 July 1994 he
said this:
“The Third United Nations Conference on the Law of the Sea was the greatest
single law-making conference ever … Mr President, I am proud to announce that
Australia has co-sponsored this resolution, and will sign the Agreement
immediately upon its opening for signature. This signals our strong support for
the Agreement and the Law of the Sea Convention.” 6
2.5 Genesis of the 1982 UN Convention7
The need for comprehensive maritime ownership laws came to a head in the late 1960s,
when manganese nodules were discovered on global deep ocean floors.
These nodules contained magnesium, copper, minerals and some very valuable hard
metals that were extremely useful in the Cold War for use in missiles and rockets.
As a result, the U.N. General Assembly passed a resolution establishing deep ocean
resources as a benefit for all of mankind. This led directly to the 3rd UNCLOS convention
in 1972. That conference, unlike this one, lasted for 10 years, included all UN member
States, and covered issues including: navigation; economic zones, resources of the
deep oceans, transfer of technology and scientific research.
However by the beginning of the 1990’s no first world country had ratified the 1982 UN
Convention.
3. Specific Provisions of 1982 UN Convention
3.1 The Exclusive Economic Zone
Article 57 of the 1982 UN Convention establishes the concept of the Exclusive Economic
Zone (“EEZ”) and defines it as an area not to “extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured.”
Under Article 56 within an EEZ sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources, whether living or non-living,
of the waters superjacent to the seabed and of the seabed and its subsoil are vested in
the coastal State. However there are no sovereign territorial rights granted to a coastal
State in relation to the area covered by an EEZ.
Indeed Article 58(1) makes it clear that the first three specific freedoms, enumerated
under Article 87, enjoyed by all states over waters deemed to form part of the High Seas
being: the freedom of navigation; the freedom of overflight; and the freedom to lay
submarine cables and pipelines, apply in EEZs. And Article 58(2) stipulates that the
provisions of Articles 88 – 115 “and other pertinent rules of international law” apply to
EEZs.
However, it is also relevant to note the criticism that the Vice President Vukas of the
International Tribunal of the Law of the Sea (“ITLOS”) made in his declaration in the
Volga Case8 where he said in relation to Australia’s claim of an EEZ around the Heard
and McDonald Islands:
“In the present case, an exclusive economic zone has been proclaimed by
Australia off the coasts of two uninhabited islands which are much smaller than
the Kerguelen Islands ... I feel obliged to explain my position concerning the
appropriation of vast areas of the oceans by some States which possess tiny
uninhabited islands thousands of miles from their own coasts.
...
All these economic interests and concerns do not exist in respect of uninhabited
islands such as Heard Island and the McDonald Islands. There can be no
‘coastal fishing communities’, as ‘[t]here is no permanent habitation’. According
to the same source (UNEP – Protected Areas Programme), ‘Heard Island is
visited infrequently, and the McDonald Islands very rarely.’
According to Encyclopaedia Britannica ‘[m]uch of [Heard Island’s] surface is
covered with snow and ice …. The McDonalds are a group of uninhabited rocky
islets 25 miles (40 km) west of Heard Island’.
Taking into account all these data, one should not ignore article 121, paragraph
3, of the LOS Convention, where we find many of the elements obviously present
in this group of Australian islands/isles/islets/rocks: ‘Rocks which cannot sustain
human habitation or economic life of their own shall have no exclusive economic
zone or continental shelf.’
The purpose of this brief text is to explain my belief that the establishment of
exclusive economic zones around rocks and other small islands serves no useful
purpose and that it is contrary to international law.
It is interesting to note that Ambassador Arvid Pardo – the main architect of the
contemporary law of the sea – warned the international community of the danger
of such a development back in 1971. In the United Nations Seabed Committee
he stated: ‘If a 200 mile limit of jurisdiction could be founded on the possession of
uninhabited, remote or very small islands, the effectiveness of international
administration of ocean space beyond national jurisdiction would be gravely
impaired.’9”
3.2 The High Seas
Part VII of the 1982 UN Convention defines what constitutes the High Seas (Article 86)
and the rights enjoyed by State flagged vessels on the High Seas (see Articles 87 & 90),
one of which is the “freedom of navigation”.
Article 89 specifically provides that: “No State may validly purport to subject any part of
the high seas to its sovereignty.”
Metaphorically speaking Australia is not given power by the 1982 UN Convention to set
up a fence around the EEZ.
Article 111 defines what constitutes, and in what circumstances a coastal State can
engage in, the pursuit of a foreign vessel. It relevantly states:
1 The hot pursuit of a foreign ship may be undertaken when the competent
authorities of the coastal State have good reason to believe that the ship
has violated the laws and regulations of that State. Such pursuit must be
commenced when the foreign ship ... is within the ... contiguous zone10 of
the pursuing State, and may only be continued outside ... the contiguous
zone if the pursuit has not been interrupted. It is not necessary that, at the
time when the foreign ship within the ... contiguous zone receives the
order to stop, the ship giving the order should likewise be within the ...
contiguous zone. If the foreign ship is within a contiguous zone, as
defined in article 33, the pursuit may only be undertaken if there has been
a violation of the rights for the protection of which the zone was
established.
2 The right of hot pursuit shall apply ... to violations in the exclusive
economic zone ... of the laws and regulations of the coastal State
applicable in accordance with this Convention to the exclusive economic
zone...
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.
4 Hot pursuit is not deemed to have begun unless the pursuing ship has
satisfied itself by such practicable means as may be available that the
ship pursued ... is within the limits of the ... exclusive economic zone...
The pursuit may only be commenced after a visual or auditory signal to
stop has been given at a distance which enables it to be seen or heard by
the foreign ship.
5 The right of hot pursuit may be exercised only by warships or military
aircraft, or other ships or aircraft clearly marked and identifiable as being
on government service and authorized to that effect.
3.3 Termination of Hot Pursuit under Customary International Law
Under customary international law a hot pursuit is also terminated when the master of
the pursuing vessel consciously decides to no longer follow the vessel being pursued or
when the pursuing vessel loses sight of the vessel being pursued – i.e. the chase is
interrupted.11
The Senior Customs officer, Commander Duffy, on board the Southern Supporter on the
question of the hot pursuit of the Viarsa said in cross examination: “As group
commander I made the final decision that we would enter into hot pursuit of the Viarsa
under the terms of the United Nations Convention Law of the Sea.”12
The hot pursuit of the Viarsa was terminated (or interrupted) on 17 August 2003 outside
the EEZ. The master of the Southern Supporter, Captain Codrington, made a conscious
decision to abandon the chase. He decided that it was too dangerous.13
The defence contended that the new chase of the Viarsa by the Southern Supporter,
starting at 1930 hours local time on 17 August 2003, was illegal because it was
commenced outside the EEZ. The submission was rejected by the trial judge. The 5
accused men were forced to stand trial.
4. Australian Municipal Legal Framework
4.1 Australian Municipal Law re: Hot Pursuit
The right given to an “officer” (section 4(1) & 83 FMA) to exercise a power conferred
under section 84(1)(a) FMA to board a vessel that he has reasonable grounds to believe
has been used for fishing in the EEZ includes the power to require the master to stop the
vessel and if that request is not complied with, and the vessel is not an Australian
flagged vessel, use any reasonable means consistent with international law to stop the
boat: section 84(1)(aa) FMA.
However when the Australian Parliament enacted the provisions of the FMA it defined
the right of hot pursuit, in section 87 as follows:
(1) An officer may exercise, with respect to boats (including foreign boats)
and persons (including foreign nationals) at a place at sea outside the
[EEZ] but not within the territorial sea of another country, a power
conferred on the officer under section 84 if:
(a) one or more officers (whether or not including the officer
exercising the power) have pursued the person or boat from a
place within the [EEZ] to such place; and
(b) the pursuit was not terminated or interrupted at any time before
the officer concerned arrived at such a place with a view to
exercising that power.
(2) For the purposes of subsection (1), a pursuit of a person or boat is not
taken to be terminated or substantially interrupted only because the officer
or officers concerned lose sight of the person or boat.
(3) A reference in subsection (2) to losing sight of a person or boat includes a
reference to losing output from a radar or other sensing device.
4.2 The Leading of Improperly Obtained Evidence
Permitting Australian law enforcement authorities to lead evidence gathered against
foreign nationals in contravention of international law in criminal proceedings that arise
out of legislation whose jurisdictional validity is based upon privileges that the
Commonwealth of Australia has acquired as a result of ratifying the 1982 UN Convention
is arguably contrary to the public interest in terms of the Australia’s international standing
as a United Nations member State which abides by the rule of law.14
Section 87(1) FMA permits an officer to exercise a power under section 84 FMA at a
place outside the AFZ, but not within the territorial sea of another country, if: (1) an
officer has pursued the boat from a place within the AFZ; and (2) the pursuit was not
terminated or interrupted at any time before the officer concerned arrived at such a place
with a view to exercising that power.
The contention by the prosecution (i.e. the Australian government) that the provisions of
Article 111 of the 1982 UN Convention dealing with hot pursuit have not been
incorporated into Australian municipal law mutatis mutandis but that only various aspects
of Article 111 have been was successful. That is that the hot pursuit of the Viarsa was
not terminated (or interrupted) in the manner provided for by section 87 FMA.15
5. What Happened at the End of the Viarsa Case?
5.1 ‘Hooked’ but not ‘Gutted’
Captain Cabrera and his four co-accused crewmembers, after obtaining legal advice,
were presented for trial before the District Court of Western Australia. The first trial did
not result in a verdict. A second trial was held. At 4:17 pm on Wednesday 2 November,
2005 the Jury, in the second Viarsa trial, went out to consider their verdicts. At 7:45 pm
on Friday 4 November 2005 the Jury returned unanimous verdicts of not guilty to all 12
counts on the indictment.
____________
* Barrister – Francis Burt Chambers, Western Australia
ANNEXURE 1
Patagonian toothfish (Dissostichus eleginoides)16
Distribution
Patagonian toothfish is widely distributed, from the slope waters off Chile and Argentina
south of 30 to 35°S, south of South Africa and south of New Zealand, to the islands and
banks in sub-Antarctic waters of the Atlantic and Indian Ocean sectors and Macquarie
Island on the Indo–Pacific boundary of the Southern Ocean. Southernmost records of
the species are for the South Orkney Islands and the South Sandwich Islands. It is found
as deep as 2 500 to 3 000 m.
Size and Age
The maximum size and weight observed are, respectively, 238 cm and about 130 kg.
Reliable age estimates for individuals larger than 100 to 120 cm are scarce. However,
individuals close to the maximum size are likely to be from 40 to 50 years old or even
older.
Biology
Patagonian toothfish feed on a variety of other fish, octopods, squid and crustaceans.
They become sexually mature at 70 to 95 cm when they are 6 to 9 years old and spawn
over the continental slope from June to September. The species’ fecundity ranges from
48 000 to more than 500 000 eggs, varying with fish length and geographical locality.
The eggs, which are from 4.3 to 4.7 mm in diameter, are generally found in the upper
500 m of the water column in waters from 2 200 to 4 400 m deep. They probably hatch
in October–November.
Exploitation
Patagonian toothfish are being exploited by longline and bottom trawl both inside and
outside the CCAMLR Convention Area where catches were first reported in 1976/77.
Longline fishers targeted fish around South Georgia from 1985/86, with annual reported
catches of 4 000 to 9 000 tonnes (Figure 2). Fishing was by Soviet longliners in the first
few years, but is now mostly by Chilean and Argentinean vessels. Around the Kerguelen
Islands, Patagonian toothfish has been targeted since 1984/85, first by the former USSR
fleet (later Ukrainian) and later by French trawlers. In recent years, it has also been
exploited by Ukrainian longliners. Annual reported catches in this region have been in
the order of 1,000 to 9,000 tonnes. Since 1996/97, longlining for Patagonian toothfish
has expanded rapidly into the slope waters of previously unfished islands, banks and
seamounts in the Indian and Pacific Ocean sectors of the Southern Ocean. In spite of
conservation measures implemented by CCAMLR, there is a considerable amount of
unregulated and illegal fishing. In the 1996/97 season, estimated catches from
unregulated and illegal fishing exceeded those from regulated fishing by a factor of at
least five.
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