This morning, Sea Shepherd Conservation Society vessels leave port to pursue a new campaign in the Southern Ocean — but this time, it’s not all about whales. Operation Icefish will target vessels fishing for Patagonian and Antarctic Toothfish.
These fish are slow to mature, live on the oceanic rises near Antarctica, and grow up to 2.2 metres in length. They are a popular fish in many restaurants, and due to their high market price they have been described as “white gold”. That makes them vulnerable to poaching.
A Sea Shepherd media release stated that the group will target the “illegal fishing of Patagonian and Antarctic Toothfish in the Southern Ocean” to “fill a law enforcement void”. But when it comes to the law and toothfish, Sea Shepherd may have to be careful it doesn’t end up on the wrong side.
The Convention on the Conservation of Antarctic Marine Living Resources governs the toothfish fishery in the Southern Ocean. The convention is a relatively successful instrument and the Australian toothfish fishery has achieved eco-certification under its rules.
This uses an ecosystem approach to set catch limits, and the formula includes estimating the illegal and unreported catches. In the 2013/14 season, a licensed catch of 11,366 tonnes of toothfish was reported within the convention’s area.
While it is nearly impossible to accurately estimate the extent of illegal, unreported and unregulated toothfish fishing, it was assessed to be 30-50 tonnes in 2012.
Some toothfish populations are found in the exclusive economic zones of sub-Antarctic islands, such as Australia’s Heard Island. The laws of those countries apply, and any vessel fishing, unlicensed by the country, is fishing illegally and can be arrested.
Among the efforts being made to police these unregulated vessels are sparse on-water patrols, vessel monitoring systems, catch documentation schemes, and high-profile apprehensions such as the FV Viarsa chase in 2003.
A vessel whose flag state is a party to the convention (24 states, including Australia) is bound by its strict ecosystem approach to fishing. This law is only enforceable against states parties to the convention and is not enforceable against vessels of states that are not.
While fishing for toothfish outside of the convention is undesirable on many environmental levels, it might not be illegal. Rather, vessels operating outside the law, but not against the law, are deemed to be unregulated.
Law of the Sea
Fishing vessels from states outside the Antarctic marine life convention are governed by the Law of the Sea. The actions of fishing vessels under the law are the responsibility of the countries from where they come — known as the flag state.
Generally unregulated fishing vessels have flag states such as Togo, Vanuatu and Panama, that have little capacity or desire to enforce laws pertaining to sustainable high seas fishing on their fleet.
Furthermore, vessels are often in poor condition, frequently change ownership and flag state to avoid detection, and contravene basic international labour laws.
INTERPOL rates illegal, unreported and unregulated fishing as a form of organised crime and it is fair to assume that some vessels will be armed and prepared to defend themselves.
Any interference with a fishing vessel on the high seas, especially one not flagged to a member of the convention, is fraught with legal difficulty and raises serious concerns about safety and environmental protection.
Enter the Netherlands
The Netherlands is the flag state of the Sea Shepherd vessels MV Bob Barker and MV Sam Simon. The Law of the Sea states that, among other duties of the flag state, the Netherlands “shall effectively exercise its jurisdiction and control in administrative, technical and social matters”.
The Netherlands must insist that the Sea Shepherd vessels abide by any relevant law, such as that which regulates the actions of protest vessels.
Australia and New Zealand are also going to be casting an eye to the south, as Operation Icefish is likely to operate within their search and rescue zones. With treacherous conditions and behaviour, the risk of an expensive and long rescue is likely.
The Sea Shepherd have stated that they will “document, report and confront” toothfish vessels. Documenting and reporting such activity is important for intelligence agencies and should be the absolute focus of any such voyage to the Southern Ocean.
However, confrontation will lead to legal difficulties for Sea Shepherd and the Netherlands.
Pirates or vigilantes?
Acts by Sea Shepherd involving the chasing or boarding of a vessel may result in charges of piracy or trespass by the flag state of the fishing vessel, or more appropriately by the Netherlands.
Piracy is a charge often mentioned in relation to Sea Shepherd, and opinion is split as to whether they are technically pirates should they board a vessel without permission.
While Japan avoided this definitional problem by charging Pete Bethune with trespass, Russia applied the Law of the Sea definition of piracy in the case of the Greenpeace protesters. The flag state has discretion over the type of charge — if any — that protesters may face.
Damaging fishing gear or ramming another vessel may also result in criminal charges of vandalism under Dutch law, or violations of various international pollution laws, collision regulations and Antarctic Treaty System laws to which the Netherlands is a party.
Sea Shepherd also states it will make a citizen’s arrest of any “illegal” toothfish vessel it finds.
Citizens’ arrests are not recognised in international law. Any “arrest” on the high seas carried out by a private organisation like Sea Shepherd will be unenforceable and is therefore futile.
Finding ‘illegal’ fishers
There is a logistical problem with finding the unregulated toothfish vessels. The Ross Sea area into which Sea Shepherd plans to sail in pursuit is not known for the presence of unregulated fishers, as this is a highly productive area targeted by licensed vessels.
Information on which vessels have been licensed, and others that have been put on a non-compliance list is publicly available to Sea Shepherd. However finding and differentiating between licenced and unregulated vessels and equipment is problematic given the ice-laden waters, and limitations of radar.
Further, the retrieval equipment for the various types of fishing gear (e.g longlines and gillnets) that unregulated fishing vessels use, and that the MV Sam Simon has recently installed, is specialised, inherently dangerous and possibly unsuitable for the relatively inexperienced Sea Shepherd crew.
The future of toothfish
Other means of preventing unregulated fishing continue. Ports that offload toothfish are the focus of new “port-state” laws, where toothfish vessels are prevented from offloading their unreported catches and entering them into the market.
The Commission for the Conservation of Antarctic Marine Living Resources is launching a pilot satellite program to monitor and detect unregulated fishing in the Southern Ocean that will improve estimates of unregulated catch.
As Sea Shepherd prepare to leave Hobart and Wellington in search of toothfish vessels deep in the Antarctic sea-ice, the legal, environmental and safety risks for the organisation should it choose to go beyond intelligence gathering, are higher than the chance it will rid the Antarctic of unregulated fishing.
Editor’s note: Indi will be answering questions between 2 and 3pm AEDT on Wednesday December 3. Ask your questions about Sea Shepherd’s latest mission in the comments below.