Criminal Liability For Illegal Fishing In International Waters
🔹 I. Introduction: Criminal Liability and Illegal Fishing in International Waters
1. What Constitutes “Illegal Fishing”
Illegal, Unreported, and Unregulated (IUU) fishing refers to activities that:
Violate national laws or international conservation measures;
Occur without authorization (e.g., no license or quota);
Involve false reporting, fishing in closed areas, or using prohibited gear;
Target protected species or exceed allowed catch limits.
In international waters (the high seas), no single country has exclusive jurisdiction. However, under the United Nations Convention on the Law of the Sea (UNCLOS), certain responsibilities fall upon:
Flag States: must control vessels flying their flag;
Coastal States: may enforce laws within their Exclusive Economic Zone (EEZ);
Port States: can inspect and deny landing of illegally caught fish;
Regional Fisheries Management Organizations (RFMOs): establish conservation measures.
🔹 II. Basis of Criminal Liability
1. Under International Law
While UNCLOS and related treaties (e.g., the FAO Port State Measures Agreement) don’t directly impose criminal sanctions, they oblige States to:
Establish penalties for violations by vessels flying their flag;
Cooperate to suppress IUU fishing.
Therefore, criminal liability arises when a State incorporates international obligations into domestic law — e.g., Australia’s Fisheries Management Act, the U.S. Magnuson-Stevens Act, or the EU’s IUU Regulation.
2. Mens Rea (Intent)
Criminal prosecution typically requires proving:
Intentional or reckless disregard of conservation laws;
Knowledge that activities were unauthorized (e.g., forged licenses, false vessel registration).
🔹 III. Major Case Law Examples
Below are five major cases that illustrate how criminal liability for illegal fishing in international waters has been handled.
⚖️ Case 1: The Volga Case (Russian Federation v. Australia) [2002, ITLOS Case No. 11]
Facts:
The Volga, a Russian-flagged vessel, was arrested by Australian authorities near Heard Island (Southern Ocean).
It was allegedly engaged in illegal fishing for Patagonian toothfish within Australia’s EEZ and adjacent high seas.
Issues:
Russia claimed Australia violated UNCLOS by detaining the vessel and demanding a high bond.
Australia argued it was enforcing conservation measures against IUU fishing.
Judgment:
The International Tribunal for the Law of the Sea (ITLOS) held that Australia must release the vessel upon payment of a reasonable bond.
The Tribunal emphasized the flag State’s responsibility to control its vessels and acknowledged that coastal States may take enforcement measures to prevent illegal fishing in their EEZ and adjacent waters.
Significance:
Confirmed that States may impose penalties (including criminal sanctions) on illegal fishing within or near their EEZ.
Highlighted tension between enforcement and freedom of navigation on the high seas.
⚖️ Case 2: The Juno Trader Case (Saint Vincent and the Grenadines v. Guinea-Bissau) [2004, ITLOS Case No. 13]
Facts:
The Juno Trader, a Saint Vincent-registered vessel, was detained by Guinea-Bissau for allegedly transporting illegally caught fish from its EEZ.
The ship was accused of “laundering” fish caught by other vessels without authorization.
Issues:
Whether Guinea-Bissau’s seizure and penalties were consistent with international law.
Judgment:
ITLOS ordered Guinea-Bissau to release the vessel upon payment of a bond but reaffirmed that States can criminalize illegal fishing and related activities (such as transshipment of illegal catch).
Significance:
Recognized criminal liability for aiding or abetting IUU fishing, including through transport and sale.
Strengthened the principle that port and coastal States have jurisdiction to penalize such acts.
⚖️ Case 3: United States v. Bengis (2011, U.S. Court of Appeals, Second Circuit)
Facts:
Arnold Bengis and others illegally harvested large quantities of South African rock lobster and Patagonian toothfish from South African waters.
The fish were exported to the U.S., violating South African and U.S. laws.
Issues:
Whether U.S. courts could prosecute foreigners for illegal fishing conducted abroad.
Judgment:
The court upheld convictions under the Lacey Act, which makes it a federal crime to import fish taken in violation of foreign laws.
The defendants were ordered to pay $54.9 million in restitution to South Africa.
Significance:
Established that domestic laws can extend extraterritorially to punish IUU fishing.
Demonstrated cooperation between nations in enforcing fishing laws and imposing criminal sanctions.
⚖️ Case 4: The “Thunder” Case (2015, Multiple Jurisdictions)
Facts:
The Thunder, a vessel engaged in illegal fishing for toothfish in the Southern Ocean, operated under multiple false flag registrations.
After years of evasion, it was pursued by the Sea Shepherd vessels (Bob Barker and Sam Simon).
The ship eventually sank off São Tomé and Príncipe — widely believed to be a deliberate scuttling.
Criminal Proceedings:
The São Tomé and Príncipe court convicted the captain and officers for forgery, pollution, and illegal fishing, sentencing them to 2–3 years imprisonment and ordering confiscation of the vessel and catch.
Significance:
One of the first successful criminal prosecutions for IUU fishing on the high seas.
Highlighted the problem of flag-hopping and the need for coordinated international enforcement.
⚖️ Case 5: F/V Viking (2016, Indonesia)
Facts:
The Viking, an INTERPOL “purple notice” vessel, was known for illegal toothfish fishing across international waters.
Captured by Indonesian authorities in 2016.
Outcome:
Indonesian courts found the crew guilty of violating national fisheries laws and using false registration.
The ship was publicly destroyed (blown up) as part of Indonesia’s anti-IUU campaign.
Significance:
Demonstrated strong criminal enforcement by a coastal State against a high-seas offender.
Reinforced the principle that national laws can impose criminal sanctions for international IUU fishing, particularly under flag State consent or UNCLOS cooperation duties.
🔹 IV. Key Legal Principles from These Cases
Universal Concern: IUU fishing threatens global marine biodiversity and food security, justifying cross-border enforcement.
Flag State Responsibility: Must regulate and punish vessels flying their flag.
Coastal and Port State Powers: Can criminalize illegal entry, landing, or transshipment of fish.
International Cooperation: Cross-jurisdictional prosecutions (e.g., Bengis) rely on treaties like UNCLOS and the Lacey Act.
Corporate and Individual Liability: Both companies and vessel masters can face imprisonment, fines, and vessel forfeiture.
🔹 V. Conclusion
Criminal liability for illegal fishing in international waters arises through a complex web of national and international legal regimes. While UNCLOS itself doesn’t define criminal penalties, it requires States to act, leading to prosecutions under domestic laws that implement international obligations.
The cases from ITLOS, the U.S. courts, and national jurisdictions collectively show that illegal fishing is no longer treated as a mere regulatory infraction — it is a serious transnational crime implicating state sovereignty, environmental protection, and global cooperation.
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