This paper will examine legal frameworks utilized by Australia to address overfishing in the Southern Ocean, specifically the Patagonian toothfish fishery around Heard Island and McDonald Islands, which is expected to potentially collapse within several years because of illegal fishing. This area is within Australia’s Exclusive Economic Zone but is more than 4,000 kilometers from the nearest port, thus placing it far beyond the range of regulators and law enforcement. The area is also within the Southern Ocean, which falls under international legal frameworks, specifically the Convention on the Conservation of Antarctic Marine Living Resources and the United Nations Convention on the Law of the Seas. The Heard and McDonald Islands area is a unique ecosystem, recognized as relatively untouched by human development. However, the amount of illegal fishing for toothfish in this area is estimated to equal the amount of legal fishing for toothfish. The market for the illegal catch is estimated at $1 billion. The size of this illegal fishing industry is believed to be due in large part to lack of regulation or even collusion by countries that lack legal frameworks and competent governance. In addition, the illegal fishing vessels use a complex legal arrangement to avoid detection and prosecution, including the use of front companies and registering in countries that are not signatories to international agreements.
Other barriers to protecting the biodiversity of the Heard Island and McDonald Islands toothfish fishery include Australia’s apparent lack of urgency about this effort. For example, there is a lack of law enforcement support to enforce domestic and international legal frameworks, with only one patrol vessel dedicated to this area, although every domestic vessel includes observers from the fisheries authority.
Moreover, industry is a major stakeholder in establishing regulations and interpreting environmental law, often exceeding the representation from scientific and conservation stakeholders. The scholarly literature also supplies concepts, theories and proposals to address the problem of overfishing, including using trade organizations to impose international and regional frameworks and restructuring regional fishery organizations to emphasize ecological rather than commercial interests. This paper presents the domestic and international frameworks that support environmental protection of the toothfish fishery. These frameworks are revealed to be inadequate to protect the fishery. Recommendations for improvements are presented.
State of the Heard Island and McDonald Islands Fishery
This fishery exists in one of the only unmodified examples of a sub-Antarctic ecosystem and they are listed by the World Heritage List for their unique ecological qualities, including large breeding grounds for marine mammals, birds and fish. Despite this unique and fragile ecosystem, Australia allowed access to the fishery to its...