Criminal Liability For Illegal Fishing In Territorial Waters

01 Nov 2025 --
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🔹 I. Concept of Criminal Liability for Illegal Fishing in Territorial Waters

1. Definition of Territorial Waters

Under Article 2 of the United Nations Convention on the Law of the Sea (UNCLOS), 1982, a coastal State exercises sovereignty over its territorial sea, which extends up to 12 nautical miles from its baseline.
This sovereignty includes:

The water column,

The air space above, and

The seabed and subsoil beneath it.

Thus, any foreign vessel fishing within this 12-nautical-mile zone without authorization commits an offence under both international law and the domestic laws of the coastal State.

2. Elements of Criminal Liability

To establish criminal liability for illegal fishing, the following elements are generally required:

Actus Reus (the act): Conducting fishing operations (catching, collecting, or attempting to catch fish) within territorial waters without a valid license or in contravention of conditions.

Mens Rea (the intent): Knowledge or recklessness regarding the illegality of the act (e.g., deliberate intrusion or ignoring maritime boundaries).

Jurisdiction: The offence occurs within the territorial jurisdiction of the coastal State.

Statutory Violation: Violation of national statutes such as the Fisheries Act, Marine Resources Act, or equivalent legislation.

3. Punishment

Punishments vary across jurisdictions but typically include:

Fines,

Forfeiture of vessels and equipment,

Imprisonment, and

Revocation of fishing licenses.

🔹 II. Major Case Laws on Illegal Fishing in Territorial Waters

1. The “Volga” Case (Russian Federation v. Australia), ITLOS Case No. 11 (2002)

Facts:
The Volga, a Russian-flagged vessel, was detained by Australian authorities near Heard Island and McDonald Islands, within Australia’s Exclusive Economic Zone (EEZ), for illegal fishing of Patagonian toothfish. The crew was charged under Australian fisheries law, and the vessel was seized.

Issue:
Whether Australia’s detention of the vessel and demand for a bond was lawful under UNCLOS.

Judgment:
The International Tribunal for the Law of the Sea (ITLOS) held that Australia was entitled to take measures to ensure compliance with its fisheries laws. The bond demanded was found reasonable under Article 73(2) of UNCLOS.

Principle Established:
Coastal States have broad enforcement powers to combat illegal fishing in their maritime zones, provided such enforcement is proportionate and consistent with international law.

2. The “Saiga (No. 2)” Case (Saint Vincent and the Grenadines v. Guinea), ITLOS Case No. 2 (1999)

Facts:
Guinean authorities arrested the Saiga, a foreign vessel, for allegedly engaging in illegal fishing and smuggling gas oil in Guinea’s exclusive economic zone. The flag State (Saint Vincent and the Grenadines) filed a case against Guinea.

Issue:
Whether Guinea’s arrest and prosecution of the vessel were lawful.

Judgment:
ITLOS ruled in favor of the Saiga, holding that Guinea had violated international law by arresting a foreign vessel outside its territorial waters.
However, it affirmed that within territorial waters, the coastal State has full criminal jurisdiction.

Principle Established:
Criminal liability applies only within territorial jurisdiction, and beyond that, enforcement powers must comply with UNCLOS limitations.

3. Republic v. Dongwon Industries Co. Ltd. (Supreme Court of Seychelles, 2008)

Facts:
The South Korean company Dongwon Industries was charged with illegal fishing in the Seychelles’ territorial waters without authorization. The vessel was found operating inside the 12-mile limit.

Judgment:
The Seychelles Supreme Court convicted the company and imposed substantial fines and forfeiture of the catch.

Principle Established:

Corporations can be held criminally liable for illegal fishing.

The intent or knowledge of the ship’s master or managing director can be imputed to the corporation.

4. The MV Kostis Case (Republic of Kenya v. Kostis, High Court of Kenya, 2010)

Facts:
The MV Kostis, a foreign-registered vessel, was apprehended by the Kenyan Navy for trawling in territorial waters off Malindi without a valid fishing license.

Judgment:
The High Court upheld the conviction, stating that fishing in Kenya’s territorial waters without permission violated the Fisheries Act (Cap. 378). The court imposed a fine and ordered forfeiture of the vessel.

Principle Established:
Coastal States have the sovereign right to regulate and punish any unauthorized fishing within territorial waters. Ignorance of boundaries is no defense.

5. Public Prosecutor v. MV Ham Rong 27 (High Court of Malaysia, 2015)

Facts:
A Vietnamese vessel, MV Ham Rong 27, was caught fishing in Malaysia’s territorial waters. The crew claimed they did not know they were within Malaysia’s jurisdiction.

Judgment:
The court convicted the crew, emphasizing that the presence of GPS technology on the vessel proved knowledge of location, satisfying the mens rea element.

Principle Established:
Technological capacity to determine location (e.g., GPS, radar) can demonstrate intent or recklessness, strengthening criminal liability.

🔹 III. Key Takeaways

Legal Aspect	Explanation
Jurisdiction	Territorial waters (up to 12 nautical miles) are under full sovereignty of the coastal State.
Liable Parties	Vessel owners, captains, corporations, and sometimes even foreign nationals.
Defenses	Innocent passage, distress/emergency, or lack of mens rea (very limited).
International Framework	Governed by UNCLOS (especially Articles 2, 56, 73, and 97).
Domestic Enforcement	Each State has its own fisheries and marine resources legislation.

🔹 IV. Conclusion

Criminal liability for illegal fishing in territorial waters is well established under both international and domestic law.
Courts have consistently upheld the sovereign right of coastal States to regulate and punish unauthorized fishing activities within their territorial jurisdiction. The combination of UNCLOS provisions and national statutes ensures effective deterrence, with increasing emphasis on corporate liability, technological evidence, and international cooperation.