It would be irrelevant and imprudent on our part to give an opinion on the Ruling of the Supreme Court of Justice (CSJ) regarding the Collective Environmental Amparo Action against the National State presented by the young Pablo Ferrara and the Observatorio del Derecho Civil Association, with the aim to achieve the cessation of illegal fishing, in which the CSJ declared that the process was outside its original jurisdiction as had already been stated in the opinion of the Fiscal Attorney. However, the Court did not rule on the question of bottom line, fortunately, because the demand is technically very bad. There is a great lack of knowledge of the subject and a lack of technical rigor, which throws more confusion into the very serious illegal fishing (IUU) that is carried out in the Southwestern Atlantic and does not contribute to The Authorities pay the attention that the issue requires and it is not useful for popular dissemination on the matter.
Suitability in the subject . There is no known background in maritime, fishing and/or marine environmental matters to the plaintiff Ferrara or to the Civil Association. Throughout the entire lawsuit there is no reference to specialists who provide indubitable evidence related to their technical, biological, legal, economics, etc. but that the majority of the background information provided is from journalistic media, NGOs or the transcription of national and international legislation.
Precision of the scope of Illegal Fishing. The Demand refers to Illegal Fishing in the Argentine Exclusive Economic Zone (ZEEA) and in what it calls “the adjacent area of the ZEEA” without specifying in the latter, where fishing is carried out within the millions of km2 that it covers, which the The United Nations Convention on the Law of the Sea (UNCLOS) defines as “high seas”. Gravely, the claim also does not mention the area of Malvinas, South Georgia and South Sandwich (Malvinas) of 1,639,900 km2, occupied arrogantly by the United Kingdom of Great Britain (RUGB), a national territory where an annual average of 250 thousand tons of Argentine fishing products are extracted. Nor does the lawsuit specify how illegal fishing affects the ZEEA or its adjacent area, to the resources found within the “Argentine territorial sea.”It seems that throughout the lawsuit the actor confuses “territorial sea”, EEA, Continental Shelf and high seas. Fishing that affects the ecosystem is that carried out on the high seas on migratory resources originating from the ZEEA; to a lesser extent the catches in the EEZ and finally in the territorial sea.
The necessary actions . The lawsuit says: “ carry out the actions detailed below, in order to obtain the cessation of the very serious environmental damage ” and then it does not indicate anything other than requesting the CSJ to act on the Government Authorities, asking them for information related to illegal fishing, which should be part of the demand and for them to propose measures to comply with the obligation to ensure sustainability.
The volume and responsibility of illegal fishing : The lawsuit does not indicate with certainty the volume of illegal fishing, therefore, the economic, environmental and social damage cannot be estimated. It does not specify the number and type of vessels and what nationality they are. each case. Information that the organisms have via satellite is publicly accessible and, with this information, the damage can be estimated. The fishing that affects the ecosystem is that of the high seas on the migratory resources originating from the ZEEA; to a lesser extent in this e, insignificant in the territorial sea. It is carried out with Chinese, Korean and Taiwanese vessels and, very importantly, with British-Spanish vessels, since these are the main partners of the RUGB in the Malvinas, fishing inside and outside the area. There is also illegal fishing carried out by national vessels, due to the discarding of non-target species in the ZEEA.
Name of the species. The name of the species mentioned in the lawsuit is incorrect ( Cousseau MBy Perrota R. “Marine Fishes of Argentina”, 5/2000 ). Squid is not illex argentinus or Argentine. but Illex argentinus . This is the appropriate way to classify it ( Eschmeyer, 1990/1998 ). Furthermore, the name should not be made in English but with its common name in Spanish accompanied by the scientific name. For example: in the application it is called Hake when appropriate. Hubbsi hake ( Merluccius hubbsi ) and in English it should be called Argentine hake or whiting and not Hake as the lawsuit indicates; Hoki is indicated when it is Hoki or Patagonian Hoki ( Macruronus magellanicus ); It is called Pink kusk-eel when it corresponds to Haddock ( Genypterus blacodes ). This species is known in English as Kingclip or pink cuskeel and not with the erroneous name indicated; in the lawsuit it is called Patagonian toothfish when it should be called Black Hake ( Dissostichus eleginoides ). Other species are omitted, such as the loligo squid; the southern hake; notothenia; the Polish Creole cod; the flounder; the light brown stripe; the snout ray; the spotted pomfret; the little grenadier; the Fuegian sardine; roosterfish and others.
The lawsuit also refers to other species, which, except for the Illex squid, are not of interest to foreign or national commercial fishing. The known catches of shark, catfish and stingray are within the limits established by INIDEP and, it is not true that are prohibited but regulated by a chondrichthyan management plan (CFP Res. 13/03, 6/09 and 13/09), which requires, centrally, the return to the water of 160cm sharks, the prohibition of fin cutting and the use of boat hooks for stingrays.
The appropriation of foreign fleets . The demand indicates “ that the fleets are located at the limit of the ZEEA and uncontrollably prey and threaten, from outside and from within said zone, the marine species that live there… ”, an imprecise definition of the location and way in which illegal fishing was carried out . They do not “inhabit”, but rather they transit, because the species are migratory. The foreign fleet is located beyond 200 miles and captures the resources originating from the ZEEA that migrate to the high seas; That is, they are species that move from the EEA to the high seas and from there return to the EEA, if they are not captured by these foreign fleets or capture associated species. Despite UNCLOS defining that fishing on the high seas is free ; It is illegal (IUU) , in the way it is being done, because the flag States do not control their vessels in person; No research is carried out on the high seas to determine “the maximum sustainable catches”, so all catches are presumed predatory and, because, damaging the interests of third parties (those of the coastal States Argentina, Brazil and Uruguay) the flag States must agree the exploitation with these, from where the fishing resources migrate, distributing the fishing in an equitable and sustainable manner.
In the lawsuit, it is indicated that " The obligation of protection of the National State is, both in the ZEEA and in the Adjacent Zone..." and, except, in relation to the ZEEA and the continental shelf up to 350 miles ( summarizing ), the The National State, by UNCLOS, does not have police power on the high seas, but this is an obligation of the flag State (of origin), and therefore, the coastal State should promote “bilateral agreements” with the States of flags that fish remotely, to regulate the capture on the high seas, seeking equitable and sustainable fishing and, complying with the provisions of local legislation (art. 4º, 5º, 21º to 23º law 24,922).
Damage to the resources of the territorial sea . The lawsuit says that "the effects of this illegitimate activity endanger the sustainability of sovereign marine resources of our country and its effects not only occur in the ZEEA but also extend to the Argentine territorial sea and the marine resources of the Provinces with a coastline." riparian ”; although it rarely omits Río Negro and, it does not say, why fishing on the high seas; That is, beyond 200 miles, it would affect the fishing resources of the territorial sea that extends from the baselines of the coast to 12 nautical miles. And this omission is very important, because the uninformed reader would not be able to understand understand how such distant fishing could affect the provincial coastal resources. And the thing is that, like the species found in the ZEEA, that is, within 200 miles, species from the territorial sea migrate to the ZEEA and, together to those found in this and the high seas, they make up a single ecosystem, where feeding and reproduction cycles occur, in biological balance, where the species act as predator and/or prey, depending on the type and stage in question. Trophic ecology is fulfilled; a feeding dynamic and interactions between predator-prey. The lawsuit indicates the Illex squid as the base species of the food chain; But, this is not exactly the case, because there are more than 30 species that, depending on the species, interact, including common hake, anchovy, Fuegian sardine, nototenia, prawns, etc.
The lawsuit continues and, indicates, a series of figures without any support, relative to the tons caught of the different species, which gives economic figures of losses that cannot be accredited as correct. The plaintiff's confusion is demonstrated when he refers to that “ The Prefecture itself acknowledges on its website that only 80 vessels have been captured in 34 years, that is, a little more than two per year…”, since these vessels have been captured in the EEZ and not on the high seas, where, it indicates : “ some 300 foreign vessels have caught 500,000 to 1 million tons/year of fishing resources (squid, etc.), absolutely generic and imprecise figures, which in no way could have been carried out with foreign vessels within the EEA. Fact which would have led to the intervention of Congress and caused the resignation of the responsible officials.
Regarding the indicated values, they are equally erroneous, since the FOB ton of whole squid at the time of the demand did not exceed US$ 2,700 per ton, that is, less than 50% of what is referred to in the demand and 148,825 .6 tons captured in 2020 that are indicated in this, but that they are legal catches carried out by Argentine vessels in the ZEEA and not with foreign vessels.
The lawsuit indicates that "... in accordance with the Law of Extension of the Sovereignty of the Argentine Nation Over the Continental Shelf and the Territorial Sea, No. 17,094...", without paying attention to the fact that the aforementioned law was in fact repealed by the Articles 3 to 5 of Law 23,968 and Law 24,543.
Environmental damage on the high seas . The lawsuit indicates that “the action pursues: The cessation of the environmental damage that illegal fishing generates in the ZEEA and its adjacent area, on the Platform and in the Territorial Sea…” . We understand that in the form in which the demand is presented, it could not have any effect on water courses beyond 200 miles, as long as it is not agreed bilaterally with those who fish on the high seas, because as - we have said - Argentina does not have police power in this area. Illegal fishing by foreign vessels within the ZEEA is insignificant in relation to what is carried out on the high seas on the migratory resources originating from the ZEEA. Notably, the lawsuit does not refer to the environmental damage that illegal fishing causes in the national territory of the Malvinas, which, as we mentioned, reached 250,000 tons annually from 1976 to date, that is, 11,750,000 tons worth about 47 billion dollars in final trade, equivalent to Argentina's debt with the IMF.
The request for available information . The lawsuit requests : “Produce and present (the government) to the Court (…) the best information and documentation (…) on the illegal fishing activities carried out by foreign vessels and fleets in the ZEEA and its adjacent area, in the last ten years, and its effects in relation to the predation of marine resources of our country (...) and also its effects on the Territorial Sea." Data that is available in national agencies and is publicly accessible through satellite systems and that should have been presented in the lawsuit in order to weigh the damage. Although, it is insisted, foreign fishing in the ZEEA is insignificant in relation to the captures in the Malvinas and the fishing on the high seas on the migratory resources originating from the ZEEA. Likewise, the demand proposes: “ the immediate cessation of illegal fishing in Argentine sovereign waters (…) Report on the diplomatic actions and efforts carried out with other countries and international organizations to date, in order to stop predatory illegal fishing. If applicable, if the National State has requested the foreign flag countries that predominantly devastate the ZEEA and its adjacent zone” (…) For more than ten years the ZEEA has been patrolled from its adjacent area by fishing boats (…) seeking to capture species that develop within the ZEEA, and For this reason, they constantly and massively enter the ZEEA, carrying out large-scale, predatory illegal fishing in waters under national jurisdiction.”In this regard, we reiterate that foreign vessels do not fish “predominantly on a large scale in the EEA”, but rather capture migratory species on the high seas.
Foreign vessels have been fishing - as the lawsuit says - for 10 or more years; but they have been fishing in the area since the 1960s; It increased in the 1970s and deepened since the Malvinas War in 1982 and, especially, since the Madrid Agreements in 1989/90. That is, in the Southwestern Atlantic, foreign vessels have been fishing for 60 years and have they do on the high seas, Malvinas and incidentally in the ZEEA.
Non-compliance with fishing laws . The lawsuit states that: “ These boats fish without having permits and authorizations (Fishing Law 24,522, Art.23º and cs) without respecting local fishing regulations (…) fishing quotas ( …) generating, in addition to environmental devastation, substantial economic losses to our country (…) capturing even protected species, entering the ZEEA with impunity during the day and/or mostly during the night, a favorable time for squid fishing (…) (before a) sporadic and erratic state control of our country . "The Fisheries Law in Argentina is not 24,522, as indicated, but rather laws 24,922, 26,386 and 27,564. In Argentina there are no "quotas" or "protected species ", but rather quotas or bans. Controls are lax in the ZEEA and the predation originating from discards is carried out by Argentine vessels.
The inapplicability of the so-called New York Agreement . At this point the lawsuit says: “ Argentina has not ratified the United Nations Agreement on Highly Migratory Species of 1995, whose object and purpose is to ensure the long-term conservation and exploitation sustainable management of fish stocks whose territories are located inside and outside the EEZs (…) has since violated its obligation not to frustrate the object and purpose of the treaty until its ratification.”In this regard, Argentina has plenty of negative experience regarding Fisheries Agreements and did not ratify the so-called New York Agreement ( Law 25,290) because it is generally understood that it is not only contrary to national interests due to the presence of the RUGB in the South Atlantic.
