Argentina signed an Agreement at the UN on the conservation and sustainable use of marine biological diversity on the high seas and, as if it had not read the United Nations Convention on the Law of the Sea (UNCLOS) or the title of the Conference, Chancellor Diana Mondino posted in “X”: “we took a gigantic step in protecting our waters with illegal and indiscriminate fishing…this government is and will be inflexible in the defense of our territory.” We will advance in the analysis of this Conference; However, we cannot fail to refer to the Chancellor's expressions regarding “ protecting our waters ” and “ being inflexible in the defense of our territory .” It would be good for this official to tell us how her statements compare with the lack of sanctions for foreign vessels that capture 250,000 tons of Argentine fishing resources annually with illegal British licenses in the Malvinas; What is the Chancellor doing in international forums to end illegal fishing on the high seas of migratory resources originating in the Argentine Exclusive Economic Zone (EEZ) and associated ones by Chinese, Spanish-British, Korean and Taiwanese vessels, for a volume similar to the total Argentine landings or how the resources in the Argentine EEZ and the territorial sea will be protected when its government intends to put out to tender the exploitation of those resources by foreign ships that were not even supposed to disembark in Argentine ports. These are our waters and not how it describes the high seas waters that are international by UNCLOS.
The Conference, held in New York from February 20 to March 3, 2023 within the framework of UNCLOS on the conservation and sustainable use of biological diversity beyond jurisdiction national, contrary to what was expected , does not promote the regulation of fishing resources on the high seas and much less with respect to migratory resources from the EEZ on the high seas or from it to the EEZ and, therefore, this Conference does not contribute nothing or very little against illegal fishing.
The Conference regulates “marine genetic resources”; but, as a result of profound differences between the participating States, it does not apply (Art. 8) to the use of fish and other biological resources as basic products and to fishing activities regulated by international law .
Illegal fishing on the high seas in the Southwest Atlantic is not resolved with this type of declamatory conferences, at least as long as the United Kingdom of Great Britain (United Kingdom) occupies 1,639,900 km2 of the Argentine sea and the United States, the United Kingdom and The European Union considers that illegal fishing threatens security and questions, probably for this reason, China's presence in the region.
Argentine officials seem not to understand that fishing in the conditions that is being carried out on the high seas is illegal and they confuse the recognition of this illegality with the difficulties to take action and put an end to it and this leads them to do nothing about it. , to the detriment of the resources of the Provinces and Argentina, since a volume greater than all Argentine landings is lost on the high seas. And it is illegal, because Argentina could not consider legal the capture on the high seas of its migratory resources originating from the territorial sea, the contiguous zone and the exclusive economic zone, and the associated species that intervene in the food chain; in principle, because it would be to ignore the rights that it claims as its own in all its current legislation: Art. 5 of law 23,968 on maritime spaces and baselines; Art. 2nd inc. c of Law 24,543 ratifying UNCLOS and Art. 4, 5d, 21e, 22 and 23b of Fisheries Law 24,922. Furthermore, Argentina requires its national fleet to have a “high-sea fishing permit” to fish on the high seas (Art. 23 b), which is incongruent and inequitable to accept fishing by foreign vessels on the high seas as legal.
In addition to this, although there are more than forty reasons to consider this capture on the high seas as “Illegal Fishing”; Three facts are sufficient to classify it as such: first , when the ships do not have control of their flag States or countries of origin (Art. 87º; 92º; 94º and 117º of UNCLOS) ; second , when research studies are not carried out to determine the “Maximum Sustainable Catch” (Art. 119 of UNCLOS) and, third , when migratory species originating from the EEZ are captured on the high seas without an agreement with the coastal State, affecting its interests. (Art. 27º inc. 1 a and b; 63º inc. 2; 64º inc. 1; 116º inc. a and b; 117º; 118º; 119º inc. 1 a and b, inc. 3 of UNCLOS) . Of course, this is added when fishing with bottom trawl nets without Argentine authorization on the Argentine extended continental shelf beyond 200 miles without national authorization and what is provided for in “the Agreement to promote compliance with international measures of conservation and management of fishing vessels that fish on the high seas” (Law 24,608 sanctioned on 7/12/1995) which in Art. III 1 (a) says: “each of the Parties will take the necessary measures to ensure that the fishing vessels authorized to fly a flag are not engaged in any activity that weakens the effectiveness of international conservation and management measures» (César Lerena “National Fishing Plan. One Hundred Actions, effects and Fisheries Law, 2023) .
Returning specifically to the Conference, it - like the so-called New York Agreement that Argentina has not ratified - promotes the constitution of regional economic integration organizations , made up of sovereign States of a specific region to which "its member States have ceded their "competence" and, notwithstanding Article 4 bis and 19 bis of the Conference, in our opinion, Argentina should not accept these "organizations" while the United Kingdom occupies the Argentine archipelagos and marine territories in the Southwestern Atlantic, because it would imply a greater British penetration into the region and recognize the status of a coastal state for this invading country; the violation of the First Transitory Provision of the National Constitution; of United Nations Resolution 31/49 and Law 24,922.
The Conference refers (Art. 9) to that "access to marine genetic resources of areas located outside national jurisdiction will be carried out with due regard to the rights and legitimate interests of coastal States in the areas under their jurisdiction. " national and also taking due account of the interests of other States in areas located outside national jurisdiction, in accordance with the Convention ", which opens its participation to all States (including the United Kingdom) and by analogy, would have to be kept in mind regarding the exploitation of migratory resources originating in the EEZ on the high seas and vice versa, and indicates (Art. 10) that "the Parties shall adopt the legislative, administrative or policy measures necessary to ensure that the in situ collection of marine genetic resources from areas located outside of national jurisdiction... » and this, currently, in terms of fishing exploitation on the high seas is highly inefficient because three basic issues (provided for in UNCLOS) to consider illegal fishing are met: the “maximum catch” is not established sustainable” on the high seas; There is no in-person control by the flag State and there is no agreement with the coastal State and more than 40 causes arise to classify illegal fishing (IUU); that are not resolved through third organizations, but through greater international demands for fishing by flag States on the high seas and bilateral agreements with coastal States in the Southwest Atlantic.
When referring (Art. 11) to “the fair and equitable sharing of benefits” it refers to the distribution; but, also to “ the conservation and sustainable use of marine biological diversity of areas located outside the jurisdiction national"; an issue that, in fishing matters, is absent from the Conference and establishes three options when the activity planned in areas located within national jurisdiction has impacts in areas outside it; but, it does not refer in any case to the impact that the EEZ affects on the high seas, as is the case of fishing where migratory species originating from the EEZ and associated species that intervene in the food chain and are captured without control on the high seas, They cause a high environmental impact in the EEZ, so, as we have said, it is not expected that joining this Conference will resolve illegal fishing, as the Chancellor states, rather it seriously compromises our position regarding the illegal British occupation in the Malvinas. .
On the other hand, the Conference establishes the obligation (although it exempts it in some cases) to evaluate the environmental impact (Art. 21 bis) before carrying out the activities and, here we see, that progress is made beyond the unmet requirements for fishing in high sea; for example, regarding the determination of the “Maximum Sustainable Catch” of fishing resources, so in addition to evaluating the environmental impact, predation, bycatch and discards should be controlled, an issue that currently does not occur and, It is not expected that the main countries that catch subsidized fish from a distance, responsible for illegal catches on the high seas, will bear the costs (Art. 39) of independent in-person controls; issue that has not arisen to date, despite the full validity of UNCLOS, and it is unlikely that self-control will resolve illegal fishing, as it has not resolved to date.
85% of remote fishing on the high seas is carried out by 5 countries: China, Spain, Taiwan, Japan and Korea, which occupy 25 million of the world's total of 37 million hours of fishing; For this reason, it can be seen that the greatest damage is not caused by the remaining 216 States, but rather by only five, which are the same ones that operate in the Southwest Atlantic, except for Japan in recent years and, therefore, the Efforts to improve the administration and care of resources in the Exclusive Economic Zone will have poor results if work is not done on those five countries that are responsible for captures on the high seas , and equally responsible for the imbalance of ecosystems, since together they capture some 26 million tons of the total 84 million/year (2019), that is, 31% of the catches on “221 States and territories that reported some type of activity in the fisheries trade” (FAO, “State of World Fisheries and Aquaculture”, p: 18, 2020) .
Some 10,000 Chinese vessels exceed their jurisdiction and are dedicated to subsidized remote fishing on the high seas along with another 60,000 vessels from some 24 countries, including Japan and Korea; Taiwan; the United Kingdom associated with Spain in the Malvinas. The latter is preparing to reduce catches in community waters and increase fishing outside its jurisdiction, due to European demands. Which suggests that the situation could get worse.
« Maintain the integrity of ocean ecosystems by preserving the inherent value of the biodiversity of the zones located out of the jurisdiction national, respecting the sovereignty, territorial integrity and political independence of all States", is not compatible with the presence of the United Kingdom in the Argentine archipelagos and their corresponding marine spaces.
As “ area management mechanisms ”, in addition to defining areas (its Annex I), it includes marine protected areas (MPA) on the high seas and, in this sense , our position is known regarding the establishment of closed seasons in the EEZ and not AMP and it would be highly serious for Argentina to install AMPs on the high seas linked to the marine territorial occupation of the United Kingdom in the Malvinas, as is the case of the “Agujero Azul” Benthic AMP project promoted by the North American foundation WCS ( Wildlife Conservation Society) that , as we have repeatedly explained, does not solve the illegal fishing carried out in that area by various foreign vessels, but rather closes the “Blue belt” to the NORTHEAST of the Malvinas, facilitating the arrival of Argentine migratory resources to the islands. The United Kingdom has already done the same to the SOUTH of the Malvinas with the unilateral declaration of an “ecological sanctuary” of 1 million km2 around the South Georgia and South Sandwich Islands; to the EAST with “the Gallinero Agreement” signed by Cavallo, for the protection of the Malvinas in 1990 and to the NORTHWEST with the GAP of 1,400 km2 to protect the arrival of the Illex Squid from the Malvinas.
The consultation that the Conference foresees with the coastal State should rule out this project of political use or without scientific support in this area, as is the case of the Blue Hole; However, the half-sanction of the Chamber of Deputies is striking.
Even with some positive issues, taking into account that "the decisions and recommendations of the Conference of the Parties will be adopted by consensus and no reservations or exceptions may be formulated to this Agreement, we consider its approval by Argentina by the reasons already indicated regarding the presence of the United Kingdom in the Southwest Atlantic. It does not seem that this Conference can even attract the attention of the world regarding the treatment and absolute prohibition of Illegal Fishing and especially that which affects the migratory resources originating in the Argentine EEZ on the high seas and the Foreign Minister's statements seem to respond to the lack of attention that Argentina has on the issue.
Dr. César Augusto Lerena
Expert in South Atlantic and Fisheries – Former Secretary of State
President of the Agustina Lerena Foundation
President Center for Studies for Latin American Fisheries (CESPEL)
June 25, 2024
