* Cesar Lerena

The United Nations Convention on the Law of the Sea (UNCLOS) is considered by many experts and jurists to be the Constitution of the Oceans. Some maintain that it is " one of the most important advances in international law of the 20th century . "

I understand that the regulation of maritime limits, which resulted in the Third Conference, minimized - to the detriment of the coastal States - the issues related to the care of living resources indicated in the Preamble of UNCLOS: guaranteeing sustainable exploitation of the living resources. On the contrary, this rule favors the great powers, which are mainly those who fish remotely and are the main actors in illegal fishing (IUU) and predation.

The UNCLOS and the regulatory New York Agreement, with regard to the sustainability of living marine species, have established the " how" , without previously defining the " what" and, I modestly maintain, that they do not have the adequate scientific rigor to achieve an articulation between biological phenomena, insufficiently studied and defined, when carrying out this contract, which has focused on the question of limits and the seizure of natural resources and, not, on the sustainability of the species.

Illegal fishing Illegal fishing is understood, and with the technical term IUU (illegal, undeclared, unregistered) to that which is carried out in violation of national, regional and/or international laws; when the operations are not declared or are done so inaccurately; when there is no control of the catches and/or landings, because it is carried out without unobjectionable observers and inspectors or the transshipments are carried out at sea; the one that receives subsidies from the State of origin, facilitating this type of fishing; fishing for juveniles or unauthorized sizes; when nets with meshes smaller than those approved for the species in question are used; when fish are discarded into the sea, because it is incidental or non-commercial fishing; when species are substituted or declarations are falsified; the one that overexploits the available stocks or there is no way to determine it; the use of flags of convenience to evade controls and penalties; the origin or traceability of the products is not known; which is carried out without control of good fishing practices; when it appropriates resources from third countries and/or affects developing regions or regions whose economies have an important means of livelihood in this resource; the one that causes marine pollution; which is carried out with slave labor or other environmental, ecological, social and economic irregularities.

The majority of illegal fishing takes place outside the EEZs where fines are not applicable, unless prior prosecution. Furthermore, illegal fishing is not discouraged by laws that punish with fines. The value of fishing permits is higher than the products and/or vessels and there is no fine that can compensate for repeated and sustained illegal fishing. In the world, there are many countries that, having ratified UNCLOS, apply or consider that they must apply criminal legislation (including prison) to those who carry out illegal fishing and, this despite the limitations imposed in the Convention. Among them Argentina; Brazil; Costa Rica; Chili; Mexico, among others. For its part, the European Union (EU), where several countries have ratified UNCLOS, through Directive 2008/99/EC of the European Parliament and of the Council of 11/19/2008, understanding that " the sanctions are not sufficient to achieve environmental protection. This compliance can and should be reinforced through the application of criminal sanctions "and in this sense Germany and Spain, among others, provide for prison sentences for illegal fishing in their legislation. Likewise , the EU in Council Regulation (EC) 1005/08 of 29/9/08 being a contracting party to UNCLOS and having signed the 1993 Agreement on the Conservation and Management of Fisheries on the High Seas of the FAO indicates: " the essential principle is that all States have the duty to adopt appropriate measures to ensure the sustainable management of marine resources..." and, " illegal fishing is one of the greatest threats to sustainable exploitation (...) in addition, a great threat to marine biodiversity and to the socioeconomic situation of fishermen who respect the rules..."

For this reason and others, the EU says that: " It is essential that the EU adopts deterrent measures for fishing vessels involved in illegal fishing when the flag State does not take appropriate measures ( ...) Member States may also or alternatively use sanctions effective penal measures (...) and other accessories such as seizure of the offending vessel . Finally, other countries such as Colombia, the United States, Peru and Venezuela, which have not signed the UNCLOS, have provision for imprisonment for illegal fishing in their legislation. In this matter, UNCLOS is not part of the solution but part of the problem.

In any case, whether or not they have signed the UNCLOS and other complementary agreements, Argentina, Chile, Colombia, Ecuador, Peru and Venezuela, among other coastal States, suffer from illegal fishing, which is why any intentional action that breaks the balance of the ecosystem is a very serious fact and must be penalized with the utmost rigor, especially until agreements are reached that guarantee the coastal countries the sustainability of their migratory resources and the sustenance of their populations with this essential protein.

The lack of definition of migratory, highly migratory and straddling resources Neither UNCLOS, nor the New York Agreement (NY), or the FAO, expressly define what is meant by migratory and/or straddling resources. The UNCLOS also does not indicate the difference between the terms “ migratory ” and “ highly migratory ”, the latter a name invented by some technician, which is not only imprecise, but lacks scientific consensus. Migration is not related to the distance traveled. the species in its biological cycle and the term “straddling”, to be applied to the mobility of species, is just a whimsical geographical terminology, of a non-biological nature. In the text of the NY Agreement this is used more than fifty times. qualification, while it is not mentioned even once in UNCLOS. It could be understood, from geography, that a species is straddling when its habitat passes between several political geographical limits; But, from a biological point of view, the scope of distribution is inherent to the characteristics of the species, its diet, reproduction and oceanographic and environmental phenomena. Even within the same species, different fishing groups are recognized that are distributed in hydrographic regions. different (Angelescu and Prenski, 1987) and, where their migration is not the same.

The term “straddling” is not precise; It could be applied to a species that usually migrates and also to another that lives in a bordering space without migrating and, the FAO (FIDI) is illuminating in this regard: « straddling populations are fundamentally “residents” of the EEZs, that is, Its global biomass is found, to a large extent, within the EEZ, spilling a few miles into the high seas . " And this opinion of the FAO is very important, because it centers the control of these resources in the coastal States , where the species perform the most relevant part of their life cycle. Hence, it is unacceptable that by the mere fact of transposing these species the 200 miles, the flag States can freely appropriate the resource.

At this point I observe three issues: the first , that the Convention limits itself to mentioning in Annex I a small number of species as highly migratory, leaving out migratory species of valuable interest to the coastal States, such as in Argentina, the squid ( Illex argentinus ); the common hake ( merluccius hubbsi ); toothfish ( Dissostichus eleginoides ); the haddock ( Genypterus blacodes ); the Polish ( Micromesistius australis ); the Patagonian hoki or hoki (Macruronus magellanicus); the notothenia ( Patagonothen ramsayi ), etc.they carry out, a migration that exposes them to illegal fishing by 350 to 500 Chinese, Spanish, British, Korean and Taiwanese vessels on the high seas or in the Malvinas area arrogantly occupied by the United Kingdom of Great Britain and Ireland. North. All the species mentioned are migratory, but the absence of the squid Loligo gahi in Annex I is grotesque, because, although the British in the Malvinas consider it a local species, it is bicontinental (Pacific-Atlantic), distributed from the coast to the continental slope and, following the Malvinas Current, reaches the height of the Province of Buenos Aires (36ºS/38ºS). All of this should not be interpreted as a technical error, but as a manifest interest of the Flag States (expressed in the letter of UNCLOS) not to discuss the origin or dominance of these species, which are the object of their captures.

The second is that, in the Convention, there is a repeated call to create regional organizations, instead of these issues being resolved bilaterally between countries. And, the third , that in article 65 regarding marine mammals - although I am in favor of its preservation - coastal States are enabled to apply more rigorous measures, when in reality, the rest of the marine species should be subject to the same rigor, because their predation not only affects the sustainability of the species, but the livelihood and economy of the populations. In the South Atlantic, the aforementioned foreign ships take away 1 million tons per year of resources originating from the Argentine EEZ, preventing the development of the entire national Patagonian coastline, which we understand as central , in the face of the British occupation of 1.6 million km2 of Argentine sea off Patagonia.

The FAO also does not define what it understands by “ straddling or highly migratory” species and, in fact, ratifies our opinion that UNCLOS does not offer any valid definition for these species, indicating: “ a case not explicitly provided for in the Convention is that of the populations found within the EEZs of two or more coastal States and in adjacent areas of the high seas " and, it specifies, " that straddling populations must be indicated, not only by the name of the species, but also, due to its specific location (for example, cod from the Grand Banks) . "This issue should have been a debate prior to UNCLOS, since as I have mentioned, the “ how ” cannot be established, unless the “ what ” is previously defined. .Debating which migratory species are and who owns them should have been a fact prior to the Convention, but, of course, this issue is not of interest to the great powers that fish remotely, appropriating the resources of the coastal States, as they did on the continents two centuries ago and even later until today.

The lack of reference to the total number of migratory species, some of which I mentioned previously, and the lack of precision of the specific adjectives and absence of scientific approval of the terms straddling , highly migratory or migratory , in my opinion, invalidate any claim to apply the NY Agreement, at least in Argentina, since UNCLOS in its Annex I refers exhaustively to certain species, which do not include fish, crustaceans or mollusks from the Territorial Sea, the Contiguous Zone, Argentine EEZ or the Atlantic Southwestern.

To understand the preceding statements, we must begin by understanding what a “ migratory resource ” is and this includes the sui generis terms of “ highly migratory ” and “ straddling ”. Argentina, through Law 24,543 and 24,922, claimed its rights over these resources, since its global biomass is found in its EEZ, where these species carry out a large part of their main stages of the biological cycle, until they migrate to the high seas where they are captured by foreign vessels, to finally - those that manage to evade these captures - return to national jurisdiction; This last movement being the main condition for considering a resource “ migratory ”, since as indicated by scientists from the National Institute of Fisheries Research and Development (INIDEP) Ana Roux, Juan de la Garza, Rubén Piñero and Daniel Bertuche in his work “ The migration route of the Patagonian shrimp ” «The term migration, in the biological sense, refers to the periodic movements that some species of animals make, from a geographical region, and their subsequent return...» .

In the resources of marine water courses, in birds and other species, there is no migration without returning to the place of origin. It is even very likely that the migrant human species would return, if it were not, because the conditions of origin that that gave rise to migration tend to remain very unfavorable. Foreign vessels that capture without control on the high seas break this biological cycle, since ecologically, the species needs to return to the EEZ where it carries out its most important biological stage and, as the Code states of Conduct for Responsible Fisheries of the FAO: " States must apply the Precautionary Criterion in the exploitation of resources, taking into account critical habitat ." The case of the Patagonian squid (Argentina) is a typical example, since It begins its annual life cycle in the continental area of the Argentine EEZ, migrates to the Malvinas and the slope area and returns to the original area of the cycle; Therefore, its uncontrolled capture in the Malvinas or on the high seas not only hinders its sustainability, but since its trophic ecology is linked to other species, where it acts as a predator or prey, it affects all the species with which it interacts. in the ecosystem (those I mentioned previously and others), which in Argentina are central to food, the generation of industries and employment.

This is ratified in the recitals of the NY Agreement, where it highlights that predation is caused by high seas fishing : " some resources are being overexploited...". This trophic ecology in itself makes it clear that it is biologically absurd to admit free fishing on the high seas and controlled fishing in the EEZ.

Applicable legislation and high seas fishing

As we know, two Conferences were held prior to the United Nations General Assembly, where a Third Conference was convened in New York in 1973. In this the text was approved, with the vote of 130 countries, where 17 abstained and voted. against 4, among the latter United States. It was adopted by consensus and in an integral manner ( package deal), in such a way that there was no room for partial rejections, but rather it had to be adopted or rejected in its entirety; which, left gaps, inaccuracies and contradictions that - in my opinion - hinder the adequate application of the norm and with it - very especially - the care of the living resources under the domain of the coastal States, and, although the Convention is important with respect to the exploitation of the resources of the continental shelf, including the extended one; is not sufficiently adequate when it comes to preserving the living species of the EEZ and the high seas, because little biological rigor is applied regarding the sustainability of migratory fishing resources, to such an extent that Argentina had to make observations (of little practical value because the Convention does not admit reservations) when ratifying UNCLOS in 1995.

Thus we can see that article 87 indicates: " 1. The high seas are open to all States, whether coastal or landlocked. The freedom of the high seas will be exercised under the conditions established by this Convention... "; However, it does not set the appropriate sustainability standards and repeatedly refers, in relation to agreeing on catches on the high seas, to the terms “ may ” or “ shall attempt ” (Art.63º/64º, etc.) , which which gives it an optional and optional character and, therefore, "optional" and not mandatory, where it would refer to a duty or obligation to agree. And this is absolutely in line with the policy of the great powers that, in general, subsidize fishing on the high seas and, consequently, promote illegal fishing and do not seek agreements with the coastal States - where, in the vast majority their EEZs, the migratory resources originate - because in UNCLOS no Agreement with the coastal States is imperative for the Flag States.

The Convention may have been successful in many aspects, politically and legally, but, with regard to living species in waterways, it does not have biological instruments to guarantee the sustainability of operations or the sustainability of the species. No businessman can expect - by order of the local control body - for the species to develop, as is the case of squid ( Illex argentinus ) in Argentina, while foreign vessels on the high seas extract, without any control, the developing resources. in those spaces.And we should not expect sustainability if there is no development and reproduction of the species.

The freedom of fishing on the high seas cannot be understood as unrestricted , but rather in compliance with the internationally accepted bases of sustainability and traceability. Despite this, some jurists and many officials believe that they must protect the State's heritage, too (in In Argentina, fishery products are products of the State), that fishing on the high seas is free, absolute and arbitrary by application of articles 87 and 89 of UNCLOS and, therefore, is not illegal. On the contrary, to me understand, foreign vessels that fish for migratory resources originating in the EEZ of the coastal States, beyond 200 miles, carry out illegal fishing, in accordance with biological arguments of sustainability and interrelation of the species and the expanded interpretation of the Convention (hermeneutical analysis legal and biological), especially, taking into account art.2, inc. c) of Law 24,543; the Preamble of the Convention and its articles 55º; 56th; 58th inc.3; 61st; 62nd; 63rd inc.2; 64th; 69th; 70º; 94th; 100º; 101st inc.ii; 117th; 118th and 119th; its relationship with articles 4;, 5th inc.d); 21st inc.e); 22nd and 23 inc.b) of Law 24,922; the opinion of the FAO (FIDI) that « straddling populations are fundamentally “residents” of the EEZs (…) the tendency to agree with the coastal States that must be interpreted as the de facto recognition of their right » and, the FAO Codes of Good Practices for Responsible and Sustainable Fisheries , adopted by most countries.

Despite the explicit arguments, the cited legislation and the articles that we will refer to in greater detail; In the Argentine case , it is irresponsible to consider fishing on the high seas as legal because it clearly weakens the government's observations on UNCLOS (Law 24,543, 1995) and it would be naive to believe that the pressure from the countries that were then opposed to a deep sea territorial zone of twelve miles (in Argentina, Law 17,094 of 1966 established 200 miles, then EEZ by modification of law 23,968 of 1991) they did not act to weaken the position of the coastal States and favor the Flag States that, for the most part Most of them were and are developed countries that do subsidized remote fishing on the high seas (with this argument alone this fishing is illegal) .

The UNCLOS was highly favorable to these last countries, trying through it and the NY Agreement, which Argentina inexplicably signed in 2000 (although it did not ratify it), despite the fact that it exceeds the UNCLOS own regulations and violates the National Constitution of Argentina which, with respect to the Malvinas, says: «... ratifies its legitimate and imprescriptible sovereignty over the Malvinas Islands (...) and the corresponding maritime and insular spaces, as they are an integral part of the national territory, constituting a permanent and inalienable objective. of the Argentine people .

The interrelation of the species and their unique treatment in the EEZ as in the high seas . Article 56 of the UNCLOS establishes that the coastal State in the EEZ has « 1.a) Sovereignty rights for the purposes of (…) conservation and administration of natural resources (…) b) Jurisdiction, for: iii) The protection and preservation of the marine environment; 2.The coastal State shall take due account of the rights and duties of other States…”. For its part, article 58 specifies that: " ...3.(...) States will take due account of the rights and duties of the coastal State and will comply with the laws and regulations issued by the coastal State..." . From a light reading of these two articles it could be interpreted that the “ Rights of sovereignty of the coastal States for the purposes of conservation and administration of natural resources” are limited to the EEZ, but this is “BIOLOGY” and, if the UNCLOS refers to conserving resources, whatever the maritime space, legislation should be legislated with absolute biological precision for the comprehensive conservation (EEZ-HIGH SEA) of resources, otherwise, it would be meaningless - there being migratory species - to be determined the Maximum Sustainable Catches in the EEZ and, in doing so, the species on the high seas are not evaluated or - as is the case - no regulation is carried out on the high seas. Both facts of unusual gravity.

On the other hand, the domain of a resource originating from the coastal State cannot temporarily expire because it transposes the arbitrary limit of 200 miles and, later, recover that domain, if that same resource - closing its biological cycle - is not captured by fishing vessels. on the high seas, managing to return to their origins.It is as if a farmer lost control of a horse when it transposed a perimeter fence onto his property. What sense does it make, then, for coastal States to establish closed seasons, reserve zones, limitations on capture or Marine Protected Areas (MPA)? in its jurisdiction, if the species that is preserved in its stage of vital development, then in its migration to the high seas, loses control of the resource in the hands of foreign vessels that are in ambush and carry out illegal Olympic fishing until the resource is exhausted. ?With the application of Art.64º of UNCLOS, which refers to “ highly migratory ” species, “ the conservation and promotion of the objective of optimal use of said species throughout the region, both inside and outside the EEZ” will not be ensured. .

Likewise, the Convention requires every coastal State (Argentina), in Article 61 of “ Conservation of living resources ”, to annually determine the Maximum Sustainable Catch in the EEZ, to avoid predation of the species and sustainability. of the ecosystem and, therefore, the availability of the resource on the high seas in favor of the flag States, a very eloquent fact. The Convention says in its subsections: "The coastal State will determine the permissible capture of living resources in its EEZ (...) will ensure, through appropriate conservation and administration measures, that the preservation of living resources in its EEZ is not threatened... » and, it is understood, that to determine this “ Catch ”, as an administration tool in the EEZ, the coastal State should evaluate the availability and the fishing effort that is carried out on the different interrelated species (EEZ-HIGH SEA); since otherwise, it would be impossible to guarantee " the preservation of the living resources of its EEZ..." and, also, take into account that to ensure that fishing continues to be carried out, both in the EEZ and on the high seas, the State The coastal State has its own obligations derived from Article 62 of UNCLOS, which establishes that the coastal State: «1.shall promote the optimal use of living resources in the EEZ (...) 2.shall determine its capacity to capture the living resources of the EEZ ( …) 3.Include the economic needs of coastal fishing communities and developing States, and take into account (…) the interdependence of populations (…) 4.Take into account their effects on species associated with the species caught or dependent on them, with a view to preserving or reestablishing the populations of such associated or dependent species..." .None of what is required of coastal States by UNCLOS could be applied if they did not manage and give sustainability to their migratory resources originating from the EEZ. on the high seas, since, although the life cycle of the resource takes place in the EEZ, a part of it occurs on the high seas. Nor, if flag States that capture on the high seas are not required to do so in the same way .

The requirements of articles 61 and 62 to coastal States do not have a counterpart of similar requirements to flag vessels that fish on the high seas (Art.87, inc.1e); as if both resources were not linked; They did not depend on each other and did not belong to the same ecosystem, an issue that article 243 of the Convention refutes, referring to the fact that the processes in the marine environment are interrelated.

I also note that in article 62, inc. 4, UNCLOS intervenes in the administrative powers of the coastal States, advancing the regulation of fishing in the EEZ, their laws and regulations of these States, establishing that they must be in line. with the Convention. This, which could be considered the interference of a multilateral organization in internal issues of States, ratifies the conviction that the centrality of the care of resources in the sea should be in the hands of the coastal States and not of the States. of Bandera or in a shared manner with them and, due to the economic asymmetries and the political power of the latter.

In the case of a single ecosystem (EEZ-HIGH SEA), it is essential that this be coordinated by the coastal States that have the capacity to do so, independently of agreeing with the flag States on captures on the high seas. There is incontrovertible biological evidence that supports this position: if those countries exhausted the resource in the EEZ, it is highly probable that the resources on the high seas would be exhausted.

Art.6 of the NY Agreement refers to "optimal use"; to the "precautionary principle" and "environmental effects"; all issues that Flag States cannot address because they do not establish Maximum Sustainable Catches on the high seas; They do not undergo any control nor report on their captures; they discard; They interfere in the ecosystem etc. and carry out illegal fishing for this reason; Despite this, they are intended to have the same rights as the Coastal States, who - in general - are the ones who manage (research, conserve...) to make the species sustainable. On the other hand, the vessels that fish remotely are commercial and their originating States do not have the necessary information, capacity or will to do so, for some reason they subsidize these remote captures and this is also demonstrated by some administrations in their jurisdictional waters, such as the case of the European Union (among those that subsidize fishing the most) that has been postponing measures related to the conservation of species and the use of certain fishing gear.

I have already said that the UNCLOS is imprecise when it comes to protecting resources, although outside of all the foundations explained above, to classify fishing on the high seas as illegal, the mere fact that the flag States do not agree With the coastal States in those spaces, the capture should be understood as illegal and act accordingly; although in this aspect, we can observe with the lukewarmness that the Convention invites us to “treat”, “seek”, etc. as I already referred to regarding article 87 of the UNCLOS; understanding that the Agreements are a fundamental tool to ensure sustainability and equitable exploitation.

In the introductory part, UNCLOS indicates: «...the problems of marine spaces are closely related to each other and must be considered as a whole (...) the equitable and efficient use of their resources (...) the conservation of their living resources (...) ) the realization of a just and equitable international economic order that takes into account the interests and needs of all humanity and, in particular, the special interests and needs of developing countries..." , expressions that the Convention ratifies in article 61º inc.3): "...taking into account the modalities of fishing, the interdependence of populations ... " and in 243º when it refers to the fact that the processes are interrelated: "... study the nature and interrelationships of the phenomena and processes that have place in the marine environment.

Let us remember that it is not Chile, Peru, Mexico, Argentina or other Latin American countries that fish on the high seas in a subsidized manner and without any control, but that 77% of those that fish are vessels that come from China, Japan, the European Union (Spain), South Korea, Taiwan, Great Britain and Russia, and all of them are protected by this Convention that protects them and that, in addition to appropriating - in most cases - the migratory resources of The coastal States, their vessels receive 35 billion dollars annually in subsidies, an amount equivalent to 35% of the world market and, where 84% of these subsidies go to large fishing companies that have freezing and processing vessels, capable of moving over long distances. A very high amount that exceeds that of all fishing exports from Latin America. A shamelessness, which reveals the vocation of the great powers to take over fishing resources, even at a loss, contrary to all policies of the World Trade Organization.

Fishing vessels do not prey autonomously. They are the countries that subsidize them and thereby promote illegal fishing, and UNCLOS reserves the criminal sanction for the countries of origin of these vessels, which it does not enforce.

This is not a fair and equitable international order, as is proclaimed, much less an effective tool for the sustainability of resources and, in favor of developing countries, the vast majority of which are producers of raw materials. With the aggravating factor that these subsidies facilitate illegal fishing on the high seas, depredating the ecosystem; This, despite the fact that UNCLOS indicates - as I said - that "marine spaces are closely related to each other and must be considered as a whole." That is, if the livelihood of future generations is to be protected, it should not be the high seas a legal and biological treatment different from that required of the coastal States in the EEZ, with the unconfessed objective that the migratory resources originating in this area continue to feed the disproportionate foreign fleets that, fishing uncontrolled in the high sea, prevent the biological cycle of species from completing and impoverish the poorest States.

The UNCLOS and the Regional Fisheries Management Organizations (RFMO) . With navigation from the 15th century onwards, progress was made on the oceans, where the sea became central for the transport of goods and people, destined to sustain European colonialism. In In 1494, by the Treaty of Tordesillas, Spain and Portugal divided the sea; However, UNCLOS has regulated from a legal point of view, without due biological support, the exploitation of resources and, although, initially, it was intended to legislate on the seabed and spaces based on issues related to the domain of the sea, with origins in the positions that prevailed in the 17th century, the free use of the sea (Mare Liberum) of the Dutchman Hugo Grocio and the theory that supported the possibility of appropriating maritime territories (Mare Clausum) of the Englishman John Selden, both positions They mutated and were reconverted, according to the power of the nations. However, neither that Treaty, nor the aforementioned opposing theories, advanced on the exploitation of the living resources of the sea, in the way that the UNCLOS has done, where they are recognized rights to the Flag States over the fishing resources - which are the domain of the coastal States in the EEZ - as soon as they transpose the imaginary line of 200 miles, giving countries that fish at a distance the possibility of "freely" appropriating a migratory resource that has not completed its vital biological cycle, essential for its survival as a species, establishing what I define as " mare insustineri " and that will necessarily lead to the non-viability of fishing, if the three axes of adequate administration are not met: research, conservation and distribution , issues that are not adequately designed by the planned regulation of UNCLOS and, even less, in the NY Agreement (not ratified by Argentina) that regulates that, through which, through the so-called Regional Planning Organizations Fisheries (RFMO) deepens the interference in the administration of fishing resources by the Flag States to the detriment of the coastal States, making it clear - as an example - that in any of these RFMOs, the coastal States would be in a minority with respect to the flag States in decision-making and, that the aforementioned coastal States are assigned inadmissible obligations regarding the administration of their resources in the EEZ (Art.64º inc.7 « The coastal States will inform regularly to States that fish on the high seas (…) the measures they have adopted with respect to stocks of straddling and highly migratory fish in areas under their national jurisdiction »; Although, I want to emphasize with emphasis that, by establishing this obligation, the centrality of the life cycle of resources in the SEZs is made evident , an issue that is not reflected later in the UNCLOS when defining the ownership of the resources and the consequent roles. The aforementioned NY Agreement exceeds the Provisions of UNCLOS and, this, is not only contrary to the Agreement itself, which in its article 4 indicates: « No provision (...) will be understood to prejudice the rights, the jurisdiction and obligations of the States in accordance with the Convention... », but it is also absolutely inappropriate for the scope of the UNCLOS to be modified, limiting the rights of the coastal States depending on whether or not they are part of the aforementioned RFMOs. Such is the case, for example, of articles 8 and 17 «... The State that is not a member of the Organization (...) will not authorize flag vessels to carry out fishing operations (straddling or highly migratory fish) (...) the States corresponding coastal states will fulfill their obligation to cooperate by becoming members of the organization or participants in the arrangement (…) Only the States that are members of said organization , etc., which subordinates the administration of the coastal State to a regional organization (not regulated in UNCLOS) which would also prevent, among other things, coastal States that were not part of an RFMO from agreeing to fishing with Flag Vessels on the high seas. Legally inadmissible, biologically unsustainable.

From all that has been said, it is now possible to conclude that for coastal States the RFMOs are not an adequate tool if the ownership of the resources originating from the EEZ migrated to the high seas is not previously and clearly defined. It is worth making some clarifications. . Firstly , Argentina in 1995 (Law 24,543 art.2 inc.c) upon ratifying UNCLOS made some statements in this regard: «... The Argentine government, keeping in mind its priority interest in the conservation of the resources found in its EEZ and in the High Seas area adjacent to it, considers that in accordance with the provisions of the Convention when the same population or populations of associated species are found in the EEZ and in the High Seas area (...), Argentina , as a coastal State, and the States that fish those populations in the adjacent area, must agree on the necessary measures for the conservation of those populations or associated species on the high seas. Regardless of this, the Argentine government interprets that, to comply with the obligation established by the Convention on the preservation of living resources in its EEZ and in the area adjacent to it, is empowered to adopt, in accordance with international law, all measures it considers necessary for this purpose .

Secondly , integrating the RFMOs implies the resignation of Argentina to the administration of fishing resources throughout the Southwest Atlantic, due to the majority composition of Flag States over coastal ones in these organizations, not only in the high seas on the migratory resources originating from the EEZ, but also within it, in accordance with the norms of UNCLOS and those corresponding to the so-called NY Agreement, which I already referred to.

By the rules of the UNCLOS and especially by the way in which it is intended to regulate high seas fishing in the aforementioned Agreement, the clear intention of the Flag States - mostly developed countries that fish remotely - is made clear. - to keep the resources of the coastal States, otherwise, it could not be understood that those resources that are their domain in the EEZ, just by passing the imaginary 200 mile line, can be freely fished by third parties countries without intervention by the coastal States and, even worse, that the Flag States influence the administration of resources in the EEZ. This criterion breaks with the most basic biological model, sustainability of the species and sovereignty of the countries.

Furthermore, and very important, the negotiations within the RFMOs between a power and a weak country are absolutely unequal, where the first can exert strong economic pressure on the second and end up with fishing being a mere bargaining chip. superior economic or political interests. Argentina's fishing agreements with the USSR in 1986 and with the European Union (former EEC) in 1994 were complete proof of this. Therefore, I encourage Agreements between Companies with the endorsement of the State and not Agreements between States and, even less with regional organizations (RFMO). If there is no care for the resources in the EEZ there will be no resources on the high seas and if the resources on the high seas are depredated there will be unsustainability of these in the EEZ.The magnitude of the damage caused to coastal States by illegal high seas fishing is immeasurable; in light of this, the biological inconsistency of UNCLOS is alarming.