'... the regulation of the fishing administration in itself contributes to the eradication of ILLEGAL FISHING.'

ILLEGAL FISHING AND MIGRATORY RESOURCES: ANALYSIS OF THE ARGENTINE FISHING LAW

ARGENTINA
Friday, September 30, 2022, 17:00 (GMT + 9)

The Argentine Federal Fisheries Regime was sanctioned by Law 24,922 of 12/9/1997 modified by Law 26,386 (5/28/2008) and Law 27,564 (9/16/2020).

Its Article 1 of the Law defines the object of its sanction and is without a doubt one of the most outstanding articles of it, however, it does not reach to define that the use of the resource that it refers to must have as its main destination the national fishing industry. (as occurs in the legislation of many other Latin American and Caribbean States) and that, as it is a resource for all, it must be distributed equitably and preferably industrialized in plants on land to add the maximum possible value and not transfer the hand of works to developed third countries that should acquire the finished Argentine products and not raw materials for their transformation. In addition to this, the fishing industry must serve to generate naval industrial production and feed back research and technology. In this sense, we are inclined towards an article that indicates the following: Article 1 «The Argentine Nation will promote the exercise of maritime fishing in search of the maximum development compatible with the rational use of living marine resources in the national fishing industry with the support of the national fishing shipbuilding industry, research and technological development. It will promote the effective protection of national interests related to fishing and will guarantee the sustainability of the fishing activity, promoting research and long-term conservation of resources, favoring their equitable distribution among industrialists throughout the country and encouraging the Total transformation of raw materials in plants located in the national continental and insular territory, through quality, sanitary processes and in an environmentally appropriate manner, ensuring the maximum added value is obtained; the greater employment of Argentine labor and promoting national consumption» (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

We cannot lose sight of the fact that in Argentina practically nothing has been done regarding the increase in the Argentine diet of the consumption of this essential protein, being with 4.8 Kg. per capita/year, according to the Council for Structural Change of the Productive Development Ministry (March 2021), among the lowest in Latin America and the Caribbean.

As Article 2 of the law indicates, "fishing and processing" that is, both together, constitute an industrial activity and not merely extractive. The mere qualification of “industry” should not admit a national or international commercialization of whole species with low added value (whole, H&G, etc.). It is not a mere question of fiscal or tax qualification, but a political definition that the legislator has made clear: fishery products must be marketed in an absolutely industrialized form. Therefore, fishing is an industry, as long as it is industrialized with high added value; the maximum use of the resource (including its waste); with the highest national employment and sustainability and, this is achieved, in the processing in the plants on land. Therefore, we believe that it would be interesting to reformulate the article as follows: «Article 2 Domain and jurisdiction of the provinces with a maritime coastline. The fishing and processing of living marine resources in plants located in the national continental or insular territory constitute an industrial activity and will be regulated subject to the Federal Maritime Fishing Regime established in this law» (César Lerena, “Pesca. Appropriation and Depredation. Bases for a National Policy”, 2014).

Regarding Articles 3 and 4 of the Law, on the one hand, Article 4 specifies that “The living marine resources existing in the waters of the Argentine EEZ and on the Argentine continental shelf are under the exclusive domain and jurisdiction of the Nation. of twelve (12) miles (...) The Argentine Republic, as a coastal state, may adopt conservation measures in the EEZ and in the area adjacent to it on straddling and highly migratory resources, or that belong to the same population or populations of species associated with those of the Argentine EEZ". Here we observe the use of the term "highly migratory" on which UNCLOS does not define this qualifier and, in Argentina, according to Annex I of UNCLOS, there are no highly migratory species, therefore their mere mention in this article is a serious error, because the aforementioned Annex leaves out species that are "migratory" originating from the EEZ or the territorial sea, as is the case of the shrimp (Pleoticus muelleri), the squid (Illex argentinus) and the hake (Merluccius hubbsi), to cite, as an example, the three most important species in Argentina. The last two not only migrate to the high seas, but also to the Malvinas area occupied by the United Kingdom of Great Britain and, therefore, it is necessary for the coastal State not only to take "conservation measures" in the adjacent area, but also of exploitation and administration, through agreements with the flag States that fish on the high seas, as indicated in article 2, paragraph c) of Law 24,543 of ratification of UNCLOS: «The Argentine Republic accepts the provisions on management and conservation of living resources in the high seas but considers that they are insufficient, in particular those related to straddling fish stocks and highly migratory fish stocks, and that it is necessary to complement them through a multilateral, effective and binding regime that, among other things, facilitate cooperation to prevent and avoid overfishing, and allow control of the activities of fishing vessels on the high seas as well as the use of methods and Fishing arts. The Argentine government, bearing 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 species associated are in the EEZ and in the area of ​​high seas adjacent to it, the Argentine Republic, as coastal State, and the States that fish those populations in the area adjacent to its EEZ must agree on the necessary measures for the conservation of those populations or associated species in the high seas. Regardless of this, the Argentine government interprets that, in order 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, it is empowered to adopt, in accordance with international law, all the measures that it deems necessary to that end”, for this reason, we consider that this article should be reformed, which should read as follows: Article 4 “Domain and exclusive jurisdiction of the Nation. The living marine resources existing in the waters of the Argentine EEZ and the Argentine Continental Shelf from the twelve (12) miles indicated in the previous article and of those that, originating in the EEZ, migrate beyond 200 miles to the high seas. Argentina, as a coastal State, will adopt all necessary measures for the administration, exploration, exploitation, research, conservation and control of straddling and migratory resources originating in the EEZ that migrate beyond 200 miles or that, being on the high seas, are found on the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ, promoting and encouraging national fishing on the high seas and agreeing with the flag States that capture the aforementioned species on the high seas. The migratory species originating from the Argentine EEZ caught on the high seas will be considered of Argentine origin for the purposes of their commercialization in the national and international market» (César Lerena, "Fishing. Appropriation and Depredation. Bases for a National Policy", 2014) .

Regarding Article 3, the law limits “the domain of the provinces with a maritime coastline and the jurisdiction for the purposes of their exploration, exploitation, conservation and administration to the living resources that populate the interior waters and Argentine territorial sea adjacent to their coasts, up to twelve nautical miles” and this is not consistent with what is regulated in articles 4º, 5º, 21º to 23º of the current Law 24,922 where Argentina claims its rights over migratory resources beyond 200 miles, an issue that we accompany, which is why the coastal provinces -in the same way- should have rights over the migratory resources originating from the territorial sea in the EEZ. In fact, this occurs because this so-called “Federal” Regime only distributes the profits from the capture rights to the provincial States; but, the management of the fishing resource continues to be centralized, generating a lack of predictability and inorganic unilateral actions of the different fishing companies, whatever the ports where they are based. Meanwhile, in Argentina, Article 2, subparagraph c) of Law 24,543 ratifying UNCLOS and the cited articles of Law 24,922 remain a dead letter and the Enforcement Authorities of the coastal State tolerate ILLEGAL FISHING of its resources. immigrants originating from the ZEE, causing the country a very serious biological, economic, social and labor damage, in addition to an offense to national sovereignty; which is why we understand that this article should be modified in the following way: Article 3 «They are the domain of the provinces with a maritime coastline and will exercise this jurisdiction for the purposes of their administration, exploration, exploitation, research and conservation of the living resources that populate the interior waters and the adjacent Argentine territorial sea to its coasts, up to twelve (12) nautical miles measured from the baselines recognized by national legislation. Regarding the resources that migrate to the EEZ originating from the territorial sea, the National State and the Provinces with a maritime coastline will agree on their administration, exploration, exploitation, research and conservation» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política National”, 2014).

Article 5 regarding the scope of application of this law indicates, that it includes, among other things: «a) The regulation of fishing in maritime spaces subject to national jurisdiction (...) d) The regulation of fishing in the zone adjacent to the EEZ with respect to migratory resources, or belonging to the same population or to populations of species associated with those of the EEZ”. The Argentine State makes it clear here that, in the regulation or administration of its fishing resources, the Enforcement Authority must exercise its rights beyond the EEZ over migratory, associated, etc. resources. an issue that is also ratified in the aforementioned article 4 and articles 21 to 23 and, in this sense, Argentina is among the countries that claim their rights as coastal States over the migratory resources originating in the EEZ. Despite this, it is erroneous to use the term "adjacent" that is often used imprecisely to determine an area that is beyond the 200 nautical miles in which the EEZ limits, since the term "adjacent" means that "it is very close or attached to something else”, an issue that does not necessarily occur when caught on the high seas, where flag State vessels fish far from 200 miles, close to them and even within them. In addition to this, we cannot speak of conservation, but we refer also and previously to research. On the other hand, and to be consistent with what was said when referring to Article 3, we understand that it is necessary to reform this article in the following way: Article 5 «The scope of application of this law includes: a) The administration, exploration, exploitation, research and conservation of fishing in the maritime spaces subject to national jurisdiction and, the straddling and migratory resources originating in the EEZ that migrate beyond 200 miles or that, while on the high seas, are found on the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ; b) When dealing with resources in the ZEE originating from the territorial sea, the National State will coordinate with the corresponding provincial State the administration, exploration, exploitation and conservation of fishing in the ZEE; c) The Enforcement Authority may limit access to fishing in the maritime spaces referred to in article 3 and subparagraph b thereof, when the National Institute for Fisheries Research and Development (INIDEP) declares - on scientific grounds - compromised conservation of a specific species or population, which must be submitted to the consideration of the corresponding provincial State within seventy-two business hours after the decision is adopted, for the purposes of its ratification” (César Lerena, “Pesca. Apropiación y Predation Bases for a National Policy”, 2014).

Through Article 6, the Fisheries Secretariat was created; but this was vetoed by Decree 9/68 of the National Executive Power, for which in Argentina the Enforcement Authority is the Ministry of Agriculture and Livestock, which delegates the functions to the Sub-Secretariat of Fisheries and Aquaculture.

We understand that, due to the complexity and particular activity of fishing and aquaculture, these are absolutely unrelated to Agriculture and Livestock; the particularity of issues related to the exploitation of resources that are carried out in a marine, industrial and export environment; the extent of the maritime territory that must be controlled both from the point of view of fishing exploitation and security and defense; the relationship of the activity with river, port, naval industrial, research, technological development and environmental and international relations issues, a higher hierarchy structure should be created to act as the Enforcement Authority.

Fishing is a productive activity diametrically different from the agricultural problem, due to the fundamentally industrial nature of exploitation, which combines in the same entrepreneur the tasks of extracting a biological resource -through sophisticated gear and equipment- together with the industrialization of the material premium and the export of the products obtained.

The intensive use of labor, fuel, energy, supplies and even, due to its specific theme, where workers, technicians and professionals trained and perfected in the specialty are required.

Culturally, Argentines, where agricultural activities have historically been promoted, are said to live with our backs to the sea. It cannot be expected that its leaders and officials are not a reflection of this lifestyle. In this framework of difficulties in understanding the activity, of ignorance of its economic potential, the Argentine Fishing Industry is one of the few that has had sustained growth in recent decades, even exceeding the volumes and amounts of red meat exports, that have characterized us in the last century at an international level. All this, despite an unfavorable macroeconomic framework and extractivist policies in force to this day. 

Fishing is strongly linked to the type of exploitation, causing immediate activity in the community and the population and industrialization region. The departure of the boat to fish causes an immediate occupation on land to process the raw materials to be unloaded; although, the model of the last years of pre-processing on board and immediate transshipment for export reduces the occupation of labor for the benefit of the importing transforming countries. This is the same model that remote fishing uses with the vessels of the flag States, which are the main responsible for ILLEGAL FISHING and, by the way, the model promoted by importers who add value to raw materials at destination. cousins.

Photo: Courtesy INIDEP 

Fishing is of growing importance for the maritime States and will acquire greater significance in the future from the growing advances in aquaculture and mariculture. Chile, for example, exported some 800 thousand tons of salmon and trout in 2020 despite the pandemic, worth 4,389 million dollars (in 2019 it had done so for 5,127 million), that is, more than double Argentine marine exports. . Fishing is very important for the provincial states, for their economies in attention to the industrial establishment and the consequent occupation of labor and the population settlement that it causes. And it will be even more important, given the growing demand for high-value proteins such as that provided by fish products; with the incorporation of modern technologies to highlight the conditions of the raw material and present it properly, necessarily related to promotion and global competition, which allows Argentina to sell high-quality fishery products to more than 50 countries and enter the markets sophisticated from the United States, the European Union and Asian countries.

Fishing is intensive and rational use of a renewable natural resource, through its extraction, industrialization and trade. It constitutes a fundamental tool for national defense through the occupation of Argentine maritime spaces and the regional development of Patagonia. It does not seem to have major points of contact with Agriculture and Livestock, other than being in the same area of ​​government, which does not understand the subject, industry, business or its strategic role in the occupation of the Patagonian coast, the maritime territory and Argentine island. 

Therefore, we promote the reform of the vetoed Article 6, as follows: Article 6. "Application Authority. The Ministry of the Sea, Antarctica and the South Atlantic Islands, dependent on the National Executive Power, will be the Enforcement Authority of this law. It will correspond to the National Executive Power to adapt the norms that regulate the operation of the organisms with competence in the matter of extraction of the marine fishing resources; its industrialization; the exploitation of aquaculture and mariculture; trade; research and technological development in the field; fishing issues linked to operations in ports and the naval fishing industry; international agreements on fishing exploitation or fishing research and all those issues directly or indirectly linked to fishing or aquaculture» (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014). The hierarchy in a State that must have serious economic difficulties may seem very pretentious; but, it would group the policies related to the South Atlantic, its Archipelagos and the Antarctic and, the fishing issues; merchants; fluvial; port; naval; research; technology; development and consumption. Without forgetting that Argentina has its maritime and insular territory occupied by the United Kingdom in a percentage equivalent to 52% of its EEZ. There are countries that have a Ministry and their EEZs are of a dimension much lower than that of Argentina, as is the case of Peru (0.9 M km2); mainland France (0.4 Km2); Portugal (1.7 Km2); Korea (0.5 Km2).

Photo: Courtesy INIDEP  

Of course, this would imply invigorating three areas, such as the current Malvinas, Antarctica and South Atlantic Secretariats of the Foreign Ministry; the Undersecretary of Fisheries and Aquaculture of the Secretariat of Agriculture, Livestock and Fisheries, and the Undersecretary of Ports and Waterways of the Ministry of Transportation, whose officials have been unable to generate a new strategic model and execute the pertinent actions to develop, generate wealth and employment and advance towards national sovereignty in a very important marine and insular territory of the order of 6,247,842 Km2. A myopia where it has not been understood that we are a MARITIME STATE and that both productive and social issues and regarding full sovereignty in Malvinas, will not be achieved if the efficient administration of the South Atlantic is not recovered.

Article 7 establishes the functions of the Enforcement Authority, however, from reading its subsections it is observed that these do not follow the regulations of articles 4 and 5 with respect to those that are in tune with the administration, exploration, exploitation, research, conservation and inspection of the fishing resources of the ZEE and, on the straddling or migratory resources that originate in the ZEE migrate from it to the high seas. On the other hand, the article omits the need for an INIDEP opinion when establishing the Maximum Sustainable Catches, determining surpluses and areas or closed seasons; to whom it refers only when establishing the methods and techniques of capture, the equipment and fishing gear of prohibited use. It also fails to mention the safety conditions for the crew and the useful life of the ships. In view of this, we suggest amending it as follows: Article 7 «Functions of the Enforcement Authority. The functions of the application authority will be: a) Conduct and execute the national fishing policy aimed at the administration, exploration, exploitation, research, conservation and control of the fishing resources of the ZEE and, the straddling and migratory resources originating from the ZEE that migrate beyond 200 miles or that, while on the high seas, are on the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ, agreeing with the flag States on the administration, exploration, exploitation, research, conservation and inspection of the indicated species and of the populations of associated species that do not originate in the ZEE; b) Plan the objectives and requirements related to scientific and technical investigations of the fishing resources of the EEZ and on the high seas as indicated in subparagraph a); c) Monitor the Maximum Sustainable Catches of species in the EEZ and on the high seas, established by the National Institute for Fisheries Research and Development (INIDEP); d) In accordance with the Maximum Sustainable Catch established annually, issue the Fishing Permits, Quotas and Authorizations by vessel, fishing zone and type of fleet, of the species of the EEZ and the high seas, prior authorization from the Federal Fisheries Council; e) Calculate the surplus resources available from the EEZ and the high seas and establish, with the prior opinion of INIDEP, the restrictions regarding species, marine protected areas (MPA) or closed seasons; f) Establish, prior approval of the Federal Fisheries Council, the requirements and conditions to be met by the vessels, their useful life and the conditions of maximum safety for the crew and the fishing companies to develop the fishing activity to capture the resources in question. the EEZ and/or high seas; g) Establish the methods and techniques of capture, as well as the equipment and fishing gear of prohibited use, with the advice of INIDEP and in accordance with the fishing policy established by the Federal Fisheries Council for the capture of resources in the EEZ. and on the high seas; h) Apply sanctions within the scope established in articles 4 and 5 subparagraph a), according to the infractions regime, and create a registry of records of violators of the provisions of this law, reporting them to the Federal Fisheries Council; i) Prepare and/or develop statistical systems for fishing activity in the water courses of the EEZ and the high seas and on the Argentine continental shelf; j) Participate in international bilateral or multilateral negotiations related to the fishing activity in accordance with the national fishing policy, managing through the Executive Power before the National Congress the approval of the Treaties or Agreements that may be required; k) Regulate the operation of the Fishing Registry created by this law; l) Receive foreign rights 

ration established by the Federal Fisheries Council; m) Intervene in the granting of benefits from the sectoral promotion granted or to be granted to the fishing sector; n) Intervene in investment projects that have or require specific financing from international financial organizations and/or that have been granted or to be granted to the Argentine Republic, in accordance with the criteria determined jointly with the Federal Fisheries Council; ñ) Issue authorizations for experimental fishing on the resources of the ZEE or on the high seas, prior approval of the Federal Fisheries Council; o) Establish and implement the necessary and sufficient control systems in order to reliably determine the captures on the resources in the EEZ and landed in authorized Argentine ports and the compliance and veracity of the sworn declarations of capture, landing, processing, storage and trade. ; p) Carry out national promotion campaigns for the consumption of fishing resources; carry out missions abroad to promote the commercialization of products of the national fishing industry and, any necessary action aimed at promoting the trade of Argentine fishery products with high added value; q) Exercise all the powers and attributions that are conferred by this Law to the Enforcement Authority» (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

Photo: Courtesy INIDEP 

Although we have a different opinion on the formation and functions of the Federal Fisheries Council than the one prescribed in articles 8 to 11 of the law, here we limit ourselves to observing those issues that refer to tools that help prevent ILLEGAL FISHING and manage migratory resources on the high seas. In addition, we observe that it is necessary to reassign the roles to ensure that INIDEP scientists and technicians are the ones who determine the Maximum Sustainable Catches and not the Federal Fisheries Council, which is a body that must establish the resource management policy and not the limits of capture, since it is a parameter, for which professional training, scientific rigor and independence of political decision are required. On the other hand, it is necessary to encourage the fishing of national vessels on the high seas and the fishing agreements in that area, in order to compete with the vessels of flag States without any control or agreement. For this reason, we consider it necessary to reform article 9 as follows: Article 9 «The functions of the Federal Fisheries Council shall be: a) Establish the national fisheries policy; b) Establish the fisheries research policy; c) Based on the Maximum Sustainable Catch by species and fishing zone established by INIDEP, establish the annual catch quotas by vessel, by species, by fishing zone and by type of fleet; d) Approve commercial fishing permits; e) Advise the Enforcement Authority on international negotiations; f) Plan the national fishing development; g) Set the co-participation guidelines and modify the participation percentages of the National Fisheries Fund (FO.NA.PE.); h) Approve the Experimental Fishing Permits prior to a well-founded opinion from INIDEP; i) Establish extraction rights and set fees for the exercise of fishing. The National Executive Power may exempt from all taxes, rights or rates to national vessels that fish on the high seas or with fishing agreements in this area with Argentina; k) Regulate the exercise of artisanal fishing by establishing a fishing quota reserve for the different species to be assigned to this sector; l) Establish the issues for consideration by the Federal Fisheries Council that require a qualified majority in the vote of its members; m) Dictate its own operating regulations, which must be approved with the affirmative vote of two thirds of its total members» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014).

In Article 11, as in previous articles, the law assigns a role to the Federal Fisheries Council, which interferes in matters that should be reserved for INIDEP, which is the one that has the technical and scientific capacities to guarantee biological sustainability. of the resources.

The Federal Fisheries Council must formulate the general fisheries policies for managing the resource in the EEZ and on the high seas. From the 1970s to the present day, fishing activity was characterized by the promotion of export activity. The fishing effort was increased indiscriminately, favoring the statistics that indicated more capture and more exports with little added value, over efficient use of the resource, that is, more foreign exchange and more employment. It is required, in the face of the experience of overexploitation of

common hake and other species in the 1990s, with its economic and social consequences, the beginning of a rational administration of resources that contemplates the permanent evaluation of the fishing potential; biologically and economically efficient exploitation; stability in its availability, strengthening of a full industrialization and with it, greater added value and employment and, a maximum penetration in the world's retail markets.

Photo: courtesy Revista Puerto 

Reaffirm this industrial activity; consolidate it; incorporate it into our cultural habits of work and consumption; increase this exceptional food in the diet of Argentines; generate job; adequately and equitably distribute the available resource among the different actors in the fishing industry; using this natural resource to effectively occupy the strategic maritime and terrestrial spaces of the Nation, promote strategies to eradicate ILLEGAL FISHING in the South Atlantic and in the Malvinas area, are tasks of the Federal Fisheries Council, while INIDEP should dedicate to increasing tools to ensure sustainable fishing and the perpetuity of this resource.

A renewable (but exhaustible) natural resource that is sensitive to factors related to uncontrolled extraction, climatic and environmental factors, requires optimal administration to provide the greatest possible security to investors, industrialists and workers, for which not only administrators are needed but also men educated in science and technology, trained, perfected and committed to making the best contribution to politics within the framework of the rigor required by research. 

INIDEP is an important tool whose purpose should be the design and execution of research, technology, nanotechnology and economic studies programs related to exploration, sustainable exploitation, efficient processing and storage, and related to the maximum use of the living resources of the sea. ; to the annual determination of the maximum sustainable catches, to the improvement and development of capture systems, fishing gear and fishing vessels, and to carry out technological research related to the nutritional value and quality of fishery products. The determination of the Maximum Sustainable Catches cannot be in the hands of the Federal Fisheries Council, but must be an attribute of INIDEP, who has the professional and scientific capacity to do so.

An INIDEP with great investigative autonomy and trust from the scientific and business community is the best guarantee that its opinions are recognized at an international level and this is central to sustaining -with a scientific basis- the fight against the negative effects on the ecosystem of uncontrolled fishing of migratory resources originating from the EEZ on the high seas. It is not possible to imagine the control of Argentine migratory resources on the high seas without an INIDEP that is technologically equipped, humane and scientifically committed and, with active participation, when it comes to technically supporting the projects intended for Argentina, as a coastal State, to generate the necessary political advances, together with all of Latin America and the Caribbean. For this reason and for other arguments that are omitted due to administrative savings, we understand that article 11 should be worded as follows: Article 11 «It is the responsibility of INIDEP to design and execute the research, technology, nanotechnology and economic studies programs referred to to the exploration, sustainable exploitation, efficient processing and storage and related to the maximum use of the living resources of the sea; to the annual determination of the maximum sustainable catches, to the improvement and development of capture systems, fishing gear and fishing vessels, and to carry out technological research related to the nutritional value and quality of fishery products. The Federal Fisheries Council will provide the administrative legal framework for INIDEP's rulings and reports so that they are applied to all fishing activity, and INIDEP will advise the Federal Fisheries Council on those decisions where it can and should require technical opinion. specialized INIDEP. This National Institute, with the approval of the Federal Fisheries Council, may establish agreements with the provincial states to contribute to greater fishing efficiency and a comprehensive and joint conservation of resources” (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional” , 2014).

Photo: courtesy Revista Puerto  

Article 12 provides that INIDEP will be in charge of and manage the research vessels that, among other tasks, are an essential tool for scientists and technicians to determine the maximum annual sustainable catches; bio cycles

species logicians; the areas where they carry out their different life stages; their migrations; interrelationships between species; studies on fishing gear and systems, etc. and the conditions of the marine environment, etc. Therefore, an intense and extensive activity is required throughout the marine territory, even on the high seas with these ships, in order to have an accurate analysis of the situation and design the necessary, sustainable and sustainable operational tools. Based on this, we suggest the following reform: Article 12 «The National Institute for Fisheries Research and Development -INIDEP- will be in charge of and manage the fisheries research vessels owned by the National State, in accordance with its function and, the obligations and needs relating to research, technology, exploration and conservation of fishery resources within the scope of national jurisdiction and on the high seas. For this purpose, it may also resort to the use of third-party vessels, through agreements authorized by the Enforcement Authority» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014).

Article 13 indicates that «The results of all research work on fishery resources must be made available to the Enforcement Authority before any use or disclosure thereof. The companies dedicated to the extraction of living marine resources are obliged to supply all the information required for the investigation of the resource. An issue that the Argentine governments violated when they agreed on a joint investigation with the United Kingdom regarding the resources that migrated to the Malvinas area occupied in an arrogant manner by the British. To avoid this, we suggest the following reform: Article 13 «The results of all research work on fishery resources must be made available to the Enforcement Authority before any use or disclosure thereof. INIDEP will not carry out joint research tasks with any State that may provide or make use of information related to marine resources in the Southwest Atlantic, of which it appropriates or makes use of it directly or through third parties. The same limitation will apply to companies dedicated to the commercial or experimental extraction of living marine resources, and these are obliged to provide INIDEP with all the information required for the investigation of the resource» (César Lerena, “Pesca. Apropiación y Depredación. Bases for a National Policy”, 2014).

In the same sense, it is necessary to establish the same limitations to experimental fishing that could be granted by application of Article 14, for this reason we suggest its reform: Article 14 «Experimental fishing by national or foreign natural or legal persons or organizations vessels with national or foreign flag, will require authorization granted by the Enforcement Authority, prior favorable opinion of the Federal Fisheries Council and will be subject to the limitations indicated in article 13. The Enforcement Authority will have free access to all information derived from scientific and technical research and will have the power to designate INIDEP representatives who, as observers, witness the work and verify that they comply with the conditions and limits that are set. » (César Lerena, “Fishing. Appropriation and Predation. Bases for a National Policy”, 2014).

As long as fishing is used for the purpose of experimenting and not to use these experiences for commercial purposes, as occurred in Argentina, we consider article 15 to be adequate, with the proviso that commercialization should be limited to paying for operations, except in those cases that experimental fishing be carried out on the high seas; therefore, this article should be reformed: Article 15 «Experimental fishing may only be for scientific research or innovative technique, and cannot be commercial operations. The shipowner may dispose of the catch, to pay for fishing operations and if there are economic surpluses, they will be in favor of the State in the catches made in the EEZ, unless this fishing is carried out on the high seas, where the proceeds of all sales will be favor of the shipowner. In all cases, the Enforcement Authority will establish deadlines and maximum catch quotas in accordance with the scientific or technical purpose and the operating costs, following an opinion from INIDEP» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014).

Article 16 is contradictory to Article 15 regarding the products obtained during the investigation, which is why it should be modified: Article 16 «When this activity is carried out by INIDEP together with CONICET and/or national or provincial universities

cials or other research, science or technical institutes, the fishery products obtained during the development of this may be disposed of under the conditions established in article 15» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014 ).

Regarding Article 17, the Law restricts the action to the conservation of the resource in "the spaces of Argentine jurisdiction" in contradiction to what is already expressed in the 4th and 5th of the law regarding their rights over migratory resources on the high seas and, It also limits its foundations to conservation, when in fact the State must not only "avoid excessive exploitation and prevent harmful effects on the ecological system", but must manage the resource to obtain the highest value and distribute it as widely as possible. , compatible with business sustainability. Not doing so is also predatory, as it is also uselessly conserving resources, leaving surpluses. For this reason, we understand that the article should be modified: Article 17 «Fishing in all maritime spaces under Argentine jurisdiction and on straddling and migratory resources originating in the EEZ that migrate beyond 200 miles or that, while on the high seas, are in the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ, will be subject to the restrictions established by the Enforcement Authority, based on the fishing policies established by the Federal Fisheries Council and based on the administration, exploration, exploitation and conservation of Argentine resources and, in turn, avoid harmful effects on the environment and the unity of the ecological system. (César Lerena, "Fishing. Appropriation and Predation. Bases for a National Policy", 2014).

Photo: Courtesy Carrefour

Regarding Article 18, we have already referred in Article 9, subsection c) that, for the reasons already expressed, it should not be the Federal Fisheries Council but INIDEP who sets the "Maximum Permissible Catch" or better "Sustainable" in our opinion: "c) Based on the Maximum Sustainable Catch by species and fishing zone established by INIDEP, establish the annual catch quotas by vessel, by species, by fishing zone and by type of fleet." We have already seen over the years that due to political decisions, permits, quotas and authorizations are granted that exceed the Maximum Sustainable Catch endorsed by scientific reports, and the ecology does not admit political decisions that violate it and cause predation. From what has been said, we understand that this article 18 should be repealed.

Regarding Article 19, its text is erroneous and it has not been saved either in Regulatory Decree 748/99, therefore, its modification would correspond, in addition, if it does not indicate, that the determination of the Enforcement Authority regarding closed seasons, restrictions on fishing etc they must have prior technical reports from INIDEP. Based on this, the article should be worded as follows: Article 19 «Based on INIDEP reports, the Enforcement Authority may establish closed seasons or zones. The information relevant to the imposition of such restrictions, as well as their lifting, will be widely disseminated and, with due notice, the fishing concessionaires and the competent patrol and control authorities. Likewise, it may establish reserves, delimitation of areas and other restrictions on fishing, imposing on the concessionaires the obligation to supply, under a sworn statement, statistical information on the catches obtained, fishing effort and the position of their vessels» (César Lerena, “ Fishing. Appropriation and Predation. Bases for a National Policy”, 2014).

Regarding Article 20, it limits the surveillance and control of the competent bodies to "maritime spaces under Argentine jurisdiction", which should be extended to the high seas to be consistent with articles 4, 5 d, 21 e, 22 and 23 b of the Law. 24,922 and article 2 inc. c) of Law 24,543, in addition to giving security to the national vessels that catch in that maritime space and, controlling the catches over the extended continental shelf (up to 350 miles) that may affect the submarine bed and carry out the controls that arise of eventual agreements between States on the high seas. Based on this, we encourage this article to be modified: Article 20 «To contribute to compliance with national legislation on fishing activities, the Argentine Navy and the Naval Prefecture in their respective jurisdictions, coordinated by the National or Provincial Enforcement Authority according to the territory concerned, will ensure due surveillance and control in all matters related to the operation of national and foreign fishing vessels and the exploitation of living marine resources of the territorial sea, the EEZ and the high seas. For this same purpose, The Enforcement Authority may acquire and operate the satellite control systems that are necessary or require their application to the national concessionaires of the fishing activity and foreigners in the event that fishing agreements are established on the high seas» (César Lerena, “Pesca Appropriation and Predation: Basis for a National Policy”, 2014).

Insofar as Article 21º limits the actions to maritime spaces under Argentine jurisdiction, with the same contradiction already indicated in Article 20º and, furthermore, as if the prohibited practices on resources on the high seas did not affect the ecosystem and in particular the straddling and migratory resources originating from the EEZ or from the same population on the high seas and those associated with those in it and, omitting the total detail of prohibited practices that should be included in a list of activities considered ILLEGAL FISHING, since the forms of cause depredation and unsustainability of resources are multiple and changing. Therefore, it would be necessary to modify this article as follows: Article 21 «The Enforcement Authority shall determine the methods and techniques, equipment, fishing gear and any prohibited fishing practice. The following acts are especially prohibited in all maritime spaces under Argentine jurisdiction and on the high seas: a) The use of explosives of any nature; b) The use of acoustic equipment and harmful substances as methods of apprehension; c) Carry on board and/or use fishing gear not authorized by the Enforcement Authority for fishing authorized by the owner, the captain and the vessel; d) Transport explosives, toxic or polluting substances of any nature in the boats; e) Throw substances, debris or waste into the waters that may cause damage to aquatic flora and fauna; f) Prevent in any way the displacement of fish in their natural migrations. Intercept fish in water courses through unauthorized catches; facilities, shortcuts or other procedures that threaten the conservation of aquatic flora and fauna; g) Any fishing practice or acts that cause havoc, overfishing or depredation of the living resources of the aquatic environment; h) The exercise of fishing activities without permission, allocation of quota or corresponding authorization, as well as in contravention of current legal regulations; i) The exercise of fishing activities in areas or closed seasons; j) The introduction of exotic aquatic flora and fauna without prior authorization from the competent authority; k) The introduction of living species that are declared harmful to fishing resources; l) The use of minimum meshes in trawling nets, which depending on the type of vessel, fishing maneuvers and species, are not those established for catches; m) discard fish and throw polluting waste or uncrushed waste into the sea, contrary to responsible fishing practices; n) Carry out captures of specimens of species smaller than that established by current legal regulations or declare volumes of capture different from the real ones, as well as falsifying the declaration of the species captured; ñ) Exceed the catch allowed above the volume of the individual catch quota or the authorization granted; o) Carry out any practice that threatens the sustainability of the fishing resource and that the Authority determines as ILLEGAL FISHING» (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

In Article 22, the law refers to the "preferential right" that assists Argentina as a coastal State over the species or populations that migrate to the high seas or those associated in this area, an issue that makes clear the position of the country regarding the right over these resources and the need for the flag States that fish them on the high seas to agree on their regulation to avoid depredation of the ecosystem. Fishing could be free, but not predatory and is configured when the flag States do not control their vessels from a distance and when they do not agree on the fishing of migratory resources originating from the EEZs with the coastal States. The Argentine State when in 1995 ratified the CONVEMAR by law 24,543 (Article 2º c) made clear its rights on migratory resources. We understand that it may be very important to refine its text and also make it clear that when fishing permits are granted to foreign vessels in the EEZ in the event of a closed season, limitations, etc. may be affected by these restrictions on resource conservation. In view of this, we suggest the following text: Article 22 «In order to protect the preferential rights that correspond to the Nation as a coastal State, the Enforcement Authority, together with the Ministry of Foreign Affairs, International Trade and Worship , it will organize and maintain a regulation system for the fishing of straddling and migratory resources originating in the EEZ that migrate beyond 200 miles or, while on the high seas, are found on the Argentine continental shelf or belong to the same population. or to populations of species associated with those of the Argentine EEZ. To this end, Argentina will agree with the States that wish to fish these stocks on the high seas, the necessary measures to manage the exploitation and take the necessary conservation actions to ensure the sustainability of the resources. When limitations on fishing or closed seasons are established on the high seas, they will be applied equally to national or foreign vessels if there are agreements with flag States. Whereas, if these agreements are made so that foreign vessels fish within the EEZ, the restrictions may only affect them” (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

Photo: courtesy Milko Schvartzman

Article 23 of the Law establishes a series of administrative acts that, in order to be aligned with the preceding articles referring to fishing on the high seas and migratory resources and, in addition, perfect the information regarding permits, authorizations and fishing quotas, we understand , that this article should be reformed: Article 23 «For the exercise of the fishing activity, you must have the authorization granted by the Enforcement Authority as stipulated in articles 7 and 9 of this law, by means of one of the administrative acts listed below: a) Fishing permit: It is an authorization granted to national vessels only to access the fishing grounds of the Exclusive Economic Zone, being necessary to carry out fishing to have an assigned Catch Quota or a Catch Authorization in the case that the species is not quoted, granted by the National or Provincial Enforcement Authority according to the origin of the resource in question; b) High-altitude fishing permit: It is an authorization granted to national or foreign vessels only to access the fishing ground outside the Exclusive Economic Zone or high seas; being necessary to carry out fishing to have an assigned Capture Quota or a Capture Authorization in the event that the species is not quoted. In the case of national vessels, it also covers those that have a license to operate in the waters of third States; c) Temporary fishing permit: will be granted to ships leased bareboat under the conditions and terms established in this law. The same treatment will be applied to foreign flag vessels that operate under the conditions of exception established by this law; d) Capture Authorization: it is a concession of the National State that enables the capture of fishery resources originating in the Exclusive Economic Zone or beyond it on the high seas in a limited quantity, in those cases in which the species is not or is quoted. capture is authorized for the purpose of scientific or technical research. It requires having approved a Fishing and Related Activities Project by the Enforcement Authority; e) Catch Quotas: it is a concession of the National State granted by the Enforcement Authority for a certain time, which allows the exercise of fishing to a vessel registered in the National Fishing Registry and with a valid Fishing Permit, with fishing gear. determined fishing, with respect to a species originating from the Exclusive Economic Zone or beyond it on the high seas and in percentage relation with the Maximum Sustainable Catch (CMS) established annually by INIDEP or in the volumes granted by the Enforcement Authority to a fishing vessel in the case of catches on the high seas. It is required to have approved a Fishing and Related Activities Project by the Enforcement Authority. Catch Quotas will be temporary concessions that may not be exceeded by the company or business group that percentage of the Maximum Sustainable Catch set by INIDEP, by species and fishing zone in order to avoid unwanted monopolistic concentrations. The granting of Catch Quotas will be subject to the Maximum Sustainable Catch (CMP) established annually by INIDEP and the other conditions established by this law and the Enforcement Authority; For this reason, these quotas may be suspended by the Enforcement Authority when biological reasons founded by INIDEP so determine, without the right of any claim to the State by the concessionaire of the assigned Quota. For the purposes of a better management of the resource, the Enforcement Authority may grant Catch Quotas on an annual basis or for shorter periods of time to better regulate catches. In the same way, limited to areas, species and types of fleets» (César Lerena, "Fishing. Appropriation and Predation. Bases for a National Policy", 2014).

Article 24 regulates the exploitation of marine living resources in maritime spaces under Argentine jurisdiction, where it can only be carried out by natural persons domiciled in the country, or private legal entities that are constituted or function in accordance with national laws. and, the vessels used in the fishing activity must be registered in the national registry and fly the national flag. Argentina should regulate this article with more precision through a regulatory decree, because in practice, since its origins in the 70s as an industrial activity with high volumes of capture in the EEZ and processing on land, the companies were mostly national. Currently, more than 70% of exports come from companies with foreign capital based in Argentina, which largely process on board, which added to foreign illegal fishing of the same origin (Spanish, Chinese, etc.) that carries out fishing on the high seas without any control or agreement, hinders the tasks of surveillance and control of ILLEGAL FISHING. Mindful of this, we consider it necessary to modify this article as follows: Article 24 «The exploitation of living marine resources in maritime spaces under Argentine jurisdiction, may only be carried out by natural persons domiciled in the country, or legal entities of private law who are constituted or operate in accordance with national laws and do not have a direct or indirect corporate relationship with companies that fish on the high seas or in Argentine maritime territories occupied or disputed by third countries without an Argentine permit, quota or authorization. The vessels used in the fishing activity in the territorial sea and the EEZ, as well as the nationals that fish on the high seas and must be registered in the national registry and fly the national flag» (César Lerena, “Pesca. Apropiación y Depredación Bases for a National Policy”, 2014).

Photo: Courtesy of the Argentine Navy 

Article 25 of the Law, by prohibiting landings outside Argentine docks, is in fact prohibiting transshipments on the high seas, except for force majeure, and this is very important, because in these uncontrolled transshipments they serve to "launder" FISHING products. ILLEGAL. It would be necessary to indicate in this article that unloading and transshipment outside Argentine ports must be guaranteed by inspectors from competent technical organizations that have agreements with Argentina; therefore, in our opinion, it is necessary to modify the article in the following way: Article 25 «It will be mandatory to unload the production of the fishing vessels in Argentine docks. In duly accredited cases of force majeure or when the vessels are authorized to operate in international waters, the Enforcement Authority may authorize unloading in foreign ports and transshipment in Argentine ports or in disembarkation areas enabled in their roadsteads. Unloading and transshipment outside Argentine ports must be guaranteed by inspectors from competent technical bodies that have agreements with Argentina» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014).

As we have already referred to when dealing with Article 23, the law has introduced the qualifications of Quotas and Authorizations, relegating the "Fishing Permit" to an authorization that is granted to vessels only to access the fishing ground, being necessary to carry out fishing. have an assigned Catch Quota or a Catch Authorization, therefore, a modification of Article 26 is required, which specifies the limits of the Permits, as we understand: Article 26 «Permits will be granted as stipulated by articles 7th, 9th and 23rd of this law, under the following conditions: 1. For a period of up to 10 (ten) years for a given vessel, for which the Federal Fisheries Council will establish the conditions, prioritizing for that purpose : a) Ships with Argentine labor in a higher percentage than that provided for in article 40 of this law; b) Ships built in the country; c) Vessels that use a specific fishing gear for the target species; d) lower age of the ship. 2. For a term of up to 20 (twenty) years for a specific vessel, with the priorities established in item 1), belonging to a company that processes the products in plants located on land, in the continental or insular national territory and, that, in these industrial plants, they process and elaborate in a percentage higher than 90% of the totality of the fishing catches of the vessel on a continuous basis. Process and/or elaboration shall not be understood as washing, headless, evisceration and/or tail cutting (H&G) and cooling and/or frozen. The Federal Fisheries Council will establish the conditions, prioritizing for this purpose: a) that they employ Argentine labor in relation to the percentages indicated in subsection 2 of this article and proportionally in vessels; b) add more value to the final product; c) ships built in the country; d) Vessels that use a specific fishing gear for the target species; e) lower age of the ship. 3. For the purposes of granting and maintaining the Permits provided for in subsections 1 and 2 of this article, the companies that own the ships must prove compliance with the current legal, social security, tax obligations and those required by SENASA regarding to issues related to the health and hygiene of the facilities and those required by the Enforcement Authority regarding the conditions of habitability and maximum safety of the personnel on board, in accordance with the minimum conditions established by the most modern current legislation on the matter and the Agreements between the Trade Associations and the respective Business Chambers. 4. The aforementioned terms may be reduced or canceled due to breaches of this law and the fishing programs of the company approved by the Enforcement Authority or for biological reasons. 5. The granting of the Permit and the maintenance of the conditions in which it was granted will only give priority to access the quota or authorization, but this will be -in all cases- subject to the availability of the resource according to the determined annual Maximum Sustainable Catch. by INIDEP» (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

Based on the fact that Article 27 was drafted at the time the quota system was implemented in the country to replace Olympic fishing, we consider its modification necessary, since some issues are observed that can lead to a concentration in the granting and an inequity between companies that are developing activities and companies that wish to invest in Argentina and start carrying out activities. On the other hand, the fishing resource is the domain of the State, which grants it in concession to a third party, therefore, the latter may sell the vessel it owns, but not transfer the concession to a third party without the State intervening, verifying the compliance with the obligations of the Concessionaire and the conditions of the purchaser of the vessel for sale. Accordingly, we suggest the following text: Article 27 «Capture quotas will be temporary concessions that may not be exceeded by the company or business group that percentage set by Decree of the Executive Power of the Nation, following a report from the Federal Fisheries Council based on the Maximum Sustainable Catch by species determined by INIDEP, in order to avoid unwanted monopolistic or oligopolistic concentrations; issue that will be considered central at the time of the allocation of quotas. To establish the operating parameters of the catch quota allocation system, the Federal Fisheries Council must prioritize the following items: 1) Parameters: a) Number of national labor force employed; b) The granting does not produce an unwanted concentration of quotas in relation to the rest of the fishing companies; c) Physical investments actually made in the country, where ships will not be counted because they are transferable assets that can be located outside the country or rented to third parties; d) The annual average of tons of legal catch of each species carried out during the last ten (10) years by vessel. This data will only serve to carry out a verification in the event of a tie in records; e) The annual average of tons of fishery products processed on land, of each species in the last ten (10) years per company. Process and/or elaboration shall not be understood as washing, headless, evisceration and/or tail cutting (H&G) and cooling and/or freezing operations. This data will only serve to carry out a verification in the event of a tie in records; f) The company's vessels are of national manufacture; g) The lack of antecedents of sanctions applied for infractions to the laws, decrees or regulatory resolutions of the fishing activity; h) The Federal Fisheries Council may reserve part of the Maximum Sustainable Catch as a method of conservation and administration, prioritizing its allocation to sectors of maximum social interest; i) The Enforcement Authority will pre-prepare the necessary regulations to establish a fishery resources administration regime through the classification by species, fishing zones, by vessel and type of fleet, which will be put to the consideration of the Federal Fisheries Council. and subsequent approval of the National Executive Power. 2) Sale, transfer transfer or rental of vessels: The transfer or sale of vessels will not mean the automatic transfer of the quotas, which will be subject to the opinion of an independent audit that reports on the fulfillment of all the obligations and background that justified the granting of the quotas of catch and, upon subsequent approval by the Federal Fisheries Council, based on the following minimum conditions: a) A regulatory decree will establish a reference percentage of the value of the sale of the vessel that is directly linked to the value of the vessel; percentage of quota available on the Maximum Sustainable Catch of the vessel and, the value per ton of the type of species in question; b) The signing of the contract will be carried out by a Notary Public with the necessary participation of the State, where the latter, as holder of the resource, is paid an amount not less than thirty (30) percent of the value of the vessel, the quota that and the type of species, which will be entered into the FO.NA.PE. established in this Law; c) The transfer of catch quotas from freshwater fishing vessels to freezers or factories will not be allowed; d) The rental of vessels to third parties will not give rise to the availability of the quotas or authorizations assigned to the rented vessel, which will return to the disposal of the State» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional” , 2014).

Article 1 of Law 26,386 incorporates Article 27 bis, which partially modifies Law 24,922, with the main purpose not specifically written in it, that companies authorized in the Argentine continent do not fish under an illegal British license in Malvinas waters or are associated, directly or indirectly, with companies or activities in Malvinas; This issue is extremely important, despite which, since 2008, when the law was enacted, Argentina has not applied a single fine to foreign vessels that fish illegally in the Malvinas area. On the other hand, the law omits the companies that fish authorized by the Argentine Enforcement Authority in the Continental EEZ and other vessels of the same business group that fish on the high seas for straddling and migratory resources originating in the EEZ that migrate beyond the 200 miles or that being on the high seas are on the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ. Mindful of this, we consider it necessary to modify this article with the following text: Article 27 Bis «The Federal Fisheries Council will grant the assigned catch quotas, or catch authorization in the event that the species is not quoted, in accordance with the provisions of article 27 of this law, to those holders who declare by means of a sworn declaration before the enforcement authority that: a) They are not shipowners or owners of fishing vessels that carry out fishing operations within the waters under the jurisdiction of the Argentine Republic without the corresponding permission of fishing issued in accordance with the provisions herein; b) They lack a legal, economic or beneficial relationship, in accordance with the provisions of article 33 of Law 19,550, with natural or legal persons who own and/or assemble fishing vessels that carry out fishing operations within the waters under jurisdiction. of the Argentine Republic without the corresponding fishing permit issued in accordance with the provisions herein; c) They lack a legal, economic or beneficial relationship with natural or legal persons, owners and/or shipowners, of fishing vessels that carry out fishing operations within the waters under the jurisdiction of the Argentine Republic without the corresponding fishing permit issued in accordance with what is provided herein. The same requirements shall apply to companies that fish authorized by the Argentine Enforcement Authority in the Continental EEZ, which must not have any relationship with other vessels that fish on the high seas for straddling and migratory resources originating in the EEZ that migrate beyond 200 miles or that being on the high seas are on the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional ", 2014).

Photo: Courtesy of the Argentine  Coast Guard (Naval Prefecture)

In Article 31, it refers to the fact that the products to be disposed of must have prior sanitary control, an issue that already arises from the application of Decree 4238/68, which obliges all establishments (vessels and plants) to have permanent sanitary control, however, it omits require the availability of the certificate of origin and traceability, in order to reduce the possibilities of ILLEGAL FISHING for this reason we consider it necessary to reform this article: Article 31 «In no case may fishery products be disposed of without first submitting them to the sanitary control of the competent organisms, which must be carried out without hindering the fishing operation, under the conditions established by the regulations. In the same way, to unload, transport, process, store and market the merchandise, certification of origin, traceability and health certifications for consumption or export will be required, depending on whether the raw materials and fishery products are involved» (César Lerena, “Pesca. Apropiación y Predation Bases for a National Policy”, 2014).

Article 32 establishes that “During the validity of the fishing permit, its holders must communicate as a sworn statement the catches obtained in the manner and time established by the respective regulations. The falsity of these sworn statements will be sanctioned in accordance with the provisions of article 51 of this law", although in this case as in others, the law should typify the seriousness of the offenses to avoid discretion of the acting officials at the time of punish violations. In this case, for example, it could be interpreted that it is a minor fault, however, we understand that it is a very serious fault that could be causing depredation by hiding catches that would not be reducing the quota or catch authorization granted and By the way, this should be classified as ILLEGAL FISHING.

In Article 33, it indicates that the Enforcement Authority "may" decide on the installation of satellite tracking devices and currently all ships should carry satellite tracking equipment, provided with the ability to record and transmit images simultaneously, way to reduce ILLEGAL FISHING and all other prohibited practices. For this reason, this article should be modified: Article 33 «All fishing vessels must be equipped with satellite tracking devices and systems that will be active from the time the vessels leave the port, during navigation and capture and in landing operations. of fishing, with the capacity to record and transmit images simultaneously to the Enforcement Authority. Fishing shipowners must install, at their own expense, the equipment approved by the Enforcement Authority and are obliged to care for and maintain said artifacts in perfect working order and permanently active. The infractions committed with respect to this point will be sanctioned in accordance with the provisions of article 51 of this law» (César Lerena, “Pesca. Appropriation and Depredation. Bases for a National Policy”, 2014).

Article 34 establishes that "The approval by the Enforcement Authority of the projects that contemplate the definitive incorporation of new vessels to the national fishing fleet, will be effective for obtaining the respective fishing permit, provided that the acquisition, construction, or importation is carried out within the period granted for this purpose, which cannot be extended. The construction or importation of ships without the prior approval of the project will be at the exclusive risk and expense of the shipyard, owner or the intervening importer» and this is important, because, as we know, quotas and authorizations are granted based on the Maximum Sustainable Catch determined by INIDEP.

Photo: Courtesy of the Argentine  Coast Guard (Naval Prefecture)

Article 35 establishes that “The commercial exploitation of existing marine living resources in the maritime spaces under Argentine jurisdiction may only be carried out through fishing carried out by Argentine flag vessels, except for the exceptions established by this chapter. The flag reserve for the purposes of commercial fishing will be inalienable within internal waters and the territorial sea.

Article 36 establishes for national companies the possibility of renting bareboat vessels to extract fishing surpluses for a term that does not exceed 36 months and this can be interesting, when these surpluses are circumstantial to quickly resolve the capture of species that would not otherwise be exploited. Now, if INIDEP detects through the respective investigations that the aforementioned surpluses have become a regular and sustained population, it will be up to award these quotas to new national ship owners, giving priority to those who have leased the vessels to catch the respective surpluses. . In view of this, the modification of the article would be required as indicated: Article 36 «National companies that habitually carry out fishing operations and had uninterrupted activity in the sector during the last five years prior to the request, may rent, with the prior authorization of the Federal Council Fishing, foreign-registered bareboat vessels, whose age does not exceed five (5) years and for a specified period, which may not exceed 36 months, destined to capture surpluses of unexploited or underexploited species, in such a way as not to affect the established fishing reserves. For the distribution of the quota, the same criteria established in article 27 will be followed. These ships will be subject to compliance with all regulations in force by Argentina, established for national ships. When INIDEP determines through the respective investigations that the referred surpluses have become a habitual and sustained population, it will correspond to award these quotas to new national ship owners, giving priority to those who have leased the vessels for the capture of the respective surpluses” (César Lerena, "Fishing. Appropriation and Predation. Bases for a National Policy", 2014)

By Article 37 “The National State may allow access to fishing in the maritime spaces under Argentine jurisdiction to foreign-flagged vessels, through international treaties approved by law of the National Congress whose purpose is the capture of non-exploited or under-exploited species” and that contemplates a series of conditions that in our opinion must be perfected, for example the well-founded determination of the surpluses that should have a scientifically based opinion from INIDEP immediately prior to the agreement; the tariff-free opening of the flag State to which the vessels belong; agreements between States in the event that flag State vessels fish on the high seas; impediment to make agreements to those who directly or as part of a business group or associate who fish in the Malvinas area with an illegal British license; agreeing that part of the catches will be processed in the Argentine continental or insular territory; that they will abide by all Argentine legal regulations and that the Enforcement Authority may nullify or suspend the agreement when the resources no longer allow further exploitation to ensure their conservation or that of the ecosystem. For this reason, we understand that the article should be modified in the following way: Article 37 «The national State may allow access to fishing in the maritime spaces under Argentine jurisdiction to foreign-flagged vessels, through international treaties approved by law of the National Congress that have Its purpose is the capture of non-exploited or under-exploited species and that meet the following minimum requirements: a) The well-founded determination of surplus or under-exploited species must have a scientifically based opinion from INIDEP immediately prior to the agreement. The determination of the capture capacity of the Argentine fleet for the purpose of calculating the surpluses may only be made based on biological structural reasons and not on cyclical losses typical of the activity or on extraordinary events of a general scope that have affected its operation; b) The opening of the market in the co-contracting country with import quotas for Argentine fishery products with high added value free of import tariffs for an economic value similar to the fishing quota granted by the agreement in the maritime spaces under Argentine jurisdiction; d) Simultaneous signing of an Agreement between the States in the event that vessels of the flag State or associated directly or indirectly fish on the high seas; e) No agreements may be made for the fishing of surpluses in the EEZ with those who, directly or indirectly, are part of a business or associated group that fishes in the Malvinas area with or without foreign licences; f) It will be agreed that part of the captures, according to the species in question, will be processed in the Argentine continental or insular territory; g) A catch fee equivalent to that paid by the national fishing activity will be paid, and the amount may be increased or reduced proportionally to the industrialization of the catches on the Argentine mainland or island; h) They will adhere to all Argentine legal regulations; i) The Enforcement Authority may definitively rescind or temporarily suspend the agreement when the availability of resources no longer allows them to continue to be exploited to ensure their conservation or that of the ecosystem, or when it is determined that the authorized vessel(s) engage in ILLEGAL FISHING or violate applicable Argentine legislation» (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

Photo: Courtesy of the Argentine Navy 

Article 38 refers to some conditions already specified in article 37 so that it should be reformulated: Article 38 «The granting of fishing quotas to be caught by foreign-flagged vessels based on the international treaties mentioned in the previous article shall not affect fishing reserves imposed in favor of national vessels and will also be subject in all cases to the fulfillment of the following conditions: a) It will be granted for a determined period of time; b) The activity of foreign vessels will conform to the regulations of this law and will only be admitted when it is carried out jointly with one or more companies located in the country, in accordance with the law of companies; c) It will be authorized by geographically delimited sea and fisheries areas and in relation to the species determined for each case; d) The Enforcement Authority shall regulate the fishing seasons and zones, the type, size and quantity of gear and the quantity, size and type of fishing vessels that may be used; e) The Enforcement Authority will set the age and size of the living marine resources to be captured; f) Vessels must unload their catches at Argentine docks, either for transshipment to other vessels or in transit for reshipment; g) The companies that are formed as a result of the application of subparagraph b) of this article, must be registered in the registry that is created for this purpose, as well as the vessels, the affected crews and the private agreements that are signed; h) The owners of foreign ships must provide on board each ship the adequate facilities for the control and investigation personnel whose boarding is determined by the Enforcement Authority; i) The production of these vessels must be absorbed at international prices by the market corresponding to the country of origin of the authorized companies, with a commitment not to re-export, except when penetration into new markets is offered or in those with export restrictions. Argentine fishery; j) At least 50% of Argentine crew members must board effectively; k) The Enforcement Authority will regulate the conditions that associated Argentine companies must meet; l) Exports of fishery products obtained in accordance with the regime established in this article shall not enjoy the benefits provided in the promotional regimes or tax refunds of any kind” (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política National”, 2014). 

The modification of Article 43º is proposed because resources that are considered relevant and could contribute to the National Fisheries Fund have been omitted, namely: Article 43 «Create the National Fisheries Fund (FO.NA.PE.) as a special account, which will be constituted with the following resources: a) Annual fees for permits to access fishing in the EEZ; b) Rights to grant Quotas or Catch Authorizations for nationally registered vessels authorized for commercial fishing in the EEZ; c) Extraction rights on captures on the high seas of migratory resources originating in the Exclusive Economic Zone or associated with them, in the event that the National Executive Power has not exempted them; d) Extraction rights in the EEZ for vessels located bareboat; e) Extraction rights applied to foreign-registered vessels with a temporary fishing license in national jurisdiction; f) The fines imposed for violations of this law and its regulations; g) The proceeds from the sale of extracted production, fishing gear, other items and vessels seized for violations of current law and its regulations; h) resources obtained by direct fishing exploitation or associated with fishing companies; i) sale or rental of vessels of bankrupt companies that have passed to the State as payment of debts; j) Other income derived from agreements with national and international institutions or entities; k) Treasury Contributions; l) Fees for required services; m) Interest and income from the income mentioned in the preceding paragraphs; j) Donations and legacies” (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

Article 44 indicates that "The National Fisheries Fund will be administered by the Enforcement Authority with the intervention of the Federal Fisheries Council and will be co-participated between the Nation and the provinces with a maritime coastline, in the proportions determined by the latter." The fishing activity, both nationally and provincially, receives research services; technological development; port and defense and security services that should be taken into account when indicating co-participation in this article and, by the way, also in Article 45, where we see very high percentages in administrative matters (higher than the average of any organization) of a division that also plans to receive funds from the National Treasury, even more so considering that the members of the Federal Fisheries Council (CFP) are all national or provincial officials who receive remuneration from their States and who fulfill their function in the CFP ad honorem. In addition to this, the National State has Ministries such as Labor, Education, Science and Technology, Social Action, etc. as well as intermediate organizations such as CONICET, the National Institute of Industrial Technology (INTI), etc. that provide funds and training programs, so it is unnecessary to add this item to the Fund and, in any case, it will be the Enforcement Authority and/or the companies themselves who will be in charge of providing the activity with funds and programs that are available or can be formulated. The same occurs with the operational improvement of the ports where the Enforcement Authority should act for its construction, maintenance and modernization. On the other hand, it must be taken into account that the provinces of the maritime coast collect permits and fees in their jurisdiction and, in any case, they should work to recover migratory species for themselves and, finally, remember that, according to current legislation, the EEZ it is of dominion and jurisdiction of the Nation, that is to say of all the Argentine provinces of the territorial sea. Based on all of this, we understand that both articles should be reformulated as follows: Article 44 «The National Fisheries Fund will be administered by the Enforcement Authority with the intervention of the Federal Fisheries Council and will be co-participated by the Nation, the provinces with a seacoast, the National Institute for Fisheries Research and Development (INIDEP) and the naval defense and security forces in the proportions indicated in article 45» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014).

Photo: Courtesy of the Argentine Navy 

Based on what was said in the preceding article, in our understanding Article 45, where the destination of the funds is established, should be written as follows: Article 45 «The National Fisheries Fund will be used to: a) Finance research and technology from INIDEP with up to thirty percent (30%) of the total fund; b) Finance the tasks of patrolling and maritime control of the fishing activity carried out by the competent authorities, with up to fifty-eight percent (50%) of the fund; c) Finance tasks of the Enforcement Authority with up to three percent (3%) and of the Federal Fisheries Council with up to two and a half percent (2%) of the fund; d) Transfer to the least favored provinces based on the landings and the value of the products landed, a fund of up to fifteen percent (15%). The modification of the percentages indicated in this article may be modified by Decree of the National Executive Power» (César Lerena, “Pesca. Appropriation and Depredation. Bases for a National Policy”, 2014).

Article 47 regulates the control of the transport in foreign ships of raw materials or small products in the EEZ and, we understand, that the mere fact of their transfer without authorization from the Enforcement Authority, should be classified as ILLEGAL FISHING, an issue, which gives This gives rise to the need to reformulate this article: Article 47 «The cargo of fishery products that is on board a fishing vessel with a foreign flag that is in the maritime spaces under Argentine jurisdiction or in waters in which the Argentine Republic has rights of sovereignty over living marine resources, without the express permission or authorization issued by the Enforcement Authority, it is presumed that they have been captured in said spaces or have been captured illegally in the Malvinas, South Georgia and Sandwich del Sur areas. South or on the high seas without control of the flag State and its agreement with Argentina, unless the origin and certified traceability can be demonstrated. ified by the Enforcement Authority or independent inspector of the vessel in question» (César Lerena, “Pesca. Appropriation and Predation. Bases for a National Policy”, 2014).

Regarding what is indicated in Article 48, it would be appropriate to extend the infraction to any ship and not only to those with the national flag. For this reason, we suggest the following wording: Article 48 «The cargo of fishery products that is on board a fishing vessel that is in a Marine Protected Area or Prohibition zone, and that had not been declared before entering said zone , it is presumed that it has been captured in said spaces and will be subject to the penalties provided for in this law» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014).

Regarding what is indicated in article 49, a modification is made to specify the territorial scope of the sanctions of the Enforcement Authority: Article 49. Violations of the laws, decrees or resolutions that regulate the activities related to the maritime resources of the EEZ and to straddling and migratory resources originating in the EEZ that migrate beyond 200 miles or that, while on the high seas, are found on the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ, whether they are national or foreign vessels, will be sanctioned by the Enforcement Authority, in accordance with the provisions of this law» (César Lerena, “Pesca. Apropiación y Depredación. Bases para a National Policy”, 2014).

In relation to Article 50 of the Law where the Argentine Naval Prefecture is placed in the function of "determining the configuration of the presumed infraction..." it is, in our opinion, a manifest error, since the Prefecture exercises the police power, but the evaluation of the infraction must be done by an auditor from the Enforcement Authority, after classifying all the infractions that are considered ILLEGAL FISHING. For this reason, it is necessary to reformulate the article as follows: Article 50 «Once the National Executive Power determines the infractions that should be considered ILLEGAL FISHING, in the event that an infraction is presumed by foreign vessels, the Argentine Naval Prefecture will proceed to withhold the vessel and the crew, prepare a first summary that justifies their actions and pass the case to the Enforcement Authority so that it appoints an auditor, who will proceed to classify the infractions, after which they will submit the actions to the Enforcement Authority to effects of determining the sanctions that could correspond» (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

Photo: Courtesy of the Argentine Navy  

Article 51 (modified by Article 1 of Law 27,564) indicates: "When the enforcement authority, after substantiating the corresponding summary, verifies that any of the illicit conducts typified in the current regulations has been incurred, it will apply one or more of the sanctions listed below, according to the characteristics of the vessel, the seriousness of the offense and the background of the offender: a) Warning, in the case of minor infractions; b) Fine, in accordance with the provisions of article 51 bis; c) Suspension of the registration in the records kept by the enforcement authority of the vessel through which the infraction was committed from five (5) days to one (1) year; d) Cancellation of the registration indicated in the previous paragraph; e) Confiscation of fishing gear and/or equipment; f) Confiscation of the catch obtained illegally; g) Confiscation of the ship».

What is said in paragraph g) of Article 51, would conflict with Part V Article 73 of UNCLOS ratified in 1995, which indicates: “Execution of laws and regulations of the coastal State. 1. The coastal State, in the exercise of its sovereign rights for the exploration, exploitation, conservation and administration of the living resources of the EEZ, may take the necessary measures to guarantee compliance with the laws and regulations issued in accordance with this Convention, including the visit, the inspection, the arrest and the initiation of judicial procedures; 2. Seized vessels and their crews shall be released promptly, subject to posting of a reasonable bond or other security; 3. The sanctions established by the coastal State for violations of fishing laws and regulations in the EEZ may not include custodial sentences, unless otherwise agreed between the interested States, or any other form of corporal punishment. 4. In cases of seizure or detention of foreign vessels, the coastal State shall promptly notify the flag State, through appropriate channels, of the measures taken and any sanctions subsequently imposed…”; but, finally, it does not conflict with the aforementioned norm (UNCLOS, Art. 73º inc. 2), because article 54º remains in force, which says: «In the case of foreign vessels, the Enforcement Authority may also order the retention of the vessel in the Argentine port until that, after substantiation of the respective summary, the payment of the fine imposed is made effective or a bond or other satisfactory guarantee is constituted, if it were the case. A true act of discrimination to the detriment of national ships, for the benefit of foreigners, contrary to what the CONVEMAR establishes in its articles 24º inc. 1 B; 26th inc. 2, 119º 3, 141º, 152º and 227º.

On the one hand, UNCLOS could not limit sanctions (seizures of vessels) to those who fish illegally in the EEZ, violating national sovereignty. On the other hand, to think that the predatory States could agree with the coastal States, as indicated by UNCLOS, regarding the application of “deprivation of liberty” is simply an impossible hypothesis.

However, to date, the Argentine government has not taken the necessary steps in that direction, nor have the flag states shown a willingness to agree with Argentina. Reason why, exploitation without control and without agreement on the high seas puts at risk the availability of resources in perpetuity, even those that are caught under control in the Argentine ZEE. On the other hand, the effort made to control ILLEGAL FISHING in the EEZ by foreign vessels has been reduced -probably motivated by the lack of means and government decision- to such an extent that in the last 40 years the armed forces and Naval security forces have seized an average of only two ships per year.

Asian jigging fleet in the port of Montevideo (Photo: courtesy Milko Schvartzman) 

Although the legislation for the administration of the resources of the Argentine ZEE should be perfected to make the exploitation of the resources more efficient, in general terms it would allow to avoid ILLEGAL FISHING by national and foreign vessels, understanding that it is essential to sanction a criminal law that specifies in greater detail the actions related to ILLEGAL FISHING and, in this regard, we have prepared a reform of the Nation's Penal Code. 

Law 27,564 increases the penalties for violations of current fishing legislation and establishes an automatic mobility regime (Fishing Unit UP), insisting on article 1 with the application of subsection g) "Seizure of the vessel", but, in the Article 4 ratifies Article 54 of Law 24,922 and indicates that "in the case of foreign vessels, the enforcement authority may also order the retention of the vessel in the Argentine port until, after substantiation of the respective summary, payment of the imposed fine becomes effective. », that is to say, accepting Part V Article 73º of the CONVEMAR, referred to. 

We have already referred to the criminalization of ILLEGAL FISHING and, also shown, that numerous developed countries that signed the UNCLOS apply criminal sanctions to those who fish illegally.

Article 51 bis: (incorporated by Article 2 of Law 27,564) establishes a mobile unit to prevent fines from becoming out of date: «The fine will be established in units of value called Fishing Units (PU), equivalent to price of one (1) liter of diesel fuel. The enforcement authority will determine the value in legal tender of the UP every six months, based on the final sale price to the public of grade two (2) diesel oil, or the one that eventually replaces it, according to information from the Secretariat. of Energy, or the authority that replaces it, considering the one with the highest value registered in the outlets in the Autonomous City of Buenos Aires. The UP will be converted into legal tender at the time the alleged offender agrees to the imputation carried out in accordance with the procedure provided for in article 54 bis of this law or at the time of full payment of the fine imposed by a firm resolution issued at the venue. administrative or court ruling. The minimum fine will be one thousand Fishing Units (1,000 PU) and the maximum of three hundred thousand Fishing Units (300,000 PU). When the infraction in question is fishing without a catch authorization, lacking an individual catch quota or fishing in a closed area, the minimum fine may not be less than three thousand Fishing Units (3,000 UP). When the infraction in question is that of fishing without a permit, the minimum fine may not be less than five hundred thousand Fishing Units (500,000 UP) and the maximum of three million Fishing Units (3,000,000 UP)”” unfortunately two years After Law 27,564 (9/16/2020) was enacted, no fine was applied to foreign ships that appropriate migratory resources on the high seas or in the Malvinas area.

Asian jigging fleet in the port of Montevideo (Photo: courtesy Milko Schvartzman) 

It is inadmissible that the applicable legislation provides for the confiscation of the vessel when it is a national vessel, while if the vessel has a foreign flag, the vessel is released prior to the payment of a fine, in an evident discrimination in the procedure, reason why which we suggest modifying article 54 as follows: Article 54 (Substituted by Article 4 of Law 27,564) «In the case of foreign vessels, the enforcement authority may also order the retention of the vessel in the Argentine port until, after substantiation of the respective summary, the payment of the imposed fine becomes effective. Depending on the seriousness of the infraction, if it is classified as ILLEGAL FISHING, the Enforcement Authority will proceed to confiscate the intervening vessel. Expenses arising from towing, pilotage, port services, fees for customs, health and migration services, generated by the offending vessel; and the expenses incurred by the agencies acting in the orbit of the National Public Sector, accrued as a result of the commission of infractions to this law, must be paid by the owner or owner or his representative, prior to his release, in the appropriate case. When the offenses described in this law were committed by fishing vessels in waters under the jurisdiction of the Nation, the sanctions will be applied by the enforcement authority, prior summary, whose instruction will be in charge of the National Directorate of Fishing Coordination and Control or the one that in the future replaces it or of the Prefecture Naval Argentina, as determined by the enforcement authority. All this without prejudice to the criminal and/or customs sanctions that may correspond» (César Lerena, 2022).

Article 54º Bis (Article of Law 26,386) the question of the procedure: «The National Directorate of Fisheries and Aquaculture will impute the violation of this law to the alleged person responsible for the commission of the act, who within ten (10) business days after Once notified, you may: a) Appear and initiate the defense of your rights; b) Acquiesce to the imputation. In this case, the applicable fine and/or sanction will be reduced to fifty percent (50%). At the request of a party, the offender may be granted terms and facilities for payment of the fine in question as regulated by the enforcement authority» (César Lerena, “Pesca. Apropiación y Depredación. Bases para una Política Nacional”, 2014). 

Regarding Article 62, it refers again to the Argentine Naval Prefecture for the preparation of the summary that we have already referred to in Article 50, which should be carried out by a State Auditor. In addition to establishing an automatic updating system for fines, we therefore suggest modifying this article as follows: Article 62º «When the offending vessel is a national flag vessel, and without prejudice to the sanctions provided for in this law for the shipowner , the Enforcement Authority will proceed to prepare, through a State Auditor, the corresponding summary regarding the responsibility of the captain and/or skipper, who, depending on the seriousness of the infraction committed, will be liable to one or more of the following sanctions: a ) Warning; b) Fine in pesos equivalent to 800 liters of diesel fuel up to pesos equivalent to 25,000 liters of diesel fuel; c) Suspension of the authorization to navigate for up to two (2) years, d) Cancellation of the authorization to navigate” (César Lerena, “Fishing. Appropriation and Depredation. Bases for a National Policy”, 2014).

Photo: courtesy of the Argentine Navy

DECREE No. 748 (7/14/1999) REGULATORY LAW 24,922 

“…in accordance with the declaration made by the Argentine Government in Article 2, subparagraph c), last paragraph of Law No. 24,543 and the provisions of Law No. 24,922, Argentina is empowered to adopt, in accordance with the applicable international law, all the measures it deems necessary to comply with the obligation to preserve the living marine resources of its EEZ and in the area adjacent to it...».

In Article 1, the Regulatory Decree indicates that: «The provisions of Law No. 24,922, include: «a) The sustainable management of living marine resources (...) e) The conservation and research measures that Argentina adopts regarding of the existing marine living resources in its EEZ and the area adjacent to it, in accordance with the applicable international law regulations (...) f) The fishing and research activities of national flag vessels in international waters, on the high seas and licensed to operate in waters subject to the jurisdiction of other States…”. We sincerely believe that the Law is clearer and more detailed than this regulatory decree regarding migratory and associated resources.

In Article 2, it specifies: “…When such measures order restrictions on the exercise of fishing, the Enforcement Authority will coordinate with the Argentine Naval Prefecture (…) the adoption of all necessary measures to ensure that vessels do not leave port, take port or leave the waters affected by those measures, and proceed to their immediate arrest in case they do not pay due respect". By the way, there is no progress in criminal sanctions or the confiscation of ships. 

For its part, Article 8 indicates: “Maximum Sustainable Yield (MSY) of a species shall be understood as the maximum tonnage that can be caught annually without affecting its conservation” and Article 9 defines the “Maximum Permissible Catch (CMP) of a species, the maximum tonnage that can be caught annually, set by the Federal Fisheries Council, based on the Maximum Sustainable Yield (RMS) and economic and social considerations of the fishing sector. The Maximum Permissible Catch (CMP) may be revised based on the conservation of the resource. The CMP seems like a political control of the RMS that must be taken scientifically and technically and not in another way. Therefore, it seems totally unnecessary and technically inappropriate to set the Maximum Allowable Catch.

Photo: courtesy of the Argentine Navy

Article 10 reaffirms Argentina's position regarding migratory resources, associates, etc. on the high seas and in that sense it indicates: «For the purposes of the provisions of Article 22 of Law No. 24,922, the activities of research, use and conservation of living marine resources that are carried out in the area adjacent to the Argentine ZEE, will be subject to the exercise of rights, to the compliance with the duties, as well as the safeguarding of the interests of Argentina, in the terms of Law 24,543 that approves the CONVEMAR and the other norms of international law that Argentina has approved. However, it should be more precise: Argentina has rights over straddling and migratory resources originating in the EEZ that migrate beyond 200 miles or that, while on the high seas, are found on the Argentine continental shelf or belong to the same population or to populations of species associated with those of the Argentine EEZ and therefore the flag States must be controlled and agree with Argentina on fishing on the high seas.

Article 13 indicates that "the breach of any of the obligations imposed may lead to the revocation of the authorization, without prejudice to the application of other sanctions that may correspond in accordance with the provisions of Law 24,922 and its regulations"; although, we have already said that the law does not provide for the confiscation of foreign vessels or the imprisonment of those responsible for ILLEGAL FISHING, an issue that is repaired with the modification that we promote.

Article 15, in addition to specifying the Enforcement Authority, which must indicate the rules regarding discharges, in our opinion should prohibit transshipment at sea, one of the practices that, without control, facilitates ILLEGAL FISHING and non-compliance of labor standards and slave labor.

Regarding Article 16, neither the Undersecretariat for Fisheries nor the General Directorate of Customs have issued the rules, nor have they imposed any sanction on vessels that fish in the Malvinas area without authorization from Argentina and without paying the corresponding capture and customs duties, that is, say smuggling.

Regarding the provisions of Article 18, which refers to "the products of the catches obtained by fishing vessels flying the national flag on the high seas and/or in international waters, shall be considered as of national origin for the purposes of their commercialization in the domestic and international market, with current legislation being applicable for all purposes", a circumstance that places Argentine companies in a situation of unequal competition against vessels from flag States that fish on the high seas subsidized, without paying catch fees or customs and without the internal or labor costs suffered by the activity in Argentina, whose changes we indicate when dealing with Article 20 of this Decree.

Regarding the unloading in foreign ports provided for in Article 19, it would require the necessary agreements between States to carry out the pertinent controls.

We, contrary to what is established in Article 20, understand that national vessels operating on the high seas must be exempt from paying any right, fee or tax to promote Argentine fishing outside the EEZs and compensate for the higher costs that this could involve, in a way that allows them to compete on equal terms with foreign ships that capture our migratory resources with subsidies.

Regarding the quotas and transfers provided for in Articles 22º to 25º, 27º and 28º, we have already referred in the Law and we understand that the system must be reformulated based on the ownership of the resource by the State; but, the subject escapes to this work.

Regarding Article 26 and the useful life of ships, the State has an outstanding debt with respect to carrying out the pertinent studies on the useful life of ships and what technological element and state of maintenance is required, to maintain a ship active beyond the date of manufacture. In Argentina, it is known, there are a large number of obsolete ships that require the State to facilitate their renovation with the national naval construction.

Photo: courtesy Contessi Shipyards 

Article 32 states that: "The person responsible for any foreign-flagged fishing vessel that intends to enter maritime spaces under Argentine jurisdiction or in waters in which Argentina has sovereign rights over living marine resources, not counting with a fishing permit or authorization issued by the Enforcement Authority, must previously inform the Undersecretariat for Fisheries of their presence and declare the catch and fishery products on board" and this is absolutely insufficient, since the person in charge should demonstrate with the relevant documentation the origin and traceability of the products, certified by an independent inspector, in full accordance with Argentine legislation, under the presumption that the products on board originate in ILLEGAL FISHING, considering as such, those that have been captured on the high seas without control of the flag State and without agreement with Argentina as a coastal State; as well as those that have been captured in the Malvinas area without Argentine authorization and, therefore, originating from ILLEGAL FISHING, in such a way that this article should be modified, namely: Article 32 «The person in charge of all fishing vessels of foreign flag that intends to enter or transit in the maritime spaces under Argentine jurisdiction or in waters in which Argentina has sovereign rights over living marine resources, without having a fishing permit or authorization issued by the Enforcement Authority, must previously inform the Argentine Enforcement Authority, so that an inspection is carried out in the assigned place, the declared catch of the fishery products on board is verified and the pertinent documentation of the origin and traceability of the products is displayed. products certified by an independent inspector, under the presumption that the products on board originate from ILLEGAL FISHING if they have been caught in the Malvinas area without Argentine authorization or on the high seas without flag State control and without an agreement with Argentina as a coastal State» (César Lerena, “Pesca. Appropriation and Predation. Bases for a National Policy”, 2014).

The same can be said about Article 33, which is why it should also be modified.

Regarding the payment of tariffs on fishing for scientific or technical research purposes provided for in Article 39, most countries consider this activity exempt and we also understand it that way, as long as commercial fishing is not concealed under this name. . 

Regarding the infractions against foreign ships provided for in articles 42º and 43º, what is related to the confiscation of the ship -which we adhere to- contradicts what is indicated in 24,922 and 25,564 that have adhered to the provisions of UNCLOS (Art. 73º part 2). We have already said that it is an act of discrimination (prohibited in the UNCLOS by articles 24º inc. 1b; 26º inc. 2, 119º 3, 141º, 152º and 227º) with respect to national ships and Argentine laws require a reform to allow the confiscation of foreign vessels and criminal sanctions for those who carry out ILLEGAL FISHING. 

Regarding the provisions of Article 50, we have already referred that it should not be the Argentine Naval Prefecture who instructs the summary, but qualified auditors and, the Prefecture should fulfill the role of police to stop and retain the vessel and the crew, yes correspond. The inspection and typification of ILLEGAL FISHING must be in the hands of Auditors.

This Law and its Regulatory Decree require other reforms that, as they are beyond the scope of this work, we have not proposed changes, although the organization of the fisheries administration in itself contributes to the eradication of ILLEGAL FISHING.

Dr. Cesar Augusto Lerena

South Atlantic and Fisheries Expert – Former Secretary of State

President of the Agustina Lerena Foundation1

President Center for Studies on Latin American Fisheries (CESPEL)2.

Author of "Illegal Fishing and Migratory Fishing Resources Originating from the Coastal States of Latin America and the Caribbean" (2022)

(1) Founded on 10/21/2002; (2) Founded on 2/4/1989

September 2022 (ISBN 978-987-29323-9-8)

Related news:

• ILLEGAL FISHING AND MIGRATORY RESOURCES

• ILLEGAL FISHING AND MIGRATORY RESOURCES: ANALYSIS OF PERU'S FISHING LAW

• ILLEGAL FISHING AND MIGRATORY RESOURCES: ANALYSIS OF THE ECUADOR FISHING LAW

• ILLEGAL FISHING AND MIGRATORY RESOURCES: ANALYSIS OF THE CHILEAN FISHING LAW

[email protected]
www.seafood.media

Print