Faced with the proposal to establish, unilaterally, a marine protected area in the Blue Hole, off the Patagonian coast of Argentina and beyond its Exclusive Economic Zone, it is worth reflecting on its origin, justification and effects and, in any case, consider that it is thus intended to resort to an inappropriate, improper instrument in area 41; a recurring problem, such as IUU or IUU fishing, which requires other responses.
1.- The first consideration is that marine protected areas (MPAs) were not conceived as a management tool or instrument to avoid or impede IUU or IUU fishing but to protect vulnerable ecosystems of proven vulnerability, sensitivity and risk, a generic concept that is defines and derives from broader definitions, such as EBSAs (Ecologically and Biologically Significant Marine Areas) where it is possible to apply ABMT = Areas Based Management Tools- that is, areas subject to management and ordering tools, among which and, as proposed by the United Nations Office of Ocean Affairs and Law of the Sea, the figure of AMP is framed, not the only one.
Conflicts between coastal or riparian states and states that fish remotely on the high seas are driving, today more than ever, international negotiation as a way to stop and prevent the deterioration of the ecosystem and straddling species, with serious economic consequences and social for the riparian countries.
These conflicts are not only those that are currently publicly perceived; On the contrary, the problems between coastal states and foreign fleets that fish in their adjacent waters are not new or exclusive to the Southwest Atlantic, they have arisen in other parts of the world and there are important antecedents of these conflictive situations that decisively influenced the discussions. of the 1982 Conference on the Law of the Sea (UNCLOS) and in the subsequent 1995 Agreement on fish stocks and, in general, in the development of international regulations and their continuous but delayed evolution.
Among them, we can mention the generated by the Polish fishing in the Donut Hole in the Bering Sea; that of Peanut Hole in the Sea of ??Okhotsk, off the coast of Russia; the Orange Roughy on New Zealand's Challlenge Plateau; cod and haddok in the Barents Sea; at the Sea Loophole between Norway and Russia; in Mauritania; off the coast of Chile and Peru and on cod and other straddling demersal species in the Grand Bank of New Foundland, Canada. From the latter arises the Joint Declaration of Saint John's where Canada and New Zealand emphasize the need to establish a regime for the high seas compatible with the management efforts carried out by the coastal country in its jurisdictional waters and mandatory for the cooperation of third parties that they fish from a distance. This declaration is particularly considered at the United Nations Conference on Environment and Development "Earth Summit" (UNEP) Rio de Janeiro 1992 and is fundamental for the signing of the CBD Convention for Biodiversity and for the subsequent negotiation of the Agreement on the Application of the Provisions of the 1982 United Nations Convention, relative to the conservation and management of Straddling and Highly Migratory Species Populations. Where cooperation is defined in safeguarding conflicting national interests to achieve a true functional competence on the conservation and regulation of the living resources of the sea.
The Aichi targets, the SDGs and the UN 2030 Agenda, as well as the commitment made in the CBD and in the sustainable development goal 14 to provide adequate protection to a percentage of 10% of the jurisdictional waters of the States Parties, complete the table from where the proposals for Marine Protected Areas arise that are being discussed today, in the official project, with the unilateral purpose of establishing an MPA in international waters, outside the EEZ.
It is necessary to start by noting that the International Law of the Sea governs the principle of cooperation and negotiation, be it subregional, regional or global, and not unilateralism. The adoption of measures by the states must take place within the framework of binding legislation and the obligation of cooperation provided for in the United Nations Convention on the Law of the Sea. Convention that must also be the subject of a hermeneutical interpretation and not biased or segmented, depending on whether one or another provision is convenient for the objective pursued. Nor will a literal reading of its provisions be appropriate except in accordance with the regulatory context of the set of principles it establishes.
2.- In order to give due protection to the species, recourse is made, in international law, to regulation and conservation and exploitation measures; responsible fishing; at the precautionary principle; to regional, subregional or international cooperation, through agreements or management organizations, to respect the rights and interests of coastal states and not to the prohibition of fishing. The IUCN - Union for Conservation of Nature categorization of marine protected areas - MPA - is based on this principle, contemplating 6 types of MPA, contemplating, in categories 4 and 6, the same tool but with access to exploitation regulated fishing.
3.- EBSAs and MSP (Marine Spatial Planning) must be based on scientific knowledge and not on their political use. The objective of both the IUCN and the CBD - Convention for Biodiversity - is to achieve the necessary compatibility and coexistence of the conservation and protection of vulnerable ecosystems with the fishing exploitation ordered with scientific and sustainable criteria, not their conceptual opposition.
4.- Prior scientific information and ecological monitoring, to establish MPAs, is an essential requirement for their implementation, as is the consideration of the activities of the sectors involved in fishing exploitation and their economic and social effects.
5.- All the doctrine and guidelines for marine protected areas, partly inherited from terrestrial protected areas, do not yet have a legal framework in the international law of the Sea. There is no international law standard that supports it.
6.-ODS (Sustainable Development Goals) approved at the World Summit on Sustainable Development at the United Nations 2015. ODS 14 Objective: Conserve and sustainably use the oceans, seas and marine resources for sustainable development.
14.5: conserve at least 10 percent of Marine areas in accordance with international law.
14.6: Elimination of subsidies and subsidies that contribute to IUU fishing.
SDG 14.7- C is important: Improve the conservation and sustainable use of the oceans and their resources by applying international law reflected in the United Nations Convention on the Law of the Sea, which constitutes the legal framework for conservation and use. of the oceans and their resources (as provided for in paragraph 158 of the document The Future We Want).
7.- Due to the fact that the fulfillment of the commitment of the goal has been invoked, (ODS, Agenda UN 2030) set to protect 10 percent of marine waters, assumed in the CBD, it cannot be omitted that this goal is referred always to jurisdictional waters of each member state and not to waters that are not under their sovereignty and control.
8.- In any case, the closures established by the state in its exclusive EEZ that prohibit fishing either partially or totally, by species, by area or by season, should be considered as marine protected areas and this has been considered by FAO, in a manner such that they should be considered and incorporated into the fulfillment or goal of 10 percent of marine protection areas.
A) Offshore MPAs:
1.- It is necessary and inevitable to distinguish between the faculties and powers of the State to establish protected areas, when it comes to its territorial sea and its Exclusive Economic Zone and continental shelf (benthic) or on the high seas, beyond its jurisdiction.
There is no doubt, in the first case, that the state, within the framework of its sovereign rights, can create or establish marine protected areas in its maritime spaces, provided that there are scientific foundations and real research of its need and convenience and provided that its control and monitoring is possible and effective and not become a "paper zone." Also taking into account the necessary participation of the economic actors that operate in the area and that would be affected by the protection measure, regardless of the level of restriction applicable or designed.
Given the technical and research assumptions required, there would be insufficient scientific evaluation or research on the matter.
It should be noted that in no way does the extension of the continental shelf imply the full extension of the jurisdiction of the coastal state beyond 200 miles. Except to exercise rights to explore and exploit non-living resources and sedentary living resources that are in permanent physical contact with the ground. This translates into and implies the non-alteration and interference in the freedoms of the high seas (Convemar article 78 et seq.) And in fact, the illegitimacy of adopting unilateral measures that condition them beyond the provisions of international law.
2.- In the case of the High Seas or international waters (ABNJ), the opposite occurs to the powers recognized in own waters. There is no international legislation that contemplates Marine Protected Areas in the High Seas or foundations that allow extending the powers of the coastal state beyond its EEZ over the water column and fishing resources. The extension of the continental shelf, whatever its extension (it only reaches 350 miles from the baseline), does not allow the adoption of unilateral measures that affect the freedoms of the high seas, including fishing, subject only to the provisions of the same Convention. UN on the Law of the Sea and other international instruments in force.
B) .- Necessary revision of the relative articles of the United Nations Convention on the Law of the Sea - UNCLOS.
The Convention, in a harmonious and comprehensive article of rights and obligations, provides, among others:
Article 63-2: “When both in the Exclusive Economic Zone and in an area beyond it and adjacent to it, there is the same population or populations of associated species, the coastal state and the States fish those populations in the adjacent area. They shall endeavor, directly or through the appropriate subregional or regional organizations, to agree on the necessary measures for the conservation of these species in the adjacent area.
The expression “directly” refers to the possible bilateral negotiation between countries and not to measures adopted unilaterally by the coastal state.
In straddling species, two categories must be distinguished, the differentiation of which affects the possibility of agreeing on management measures with third parties. One is those species that begin their life cycle on the continental shelf and migrate to international waters and those that inhabit both areas, inside and outside the EEZ. Straddling or straddling species refer to the first type, such as calamus and hake or haddock.
Article 77: in Part VI - Continental Shelf
Complementing the definition and layout of the continental shelf, this article contemplates the rights of the coastal State: in that sense it is stated: 1: that the State exercises sovereign rights over the continental shelf for the purposes of its exploration and exploitation of its natural resources. App.4: the natural resources mentioned in this Part are mineral resources and other non-living resources of the seabed and its subsoil, as well as living organisms belonging to sedentary species, that is, those that during the exploitation period are immobile in the seabed or its subsoil or can only move in constant physical contact with the bed or subsoil.
Article 78: "The rights of the coastal state over the continental shelf do not affect the legal status of the superjacent waters or those of the airspace located over such waters."
"The exercise of the rights of the coastal state on the continental shelf shall not affect navigation or other rights and freedoms of the other states provided for in this Convention or result in unjustified interference in them."
Article 87: Freedom of navigation, of overflight, of laying cables and submarine pipelines, of building islands and other facilities, freedom of fishing and freedom of scientific research.
Article 89: "No state may legitimately claim to submit any part of the high seas to its sovereignty."
Regardless of the normative plexus that is already abundant, marine protected areas in the high seas cannot be the result of policies of a State without the necessary recognition of third parties present in the area. Otherwise, its applicability and effectiveness will be null except for ships and nationals of said State.
On the other hand, if, and in the event that the protected area was recognized by third parties and its regulation accepted, the legal status of the activity of foreign vessels in the adjacent zone would be modified, going from being IUU fishing - Unregulated and contrary to the principles of cooperation required by international law, to an activity consented to by the coastal State and regulated by it, thus generating a new explicit right in the activities carried out on the water column that are not reached by operational limitations or not restricted. This is perhaps the most aberrant consequence of improvising inappropriate measures, which would end up irremediably affecting the claims of the coastal state to eliminate the fleets that operate in the area from its adjacent waters.
Given the establishment of marine protected areas, the treatment that the subject now receives at the United Nations Conference on Biodiversity in areas beyond National Jurisdiction is important - Intergovernamental Conference on an International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of Marine Biological Diversity of areas beyond National Jurisdiction - New York- 2018/2021, responding to General Assembly Resolution 72/249 and 69/292. The Conference seeks a new binding instrument for the protection of genetic resources and excludes fishery resources and their exploitation.
However, it is interesting to observe the “indicative criteria” that it contemplates to define the areas that require or may receive protection in this regulatory framework, including marine protected areas (MPAs) which would find in this instrument the necessary international legal basis.
The determination of specific areas responds to among others:
c) Importance for threatened, endangered species or habitats
g) Exceptional naturalness
h) Ecological connectivity
i) Economic and social factors
j) Cultural factors
k) Cross-border effects
m) Suitability and feasibility
It is clear that the exclusion of commercial fishing in this conference is not accidental and that extreme environmental arguments will continue to be insisted instead of giving an integral treatment to the exploitation of fishing in all international waters (64% of the oceans).
C) Identification and reason for the MPA initiatives projected for the so-called Blue Hole.
On this occasion, we find a bill promoted by the EP itself, to establish a Benthic Marine Protected Area in the area called the blue hole, reaching areas of the high seas, adjacent to 200 miles of national jurisdiction.
Marine Protected Areas, now locally contemplated in a benthic and unilateral way for the high seas, are due to initiatives based on:
1.- The inability to find effective solutions against IUU fishing (testimony of inability) reflected in the abusive and permanent presence of foreign fleets in the area adjacent to the EEZ and the predatory behaviors that are repeated there year after year.
2.- The public state and the consequent internal disclosure of this, chalky, illegal status, multiplied today by the crisis situation that characterizes this period.
3.- The non-existence of binding regulations for high seas fishing resources and the absence of competent regional organizations in Area 41, to manage the area and its resources.
4.- The lack of international action by the country to stop the continuity of fishing in the area lacking regulation and applicable conservation standards.
5.- the apparent political urgency of the state to carry out an act that, although inappropriate or insufficient, shows that it adopts some attitude to discourage or reduce or unregulated fishing in mile 201, thus trying to excuse itself for not complying with the obligation that it itself Law 24922 (Article 22) requires the PE to establish and negotiate a fishing regime for the zone adjacent to the EEZ.
A Marine Protected Area is neither the answer nor the tool designed to combat IUU fishing.
6.- the pressure and lobby of extreme environmentalists who find in this particular scene the opportunity to advance in their protected area programs under the supposed advantage of reaching 10% of its oceanic surface, despite the fact that a protected area is outside the The EEZ may not be computed as valid for that questionable objective, since said commitment refers to waters that are jurisdictional and controlled by each state.
7.- The country's political refusal to establish international cooperation and regional ordering negotiations with third states that fish remotely, based on the need to avoid altering the situation of controversy and sovereignty claim that is maintained with the United Kingdom; even though this could be avoided with the usual formulas of international law and the reservations that can be incorporated into any multilateral agreement.
8.-According to this erroneous criterion, they end up resorting to a non-existent figure in the legal plane, an MPA on the high seas, which deepens the adverse effects, already warned in other cases, on the own fishing industry without affecting the activity of third parties in the water column, over which a unilateral measure will not be applicable.
9.-The initiative in relation to the broad international debate on climate change, pollution, ocean health and protection of biodiversity is suggestive and timely. In the search to establish its legitimacy, the modification project presented later, turns to those matters of pollution and prevention of oceanic pollution to promote a new regime of permits, registration and payment of contributions, not only exceeding the powers of the coastal state to legislate on international waters but by consolidating the irregular and unregulated activity of foreign vessels with a formal act - albeit ineffective - through the granting of a permit for foreign vessels operating in the area.
D) The conclusions:
• The United Nations Convention on the Law of the Sea is a harmonious and complex set of principles, rights, obligations, behaviors and procedures for compliance by states, both in their relationship with other states and in their relationship with the oceans. , maritime spaces and their living and non-living resources, their protection and exploitation.
• Its interpretation responds to due hermeneutical criteria that prevent a partial political reading and use of the norms from taking place without considering the integral context of the legal body as a whole.
• In this way, it is neither appropriate nor appropriate to adhere to an obligation or claim a right and ignore its direct connection with the other principles that the Convention contains.
• There is no norm of international law that supports the implementation of marine protected areas on the high seas, beyond national jurisdiction or exclusive economic zone, even when the extension of the continental shelf is invoked.
• The initiatives under analysis regarding MPAs on the continental shelf exceed the power of the coastal State if they affect the freedoms enshrined in the Law of the Sea and will not be effectively applied against third parties operating in the area, whether or not they are subject areas. to international controversy.
• The goals contained in the SDGs (14) foresee and refer, in their fulfillment, to the protection of resources and biodiversity in areas and waters of national jurisdiction and not to international waters.
• In terms of conservation, responsible use and sustainability of resources and the marine environment, international law indicates that the unilaterality of the measures to be adopted is not possible and only admits and promotes cooperation between states, agreements and their treatment to through subregional or regional management arrangements or organizations.
• The consequences of the establishment of an MPA on the high seas, unilaterally, on the high seas, would be its inapplicability for non-sedentary resources, when it comes to the exploitation of third parties, and, at the same time, the modification of the legal status of foreign vessels regarding the current IUU fishing behavior, in the event that they expressly consent to its implementation and regulation.
• Marine Protected Areas do not constitute, from their very conception, an instrument to fight against IUU fishing but rather a tool to preserve maritime systems and spaces whose rarity, risk and physical characteristics identify them as unique and require additional protection to the surrounding areas. . Its establishment must be based on reliable scientific research and consider all the socio-economic aspects involved.
• The Argentine platform as well as the banks of Terranova and other similar spaces, turns out to be a traditional fishing ground with a wide diversity of species, fundamental for the national fishing industry. This ecosystem would not be at risk or threatened by predation if it were not for the unregulated presence of remote fishing fleets that take advantage of the limitation of the EEZ to operate in the free high seas, without respecting the directives and principles of international law and rights. and interests of the coastal states (Convemar art. 116).
• As provided in current international law itself, any standard that is intended to be applied on the platform, beyond 200 miles, if agreed with third parties, would have to be consistent and compatible with the provisions that regulate the exploitation and conservation of resources, identical or associated, within the EEZ. It would not be conceivable or legitimate for two dissimilar and probably contradictory fisheries regimes or ordinances to coexist within a mile or less.
• A marine protected area on the high seas will only affect the operation of its own vessels, flag vessels, increasing its already curtailed area of ??operation, as it was already as a result of the Malvinas conflict and the illegitimate implementation of the FICZ first and of the FOCZ later.
Desde nuestra posición, rechazamos toda limitación al desarrollo responsable y reacional de la pesca del estado costero, en este caso la Argentina, debido a la incapacidad o inhabilidad de alcanzar soluciones reales para luchar contra la pesca ilegal y no reglada en aguas internacionales.
Los efectos biológicos y económicos que sufre el país ribereño ante el escenario impuesto por las subsidiadas flotas a distancia, se mantendrán de no hallarse un nuevo camino que contemple un ordenamiento vinculante para todos los recursos transzonales y asociados que se encuentran más allá de las jurisdicciones nacionales.
El desafío de los órganos internacionales y el impulso de los estados costeros debe conducir a un nuevo instrumento internacional vinculante que permita, mediante figuras de acuerdos regionales o subregionales e internacionales, la gestión sustentable de todos los espacios marítimos en una concepcion armónica con los intereses pesqueros y su contribución a la seguridad alimentaria global.
Opras ha presentado una propuesta en 2018 , repetida en 2020. en las Naciones Unidas y la FAO, para la creación y reconocimiento de un Área de Pesca Regulada en él área adyacente a las 200 millas, con el derecho prioritario y protagónico del estado costero. Si bien en ningun documento de OPRAS se hizo referencia a las organizaciones, comúnmente llamadas OROPs o RFMOs, sí se hizo expreso énfasis a la necesidad de adoptar acciones y gestiones en el plano internacional para identificar el procedimiento viable para enfrentar el fenomenal desatino que hoy observamos más allá de nuestros límites.