The current Bill, promoted by legislators Graciela Camaño (Federal Consensus), Máximo Kirchner, Leonardo Grosso and Daniela Vilar (Frente de todos) and Enrique Estévez (Socialist), and which was presented on 11/4/2020 before the Honorable Chamber of Deputies of the Nation.
 

Photo: Graciela Camaño and Máximo Kirchner
 
The purpose of the project is to create the Benthic Marine Protected Area "Blue Hole", constituted by the management category of the Strict Marine National Reserve, which totally prohibits any productive activity, and is located outside the EEZ and on the areas of the continental shelf under the jurisdiction of the Argentine Republic, with a total area of ??164,000 km 2.

The project itself raises important legal and geopolitical edges, as well as important questions that should and they should consider:

- Does Argentina have the powers to legislate on international waters through unilateral acts that have effects on the freedoms of the high seas?
- Who is affected by the imposition of a benthic protected area? (does not apply to water column) to heavily subsidized Chinese vessels, which turn out to be the main predators and violators of any international or local norms of conservation and management? 80 percent of the fleet Fishing boats in adjacent waters are of Chinese origin and mainly fish for squid, with jiggers without touching the seabed. The MPA would not affect them and on the contrary it would seem leave the Area even more liberated than it is today.
- It is about ships from Spain? Despite the fact that their presence does not reach 10% of that of China and in turn they comply with all international standards for conservation, monitoring, etc; at the same time that they are bound by the terms of the European Union regulations to avoid and prevent IUU fishing. It does not seem reasonable or justified to put everything in the same bag when there are significant differences in the behavior, conducts, commercial results, bilaterality, etc.
- Do politicians and legislators respond in this way to their traditional aversion to production and to their habitual autism and entropy to feed on their own lack of knowledge?
- The projected MPA on the high seas is feasible to be controlled and monitored by regular and necessary scientific research, or it will be a single isolated act and product of the growing dissemination of the alarming scenario that the South Atlantic supports together with the inability of governments to find a management and negotiation framework compatible with the long-term use of resources and the elimination of deprecatory practices and abuses turned into looting in the area that have been repeated for many years before the impassive gaze of the authorities.

Area proposed in the bill for the AMPB "Blue Hole" | The Strict Benthic Marine National Reserve ¨Agujero Azul ¨ covers an area of ??the Argentine Continental Shelf, outside the Exclusive Economic Zone, with limits defined to the north by the parallel of 42 ° 32 ¨ S, to the south by the parallel of 47 ° 30 ¨S, to the east by the limit of the Argentine EEZ and to the west by the 5,000 meter isobath defined in the official cartography of the Argentine Republic. The area is located entirely in the high seas zone, within the limits of the extended Argentine Continental Shelf according to its new demarcation established in Law No. 27557.

From the interpretation of Article 5 and Article 22 of the Convention on Biological Diversity (CBD) signed at the United Nations Conference in (1992) it follows that "(...) the Contracting Parties could only create marine protected areas within the limits of its national jurisdiction ", but it does not offer many more details in this regard.

However, that seems to be the most obvious conclusion, when it is promoting effective conservation management in the waters of each signatory state and committed to the ratification of the agreement. This aspiration to have protection areas or Protected Areas is repeated in the Aichi Goals and in the United Nations 2030 Agenda, always without referring to the high seas, over which the freedoms and obligations contemplated in the International Law of the Sea still govern. The international waters that cover 65% of the oceans continue to be the subject of international negotiation since there is no binding regulation applicable to management and any unilateral action is rejected by the Convention itself.

Outside of its EEZ, Argentina has jurisdiction only over non-living resources and over the living resources of sedentary species that are on the continental shelf, recognized, that is, those that are immobile on the bottom or subsoil of the sea or only move without losing physical contact with the seabed (article 77 - 4 of the Convemar)

Unilaterally regulating other non-sedentary resources would exceed its area of ??competence and the sovereignty that corresponds to it when extending the platform, either through an act of management or one of conservation, such as the Marine Protected Area would be, when this figure is sought to be established by law of the coastal state without the pertinent international negotiation required for its implementation and compliance, with those states whose vessels operate in international waters and without a regional fishing organization that establishes and supports it.

As indicated by the Resilience Environmental Consultant on this bill, "(...) the concept of illegal fishing is confused with IUU Fishing. Illegal fishing is one that does not respect the existing regulations in the area, while that unregulated and / or unreported fishing does not necessarily constitute illegal fishing, but rather indicates the inexistence of regulation and ordering, as well as the lack of transparency and adequate registration of the activity, preventing the monitoring, control and traceability of catches.

It should be noted that although the concept of IUU Fishing or IUU fishing encompasses different types of conduct, somehow illegal or illegitimate or improper in accordance with international law, illegal fishing in the strict sense refers to “that carried out by foreign vessels or nationals in waters under the jurisdiction of a state without its permission or against its legislation. "

Also when "vessels that fly the flag of a state party - member of a regional fisheries organization, operate in violation of conservation or management standards adopted by said organization ..."

International legislation and doctrine adopt a broad definition of illegal fishing, including Unreported Fishing and Unregulated Fishing; Both situations of manifest breach of the obligations expressly established in current international law (Convemar, Compliance Agreement, Agreement of Measures of the Port State, Fish Agreement or New York Agreement and other non-binding instruments)

The Bill also "assumes" things, highlighted in orange, to justify others. The characteristics of 'high biodiversity' should be substantiated with scientific studies to ensure what they present and what relevant ecological role they have.

For her part, Luisina Vueso of Greenpeace announced that "(…) Greenpeace seeks to mobilize the international community so that the United Nations implements a Global Treaty for the Oceans that allows the creation of a network of ocean sanctuaries in international waters. The" Agujero Azul ”is part of this network Complementary to this treaty, which Argentina has been promoting and leading in this regard to the countries of the region, there is a bill for the Creation of a Benthic Marine Protected Area in the Blue Hole , which would be a first measure to ensure the protection of the Argentine Sea, its rich biodiversity and its ecosystems. The sanction of this law is purely and exclusively in the hands of our legislators "

Dr Cesar Lerena is of the opinion that "(...) let's start by saying that Greenpeace manages to make visible some of the issues, such as illegal fishing, that some of us have been denouncing for decades, in good time. But for To understand this in all its dimensions, we should separate the straw from the wheat, it does not matter so much where the illegal fishing occurs as to clearly say something that Greenpeace does not denounce: that those resources that are mostly illegally fished both in the Malvinas area and in the so-called Blue Hole and, in general, on the high seas beyond 200 miles from the Argentine EEZ are Argentine migratory resources that migrate in their biological cycle from the EEZ to the high seas and from there return to the Argentine EEZ if they are not captured earlier in their journey through these vessels that fish illegally, predating the ecosystem.

The international community like Argentina does not finish clearly typifying the dominance of these species and they limit themselves to saying that fishing on the high seas is free, a question that, as I have repeatedly referred to, is false because the freedom referred to in the Convention of the United Nations on the Law of the Sea (UNCLOS) is not an absolute and unlimited freedom and much less can be predatory because it would go precisely with the main purpose of UNCLOS, which is to preserve fishing resources in perpetuity. "

WHAT FAO COMMENTS ON MPAs

The guidance that has been finalized by the FAO Fisheries and Aquaculture Policy and Economics Division (FIP) and the Fisheries and Aquaculture Resources Utilization and Conservation Division (FIR) (2012) indicates that: "(...) establishment of marine protected areas in accordance with international law and on the basis of scientific information ..."

"(...) in many places planning activities and MPA implementation have been carried out piecemeal and, at the very least, uncoordinated; or at worst, biodiversity conservation objectives have entered in conflict with fishing interests Conflicts typically erupt when countries rush to proclaim MPAs in order to achieve biodiversity conservation goals but without taking into account how such areas could affect coastal communities, fishing patterns, catches or management. "
 
In its part 1.3 the FAO document also clarifies:
 
WHAT RISKS DOES THE CREATION OF MPA CONVEY?

The FAO guidance states that "MPAs can be a powerful tool for fisheries administration and management, but like all tools, they are subject to risks and difficulties. MPAs that have been designed to Achieving generic "one size fits all" targets would not be suitable for all habitat types and objectives and should be viewed with caution. Poorly structured and overly ambitious MPAs will often lead to errors resulting from inappropriate use, an imperfect design or a faulty application, or all three of these flaws at once.There is also the risk that the declaration of MPAs may be seen as an objective in its own right, and that those who defend it forget that protected areas are just a tool, undoubtedly potentially very useful, which is available among other options. possible to achieve the sustainable, equitable and optimal use of marine ecosystems. To avoid this misunderstanding, careful planning, scientifically based design and an effective management approach must be the conditions that add to the interest in establishing MPAs.

Therefore, MPAs should be conceived as one of the possible tools to achieve the overall sustainable use of the oceans.

One of the main risks posed by MPAs as a single solution is that in some cases it will have to be necessary (or will have already been necessary) to channel limited international, national and local capacities and resources to various ends that no longer give more of themselves, and that could have been used more profitably to solve the problems that are being addressed (Cochrane, 2006).

MPAs affect both the biological environment and people.

The process by which an MPA is planned and put into operation has a considerable influence on the benefits and costs, and consequently on the effects that derive from the implementation of an MPA. If an MPA is planned and implemented without the participation of coastal communities and resource users, and without considering their situation and needs, the risk is real that the protected area will fail. This could entail, among other things, the rejection of the MPA, as well as consequent difficulties in execution and penalties for communities and resource users. In the worst case, the lack of acceptance could result in the MPA becoming a draft on paper, which has been officially promulgated and according to the plans, but does not exist in practice because the provisions and the relevant regulations have not been respected. Unfortunately, this happens frequently, and in some countries these situations occur in almost 80-90% of cases. One of the reasons for the failure of management initiatives is the lack of community support; but there are other causes no less important such as lack of funding and inefficient management. "

ARGENTINA ALREADY HAS MORE THAN 1.07 MILLION km2 OF MPA NOT "OFFICIALIZED"?

On February 27, 2012, the United Kingdom announced the creation of an MPA of more than one million square kilometers in the marine area of ??the South Georgia, South Sandwich Islands and on the southern shelf of the South Orkney Islands, to through the Convention on the Conservation of Antarctic Marine Living Resources (94,000 km2 in 2009). The MPA is divided into three zones: one for exclusion of fisheries; and two others of limited exclusion.

That same year Greenpeace applauded the UK's decision. But he also indicated that the measure could contribute to aggravate the relationship between the United Kingdom and Argentina, which claims the sovereignty of these islands and that of the Malvinas since the European country annexed them in 1833. “The creation of marine reserves must be a step towards peace, not conflict," said Ruth Davis, the environmental organization's political advisor.

In December 2018, the Government of Georgia and the South Sandwich Islands (GIGSSS) enhanced that MPA by closing another 112,000 square kilometers (43,200 square miles) for all commercial fishing activity. That decision, based on scientific evidence gathered as part of a five-year protected area review, increased the amount of fully protected waters to 284,000 square kilometers (109,600 square miles). Although evidence shows progress, this expansion covers a quarter of the Georgia and South Sandwich Islands Exclusive Economic Zone (EEZ), equivalent to 1.07 million square kilometers (413,000 square miles).

The Argentine government declared in 2012 that it considered this action to be contrary to what is established in Resolution No. 31/49 of the United Nations General Assembly, which urges the Parties to refrain from introducing unilateral changes in the situation while the islands pass through. the decolonization process.
 
It is really important to try to add now the 164,000 km 2 of the Draft Law for the creation of the AMPB "Blue Hole" in international waters, without any basis of scientific information, a fundamental requirement in the matter or perhaps it is more relevant and transcendent for the Argentine government to analyze. the need to establish an exploitation regime, agreed at an international level, in the entire area adjacent to its maritime jurisdiction?
 
At the head of the bill, the following text can be seen (in a red box):

According to the Argentine Constitution, technically the MAP of the South Georgia Islands, Sandwich del Sur is located in Argentine waters, so it would not be worth commenting further on this.
 
If Argentine legislators wanted to go further, not only by exercising the sovereignty they claim but also with respect to the strict conservation of biodiversity, they could study in depth the 'Proposal for a marine sanctuary in the South Georgia and South Sandwich Islands' of the Pew-Bertarelli and add another 529,234 km2. It is not something that again the authorities that administer said area beat him out of hand.

Note: The map shows the proposed marine sanctuary area for the South Sandwich Islands on the right and the waters of the South Georgia Islands on the left. Government of South Georgia and the South Sandwich Islands, “South Georgia & the South Sandwich Islands Marine Protected Area Enhancements, ”(accessed July 15, 2019), http://www.gov.gs/32110-2; IHO-IOC GEBCO Gazetteer of Undersea Feature Names, www.gebco.net; Greeninfo Network, September 25, 2018; SEZ of Marineregions.org; Topobathy Hillshade baselayer by ESRI; Land and Bathymetry by Natural Earth © 2019 The Pew Charitable Trusts

FOREIGN FLEET AND THE ENVIRONMENTAL IMPACT
 
In a part of the work report of the Resilience Environmental Consultant on this bill, it is stated that "The existence of a Strict National Marine Reserve, as proposed by the Bill for the creation of the AMPB 'Blue Hole' would not allow activities to be carried out productive of any kind, so that fishing cannot be developed, be it sustainable or of any condition.

Based on the foregoing, it is clearly incompatible with such a strict prohibition of activities, the existence of fishing activity by vessels in the area, which, since it is international waters, cannot be prevented as long as it is not related to the bed and the seabed that Argentina has recognized. This would lead the Argentine enforcement authority to a permanent conflict with the fleets of countries that currently operate in the area, with enormous difficulty in controlling fishing operations due to the large number of vessels that will also be able to fish in the water column and therefore they will enter the AMPB sector. "

But it makes no sense to speak of "fishing" in a generic way, since in the vast area of ??international waters where around 500 vessels from different countries operate there is everything and little analyzed biological complexity.

On the one hand jigger vessels that fish for ILLEX squid, which do not touch the seabed, mid-water longliners that do not do so, and mid-water trawlers that do not reach the bottom either. It would only be possible to analyze how many vessels and from which flag they fish on the seabed, which species, with which fishing gear and in which areas they operate, (information that Argentine legislators surely do not have)

Chinese fleet jigger squid fishing vessel (Photo: courtesy Sea Shepherd)
 
The community bottom trawlers have assigned areas, inspectors and strict controls based on scientific studies from the Spanish Institute of Oceanography that, unlike Argentina, has studied the entire area, preparing reports, maps and conclusions from which the restrictions are then derived. of the case for fishing licenses. As far as I understand there are no EU ships. that fish with longlines or bottom nets in coral areas or where they could affect resources.
 
The problem therefore is another. There are no scientific studies coordinated with Argentina, there are no assigned quotas or regulations to carry them out.

It may be that there are Chinese or convenience flag vessels that operate where they should not or use fishing systems, such as driftnets, that may affect resources (but there is no information available on this)

Fu Yuan Yu 073. The ship was actively fishing and, upon detection by the Sea Shepherd ship, abandoned its fishing gear "a large 5 km long driftnet." (Photo: courtesy Sea Shepherd)
 
INTERNAL ARGENTINE SITUATION
 
In another part of the work report of the Resilience Environmental Consultant on this bill it is stated that "(...) Once again, as was the case when the Namuncurá MPAs - Banco Burdwood II and Yaganes were created, The process of preparing the proposal and drafting the Bill was carried out with almost zero participation by the Ministry of Agriculture, Livestock and Fisheries and the Subsecretariat of Fisheries and Aquaculture in particular, as well as the Federal Fisheries Council, much less to the private fishing sector, all of them fundamental actors in the different instances related to fishing activity. The result of this is usually a strong confrontation between actors that should and can be minimized if the process of creating an MPA, from its original conception, it becomes participatory and is based on robust and convincing scientific information.

Unfortunately, this path has already been reflected since the enactment of Law 27,037, which regulates the National System of Marine Protected Areas, by omitting, with respect to the formation of the Board of Directors of the System of Marine Areas (art. 10), the representation of the National Institute for Fisheries Research and Development (INIDEP), as well as the representation of the direct stakeholders regarding the activity: the private fishing sector. Although the representation of the Secretariat of Agroindustry is contemplated, a site which we understand was assigned to the Undersecretariat of Fisheries and Aquaculture, the Federal Fisheries Council is not expressly contemplated, being neither more nor less the Authority to establish the national fishing policy provided for by the Federal Fisheries Law ".

There is another reality that not everyone can see and that is that Argentina does not have a budget to provide its armed forces, the Naval Prefecture, INIDEP and other public organizations with the necessary funds to carry out serious work, and under international standards, as a matter like this. It requires it (today) limited to controlling the activity of the national fleet and controlling the limits of the EEZ.

It is enough to see how the impressive technical and human capacity available to INIDEP is counteracted with its irregular empirical research activity, with the low salaries it pays, the lack of incorporation of young technicians and the continuous labor conflicts that prevent it from carrying out scheduled campaigns.



The Argentine fishing sector should be able to overcome sectoral interests and move beyond ideological vountarisms to try to work together with the "national team shirt" focusing particularly on area 9, within FAO 41.

Legislators should understand that the fishing industry, its vessels, is the area's main active protagonist and the best instrument for exercising sovereignty.

Dr. César Augusto Lerena © 2020. (1) Argentine Exclusive Economic Zone (ZEEA), part of it by the Treaty of the Río de la Plata and its Maritime front, Common Fishing Zone with Uruguay that reach 3,146,345 km2 . Area periodically invaded by illegal foreign vessels; (2) ZEEA occupied by the United Kingdom of Great Britain, of about 438,000 km2, called by the British FICZ (Falklands Interim Conservation and Management); (3) Area called the "chicken coop" or "crescent" agreed for conservation purposes by the United Kingdom, called by the British FOCZ (Falklands Outer Conservation Zone), of about 400 thousand km2; (4) Space established and named GAP unilaterally by the British within the ZEEA, rich in squid of about 1,900 km2; (5) Maritime Protected Area determined by the United Kingdom in Argentine maritime territory, of 1,070,000 km2 around the South Georgia and South Sandwich Islands; (6) Area claimed by the United Kingdom of Great Britain on the Argentine Continental Shelf and Argentine Antarctica, which overlaps with the Argentine rights to those spaces; (7) “Namuncurá” Maritime Protected Area (MPA) established by Argentina of about 32,336 Km2 that facilitates the development of species that migrate to the Malvinas area; (8) Area of ??100,000 km2 of off-shore oil exploitation granted to several English companies or with links to Malvinas (9) Area of ??150 miles beyond the Argentine EEZ, an estimated maritime space of about 600,000 km2

If we take the example of the Argentine jigging fleet, which is the only jigging fleet in the Western world and which has about 70 vessels with international standards, the government should support its management with innovative solutions to overcome a situation that affects it due to to the seasonality of the resource. Why can Chinese and Taiwanese jiggers do part of the season in international waters of the Southwest Atlantic with the illex and then move their fleet to the Pacific to make the giant squid season (dosidicus gigas)? Why can't Argentine ships do it?

Squid seasons of the Chinese fleet in both the Atlantic and the Pacific

Issues like this are the ones that should draw the attention of legislators and officials who are today more concerned about the 'order to approve as soon as possible' the AMPB "Blue Hole" without really spending a little more time to listen to other alternatives and / or solve the underlying problems that seriously affect the sector (regulations, tax system, unions and labor laws, lack of incentives to fish outside mile 200, etc).

It seems more important to comply with a hypothetical percentage of protected areas (10%) whose computation in international waters does not seem feasible or realistic to satisfy the commitment or the world guideline (UN).
 
Making the Argentine squid fleet profitable and competitive should be one of the government's most important priorities since it is precisely the most important migratory resource in the FAO 41 area.

Argentine jigger ship
 
Another example could be that of resources such as the scallop that is currently only fished within the Argentine EEZ by 2 companies, one of Argentine-Canadian origin (Glaciar Pesquera) and the other of Argentine-North American origin (Wanchese). Is it known what stocks are in the entire Argentine platform outside the EEZ? This is a resource that could only be managed and fished by Argentine vessels. The first thing that should be done is a deep study of the resource in a wide area, which would require a lot of financial resources and time. Here, too, the government should work with companies, INIDEP and surely with the support of other international research institutions such as IEO (Spain) or NOAA (USA).

THE REAL SOLUTION TO THE PROBLEM
 
Nobody doubts that the area outside the Argentine EEZ is of such a lack of control that it requires immediate action. As these are international waters and with many countries involved, it would be more logical to face an international organization, based in Argentina, that can provide scientific advice and management of the Southwest Atlantic fisheries.

What Dr Cesar Lerena comments above requires a broad study of all species inside and outside the Argentine EEZ due to the magnitude of the work, a level of budget and organization would be required that exceeds the capacity of Argentina and even of a single country. In this sense, it is not necessary to unilaterally adopt new laws or rush to discuss options based on an MPA model that, in the opinion of FAO, may fail and have a negative effect from different points of view.

The 'Blue Hole' is within the only FAO zone in the world that has not yet been regulated and regulated (Zone 41). There is not even a minimum of transparency regarding the catches of the fleets of Asian origin (the Community fleet and the fleet that operates with a license from the Malvinas government make their catches public) that exceed 350 vessels.
 
One could take the example of another FAO zone in the Northern Hemisphere called the Northwest Atlantic Fisheries Organization (NAFO) which is an intergovernmental organization with a mandate to provide scientific advice and fisheries management in the northwestern part of the Atlantic Ocean (FAO 21)

In this area there are 4 riparian countries: USA, Canada, France (through the islands of St.Pierre and Miquelon) and Greenland.
 
NAFO's objective is to ensure the long-term conservation and sustainable use of fishery resources in the Convention Area and, in doing so, safeguard the marine ecosystems in which these resources are found.

•     NAFO is an intergovernmental fisheries science and management body.
•     NAFO was founded in 1979 as a successor to ICNAF (International Northwest Atlantic Fisheries Commission) (1949-1978).
•     The NAFO Convention on Northwest Atlantic Fisheries Cooperation applies to most fishery resources in the Northwest Atlantic, except salmon, tuna / billfish, whales, and sedentary species (eg shellfish).
•     NAFO currently has 13 Contracting Parties: Canada, Cuba, Denmark (with respect to the Faroe Islands and Greenland), European Union (EU), France (with respect to Saint Pierre and Miquelon), Iceland, Japan, Norway, Republic of Korea, Russian Federation, Ukraine, United Kingdom and the United States of America.

In 2014, NAFO regulated eleven fish species (19 stocks) and there is a fishing ban (moratorium) for 8 fish stocks belonging to five species (cod, American plaice, witch's flounder, capelin and shrimp; for many of these stocks fishing The moratorium began more than a decade ago. However, recently, two stocks (redfish and cod) were reopened to fishing after a decade-long moratorium. NAFO jointly manages pelagic redfish in Subarea 2 and Div. 1F-3K (off Greenland) with its sister organization, CPANE.

Returning to the FAO 41 zone, we find France (with respect to French Guyana), Brazil, Uruguay and Argentina as riparian countries. There is also a disputed territory that is currently administered by the Government of the Falkland Islands (FIG).
 
Argentina is a member of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) that was established through an international convention in 1982 with the objective of conserving Antarctic marine fauna and flora and in response to the growing interest in commercial exploitation of the resources derived from Antarctic krill, which is a key component of the Antarctic ecosystem, and the history of overexploitation of several other marine resources in the Southern Ocean.

CCAMLR is an international commission with 26 Member countries, and 10 other countries that have acceded to the Convention Based on the best available scientific knowledge, the Commission adopts a set of conservation measures that regulate the use of living resources. marine in Antarctica.

Research and monitoring programs and the implementation of CCAMLR conservation measures in the Convention Area are important contributions to global food security.
 
If Argentina has been able to join and participate in an international initiative and organization of this type, without generating adverse effects on its claim for the sovereignty of the territories that it maintains in conflict with the United Kingdom, it is to be assumed that the creation of a new international organization in the FAO 41 zone should not be either. The creation of an organization similar to NAFO, which could be called the South West Atlantic Fisheries Commission (SWAFC) could have the immediate support of all countries and international organizations and ensure the priority right of the coastal state. .
 
To be able to count as partners countries such as France, Brazil, Uruguay, UK, China, Russia, U.E. (particularly Spain), Korea, Taiwan, USA, Canada and Japan, among others, could really completely change the situation of FAO 41 in general and of zone 9 in particular. The recognition of all these countries to the Argentine continental shelf, to its migratory resources, to collaborate for the investigation of the resources and their administration should be the priority of the Argentine government and of all the sectors involved in this region of the world open to chaos.

Autor: Andres Loubet-Jambert

[email protected]