FAO 41 is the only region of the sea without a Regional Fisheries Management Organization for straddling species, such as squid
CALAMASUR | Chinese jigger 606: X-ray of a justified but failed procedure
Sunday, August 14, 2022, 06:00 (GMT + 9)
An investigation into the seizure of the Chinese jigger Lu Rong Yuan Yu 606 by the Eastern Republic of Uruguay
On July 4, it emerged that the Uruguayan Navy had captured a Chinese squid fish after 12 hours of persecution, after having detected it in apparent illegal fishing activity within the Exclusive Economic Zone (EEZ).
Three weeks after a maritime summary was initiated by the Prefecture -Coastal Guard- of the Port of Montevideo, on Tuesday 26, the Public Ministry requested the file of the case. In her ruling, the prosecutor determined that, from the report prepared by the National Directorate of Aquatic Resources (DINARA), it appears that the evidence collected "is not conclusive evidence to determine that this vessel engaged in illegal fishing in territorial waters." She considered that contempt had not been incurred either, because there were problems in communication, derived from the difference in languages, and because the ship left for the port of Montevideo.
The case has been complex and, for many, strange from the beginning. The use of a satellite monitoring platform for ships by AIS , together with official photographic evidence, facilitates the understanding of the events that led to the seizure of the vessel. The verification of several data that were made public allows us to unravel why at the beginning it was prematurely assumed that it had been found that the boat was fishing, so that it ended up causing strangeness that it had not been able to prove a fishing infraction. Despite this, the panorama that is exposed when questioning the credibility of some arguments casts doubt on what was tried to hide when the motivations adduced to explain certain facts do not seem to make sense.
The sequence can be seen in the full article (only available in Spanish)
Signs of apparent illegal fishing activity
In the early hours of Thursday, June 30, LU RONG YUAN YU 601, LU RONG YUAN YU 605 and LU RONG YUAN YU 606 entered the Uruguayan EEZ; three jiggers from Rongcheng Homey Ocean Fishing . Neither these, nor the other five squid vessels registered in their name, had previously used the port of Montevideo, the capital of the country, nor the anchoring areas in waters in common use with Argentina on the Río de la Plata (where foreign fishing vessels also receive services from the port of Montevideo). The three came from the south, from the fishing zone in the area adjacent to the Argentine EEZ, known as mile 201, where these boats concentrate approximately between December and June to fish for Illex argentinus squid.
In Starboard Maritime Intelligence they are observed to go within 30 miles of the outer limit of Uruguay's EEZ, change course and alternate drift events with navigation. Your AIS signals are intermittent. At night, when squid are caught, their drift events are an indication of possible fishing activity. Its AIS flashes reinforce the suspicion of an illegal activity, given that there are also no Chinese vessels authorized to fish in the Uruguayan EEZ.
Starboard map legend. Source: Starboard Maritime Intelligence.
Between the insufficient evidence and the version of the ship that does not make any sense
The captain of the LU RONG YUAN YU 606 declared during the interrogation that he dropped the cape anchor due to strong winds and that, when he tried to resume navigation, heading for the port of Montevideo, he had an engine problem that delayed him, according to the newspaper The Observer, who had access to the case file. However, if the captain had decided, due to problems with the engines, or for any other reason, to stop his march, stay with the cape anchor or do some other activity, he should have notified the authorities, so as not to generate suspicion regarding to his presence. In addition, the other two jiggers from the same company took as long to go to the anchorage areas on the Río de la Plata as the first to enter the port (as can be seen at the end of the animated Starboard map sequence). It is unlikely to consider that her four-day delay in starting the march to the anchorage area could also have been due to problems with her engines once the wind had died down.
Photographs taken at LU RONG YUAN YU 606 by ROU 23, on Sunday, July 3 at 9:20 p.m. Source: Fleet Command presentation at a press conference --->
In a press release, the Chamber of Foreign Fishing Agents (CAPE), representatives of these vessels in Uruguay, gave another justification: "the vessel used its cape anchor with the intention of awaiting instructions to enter the Port of Montevideo (keeping its AIS switched on)". Note that it is stated that he had the "intention to await directives", which is not that he was awaiting them, given that he had not yet carried out any of the procedures with the Uruguayan authorities prior to his arrival, according to Aldo Braida, president of said Chamber. , consulted by the author during this investigation. The ship had never entered the port of Montevideo before, nor had any of the other seven registered under the name of the same company. So, the question remains as to whether she really planned to arrive at the port, or if she just entered the EEZ of Uruguay to carry out an activity other than free navigation.
In turn, according to El Observador based on the file, "the captain assured that she turned on the deck lights at night for safety and so that they could see him because there was bad weather." For his part, in an interview with the author, Aldo Braida referred to the captain's statement: "The ship had yellow lights, which are the smallest lights on the ship, turned on at night because they were working" the sailors disarming the jigs. According to Braida, of the 36 fishing stations she had armed about 12. "That is to say, she was not with her full fishing gear to fish," he said. What the captain stated is that the fishing lights were not on.
The photographs that appear in this report were shown to four qualified people to recognize fishing jiggers. Although more than one clarified that it was not possible to prove that the ship was doing so, they were asked what kind of lights they thought they were seeing in each case. Regarding the two aerial photographs, the majority believed that they could be from the cover. Regarding the two taken from ROU 23, all agreed that too much light is perceived to support that same version. "To work on deck, those lights are too many, even harmful to the eyes," said a captain. "But if you don't see the fishing gear displayed, there is no evidence," he said. It is that, contrary to what the Ministry of National Defense initially interpreted and transmitted in a press release, these gears are the jiggers, and not the cape anchor, nor are the photographs with possible fishing lights sufficient proof. As the president of CAPE argued "there has been no aerial image or from the sea, day or night, where the ship is seen with the gear deployed or fishing." He is right, at least with regard to those that have become public knowledge.
Hydrographic vessel ROU 23 "Tortuga Manuelita" (Photo: Uruguayan Navy) | Note: "turtle Manuelita" refers to a famous children's song about a turtle)
The manuelita turtle to the capture: chronicle of a frustrated inspection
With its AIS equipment turned off and darkened, the ROU 23 arrived on July 3 at around 8:30 p.m. for its first encounter with the LU RONG YUAN YU 606, 150 miles from the coast, where it was with its possible fishing lights. . While they carry out radio communication with the Chinese vessel, they launch the boats into the water to send the crew for a visit and inspection. Setbacks derived from not having the adequate material means, and unforeseen events derived from the lack of experience in seizing jiggers, lead to her ending up escaping without the National Navy having finished confirming and registering the suspicion that she was I was fishing. The lack of material resources of the institution come to light during this operation. The hydrographic vessel ROU 23 is affectionately nicknamed "The Manuelita Turtle". With her maximum speed of eight knots -15 km per hour-, if she managed to catch up with the jigger it was because he stopped and waited for her, explained sources linked to her capture procedure. In the meantime, she postponed the inspection for 14 hours, in which she could have devoted herself to removing evidence before turning herself in.
Photo: Uruguayan Navy
Several people consulted when it was first learned that this ship had been captured, found it suspicious that she had fled. Because if everything was in order, the incident would not have gone beyond a visit and inspection at sea. So why run away? The ship had no history of illegal fishing or resistance to authority in Argentina, as the Fleet Command believed in the first instance, as a result of not having verified official press releases. According to El Observador, Captain Liang Weifeng recounted four chained reasons why she left before the visiting crew approached him. “He said that when they were intercepted, the Navy ship did not have the satellite identification system (AIS) turned on, that due to poor visibility they did not identify that they were Uruguayan naval personnel, that they did not 'understand' that they were going to be boarded, and that for security they did not allow the visit”, summarizes that newspaper.
The Uruguayan Navy explains the procedure Photo: courtesy Diego Battiste /El Observador
Courtesy of the National Navy, the author agreed to the synthesis of more than an hour of radio communication between the two vessels before the pursuit began. The same things are said and asked of the captain several times, in clear and concise English. This is the internationally established language for communications at sea . The difficulty of the captain to speak in that language is notorious. However, it can be heard that they inform him, and the captain seems to understand, that it is the Navy and that he is going to visit and inspect it. He then says he doesn't have permission from the office. He is told again that it is the Navy, that it is going to exercise its right in jurisdictional waters, exercising sovereignty, and again he says yes, that he understands. They agree that they will put the ladder to port, but he says that he does not have authorization from the office and, immediately afterwards, he flees towards land.
The question then remains as to whether it was really because he had not identified the Navy that he resisted being inspected. Because, furthermore, although the ROU 23 arrives with the AIS off to meet it, during the chase it keeps it on -as seen on Starboard- and it identifies it as a military ship. Therefore, if the captain had not been able to understand English, he could, through the AIS, recognize that it is a military ship. When, 14 hours after the first attempt, the ship stops and the visiting crew manages to inspect it, they note "a great cleaning capacity of the crew, verified in several places on the ship," according to sources linked to the procedure. She finds that all the cargo holds were empty and clean. He enters the cargo hold where the crew's provisions were stored, without moving what was stored. It is there that in a second inspection, carried out by the Prefecture of the Port of Montevideo -Coast Guard- and the National Directorate of Aquatic Resources in said port, they find frozen squid.
Photograph of the cold storga where the frozen squid was found among the crew's provisions. It was at the bottom, but not hidden. Source: Prefecture of the port of Montevideo.
The report to which El Observador had access indicates that, when they arrived at the port, Captain Liang Weifeng was interrogated and declared that he had fish in the holds, and 12,460 kilos of squid were found there. The report that during the previous inspection had not declared the cargo and the maritime agency did, although it spoke of 30 tons fished in the South Atlantic.
The author of this report spoke with Jaime Coronel, National Director of Aquatic Resources. Colonel confirmed that they found the 12.5 tons of squid, and the rest resulting from a transshipment. Asked if it was Illex argentinus, he answered that apparently it was, given the morphological characteristics, but that no genetic study was done to verify it. He explained that "although there may be another similar squid, in general, in that area, it is Illex." Regarding the other species that they found, the director of DINARA said that it was a remains for the crew's own consumption, and that there were two or three species, including hake, that had been transshipped from a Chinese fishing boat.
He also said that it was verified that the ship's records coincide with the times in which that squid may have been fished. It was determined that she had caught it about 20 days before entering Uruguayan waters, on the high seas of the Southwest Atlantic Ocean. He had a fishing permit for international waters and for squid, and all the papers were in order, according to Coronel.
Both the director of Aquatic Resources and two other specialists consulted agree that the EEZ region where the jiggers were detected is not a squid fishing area. They explained that squid is fished on the continental shelf itself and on the edge of the slope, down to a depth of about 1000 m, with the highest concentrations occurring up to 400 m deep. However, where the Chinese ships have been drifting, there is 2,000 or 3,000 meters of water column. The Cephalopod Fisheries Program of the National Institute for Fisheries Research and Development of Argentina (INIDEP) reported that the area where the vessels remained is located to the east of the area where, at that time, the last winter spawning aggregations were found. of Illex argentinus. For this reason, the specialists consulted view with some skepticism the possibility that these vessels had been fishing in the reported positions because, although there could be squid there, the yields would be minimal. However, some of them do not rule out that the ship was making a non-commercial catch, for consumption on board, using only the jiggers that had not yet been disarmed, or hand lines to fish for species other than squid.
Photo: Uruguayan Navy
A correct procedure that found more challenges than evidence
In accordance with the United Nations Convention on the Law of the Sea (UNCLOS), in accordance with Fishing Law No. 19,175, the coastal State exercises sovereign rights over the resources of its EEZ and, to guarantee the exercise of these rights, UNCLOS authorizes taking the necessary measures so that compliance with its laws and regulations is not frustrated. These measures may include visits, inspections, arrests and the initiation of legal proceedings, with the particularity that the infractions committed may not be punished with imprisonment and that if the imprisoned vessels and their crews post a reasonable bail or other security, should be promptly released . According to what was expressed to the author by Dr. Edison González Lapeyre , the Navy proceeded correctly against a ship that was first seen adrift and then refused to be inspected. Given the well-founded suspicion that this vessel was fishing in Uruguayan waters, he considers that it was appropriate to arrest her and submit her to the competent judge. On the other hand, Dr. González Lapeyre pointed out that "if the Judge did not receive sufficient proof of conviction from the Navy and DINARA that he was fishing in our Exclusive Economic Zone, he proceeded correctly to release the vessel." However, in his opinion, he "should have done so promptly and with reasonable bail."
If a review of the evidence collected by the Uruguayan Navy is made, it revealed a presumption or suspicion of violation of a national law by a foreign ship. This one, who had never entered the EEZ before, drifted during the night and, in addition, had prolonged intermittent AIS, which led to the suspicion that they were intentional. She was searched using the cape anchor and with lights that appeared to be fishing: all indications that she was catching or preparing to catch squid. Therefore, Uruguay exercised a jurisdiction linked to its own territory, its maritime zones and its rights in those situations. However, the evidence collection procedure that supported the existing suspicion failed to obtain clear evidence of the alleged fishing infraction. The existence of lit fishing lights is not necessarily conclusive evidence of such activity. In the images taken by the Navy, the extended grids should be seen and, if possible, the jigs in operation. They do serve, however, to prove the aforementioned presumption.
On the other hand, the reasons given by the captain of the LU RONG YUAN YU 606 and/or his representatives for the entry of this ship into the Uruguayan sea, fail to convince that she was exercising her right to free navigation. They also fail to eradicate the suspicion that he may have committed the offense that led to his arrest. In addition, the reasons put forward for his refusal to be inspected are as absurd as the fact that the investigation into the commission of a possible crime of contempt was dismissed due to communication problems derived from language differences, considering that English is the internationally established language for communications at sea, and because, in addition, the captain could have recognized the Navy through the AIS positioning system. "If the agreed language is English, the prosecution cannot argue a language problem, because it is not a problem of the Navy captain if the Chinese ship speaks English or not," said a specialist who requested to remain anonymous. He also pointed out that the captain should talk about it and that the fact that the case is archived for this reason does not make sense, and even contravenes international regulations in this regard.
In the opinion of Dr. González Lapeyre, it is not appropriate to apply criminal legislation in the ZEE, because the jurisdiction of each State is limited to the resources that exist there. "In this area, the principles established in international agreements must be applied, in particular by the United Nations Convention on the Law of the Sea," he clarified. Consequently, he considers that "it is not correct to classify contempt in the sub-examine case." The author sent the respective queries to the prosecutor in the case, without receiving a response. She intended to better understand its foundations and if, in her opinion, the figure of contempt applies beyond the 12 miles of the Territorial Sea. It would have been interesting to know, if she considers that it does not apply, why she did not directly use that argument to request the file. If, on the contrary, it considers that it does apply throughout the EEZ, the consultation on whether Uruguay, in other circumstances, could do something similar to Argentina when foreign fishing vessels suspected of illegal fishing in its EEZ resist being approached was pending. In that country, if a vessel does not comply with the orders and instructions of the Prefecture and starts sailing towards the high seas, it incurs a crime of disobedience to the authority of Article 239 of the Penal Code. According to the website of the Argentine Prefecture, the coast guard ship begins the hot pursuit to try to stop said conduct, giving intervention to the Justice. The Prefecture must obtain and record the evidence that the ship resisted, and to avoid improper use of force that could endanger human lives, the persecution can cease, since the judge has sufficient evidence to order the request. of international capture through INTERPOL. Unfortunately, the opinion of the prosecutor in the case could not be ascertained as to whether any of this is applicable in Uruguay .
International cooperation is urgent
The Southwest Atlantic Ocean is the only sea region of its type and morphological and ecosystem characteristics lacking a Regional Fisheries Management Organization (RFMO) for straddling species, such as squid. Distant water fleets concentrate on capturing hydrobiological resources in the area adjacent to the outer limit of Argentina's EEZ, with Chinese jiggers being the vast majority of vessels that operate there each year. The dispute between Argentina and the United Kingdom over sovereignty over the disputed territory of the Falkland/Malvinas Islands, a British overseas territory, has prevented the coastal states from organizing to negotiate with the flag states of the distant water fleets that operating in the region, conservation and management measures applicable to their activity on the high seas.
At the request of the undersigned, Alfonso Miranda Eyzaguirre, president of CALAMASUR and the Inter-American Tropical Tuna Commission, listed the most relevant implications for the specific case of the absence of an RFMO. Miranda pointed out that, first, having an organization of this type would necessarily lead to the existence of a registry of ships. Then, when it is determined that the capacity of a resource is fully exploited, when a fleet of a level large enough to reach fully exploited levels has been acquired, it would have to close access to that resource, and not leave income indefinite of boats, as is the case up to now. The absence of limits on the high seas in the Southwest Atlantic (FAO 41) would serve as camouflage to hide illegal captures in jurisdictional waters of coastal countries, which many suspect could have occurred in the incident under analysis. To this is added the lack of material means of these nations to carry out an efficient monitoring of such an extensive maritime area.
Secondly, the president of CALAMASUR explained that the fact that the RFMO existed would also give rise to compliance measures that would force certain controls, which currently do not exist in international waters. Thus, for example, if there had been an RFMO operating, the vessels would have to inform it in which part of the international waters under their orbit of competence, they had captured what they had on board. The captains should have documented it and demonstrated it with VMS monitoring and it would be necessary to corroborate it with the presence of physical and/or electronic observers with cameras on the vessels. These are some of the dissuasive mechanisms for illegal fishing, which today do not exist in the Southwest Atlantic, in the absence of an RFMO. Then, as these international waters are not regulated, they can be used as a pretext for, when fishing is found in the holds, it is said that everything has been done in international waters and there is no way to verify it, Miranda said.
Finally, beyond the problems derived from the absence of a governance system in the Southwest Atlantic, the squid fishery is also poorly regulated in the Southeastern Pacific, under the SPRFMO, something that CALAMASUR has repeatedly denounced. Given this lack of regulation in both oceans that bathe the southern end of the continent, and taking into account that these are fleets that have transgressive behavior, that take advantage of any gap in international legislation, as well as any fissure that the control mechanisms of the countries, it would be important for them to undertake joint actions and strengthen cooperation and the exchange of information at all levels to face a regional security problem.
Read the full article here (only available in Spanish)
(1). AIS, in Spanish: "Automatic Identification System", whose main objective is to allow ships to communicate their position so that other ships or stations can know it and avoid collisions. It also serves the purpose of carrying out an intelligence analysis by indirect means on possible fishing activity.
(two). Based on your search in the “Ship and company particulars” section of the International Maritime Organization website. https://gisis.imo.org/Public/Default.aspx.
(3). Press conference given at the Tactical Operations Center of the Fleet Command, which had as speakers Admiral Jorge Wilson, Commander in Chief of the Navy, Rear Admiral Mario Vizcay, Commander of the Fleet, and the aforementioned Chief of Staff of the Fleet. Montevideo, 7/21/2022.
(4). In 1973, the Maritime Safety Committee of the International Maritime Organization agreed, at its 27th session, that when language difficulties arise, a common language should be used for navigational purposes, and that this language should be English. Consequently, the Standardized Vocabulary of Maritime Navigation was developed, which was approved in 1977 and amended in 1985 (Source: Fleet Command Presentation at Press Conference).
(5). Art. 73 of the CONVEMAR, in Frida Armas Pfirter, The International Law of Fisheries and the Maritime Front of the Río de la Plata, Buenos Aires, 1994, pp.116-117.
(6). Former professor of Private International Law, specialist in Maritime Law, retired from the Ministry of Foreign Affairs of Uruguay and former president of the National Ports Administration.
(7). Argentine Naval Prefecture. Available at: https://www.argentina.gob.ar/prefecturanaval/resumen-operativo/preguntas-frecuentes