Ecuador in the FAO zone 87
ILLEGAL FISHING AND MIGRATORY RESOURCES: ANALYSIS OF THE ECUADOR FISHING LAW
Monday, September 26, 2022, 01:10 (GMT + 9)
The Aquaculture and Fisheries Law of Ecuador was sanctioned by Law of the National Assembly Official Reg. 187 of April 14, 2020.
The recitals of the Ecuadorian Fisheries Law are an extraordinary synthesis of the vocation of this State to promote fishing exploitation with a strong intention of distributing these resources in favor of the nationals and, at the same time, doing so, with the concern of ensuring for present and future generations this essential protein source.
Many of the basic precepts of the National Constitution of Ecuador are inserted in the introduction of the Law, so it is expected that this will be nothing more than a tool to respond to the popular will and not only to sectoral interests. Thus we see that in the Magna Carta it indicates: "the primary duties of the State are to promote sustainable development and the equitable redistribution of resources and wealth..." (CN, Art. 3), a central issue, in the case of a State resource. It specifies that "people have the right to safe and permanent access to healthy, sufficient and nutritious food, preferably produced locally, and that the Ecuadorian State will promote food sovereignty" (CN Art. 13), understanding that this food is a supplier of essential proteins of extraordinary value and unsaturated fats, both irreplaceable in a healthy diet. It specifies, that it is "a right of the population to live in a healthy and ecologically balanced environment that guarantees sustainability and sumak kawsay" (CN Art. 14) and fishing is an ancestral natural resource that must be managed and distributed properly for the benefit of the culture, food and work of the fishing communities. Also, that it is necessary to "completely respect their existence and the maintenance and regeneration of their life cycles, structure, functions and evolutionary processes" (CN Art. 71º) and, as the Constitution indicates, it is the State's obligation to "establish and apply precautionary and restriction measures for activities that can lead to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles» (CN Art. 73º), because the species live in an ecosystem that is integrated and these cannot be taken as isolated individuals, since although it is a renewable resource, it is exhaustible if it is not exploited rationally.
The same Constitution of Ecuador establishes that “food sovereignty constitutes a strategic objective and an obligation of the State to guarantee that individuals, communities, peoples and nationalities achieve self-sufficiency in healthy and culturally appropriate food, permanently. For this, it will be the responsibility of the State: “1. Promote the production, agri-food and fishing transformation of small and medium production units, community and social and solidarity economy”» (CN Art. 281º). It is necessary to highlight this responsibility that the State imposes on itself and, also, understand the difficulty in drafting a law that achieves the desired objectives, especially when the species live in a maritime territory of national jurisdiction, but in their migratory stages they transpose a line legal (200 miles) established without biological rigor, where the species are at the mercy of foreign exploitation.
The Constitution also states that, in order to achieve good living, individuals and communities "are responsible for producing, exchanging and consuming goods and services with social and environmental responsibility, and that the State is responsible for developing policies to promote production national in all sectors, especially to guarantee food sovereignty, generate employment and added value» (CN Art. 334º) and, effectively, fishing is an important food resource and job creation; but, in those cases where the products are exported, the added value after the extractive work on board should generate employment for Ecuador, since otherwise, the importing countries appropriate the work.
It also provides that "the State will guarantee a sustainable model of development, environmentally balanced, that preserves biodiversity and the natural regeneration capacity of ecosystems and ensures the satisfaction of present and future generations" (CN Art. 395) and the State will ensure that the mechanisms of production, consumption and use of natural resources preserve and recover natural cycles and allow living conditions with dignity. A unique mandate that requires recovering for the coastal States the migratory resources that escape their jurisdiction to be appropriated by foreign vessels that fish subsidized from a distance on the high seas and that the Fisheries Law must seek to regulate in an integral and equitable to try to harmonize between their own needs and the interests of third countries that are favored by a Convention that frees fishing on the high seas. A difficult task indeed.
For its part, article 16 of the Organic Law of the Food Sovereignty Regime of Ecuador establishes that: "The State will protect all fishermen" and article 30 of the Organic Code of the Environment indicates as one of the objectives of the State, relative to biodiversity "regulate access to biological resources, as well as their management, exploitation and sustainable use" and the Fishing Law, in its recitals, understands that "illegal, unreported and unregulated fishing has become one of the the greatest threats to the sustainable exploitation of hydrobiological resources and marine biodiversity, which is why it is necessary for national legislation to reflect the advances that have occurred in the international arena, establishing infractions and sanctions aimed at preventing, discouraging and eliminating the illegal fishing" and that the hydrobiological resources used in aquaculture and fishing activities constitute sources of wealth necessary to guarantee the to food sovereignty.
This introductory part of the Ecuadorian Fisheries Law is -as we have said- a decalogue of rights and obligations of a State that wishes to be sovereign in the exploitation of its natural resources and make an adequate distribution of them in order to generate development. , employment and healthy eating. Translating this into a law is certainly a gigantic task, and we understand that it should be perfected, especially with regard to ILLEGAL FISHING, migratory resources and a certain delegation of the administration in the Regional Fisheries Management Organizations (RFMOs), which we We respectfully consider that it is not the best tool and we are more in favor - as we have repeatedly expressed - of bilateral agreements, which do not necessarily have to be the same with all flag States and it would even be possible to carry out agreements between companies with the endorsement and control of the coastal State, since many times the Agreements between States have the weakness of the political and economic imbalance that exists between one State and another, as a result of which the negotiations can tip the balance towards the most powerful who press on other issues unrelated to fishing activity.
Article 1 has, among other objects, through the application of the fisheries ecosystem approach "to achieve sustainable and sustainable development that guarantees access to food, in harmony with the principles and rights established in the Constitution of the Republic..." and this supposes , give priority to the ecosystem and the interdependence between species and therefore focus actions on the sustainability of migratory species originating from the EEZ on the high seas and, to do so within the framework of the National Constitution, guaranteeing food sovereignty, generation employment and national development.
The Law in Article 2 indicates that this is of public order, national jurisdiction and mandatory compliance for those who exercise within jurisdictional land and water spaces and will apply even when: a) it is carried out with national flag vessels , in the waters of third States, without prejudice to local regulations, which in both cases comply with the provisions of UNCLOS; when: b) it is carried out with vessels of the national flag "or of other flags that operate under the authorization of the Ecuadorian State on the high seas" and, here, the coastal State of Ecuador opens the possibility of -by means of bilateral agreements- authorizing the fishing of species originating from the EEZ on the high seas to flag States, and also indicates "in waters regulated by a regional fisheries management organization, in accordance with current international law" and, we understand that it should specify "in high seas waters" since Otherwise, these RFMOs could be participating in the management of the resources in the EEZ, where the domain and jurisdiction of the species is Ecuador. This article also refers to: c) "the fishing activity (when) it is carried out by Ecuadorian natural or legal persons, such as owners of vessels, shipowners, operators or crew members of vessels of other flags or stateless persons."
Regarding the latter, we understand that nationals cannot participate on any occasion.
Among other measures, Article 3 indicates in subsection e) "implement measures to prevent, discourage and eliminate illegal, unreported and unregulated fishing" and this will be directly related to the fisheries ecosystem approach established as a principle in Article 4th and 42nd, where it is stated that «the Fisheries Ecosystem Approach (EEP) is a new direction for fisheries administration, aimed at reversing the order of priorities in management, starting with the ecosystem instead of the target species. This implies considering not only the exploited resource but also the ecosystem, including the ecological interdependencies between the species and their relationship with the environment and the socioeconomic aspects linked to the activity" and, this indicates to us, that it is not possible to give sustainability to the resources fisheries in the EEZ if not comprehensive attention is paid to migratory species throughout their migratory range of the EEZ and the high seas and, even, to the associated species that intervene in the food chain and, if not, there is no control on the high seas, nor bilateral agreements Regarding catches in this area, there will be ILLEGAL FISHING and, also, with Article 9 where it indicates that «The regulations adopted by the State, to ensure the sustainable use of hydrobiological resources in jurisdictional waters, will also be applied in the adjacent area to the EEZ, to protect straddling and highly migratory fish species and other associated or dependent marine living resources s of them, as well as to protect the species that are associated with the food chain of the species of the ZEE…”. That is to say, clearly, Ecuador gives a scope to the norms established in the Law beyond the EEZ, regardless of the strategic resources that it uses for it and, we understand that it should be the policy of all the coastal States if they want to give sustainability to the resources and sustainability of the activity and the economic and social effects that it entails.
By the way, it will not be possible to comply with the provisions of Article 5 «The hydrobiological resources and the natural wealth existing in the jurisdictional aquatic and terrestrial spaces, are national assets and constitute sources of wealth for the country due to their strategic importance to guarantee food sovereignty. , the nutrition of the population, due to the socio-economic benefits derived from them, as well as due to their geopolitical and genetic importance...» if Articles 3, 4 and 9 are not strictly applied.
It is important to highlight the intervention foreseen in Article 8 of the National Authority regarding the powers granted to it to "define the protection areas of species" and the close relationship that must exist with the governing body (Article 14) who must manage the resource, the National System of Aquaculture and Fisheries (Article 11) and, with the productive sectors, to ensure the maximum sustainable use of fishery resources.
In Article 36, the Law rules on Traceability throughout the production chain, from capture to marketing and identification, and this is very important when it comes to having tools that help prevent ILLEGAL FISHING and seek to agree on the capture of migratory species and determine equitably the distribution of resources.
Article 115 determines that natural or legal persons may carry out the industrial fishing activity and «the rights derived from the hauling capacities of the vessels authorized to carry out the fishing activity in the extractive phase, by means of a ministerial agreement or obtained from third states to any title, belong to the shipowner, are transferable and will be guaranteed by the State…” and, in this regard, it would be interesting to observe in great detail the issue of transfers because it is a resource owned by the State given in concession and through them in On many occasions, the fishing activity is denationalized, and foreign fishing can be covered up in the national jurisdiction, in addition to distorting the administration of the resource, the location of the permit and its population, industrial, labor and strategic effects.
Articles 117 and 118 legislate on Scientific Aquaculture and Fisheries Research, which is aimed at "providing the necessary scientific bases for the extraction and cultivation of hydrobiological resources in a sustainable manner, in order to guarantee the rational use of resources, the food sovereignty and the optimization of economic benefits, the impact of fishing on ecosystems and associated fauna; analyzing the ecological interdependencies between species and their relationship with the environment…”. At this point, the first thing we might think is that it is difficult to speak of "food sovereignty" if ILLEGAL FISHING is not eradicated, which, according to FAO reports, reaches 30% of the total catch; nor, if the migratory resources originating from the EEZs are captured on the high seas without control of the flag States and without agreement with the coastal States; in the same way, if no value is added to the captures and, when the labor is exported, it is not used in the processing plants of the coastal State, but the transformation is carried out by importers at destination. Of course, neither, if the control of catches in the EEZ is not carried out entirely by the national administration and there is interference from the Regional Organizations (RFMOs), since, for example, greater control between neighboring States is likely. such as Argentina and Uruguay (Common Fisheries Zone) or Peru and Ecuador (2001 Framework Agreement on fisheries cooperation) or Ecuador and Colombia, which could make bilateral agreements to regulate common straddling resources of both States or, also when there are bilateral agreements between States of flag and riverside to agree on fishing on the high seas and the EEZ. And at this point, it is essential that the Research Institutes of Latin America have financial support from multilateral organizations so that they can know and establish the Maximum Sustainable Catch not only in the EEZ, but especially in the high seas and in an integral way in the ecosystem. .
Article 129 determines that the Governing Body grants the fishing permit that "enables all fishing vessels to exercise the activity in the extraction phase and with this document is authorized to obtain the departure permit issued by the Ecuadorian Navy that determines, among other things, the authorized fishing zone…'.
Article 131 establishes a novel situation that exceeds the usual reserve zones and is what is called "security zones established by the governing body of National Defense" and this could be accompanying the concept of security that has been installed from ILLEGAL FISHING and, on the collateral effects that it entails, already described in this work.
Satellite images show 260 fishing boats, mainly Chinese, located right on the edge of the EEZ. The map above shows Chinese fishing boats as white dots just outside protected waters. (Source: [CC BY-SA], Global Fishing Watch).
The Law in its Article 132º indicates that the national shipowners that operate in waters of jurisdiction of third countries that are authorized to operate in the jurisdiction of Ecuador to exercise activity “must notify the governing Body of said authorization for the corresponding registration and annotation in the Ecuadorian fishing permit…” and, in turn, Article 163 authorizes national vessels to land in foreign ports. This, without a doubt, will require a very strict control to avoid possible tax evasion maneuvers; overfishing in the EEZ that is landed in the third country and masking of ILLEGAL FISHING.
In Article 134º «The governing body, in coordination with the competent authorities, will approve the construction or importation of fishing vessels (...) The corresponding authorization for importation will not be approved, in the case of vessels that appear in the records of the governing body or of any Regional Fisheries Management Organization for carrying out illegal, unreported and unregulated fishing activities…”. On this subject it is important to make the following comment: the vessels themselves do not carry out ILLEGAL FISHING, it is the Captains, Shipowners, Owners and the States that have the obligation to control, etc. who use the boats as a tool of appropriation, depredation, etc. and carry out ILLEGAL FISHING. Coastal States should not authorize the importation of vessels from flag States that subsidize remote fishing and whose vessels carry out ILLEGAL FISHING, such is the case of Spain, China, Taiwan, South Korea, the United Kingdom in the Malvinas, etc.
According to Article 136, the application made to obtain the fishing permit may be denied for the following reasons: «d) When the fishing vessel detailed in the application appears on an IUU fishing list of the governing body or of any RFMO». In this regard we insist, it is not the vessels that are responsible for ILLEGAL FISHING, but their directors and drivers. We have already said that there is a contradiction in the UNCLOS when it prevents the seizure of the offending vessel and then the FAO promotes lists of vessels that have "carried out" ILLEGAL FISHING who are prevented from fishing, that is, a "disguised seizure". If you wanted to avoid fishing by these vessels involved in ILLEGAL FISHING, it would be appropriate to confiscate them without further ado and apply sanctions to those responsible for management and driving. The same could be said when, by application of Article 138, the fishing permits are nullified for: «a) The vessel that has been sanctioned by the governing body for having engaged in illegal, unreported and unregulated fishing activities; b) The vessel has been included in a list of illegal, unreported and unregulated fishing vessels of a Regional Fisheries Management Organism…». Regarding subparagraph b) it should be the FAO that concentrates a single registry accessible to each coastal State, since the States are not necessarily Parties to these RFMOs and, therefore, they should not necessarily be subject to the qualifications that these organisms could determine.
By Article 141º and 142º «The quota will be set based on the available biomass of the respective fishery (...) subject to the provisions of article 96 of this law and/or the Regional Fisheries Management Organizations when applicable... ». We do not support RFMOs establishing quotas within SEZs, unless these RFMOs are limited to a flag State and a coastal State where they negotiate under conditions of equity and mutual benefits within a framework of sustainability.
Article 145 of the Ecuadorian Fisheries Law defines precisely and simply what an "Illegal fishing product" is: "They are the fishery resources obtained by vessels that have contravened national and international laws and regulations..."; that is, everything that we have defined in detail in a classification of more than thirty cases of ILLEGAL FISHING (César Lerena “Illegal Fishing and Migratory Fishing Resources originating in the coastal States of Latin America and the Caribbean”, 2002); but that can surely be extended, due to other irregularities, to the current fishing regulations.
To try to prevent the trade of products from ILLEGAL FISHING, Article 146 establishes the "Prohibition to commercialize, process or import IUU fishing" and among other things determines that "a) It is prohibited to commercialize, process or import into Ecuador catches or products of fishing obtained through IUU fishing activities or contrary to this Law; b) To guarantee the effectiveness of the prohibition established in the preceding section, only fish and fish products may be imported into Ecuador that are accompanied by a catch certificate or its equivalent issued in accordance with the provisions of this Law and its regulations; c) The catch certificate or its equivalent shall be validated by the flag State of the fishing vessel or vessels that have made the catches or from which the fishery products have been obtained (...); e) The verifications may consist, among others, of examining the products, verifying the data of the declarations and the existence and authenticity of the documents; review operator accounting and other records; inspect the means of transport, including containers, and the storage places of the products; and, carry out official investigations and other similar proceedings, in addition to port inspections, of the fishing vessels provided for in this Law and contrast the information with lists of vessels that have been allegedly involved in IUU fishing activities or in activities related to fishing. IUU in support of such fishing, prepared by regional or subregional fisheries management organizations, integration organizations or other States. The indicated actions are very important to try to eliminate or reduce ILLEGAL FISHING; although, we do not agree that the lists are made by the RFMOs, because there are States that do not integrate them and it would be more universally accepted that the FAO keep a unified list of people who have practiced ILLEGAL FISHING and are sanctioned, suspended or discharged from the authorization records and the vessels that, having been used to carry out ILLEGAL FISHING, have not been transferred to authorized third parties, in addition, to insist that the vessels that are proven to have been used for ILLEGAL FISHING should be confiscated. It is very important to focus the effort on the control of trade and on the tools used for this purpose, although we should bear in mind that in some countries the certifications do not go beyond the length of these documents -also required in Article 184º- by of the Chambers of Commerce where the certainty of the origin is not verified and, much less, the precision of the place of capture and, this requires, establishing an independent control system outside the flag State in question, as well as the inspections to ships, containers or land or air transport, otherwise it will be impossible to have evidence of the origin and the fishing practices carried out on board and, in the processing and storage stages. There are countries (such as Argentina) where authorized establishments (including vessels) are required to have a permanent health inspector (although this is rarely done), but this is not enough to control the fishing practices carried out on board ( species, discards, sizes, etc.) that require the presence of observers and/or specific inspectors, well paid, of proven honesty and independence (they could belong to the FAO or a sufficiently accredited body).
Regarding Articles 147º and 148º that regulate RFMOs, we have already given our opinion on this Law.
In Articles 149º and 150º, the law refers to incidental fishing and the catch limits that can be determined by the governing body. At the same time, it indicates that "the internal and external commercialization of authorized and incidentally captured hydrobiological species will be allowed within the limit of permissibility and in accordance with current national and international regulations on endangered species and (...) surplus volumes Incidental capture determined by the governing body in the technical regulations will be considered as fishing carried out without authorization or permit...». That is, in our opinion, ILLEGAL FISHING. Now, how can this be resolved, if not through the use of selective fishing systems, the regulation of fishing areas (zones and seasons) and strict control?
In general, the legislation prohibits incidental fishing and therefore penalizes or should penalize whoever carries out this fishing, which is why, in order not to be penalized and not to transfer and unload incidental fishing, many times those responsible discard this fishing at sea; that is, they carry out another illegal practice. Therefore, in the first place, and as long as a global and species-specific strategy is not available, it is necessary to work hard on selective fishing gear and fishing systems to progressively eradicate non-selective fishing; second, carry out adequate zoning to try to reduce bycatch; Third, exercise greater controls. While this is happening, bycatch must be used for industrialization, because otherwise, to reach the maximum acceptable levels, discarding and depredation are indirectly being promoted.
Article 152º «prohibits the fishing of sharks, manta rays and other elasmobranchs that the governing body determines, as well as the manufacture, transport, import, commercialization of fishing gear used to capture these resources...» and expands «or processing, even when have been caught in international waters. This article, which seeks to prevent the fishing of a species, meets the limit that does not control what happens on the high seas and seeks to prevent the processing of sharks in industrial plants.
And this example is one more of what happens with migratory species, where the coastal State controls or tries to control fishing in the EEZ, but loses that control when the species migrate to the high seas. The resource must be managed comprehensively (EZE and high seas) without this meaning that the States must lose sovereignty in the EEZ, allowing the RFMOs to take charge of a task that is inherent to the coastal State.
Article 153 prohibits the capture, transportation, transshipment, landing, processing, marketing of marine or aquatic fauna and any other activity prohibited by current criminal law, and introduces the figure of "the National Environmental Authority in coordination with the governing body, to determine the list of species that fall under this ban…”.
By application of Article 155, it may be “leased, bareboat charter or association, to fishing vessels of other flags or registration for a period of up to five years, extendable for the same period…”. The terms that the leases could be authorized draw attention to, although this may be directly linked to the capacity or not to build vessels in Ecuador. In any case, it will be very important to take into account that many times under this figure partnerships with foreign companies are hidden, where it is necessary to ensure that foreign partners do not take the catches obtained in the EEZ out of the country without adding value that generates national employment.
In this sense, Article 158 refers to associations (we assume with foreign companies) and indicates that the associated vessels "may fish in Ecuadorian jurisdictional waters and must exclusively deliver the fish caught to the associated processing plant...". This decision is at the forefront of many other countries where associated vessels are required -when the capture in the EEZ is authorized- to process only between 10º and 30º of the unloaded raw materials.
Article 159 establishes that the tasks of monitoring, control and surveillance of the fishing activity will be in charge of the Governing Body in all the places where the fishing activity is carried out, empowering it with free access to the facilities, ships, docks and any other dependency and to request all the information that is required, coordinating for these purposes with the Navy, using, according to Article 161, the following means: a) Monitoring, surveillance and control system through the devices and mechanisms provided in articles 168º and 172º and in the technical regulations issued for this purpose; at least, a tracking device endorsed by the governing body of national defense (...) maintained in operation throughout the fishing trip, a record of images, which allows detecting and recording the discard or other action of non-compliance with the regulations that regulates fishing activity; b) Technical reports issued by the Satellite Monitoring Center (CMS); c) Inspections of the vessels, ports and places authorized for landing, processing plants, means of transportation, collection centers or other facilities or dependencies that intervene in the phases of the fishing activity; d) Reports issued by the Regional Fisheries Management Organizations; e) Reports of observers on board; g) Reports from the Public Institute for Aquaculture and Fisheries Research; g) Documentary control of fishing landing monitoring and control certificates, mobilization guides, transshipment authorization and other documents required by this Law and the technical regulations issued by the governing body, h) Fishing logs, registration system of imaging and weighing; i) Technical reports on quality, safety and health of primary or processed fishery products; j) Determination of authorized ports and sites for unloading hydrobiological resources and, k) Among others established by the governing body, etc. that is to say, all the necessary resources for these essential tasks, in which the crossing of information between catches, processing on board and the consequent yields, landings, entry and subsequent processing in industrial plants in land, storage and trade.
In order to minimize ILLEGAL FISHING, its transport and trade, what the law establishes in Article 163º is important. Here it is indicated that fishing vessels must land only in authorized ports and areas, with the exception that if national vessels wish to land in third countries, they should do so in compliance with their laws, for which cooperation agreements will be promoted.
Photo: Sea Shepherd
This can certainly facilitate trade, but make control more difficult and, of course, depending on the type of vessel, reduce added value. In the same way in this article, it is established that the governing body will establish the conditions for the disembarkation in ports of Ecuador of vessels of other flags and, even deny them entry, in case they do not provide the required documentation or that are recorded in the records. of illegal, unreported, unregulated fishing and, therefore, the unloading and commercialization of the captured resource will not be allowed.
By Article 165º «The transfer of fishery products between national fishing vessels and from fishing vessels to transport vessels or freezers of other flags legally registered in the Registry of Regional Fisheries Management Organizations (RFMO) is allowed, provided that it is carried out in authorized national or foreign ports, in the presence of an inspector and prior authorization from the governing body, in coordination with the other authorities in the respective scope of their powers, in accordance with the requirements established in the General Regulations of this Law and, it is prohibited , carry out transshipments in jurisdictional waters and on the high seas, with the exception of vessels authorized by the Regional Fisheries Management Organizations, complying with the procedures of said organizations and in the presence of a fisheries observer or official from the governing body of the third country where the carry out the transshipment, as well as, in cases of force majeure r or fortuitous cases duly proven and qualified by the governing body. The fishing strategies carried out by the vessels called longline motherships associated with fishing vessels shall not be considered as transshipment, they must be registered in the corresponding registry…”. We note with interest that transshipments can only be carried out in authorized ports and not in jurisdictional waters or the high seas. It seems to us a very important advance to exercise greater control with a view to reducing ILLEGAL FISHING, however, we do not share, as we have said, that in the transfer of fishing vessels to merchant vessels or freezers of other flags that must be registered in the RFMO Registry, since this presupposes a loss of autonomy on the part of the coastal State, which may even not have adhered to these Organizations and even so, should not lose the power to determine with absolute freedom, the means with which that carries out its commercial operations, without this implying that it operates with vessels with a history related to ILLEGAL FISHING. As we have already mentioned, we understand that the FAO could consolidate a single registry accessible to all coastal States, in order to determine whether or not the vessel has records related to the capture and/or transport of ILLEGAL FISHING.
Responding to the precepts of the Constitution that give rise to this Law, Article 177 establishes that "Hydrobiological resources for human consumption may not be used for the processing of fishmeal or fish oil, with the exception of rejections due to quality levels and/or by-products resulting from the processing of resources for human consumption…” and this is important to highlight, because it is unacceptable that, given the growing needs for protein and labor in the coastal States, whole species can be used for manufacture of flours and oils.
Article 188º establishes that “the infractions typified and the sanctions foreseen in this Law are of an administrative nature” and in articles 189º and following the sanctioning power of the Governing Body is established; proportionality criteria (192nd); aggravating circumstances (194th); precautionary measures (197th); the destination of confiscated or seized assets (198th); notifications to RFMOs (201st); offenses (211th to 214th) and sanctions (215th to 228th).
There are three aspects that we could analyze regarding these articles of the Law.
In the first place, the description and classification of the infractions is very interesting, beyond the fact that a large part of them, we understand, should be classified as ILLEGAL FISHING and therefore, they are very serious infractions and should be penalized as such.
In the second place, we have already mentioned that given the seriousness of ILLEGAL FISHING, administrative sanctions are not enough and criminal sanctions should be applied that, despite the provisions of Article 191º «...in cases where the commission of a type of criminal responsibility, the corresponding adjective procedure will be followed» the Law does not foresee that any of the infractions -not even those considered very serious- are liable to be sanctioned with imprisonment.
Thirdly, we understand that it is not clearly defined -in the case of national vessels- the possibility of confiscating vessels that have participated in operations or actions related to ILLEGAL FISHING and very exceptionally in foreign vessels that operate in the EEZ.
Thus we see that Article 198 refers to the procedures for the destination of confiscated or seized assets and, among them, mentions "fishing boats"; but, in Article 215º, when referring to seizures, it limits them (subsection b) to species, products, goods obtained in the commission of infractions and, in definitive seizures (subsection c) to fishing gear or gear and products or supplies of prohibited use. Meanwhile, regarding vessels (subsection d), the suspension, revocation or non-renewal of authorizations or permits is indicated, as well as the seizure (subsection e) of the fishing vessel. We understand that seizure is a procedure where the possession of an asset owned by a person is temporarily affected, while confiscation is usually a definitive process. On the other hand, Article 218 establishes that "Infractions committed by industrial vessels will be sanctioned with a fine of unified basic salaries..." and Article 219 indicates that, without prejudice to the other applicable sanctions, the exercise of the activity may be temporarily suspended. to vessels that commit serious infractions and, in case of recurrence of serious infractions or the commission of very serious infractions, the sanction of suspension must be imposed in a mandatory manner. We see that, even in these very serious and repeated cases, confiscation is not foreseen and, even, in Article 227º a "temporary immobilization" is provided for those fishing vessels when there is a presumption of illegal fishing.
We understand that very serious infractions that affect the sustainability of the resource by attacking third-generation rights should be sanctioned with the confiscation of the vessel and with prison sentences for those responsible, since the State that owns the resources must ensure the care of the species over which the administration is granted.
A large Chinese fishing boat sits just outside the Galapagos "Exclusive Economic Zone," August 2020. Marcos Pin/EPA
Article 224º provides for the confiscation of the resource and of the fishing gear of the vessels and of the resource of the establishments that: a) Are carrying out fishing activity without having the corresponding authorization or permit; b) Incur in fishing or commercialization of unauthorized species, or captured with unauthorized or prohibited fishing gear and gear; c) Carry out contaminated fishing, prior declaration by the governing body; d) Carry out fishing activity in prohibited, non-permitted or reserved areas or zones in accordance with the provisions established in this Law; e) They are carrying out fishing activities during the closed season and, f) Resources from IUU fishing. All serious faults. This article indicates that "we will also proceed with the confiscation of the fishing vessel of another flag or stateless, that is carrying out illegal fishing operations in jurisdictional waters..." and this is an advance, which we accompany, that goes against the limitations in this sense. of UNCLOS, although it is necessary to advance on the other classifications of ILLEGAL FISHING and also, when this is carried out outside the 200 miles, where all the effort carried out by the coastal States in the EEZ is wasted with illegal fishing in high sea, affecting the ecosystem. This is evident when Article 226º presumes ILLEGAL FISHING when indicating «When fishing vessels of other flags operate in jurisdictional waters without authorization or fishing permit, it will be presumed that all the resources on board are illegal catches and will proceed to confiscation. thereof…".
According to Article 216º, the Captains who incur in serious or very serious offenses could receive fines and even the definitive suspension of the fishing license and here, it would be necessary to add, owners, shipowners and those in charge who are usually the intellectual authors of the proceeding of the Captains and review the labor and production regulations to ensure that the volumes of production required or agreed are not causing practices compatible with ILLEGAL FISHING.
Finally, there are some interesting issues raised in the General Provisions. In the First, “The granting of qualifying titles to exercise aquaculture, fishing and related activities is prohibited to persons who have conflicts of interest or may make use of privileged information, to natural or legal persons linked to the highest authority of the entity aquaculture and fisheries rector or his delegates, competent to grant the qualifying titles, either through their direct participation or through their shareholders and their relatives up to the fourth degree of consanguinity and second degree of affinity…”. In the Second, it is established that "The governing body will coordinate with the competent authorities for the authorization of entry into jurisdictional waters (and ports of Ecuador) of a foreign-flagged fishing vessel or a vessel carrying foreign-flagged fishery products... », since, under the pretext of innocent passage, products originating from ILLEGAL FISHING are often transported.
Dr. César Augusto Lerena
Experto en Atlántico Sur y Pesca – Ex Secretario de Estado
Presidente de la Fundación Agustina Lerena1
Presidente Centro de Estudios para la Pesca Latinoamericana (CESPEL)2.
Autor de “Pesca Ilegal y Recursos Pesqueros Migratorios Originarios de los Estados Ribereños de Latinoamérica y El Caribe” (2022)
(1) Fundada el 21/10/2002; (2) Fundada el 2/4/1989
Septiembre de 2022 (ISBN 978-987-29323-9-8)