Chile in the FAO zone 87
ILLEGAL FISHING AND MIGRATORY RESOURCES: ANALYSIS OF THE CHILEAN FISHING LAW
Wednesday, September 28, 2022, 07:00 (GMT + 9)
The Chilean Fisheries Law was sanctioned by Law 18,892 of December 23, 1989 and its modifications; Regulatory Decree 430 of September 28, 1991 and, in response to the powers conferred by the Political Constitution of the State, and in Laws No. 19,079 and No. 19,080, both of 1991, the President of Chile decreed the consolidated, coordinated and systematized from Law No. 18,892 and its amendments, as the General Law on Fisheries and Aquaculture.
It is a very elaborate Law, which has been updated several times with successive laws. However, there are some issues related to the administration of the resource that we understand could be improved, especially in relation to its distribution of resources, the care of migratory resources and ILLEGAL FISHING.
In Title I, Article 1, the Law makes clear Chile's interest in giving sustainability to the exploitation when it says: "the provisions of this Law will be subject to the preservation of hydrobiological resources" and, the vocation to take care of its resources not only in the territorial sea and the EEZ, but also "in the areas adjacent to the latter over which there is or may come to be national jurisdiction in accordance with international laws and treaties" (Law 20,256, modifies article 1; Law 20,437, modifies article 1). Perhaps greater precision regarding Chile's sovereign rights over migratory resources originating in the EEZ would have been interesting, since, as we have seen, international standards have not addressed this issue in depth. Notwithstanding this, it is interesting to note that this law clearly reserves Chile's sovereignty in the EEZ (Article 1 A and B) and this should prevent any administration in this area by the Regional Fisheries Management Organizations (RFMOs) and, in Article 1º C subparagraphs a), b) and c) refer specifically to the conservation of the "ecosystem" implicitly implying the integral preservation of the EEZ and the high seas and, especially in subparagraph b i) in which it refers to the application of the "precautionary principle" that, in view of the little or no control of catches by flag States on the high seas, it is necessary to apply all necessary and possible measures to reduce ILLEGAL FISHING. Practice that should be classified in this way for the sole fact of being done without agreements with the coastal States and without control of the flag States.
Similarly, in subparagraph f) the law refers to “considering the impact of fishing on associated or dependent species and the preservation of the aquatic environment”; species that, although they could be those that are part of the EEZ, acquire a special dimension when dealing with high seas species, which are central in the migratory processes from the EEZ to the high seas and vice versa.
On the other hand, subparagraph h) refers to "supervising effective compliance with conservation and administration measures" and this is very important to reduce ILLEGAL FISHING in the EEZ through naval control forces and satellite systems that the law provides.
In article 2, the Law defines the meaning of keywords and although it might seem like a minor issue, it is an important basis for unifying a language that allows us to carry out some common ideas in Latin America and the Caribbean. We think it would be interesting to add a precise definition of migratory, highly migratory, straddling resources and what is meant by ILLEGAL FISHING.
Article 3, subsection b) of Title II, Paragraph 1 of the Law, establishes the “Prohibition of temporary or permanent capture of species protected by international agreements to which Chile is a party”; This is a significant determination regarding the preservation of species, as long as, when dealing with species in the high seas, the coastal States can guarantee the sustainability of these resources and their integrity with those of the EEZ to ensure sustainability. of the ecosystem, new income, the development and feeding of the peoples. Regarding point 1 of this, it indicates: «Maintain or take the fishery towards the maximum sustainable yield considering the biological characteristics of the exploited resources» and this is remarkable, since the policies should be designed specifically by species and at the same time in an integral way. and joint as referred to in the preamble of the UNCLOS when it comes to species originating from the EEZ that migrate to the high seas or in the associated ones that intervene in the trophic ecology of migratory species. Of course, as point c) indicates, establishing the "percentage of landings of species as accompanying fauna..." is very important, since not only profound technical advances are required in the development of selective fishing gear, but also that in none of the cases are the species discarded before or after unloading and, a food utility is given to all the captured species. The States of Latin America and the Caribbean are not in a position to discard protein foods, for which the flag States that fish from a distance sail thousands of miles.
In Article 4, the Law promotes establishing in detail a series of well-founded prohibitions or administration measures (Law 18,892, Art. 3; Law 19,079, Art. 1, No. 17; Law 20,657) such as the determination of minimum sizes or weights of extraction by species; fixing the dimensions and characteristics of fishing gear and gear; mechanisms to minimize the capture of accompanying fauna or incidental capture, tending to make fishing more selective; etc.; practices that once analyzed and established by experts, should be considered ILLEGAL FISHING in the event of violation.
For its part, Article 5 prohibits "extractive fishing activities with gear, gear and other fishing implements, which affect the seabed, in the territorial sea within a strip of one nautical mile" (Law 18,892, Art. 4; Law 19,079, Art.1º, 18 and 19) and this also reaches the bays and the squid catches that, in these areas, must be extracted by means of jigging (Law 21,134) and also, by virtue of the precautionary principle, in the case of mountains submarines, bottom fishing will not be allowed unless it is demonstrated that the activity does not generate adverse effects on the vulnerable marine ecosystems present in the area” (Law 20,657, adds final paragraph). Another practice prohibited by Article 5 bis is "the mutilation of the fins of any species of shark" (action called finning or finning) on board fishing vessels or their transshipment before landing (Law 20,525, adds article 5 Bis).
In Articles 6 A, B and C, it is established that in the maritime waters of national jurisdiction it is prohibited to carry out bottom fishing activities with arts, gear or fishing implements that affect the vulnerable marine ecosystem in a certain area and authorized vessels must permanently carry scientific observers. This question is being debated in the world, although there are technical difficulties to resolve and divergent opinions.
Article 7 A and B of Paragraph 1 bis (Law 20,625, incorporates Paragraph 1 Bis, on the Disposal of Hydrobiological Species) establishes the need to establish plans to reduce discards, both of target species and accompanying species, and the prohibition of discards, unless certain conditions are met, among others, «e) That the target species and its accompanying fauna are subject to the reduction plan referred to in the previous article», being mandatory the return to the sea, under certain conditions, as indicated in Article 7º C «of marine mammals, reptiles, penguins and other seabirds». The resolution of the discard issue is an issue that should be resolved as soon as possible, since the reports indicate that this reaches percentages of the order of 30% and, this is inadmissible, given the protein needs of the peoples of Latin America and El Caribbean and, in the same way, to quantify the discards that are carried out on the high seas, since there are no reliable statistical data due to lack of control, one of the main reasons for greater intervention by the coastal States.
Artisanal fisherman catching a giant squid (dosidicus gigas) by hand line. Photo: Sernapesca
Regarding the issues of conservation and management of resources, linked to International Treaties or Agreements, Article 7° G of paragraph 2 E (Law 20,657, incorporates new Paragraph 2) establishes some slogans: «In the case of straddling fisheries and highly migratory species that are within the EEZ and in the high seas adjacent to it, regulated by an international treaty to which Chile is a party, the following rules must be followed in order to adopt the conservation or management measures to be agreed upon within the framework of said Treaty: a) In those cases in which, in accordance with the international treaty, the application of conservation or administration measures adopted within the EEZ is contemplated, the express consent of the State of Chile will be required (...) b ) If the conservation measure to be adopted refers to the global catch quota, in addition to what is established in the previous letter, the following must be considered: i) If as it attempts to cover both the EEZ and the adjacent high seas, it should be urged to adjust it within the ranges established by the National Technical Scientific Committee; ii) The National Technical Scientific Committee, in order to issue its pronouncement on said conservation measure, shall take into consideration the report of the Scientific Committee of the Treaty or International Organization in question; iii) If the global quota has been previously adopted in the SEZ, in accordance with national regulations,
it may be modified in the event that a different global quota is subsequently adopted in accordance with the rules of the Treaty'. In principle it is very remarkable that Chile has established certain basic rules when signing Agreements or Treaties, although we have our reservations regarding establishing agreements where the coastal State must cede resources from the EEZ, starting from the base, that these are domain and jurisdiction of those States, while those of the high seas may be resources originating from the EEZ and, if they were not, access by all States, including coastal ones. It is probable that in Agreements to integrally manage the ZEE and the high seas, the quotas granted in the ZEE can be revised; however, in any case, in our opinion, those already granted to companies should not be affected.
We do not believe that in the Agreements -unless they may be biologically required when determining the Maximum Sustainable Quotas or the Maximum Sustainable Yield in the whole ecosystem (ZEE and high seas)- the volumes already agreed to the companies in the ZEE should be modified (iii ), and may also give rise to actions for acquired rights, since it is necessary to understand that the granting of authorizations or quotas for a certain time implies investments, among other things, that should be taken into account. However, negotiations could be opened so that the sustainability of the companies is not modified with the modification of the quotas or seeking compensatory formulas, for example, incorporating new volumes of fishing on the high seas into these.
Artisanal fishermen arrived with jibia tubes (giant squid body). Photo: Sernapesca
It should be specified what scope it has for the National Technical Scientific Committee to “take into consideration” the report of the Scientific Committee of the Treaty or International Organization in question; because it could place the former in a situation of technical subordination to the latter; situation that in no case -in our opinion- should occur in such a way that the political, economic, labor and food sovereignty of the country could be affected, weakening the position established in the UNCLOS, regarding the resources in the SEZ being of domain and jurisdiction of the coastal states.
Article 7 H establishes that "International Action Plans adopted by International Organizations of which Chile is a party, may be adopted by decree of the Ministry" notwithstanding, that those derived from the New York Agreement promote adherence to RFMOs, which would be contradictory with what is established in Article 1 A and B of this Law, where Chile reserves sovereignty in the EEZ and in "C" subparagraphs a), b) and c) refers specifically to the conservation of the "ecosystem" implicitly leaving the integral preservation of EEZ and high seas. On the other hand, subparagraph h) refers to “supervising effective compliance with conservation and administration measures”.
In this regard, in Article 8 of Paragraph 3 (Law 19,079, Art. 1, No. 20 bis) for fisheries that have closed access, as well as fisheries declared under a recovery and incipient development regime, a management plan must be established. , where the conservation measures in accordance with subsection i) must be adopted in accordance with the provisions of this law and, in article 14, it indicates that, both in the territorial sea and in the EEZ, the resources must be exploited only with vessels registered in Chile. .
In Article 34º A of Paragraph 2, the Law advances on highly migratory and straddling fisheries, according to international treaties ratified by Chile and indicates that "to develop extractive fishing activities in the high seas area surrounding the EEZ on said species, must meet the following requirements» among them: «a) Have authorization to carry out activities in areas of the high seas, or adjacent to the EEZ; b) The ship with which said extractive activities are carried out must be registered in Chile (...) d) Comply with the conservation, management and compliance regulations established in accordance with this law, as well as with the conservation, management and compliance that have been adopted by international treaties to which Chile is a party, and that are applicable (Law 20,657, incorporates Article 34 A)”. Although the details of the international agreements that Chile has in force on this matter are not specified, in this article Chile reserves the preferential right to administer or agree on the administration of the exploitation of resources on the high seas surrounding its EEZ. It is possible that the domain of migratory resources originating from their EEZ should be studied in greater depth and, especially, to take into account that while the national vessels that fish on the high seas must pay rights of various kinds (administration, capture, export, importation, etc.) many of the vessels of the flag States who fish remotely do so subsidized and free of tariffs when entering their countries of origin.
Fishermen unloaded fresh 'jibia' tentacles. Photo: Sernapesca
In article 40º "E" of paragraph 4º, the Law establishes sanctions to the owner, lessee or mere holder of a tradable fishing license or extraordinary fishing permit to the industrial or artisanal fishing owner who contravenes the prohibition measure established in accordance with the letter a) of the second paragraph of article 6 A, in the cases in which a Vulnerable Marine Ecosystems Regime is established (Law 20,657, incorporates Article 40 E) and, this is interesting to take into account, because it could be typified in this way to ecosystems in which its control and integrated conservation is not; that is, controlled and agreed fishing on the high seas in harmony with the controls that the coastal States carry out in the EEZ.
In Article 43, Chile promotes fishing on the high seas by national vessels and this is a very interesting policy aimed at seizing the migratory resources originating from its EEZ; capturing new resources and also to facilitate bilateral agreements with flag states that fish on the high seas. It says in this regard that "The holders of fishing authorizations and permits will pay annually a single fishing license for tax benefit, for each vessel that carries out extractive fishing activities (Law 19,080, Article 1, letter b; subparagraph Modified by Law 19,849)» but, Chilean fishing vessels, whose crew is made up of at least 85% of nationals and who carry out extractive fishing operations exclusively on the high seas or in the present sea, will be exempt from patent payment single fishery. At this point, we would move forward with removing all taxes (including fuel) from these vessels and the payment of all rights (including customs), so that the vessels of the coastal States can compete on the same terms as the subsidized vessels of flag states.
Article 63 of Title V establishes the obligation for shipowners to report their captures and landings, establishing in its different subsections precisely the rules and, in "all capture, landing, supply and commercialization of hydrobiological resources, to which referred to in the previous paragraphs, must have legal origin, understanding as such, those caught or acquired, processed or marketed in compliance with national fishing regulations and international treaties in force in Chile. The procedure, conditions and requirements for the accreditation of the legal origin of the hydrobiological resources will be established by resolution of the Service» (Law 20,657, replaces Article 63; 359; Law 21,132; Law 20,837), making it clear in this article that it is not authorized ILLEGAL FISHING in its different stages and, by the way, this is configured, in our opinion, with the sole fact of not being controlled by the flag States or agreed with the coastal States, when it comes to catches on the high seas.
Regarding the discarding of species, Article 63º ter regulates the obligation to inform them in the terms established in the previous articles, subject to the provisions of Paragraph 1º bis of Title II of this law» (Law 20,625, inserts article 63 ter), although, sometimes, if there is no reliable observer on board, it is the rules themselves that motivate the discarding of non-commercial or non-target species at sea, to avoid sanctions when reporting catches or landing them. In this sense, more work should be done on imposing more selective nets to minimize unwanted catches (small sizes, immature sizes, etc.); use all species, even the non-commercial ones, to which compensated values are assigned to allocate them to social feeding; establish fishing areas and seasons; analyze the incidence that these catches have on the ecosystem, etc. In any case, seek bilateral agreements between States to find out about discards on the high seas that affect associated species and the availability of migratory species originating in the EEZs.
Chinese jigger sailing from the Atlantic to the Pacific via the Strait of Magellan.
Regarding landings and transshipments, Article 63º quater indicates: “hydrobiological resources may only be landed at the landing points or ports authorized by the Service through a well-founded resolution, which may designate them by fisheries or groups of fisheries (Law 21,132, add phrase)» which in principle rules out transshipments at sea and this is a very important determination to avoid "laundering" and reduce the commercialization of ILLEGAL FISHING"; In addition to adding, a series of conditions to control landings (schedules, means, etc.), where non-compliance would give rise to infractions that are foreseen in article 113º D of this law (Law 20,657, incorporates Article 63º quater; Law 20,837 ,
replaces the expression 113º B by 113º D) and, Articles 63º Ter and Quater are complemented by Article 64º, also establishing conditions for the holders of Processing Plants and those who carry out activities of elaboration or commercialization of the species, to ensure the follow-up of the captures in the subsequent processes of transformation, transport and commercialization of these and their derived products (Law 18,892, Art.40, subsection 1; Law 19,079, Art.1º, No. 51; Law 21,132, replaces subsection). Indeed, the authors of the Law and its amendments have duly interpreted that, in order to help avoid the treatment of ILLEGAL FISHING, it is necessary to establish and guarantee a traceability system that ensures the origin, species and volume, from the capture to the final stage of marketing. We add that, known the captures; landings; the processes suffered on board or in its industrialization on land; the yields of the industrial processing of the different species and, the eventual glazing (water); the addition of other vegetable or other components (flours, batters, oils, cheeses, etc.); An integrated and reliable control system should make it possible to specify the total volume per species captured, processed, stored and marketed. By the way, this would contribute to “whitening” not only the operations from a biological point of view, but also from a fiscal point of view. And this is one of the reasons why ILLEGAL FISHING persists.
Regarding the origin of fishery products, Article 65 establishes that shipowners, carriers, processors, marketers and distributors must carry, together with the raw materials and fishery products, the documents that prove their legal origin (Law 20,657, replaces Article 65; Law 21,132) and this can be a way of hindering the use and trade of ILLEGAL FISHING, but it must be ensured that the processes and controls indicated above are complied with effectively, because many times "the papers" do not reflect the true processes.
Chilean Navy plane flying over a Chinese jigger vessel on its way to the fishing area. (Photo: Chilean Navy)
Likewise, the Law establishes rules related to the identification of ships and vessels, according to their fishing category and with respect to the fishing units (Law 18,892, Art.40; Law 19,079, Art.3º, Nº 51; Law 21,132, adds final paragraph ) and on the obligation of the owner to have a current and active automatic positioning system at sea, which records images to avoid discards, etc. (Article 64º A of Law 18,892 modified by Law 19,521 D.O. 10/23/97 and Article 64º B, I and J of Law 18,892) whose information issued will be public (Article 64º D) in those vessels that carry out extractive activities in waters of national jurisdiction (Art. 64 B modified by Article 6 of Law 19,849) and those registered in Chile that operate in non-jurisdictional waters; the owners of vessels that, whether or not they are registered in Chile, carry out research fishing inside or outside jurisdictional waters; shipowners of factory ships that operate in jurisdictional waters or on the high seas. Likewise, this obligation will be applied to the owners of fishing vessels or factory vessels of foreign flag that are authorized to call at the ports of the Republic.
Article 64º J tells us that the destruction, theft or disclosure of the images will be sanctioned with the penalties indicated in articles 242º or 247º of the Penal Code, as appropriate, and the information generated by the device, certified by the National Fisheries Service , may have the character of a public instrument and will constitute a presumption to prove infractions of fishing regulations and, this shows us, the importance that the Enforcement Authority has given to this instrument and that, according to Article 64º D, its malicious destruction, disablement or alteration of the automatic positioning system or the information contained therein, will be sanctioned with the penalty of minor imprisonment in its minimum to medium degrees (Law 21,132, replaces first paragraph), serving the certified information of the system as a "public instrument and will constitute full test to accredit the operation of a vessel in fishing tasks in a certain area. For its part, “the operation of a ship with capture results without keeping the system in operation, will constitute a well-founded presumption of the infractions established in letters c) and e) of article 110 of this Law and, where appropriate, to attribute what is captured at its individual quota or that of the corresponding area, as the case may be (...) If the regularization of the system does not occur within the six hours following its detection, the ship must suspend its tasks and return to an authorized port. Notwithstanding this and while the fault is not repaired, the affected ship must report its position every two hours, together with
the total capture obtained at the time the fault is detected and its update each time its position must be reported…” (Law 20,583, inserts a new 5th fifth paragraph, making the current one sixth)…”.
Photo: Chilean Navy
It is interesting to extend some comments on these articles of the Law and the use of detection systems to which we have already referred. All fishing vessels or vessels related to the activity must be provided with these elements and their use controlled and certified by the coastal States in the EEZs and the flag States on the high seas, except when bilateral agreements may establish a control single or unified. But, we have seen that these systems can be modified, deactivated, etc. which is why the controls must be face-to-face and this may be relatively possible in the EEZs of the coastal States; but, as we said, the flag States, for the most part, do not carry out remote fishing controls on the high seas on the vessels of their nationals. This occurs especially in the South Pacific and the South Atlantic, contrary to the obligations established in the CONVEMAR, in addition to receiving subsidies for remote fishing that, for this reason and since they are not controlled, should be considered illegal. On the other hand, the systems in operation in the vessels in the EEZ can serve to detect them by the vessels of the flag States and avoid them when carrying out ILLEGAL FISHING. For this reason, that the identification systems are not enough, if not all the ships have them and if they are not active and, even so, as they are feasible to be modified, an on-site control is required and, everything would seem to indicate, that a State of flag will not send control ships thousands of kilometers and, in that case, who would bear the cost? In addition, how to verify with certainty that prohibited fishing gear is not used (Article 64º G), slave labor is used, etc. if there is no control of the vessels while they carry out their operations?
In this way, control agreements with the coastal States, close to the operations, would be cheaper, safer and faster in action.
Regarding fishing on the high seas by Chilean citizens on foreign vessels, Article 66 bis establishes that Chileans with registration or title registered in Chile who participate in fishing activities must notify the Directorate General of Maritime and Marine Territory prior to boarding. Merchant and, although the practical effect of this measure is not understood since if the vessel leaves Chilean ports, all crew members must notify the shipment and if they operate on the high seas, except with an Agreement, Chile would not have jurisdiction. If the purpose is for this crew member to collaborate in the identification on the high seas of migratory species originating in the EEZ, perhaps the form should be indicated.
Chilean Navy ship escorting Chinese jiggers in navigation (Photo: Chilean Navy)
Article 103º of Title VIII (Law 20,625, adds Title VIII) refers to Scientific Observers and makes a detailed description of their functions, indicating that their “only functions are to collect, record and account for data and biological information -fisheries of industrial and artisanal fishing operations, landing points or processing of fishery resources»; but, "his work will not be of control." They will have “a personal emergency location device that they will activate exclusively in case of danger to their physical integrity. The call for help must be answered by the maritime authority, who must contact the captain of the ship or vessel...». This shows how difficult it is to fully perform this function on board and the risks that it entails, even specifying that inspection tasks are not carried out. This last question is very difficult for him not to comply with, because in carrying out his work as a scientist he cannot fail to observe discarding actions, fishing of unauthorized species or small sizes, use of prohibited nets, etc. and, in the case of crimes against the environment and the sustainability of resources, he is obliged to report them to his superiors and, even, they will come off his own scientific and/or technical reports. On the other hand, according to article 105º «the information coming from the data collected by the scientific observers will be public in the terms of Law 20,285 and, beyond the fact that the ships and shipowners are coded so as not to identify themselves, the information may be required by any research institution, academic or non-governmental organization…” and, even without requesting it, the port is usually a small town and all the people linked to fishing activities are informed of the results of each tide. We are in favor, on the contrary, of investing the observer with the functions of inspector, so that he directly exercises police power, with which he will be facilitated in the exercise of
investigation at the same time as exercising control of the activity, ensuring permanent surveillance on board.
The Law in its article 106 provides for a kind of privatization of the administration of the observers, being able to entrust the function to Institutions, which we assume are university or related, although, since the States have their official Research Institutes, the information should be obtained directly, more even when sensitive information is handled, both regarding the exploitation of the resource and that related to economic and labor issues.
Chinese squid jigger fishing vessel working outside EEZ (Photo: Chilean Navy)
The Law in Title IX, paragraph 1, Article 107 "prohibits capturing, extracting, possessing, propagating, having, storing, transforming, transporting and marketing hydrobiological resources in violation of the rules of this law and its regulations or management measures adopted by the authority» (Law 18,892, Article 63º; Article 76º; Article 79º letter a) to b), paragraph 1 (Modified by Law 19,079 Article 1º Nº 111, 117, 118 and, Law 19,521; Law 20,657, modifies first paragraph Law 21,132, modifies the first paragraph, Law 18,892, Article 3, letters c) and d), Article 48, letter c; Law 20,657, replaces letter f); Law 18,892 Article 3 letter g), h), i), j), k), l), m); Law 20,657, replaces the letter g), h), i), j), k), l), m); Law 19,079, Art.1, No. 119; Law 20,657, replaces expression and adds a final phrase and replaces the word “elaborate” with “have, store, transform”; Law 20,657, inserts a new letter b), passing the current letter b) to be c)) practices that the vast majority could be typified as ILLEGAL FISHING and places a series of sanctions that are indicated in detail in the following legislation: Article 108, Law 18,892 , Article 77, subsection 1 a), b) and c); Law 19,079, Article 1, No. 112, No. 114 inc. e), 548; Law 20,657, modifies the first paragraph; substitute letter e; incorporates Article 108º A; replaces Article 109º; Law 21,132, inserts article 108º B and, for infractions, depending on the case, the following will be responsible (Law 20,657, replaces Article 109º): the fishing owner; Captain; driver or skipper of the ship or the transport company (Article 166º of the Commercial Code; Law 21,132 that replaces letter B) with which the infraction is committed; the owner of the vehicle registered in the register of motor vehicles or in the register of ships kept by the maritime authority; and, in matters of transformation, storage or trade, the natural or legal person who exercises the activity is responsible (Article 7 of the Code of Commerce); in the absence of this, whoever incurs the infraction. In possession and holding, the possessor or mere holder will respond.
For these infractions, the offender may receive a one-time reprimand, suspension or expiration of the title of captain or skipper; penalty fee; cancellation of registrations; license suspension; closure of establishments; confiscation of species or products derived from them; confiscation of gear, fishing gear, diving equipment and elements, with which the infraction was committed, and the means of transportation. These sanctions will be graded according to the details set forth in Law 19,892 and amendments.
The sanctions will be applicable without prejudice to the corresponding criminal prosecution for these conducts… (119º bis).
Squid moving to the processing plant on board the jigger
The Law in its Article 115 prohibits "extractive fishing activities in internal waters, territorial sea or EEZ by ships or vessels flying a foreign flag, unless they are specially authorized to carry out research fishing" and sanctions them with fines, confiscations of catches, gear and gear and specifies that "in case of recidivism, the fine will be doubled" (Law 19,080, Art.1º, letter c.; Law 20,657, replaces sentence) and "the ship must be seized and taken to port Chile, where it will be retained at the disposal of the competent court, which may decree that the departure of the ship from the port or place in which it is located be prohibited, while a sufficient guarantee is not constituted to respond to the amount of the corresponding penalty »and At this point, we understand that establishing only a fine for a foreign vessel that illegally fishes in internal waters, in the territorial sea or the EEZ, seems like a minor sanction, unless the fine applied that exceeds the value of the vessel and the value of the seized raw materials. The latter seems to be a way out of the imposition of the CONVEMAR (article 73º 2 and 3). that prevents the application of criminal sanctions and the confiscation of vessels. It should be taken into account that it is not only an illegal extraction of resources from the coastal States, but a violation of the sovereignty and security of the States, which is why many States Parties or not to UNCLOS are applying sanctions. penalize offenders or are considering doing so.
Article 115º bis “prohibits Chilean nationals from embarking, knowingly, in fishing vessels without nationality, that do not fly the flag, or in those that are included in lists that carry out illegal fishing, prepared by competent organizations and endorsed by the States Parties, or by virtue of treaties to which Chile is a party. , except in cases of duly justified force majeure…” (Law 19,880; Law 20,509, introduces Article 115 bis); on the other hand, by Paragraph 4 (Law 20,509, adds paragraph 4) Article 134º and 134º B penalizes “Chilean natural persons who, knowingly, carry out or participate in fishing activities on board foreign-flagged vessels, in contravention of the Conservation Measures adopted by the Commission for the Conservation of Antarctic Marine Living Resources…” and, to “Chilean natural and legal persons who are owners, possessors, mere holders or shipowners, in whole or in part, of fishing vessels of a foreign flag and who, with their knowledge, carry out or participate in the fishing activities referred to in the first paragraph of article 134º A…”. All this is interesting to discourage nationals from participating in activities related to ILLEGAL FISHING.
Article 122º of Paragraph 2º. (Law 19,079, Article 1, No. 127) establishes that: "The supervision of compliance with the provisions of this law, its regulations and fisheries management measures adopted by the authority, will be exercised by officials of the Service and personnel of the Navy and of Carabineros, as appropriate…” (Law 19,079, Art.1º, No. 128; Law 20,657, modifies first paragraph) and “in the exercise of the supervisory function of the fishing and aquaculture activity, the officials of the Service and the personnel of the Navy will have the quality of Ministers of Faith” (Law 19,713, Art. 20, No. 4, letter a; 641 Law 20,657, modifies subsection 2.), that is, the State of Chile supports the complex and high-risk functions of officials and, in subparagraphs a) gives them broad powers for their control that range from inspecting and registering; take samples; looting establishments; request and examine documentation; affix seals or seals; place signs or identification elements; keep records; require the use of positioning systems; destroy and seize without a court order; arrange embarkation and disembarkation points; request information from State administration bodies; order the captains or skippers of fishing vessels or boats to make a mandatory call at the nearest port of operation of the vessel, in which they can unload their catch, in order to inspect the vessel, the gear and gear and the catch to board; request the help of the public force to seize the ships and take them to port; control the safety and quality of the products; appoint certifiers; make technical reports on productive performance and others; enable and control; use all kinds of technological means, etc. all this within the framework of Law 18,892 (modified by Laws 21,132, modifies letter a); Law 19,713, Art. 20, No. 4 letter b); Law 20,583, inserts the expression “and aquaculture”; Law 21,132, modifies letter f); Law 20,657, adds letter s); Law 20,657, adds letter t); Law 21,132, adds letters u), v), w) and x); Law 20,583, replaces sentences; Law 20,434, incorporates article 122 bis) and according to Article 123 "In the exercise of its supervisory function, the Service will have the power to become a party in the processes..." (Law 19,079, Art.1, No. 129 Modified by law 19,806 D.O. 05/31/02); Paragraph 3, Article 133. In other words, the State of Chile has invested its officials with the power and the necessary tools to help eradicate ILLEGAL FISHING, it only needs to specify the strategy to recover the migratory resources originating from its EEZ on the high seas.
Chilean Navy ship controlling the fishing operation of a jigger (Photo: Chilean Navy)
Articles 135º and 136º of Title X establish that whoever captures or extracts hydrobiological resources using explosive, toxic or other elements or introduces chemical, biological or physical contaminating agents that cause damage to hydrobiological resources or their environment, will be sanctioned with a fine. (...) and with the penalty of minor imprisonment in its medium to maximum degree (Law 18,892, Art.101; Law 19,079, Art.1º, No. 134 and No. 135; Law 21,358, replaces the word minimum by medium). If the damage to the hydrobiological resources or their environment referred to in the preceding paragraphs is not verified, minor imprisonment will be applied to its minimum degree (Law 21,358, adds second and third paragraphs). That is to say, that the Chilean Law, like so many others, assigns greater seriousness to it, causing damage to species or the environment through these means, assigning prison sentences, which we understand necessary despite the limitations of the CONVEMAR to regard. It is an issue that is under discussion, at least in relation to damage to species,
because ILLEGAL FISHING practices can be very predatory, to the point of putting the sustainability of the species at risk.
In the same way, Article 135 bis penalizes with a maximum prison sentence in its minimum degree and confiscation whoever kills or carries out hunting or capture activities of a specimen of any species of cetaceans; In the same way, "whoever has, possesses, transports, unloads, prepares or carries out any transformation process, as well as markets or stores these species alive or dead or part of them, will be punished with the penalty of confiscation and minor imprisonment in its degree medium…".
Imprisonment from minimum to maximum degree is also applied, as appropriate, to those who install or use fishing gear in the terrestrial waters of the national territory (Article 136º ter); the processing, dumping, transformation, transportation, marketing and storage of prohibited hydrobiological resources, and the production, marketing and storage of products derived from them (Article 139º; 740 Law 19.079, Art.1º, Nº 142; Law 21,132, replaces article 139); the one that carries out extractive activities of benthic resources without being the holder of rights (139º bis). The one that processes, elaborates or stores hydrobiological resources or products derived from them, with respect to which its legal origin is not proven, and that correspond to resources in a state of collapse or overexploitation (Article 139 ter; Law 21,132, inserts article 139 ter); repeat offenders to Article 119 (Article 140º; Law 19.079, Art.1º, Nº 142). At this point we understand that it would not be necessary for the resources to be collapsed or overexploited for this fishing to be considered illegal. The penalization of the lack of certification of origin and traceability are central points to eradicate ILLEGAL FISHING.
Security and Maritime Operations Center (Dirsomar) of the Chilean Navy
It is very interesting what regulates article 162º of Title XIII where the operation of vessels that qualify as factory or factory in the territorial sea and EEZ of Chile (Law 19.079, Art.1º, Nº 150) is prohibited, except in fisheries that do not have reached full exploitation where the operation of these vessels may be approved, for fixed terms, west of 150 nautical miles measured from the baselines, and south of parallel 47º00' south latitude outside the straight baselines , without enabling authorized persons to demand the granting of new authorizations or permits when the fisheries are declared in a state of full exploitation. It is evident that this rule promotes fishing with large vessels and processors in waters bordering the high seas or in the latter and protects the territorial sea and the EEZ for fisher vessels or similar, an issue that favors the capture of migratory species by Chile, which is complemented by Article 165, which indicates that the Ministry, in consultation with the Ministry of Foreign Affairs, «... may establish conservation and management standards for those common populations or associated species existing in the EEZ and on the high seas. Once these rules are issued, the landing of catches or products derived from them may be prohibited or regulated, when they have been obtained in contravention of said rules" (Law 19,079, Art. 1, No. 154) and, "The provisions of the preceding paragraph may be made extensive with respect to highly migratory species (...) Likewise (...) it may prohibit the landing, supply and any type of direct or indirect services to vessels in ports of the Republic and throughout the EEZ and territorial sea, when there are antecedents that make it presume It is well-founded that the extractive fishing activity carried out by these vessels affects the fishing resources or their exploitation by national vessels in the EEZ" and it is evident that fishing on the high seas by vessels without control of the flag States and without an agreement with the State riparian causes damage to the ecosystem and consequently to the resources of the EEZ and should be classified as ILLEGAL FISHING. We understand, however, that the disembarkation could be authorized, proceed to the inspection and the corresponding sanctions and confiscation of ships and raw materials and, eventually, initiate the corresponding summary, to apply criminal sanctions and imprisonment to those responsible, if it gives rise.
Finally, Article 170 empowers the Ministry, in consultation with the Ministry of Foreign Affairs, to establish with the countries with maritime and lake borders with Chile to establish management measures in border areas on shared hydrobiological resources (Law 19.079, Art.1, No. 156 ) and it will be, according to Article 172º, the National Navy together with the Undersecretary, who will keep the list of the fishing activities that are carried out in the area defined as Presential Sea, by virtue of the basic international treaties and agreements that are carried out or have made in this regard (Law 19,080, Art.1º, letter f).
The Chilean Fisheries Law is, in our opinion, a law that, although it could be perfected, has enough elements to try to reduce ILLEGAL FISHING.
Dr. Cesar Augusto Lerena
South Atlantic and Fisheries Expert – Former Secretary of State
President of the Agustina Lerena Foundation1
President Center for Studies on Latin American Fisheries (CESPEL)2.
Author of "Illegal Fishing and Migratory Fishing Resources Originating from the Coastal States of Latin America and the Caribbean" (2022)
(1) Founded on 10/21/2002; (2) Founded on 2/4/1989
September 2022 (ISBN 978-987-29323-9-8)