Chile and the general framework for the conservation and management of high

Chile ratified the LOS Convention in 1997³³², and the FAO Compliance Agreement in 2003;

it has not signed or adhered to UNFSA, which taken together with the two former, constitutes the legislative framework for high seas fisheries regime. For the implementation of the FAO Compliance Agreement, the Ministry of Economy has enacted specific domestic regulation which is contained in Supreme Decree No. 360, of 2005.

In addition, Chile has adopted a national plan for IUU, and is preparing the national plans for sharks, seabirds, and fishing capacity. Chile has also played an important role in the fight against IUU, being one of the founders of the international voluntary monitoring, control, and surveillance working group and serving as its Secretariat, as well as participating in the work of the High Seas Task Force.

1.1. Implementation of Flag State responsibilities with respect to the FAO Compliance Agreement

Chilean industrial vessels fishing in any area of the high seas require a license issued by the Subsecretariat for Fisheries, which must be registered in a special section of the National Industrial Fisheries Register. The procedure for issuing the license ensures the fulfillment of the obligations contained in the FAO Compliance Agreement and, in particular, that no licence is issued to a vessel previously engaged in IUU fishing. Thus, the Chilean Authorities may deny license to vessels previously registered in another State and which have engaged in fishing activities undermining international conservation and management measures, unless

332 The LOS Convention was ratified on August 25, 1997, promulgated by Supreme Decree No. 1393 of 1997, of the Ministry of Foreign Affairs, and published in the Official Gazette on November 18, 1997.

the following conditions have been met: the “ownership of the fishing vessel has subsequently changed, and the new owner has provided sufficient evidence demonstrating that the previous owner or operator has no further legal, beneficial or financial interest in, or control of, the fishing vessel.”³³³

Furthermore, the Chilean vessels authorized to fish in the high seas must fulfill the following conditions and requirements:

• Install a satellite monitoring device on board, which must be kept in working conditions and activated during navigation. The satellite signals are sent directly to the enforcement authorities;

• Inform catches, by species and fishing area, to the National Fisheries Service. The catches must be certified by an external auditor. The catches must be informed to the National Fisheries Service disregard the fishing area or the landing port;

• Accept on board scientific observers designated by the Subsecretariat for Fisheries to gather biologic and fisheries information;

• Maintain a copy of the license on board;

• Maintain in every moment and in a distinguishable manner, the Flag and identification according to an internationally accepted system, and respond to any request of identification by duly authorized officers;

• Inform departure or arrivals on national or foreign ports to the National Fisheries Service.

• Properly identify and mark fishing gears;

• Comply with conservation and management measures established for the stock in the fishing area, either by Chilean authorities for national fishing vessels, or by competent RFMOs or arrangements;

• Where appropriate, comply with the catch certifications schemes adopted by RFMOs or competent authorities; and

• Provide any other information required by the National Fisheries Service in the exercise of its enforcement jurisdiction.

The domestic regulations establish the obligation for Chilean Authorities to provide the FAO with the information required in Article VI of the FAO Compliance Agreement on a biannual basis. Although this implementing regulation entered into force on 25 November 2006, to date no information has been sent to the HSVAR of FAO. It must be noted, however, that catch information is periodically provided to FAO. The domestic regulation excludes the

333 FAO Compliance Agreement, Article III(5)(c).

application of the FAO Compliance Agreement to the vessels of less than 18 meters in length³³⁴, as authorized in Article II(2) of the Agreement. However, catches of those vessels in the high seas must be reported to FAO.

The fishing activities of Chilean nationals with vessels flying the Flag of other States are not addressed in the domestic legislation.

1.2. Extended conservation and management measures for highly migratory and straddling stocks

In the first section of this paper it has been explained that implementation of management and conservation measures within the EEZ for species that have a broader range of distribution is useless, especially in the case of highly migratory or straddling stocks, because fishing activities in the ‘unregulated’ high seas area adjacent to the EEZ undermine the effectiveness of the measures implemented within the EEZ. To address this specific problem, the General Act for Fisheries and Aquaculture provides that the Ministry of Economy, subject to report of the Subsecretariat for Fisheries and in consultation with the Ministry of Foreign Affairs, may establish conservation and management measures for ‘common stocks’

and ‘associated species’ present both in the EEZ and the high seas.³³⁵ The terms ‘common stocks’ and ‘associated species’ have been regarded as referring to highly migratory and straddling stocks. Thus, the implementation of Article 165 to a specific highly migratory or straddling stock means that Chilean vessels fishing for those stocks in the area of the high seas adjacent to the EEZ must comply with the same conservation and management measures established for the EEZ.

Some authors have considered Article 165 as an attempt to unilaterally extend the Chilean jurisdiction to the high seas. The criticism is groundless, because the provision is aimed at establishing conservation and management measures applicable to Chilean vessels. The Flag

334 The threshold corresponds to the limit establish for artisanal vessels, according to Article 52(b) of the General Act for Fisheries and Aquaculture.

335 Article 165, paragraph 1, of the General Act for Fisheries and Aquaculture reads: “El Ministerio mediante decreto supremo, previo informe de la Subsecretaría y consulta al Ministerio de Relaciones Exteriores, podrá establecer normas de conservación y manejo sobre aquellas poblaciones comunes o especies asociadas existentes en la zona económica exclusiva y en la alta mar.”

State jurisdiction on the vessels flying their flag in the high seas is an established principle of international law. Furthermore, it is an application of Article 117 of the LOS Convention which requires the States to take such measures in respect with their nationals as may be necessary for the conservation of the living resources in the high seas. The provision also allows prohibiting or regulating the landing of catches or its products, if the fish was harvested in violation of conservation measures adopted for the respective stock.³³⁶ These prohibitions or regulations might apply to foreign fishing vessels, but they constitute an application of Ports State sovereignty, which is generally recognized in international law and thus not an extension of Chilean jurisdiction to the high seas.

1.3. Chile as a Port State

Chile prohibits access to its ports to foreign fishing vessels for the purpose of landing or transshipment of species subject to conservation measures in the EEZ. The measure was applied as early as 1990 and still remains in place. In recent years, and due to the increasing concern about the effects on conservation of fishing activities undertaken by foreign vessels, the Chilean Government decided to strengthen its policy regarded access to its ports.

According to this policy, stipulated by the 2004 Supreme Decree No. 123 of the Ministry of Economy, access by distant waters fishing vessels to maritime terminals for logistical work, resupply, and repairs, presupposes the concurrence of five conditions:

• Firstly, the Flag State of the vessels undertaking the fishing activity shall exercises an effective jurisdiction allowing it to properly assume its responsibilities in respect to those vessels;

• Secondly, such State shall cooperate with Chile, as a Coastal State, in the conservation of the straddling and highly migratory resources from the adjacent high seas, when such species are common or associated with the ones existing in Chile’s EEZ;

• Thirdly, that cooperation must be expressed in the negotiation, adoption and application of conservation measures compatible with those that are applied to the resources in the marine areas under national jurisdiction;

336 Article 165, paragraph 2 (continuation) reads: “Dictadas que sean estas normas podrá prohibirse o regularse el desembarque de capturas o productos derivados de éstas, cuando éstas se hayan obtenido contraviniendo dichas normas.”

• Fourthly, the vessels undertaking this fishing activity should permanently use, inside and outside Chile’s EEZ, a compatible satellite positioner connected with the Chilean system (when required by the regulations or decisions from competent national authorities); and

• Finally, the vessel must be submitted to the same controls and inspections to which the national ships are submitted to in regard to fisheries conservation, marine environmental protection and maritime security.³³⁷

The Supreme Decree is consistent with the developments of international fisheries law and, particularly, with the FAO Model Scheme for the Port State Control of Foreign Fishing Vessels. However, it must be noted that the national policy for port access does not address the access to ports by support vessels, departing in this respect from the current international recommendations, and potentially affecting the effectiveness of Port State measures.