by Anthony James Sangster Robles
Solicitor @ Aquarius Lawyers
The freedom of the sea doctrine (Mare Liberum) has been the guiding principle for human interaction with the oceans. In summary, this law means that the oceans have no owner and cannot be claimed by any person or country. However, this principle has been challenged and restricted since the creation of UNCLOS 1982.
The need for territorial security has led to a more controlled approach of oceans and marine resources. As a result, countries now have ownership of certain ocean zones under international law.
One such zone is called the territorial waters, which is the absolute control and right over the resources in the waters that are 12 nautical miles (NM) from the baseline of the coastline. Another is the Exclusive Economic Zone (EEZ) which is normally heard of in international forums; this zone stretches for up to 200 NM from the baseline.
Add to this that the ever-growing concern of marine sustainability has prompted many governments to implement strict fishing and border control mechanisms in their territories. For instance: a) mandatory fishing prohibition in certain months; b) size catch control; c) species catch control. To be able to enforce these mechanisms, governments employ police and military force to the extent available to them.
In similar fashion to how international law is implemented by each government; the principles above are enforced differently depending on the country, type of government and even region. Some governments have a very sophisticated and well-defined regulatory systenm and protocols. In addition, they enjoy a powerful enforcing body and usually have reached a regional consensus among their neighbours.
A great example of well-prepared governments debating over their borders are the case of the North Sea Continental Shelf. This case was the foundation of the modern approach over border delimitations. Unfortunately, many countries in southern and warmer areas have lacked the political resources to care for their maritime borders with a similar emphasis. As a result, they have become subject to unrefined protocols and a lack of enforcing power.
These issues are further explored relative to a recent issue in Ecuadorian terrirtorial waters and the Galapagos Island Exclusive Economic Zone and World Heritage Marine Reserve area.
Ecuador has had a history of poorly managed international affairs as it is usually, dependant on the guidance and support of major countries. Despite water being one of the greatest resources for Ecuador; it only became a part of the UNCLOS in September 2012. In addition, it was only recent that it finally defined its maritime borders (Ecuador & Costa Rica Maritime Border Agreement 2014).
For the size of this country and the region in which is located, that this important territorial concern took so long to come to a resolution is demonstrative of the resources of this South American country.
Keeping the above facts in mind, on late July/early August, a fleet of over 200 vessels holding Chinese flags started to operate large scale fishing enterprises within a small area of international waters between the Ecuadorian EEZ and the Galapagos Reserve’s EEZ. To assist visualising the location, please refer to Figure 1 below. The circle in orange shows the location were the fishing vessels are operating.
The sudden appearance of fishing vessels have left the Ecuadorian authorities in shock. For starters, the South American country lacks the enforcing body to patrol the maritime area and the large quantity of vessels. Hence, it is almost impossible to ensure the vessels do not cross over to the mainland EEZ or worse, to the Galapagos Marine Reserve zone. This lack of capacity creates the perfect opportunity for unauthorized fishing and a large danger to the delicate marine ecosystem within the area.
Some diplomatic initiatives have been undertaken and China has responded with a cooperative spirit and positive commentary that support it’s march into this terriroty. The Chinese’s government has agreed to maintain communications with vessel operators. A moratorium between September and November is also taking place.
The vessels are expected to leave the area in October when marine life is exiting the Galapagos marine reserve for warmer climates. This declaration does little to nothing to actually protect the marine species. The Ecuadorian forces have no capacity to monitor over 300 fishing vessels.
There are known records of irregularities surrounding the vessels. For instance, the satellite systems of some vessels have malfunctioned and left them untraceable for some time. Furthermore, vessels have been deregistered and registered again under different names and ownership. China has not provided any assistance to the Ecuadorian government in this regard.
The Ecuadorian government has not announced any further actions to be taken regarding these vessels. As previously outlined the unintended consequences of these enterprises could be irredeemable for the delicate marine ecosystem of the region.
China claims that the fishing vessels adhere to international fishing regulations and standards. However, these standards are not equipped to deal with an area of such marine biodiversity and self-dependency. Migratory species, such as the Mako Shark, are very susceptible by-catch. Further, the unprecedented mass-fishing of any specie in this area could drastically affect the ecosystem and the food supply of other species. It could even have a domino effect in the marine ecosystem of other countries if the migratory species are affected, such as the Mako Shark.
It is important globally that this matter should continue to be closely observed by other countries and the international community. There are mechanisms for such observations, namely UNESCO World Heritage committees as they are tasked with protecting the unique marine life and geology of the area. Other agencies need to be alerted as well just as whaling by Japan was brought to public attention by Sea Shepherd Conservation.
Of paramount importance is that global marine protection agencies do not allow the distraction of issues such as COVID to mean that countries that are not able to lobby for themselves are underrepresented at global meetings. Organisations such as Oceana, Greenpeace, The Ocean Conservancy, The Nature Conservancy and OceanCare, to name a few, need to be aware and alerted.
The global meetings of Agencies and organisations need to address the opportunistic crossing of territorial boundaries. It is perhaps time to rethink how to best deal with international waters and sustainable fishing across the high seas.
- UNCLOS 1982
- Germany v Denmark and the Netherlands  ICJ 1