‘Future of Fishing’
Dr Richard A Barnes, The University of Hull.
SLS/BIICL Symposium 22-23 March 2005
Draft: Not for citation.
I: Introduction
According to the FAO’s most recent report an estimated 52% of stocks are fully exploited and producing catches at the maximum sustainable limit. A further 25 % of stocks are overexploited, depleted or recovering from depletion.[1] Additionally, a majority of the most important commercial species are regarded as being fully or over exploited.[2] Over fishing presents fisheries managers with their greatest challenge and drastic measures are necessary to prevent further and perhaps critical degradation of ocean resources. Given that over 90% of commercial fisheries are located within 200nm fishing zones, then effective mechanisms for conserving and managing fisheries within 200nm Exclusive Economic Zones (EEZs) are of fundamental importance.[3]
How then is over fishing to be eliminated within EEZs? Although the 1982 United Convention on the Law of the Sea[4] (1982 Convention) appears to establish an obligation for coastal States to prevent over fishing, is this sufficient? And, if not, why not? One is not revealing too much to suggest that alone the broad framework and ambiguity of the 1982 Convention is, as the above statistics suggest, inadequate to prevent over fishing. However, there appears to be a more fundamental deficiency with the 1982 Convention. Over fishing is a symptom of open access fishing regimes, rather than an independent problem. Accordingly, it should be tackled in a way which deals with the underlying problem of open access regimes. To approach the many issues facing fisheries regulation in a fragmented manner, without tackling the underlying cause of the problem will tend to result in highly complex, difficult to implement, potentially conflicting and incomplete management systems, thus perpetuating some of the regulatory deficiencies spawned by the 1982 Convention. Recent developments in international fisheries law may help to rectify such deficiencies. However, further consideration of how these developments is necessary to assess whether they can address the issues associated with open access regimes.
Given the failure or weaknesses of technical measures, input and output restrictions, such as gear restrictions, limited fishing seasons and catch quotas, major fishing nations are turning to property rights based mechanisms as a means of regulating fisheries. Property rights based regimes are an attempt to address the problems associated with open access regimes. Such measures differ from traditional methods by seeking to allocate to individual fishermen or groups of fishermen exclusive rights of access to fisheries. They directly address the issue of open access by granting exclusive rights to individuals. However, such measures must be consistent with the parameters set by international law. This is important because emergent concepts such as the ecosystem approach impact significantly upon the operation of property rights based mechanisms, by requiring a holistic approach to fisheries management, rather than stock specific measures.
II: Tragedy of the Commons and Resource Regulation
Although law may be required to address the problem of over exploitation of fishery resources, the problem is not purely a legal one. That is to say it is not a legal problem in the same sense that a dispute over the interpretation of a treaty provision is purely a legal problem. Over exploitation of fish stocks is a practical problem that arises as a consequence of agents’ action or inaction which is, in turn, driven by a range of socio-economic, moral and political factors. Of course law may be one such factor. However, the point remains - that law alone cannot explain the overexploitation of fisheries. We must look elsewhere to find an explanation of the phenomenon.
Our search for an explanation leads us, in the first instance, to the ‘tragedy of the commons’, a hugely influential metaphor which was popularised by the scientist Garret Hardin.[5] Using the example of a pasture open to all for grazing livestock, Hardin argued that an open-access resource will inevitably be depleted through overuse. Each herdsman gains the entire benefit of grazing their cattle on the pasture, to be expressed as a positive utility of + 1. However, the costs of grazing cattle are shared between all users of the pasture, which may be expressed at a fraction of the -1 utility. Accordingly, any rational herdsman will realise that he will have an overall utility gain increasing his use of the pasture by grazing more animals on it. This conclusion is reached by all herdsmen and so results in a destructive race to exhaustive the resource:
‘Each man is locked into a system that compels him to increase his herd without limit -- in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.’[6]
This scenario can be replicated for any open access resource system, including fisheries.
Open access regimes in many fisheries are typically associated with a number of consequences. No fisherman has a good reason to restrain his catch because this would allow others to take what is left. This incentive to catch as much as possible results in fishing effort at levels beyond biologically sustainable levels and the resource is physically depleted. Not only is the resource depleted, but the harvesting of it has become incredibly inefficient. Increased competition for fish forces the fishermen to invest in more expensive equipment to ensure that catch levels are maintained.[7] This increased competition and congestion has results in increased conflict between fishermen. Over fishing, inefficient fishing and conflict tend to be symptoms of open access fishing regimes and should be addressed as such.
Although the term ‘commons’ is used in the metaphor, what is actually being referred to are open access regimes.[8] In an open-access regime no-one has the right to exclude another from access to the resource and it is this inability to limit use that is at the root of the problem. This idea of excludability is inherent in all property regimes and it is this capacity to exclude which prevents the tragedy of the commons from arising to the extent that use of the resource is effectively limited. Thus the answer for Hardin was to either privatise or regulate the commons.[9]
Open access regimes arise where there are no effective rules governing or limiting access to a resource. Some arise by default, for example, when the resource cannot be physically circumscribed. This view of fisheries was at once assumed and advocated by Grotius, who did much to contribute to the influence of the doctrine of freedom of the seas by asserting the abundance of fisheries and the impossibility of bounding them. Alternatively, some open access regimes arise when the resource does not fall within the bounds of a State, and so is not susceptible to property-type rules that exclude access. This can explain the position of high seas fish stocks and, to an extent, straddling and highly migratory fish stocks. Other open access regimes arise from conscious political decisions to guarantee all members of society access to a resource, i.e. a positive decision to maintain open access. Thus many domestic fisheries have such a status on the grounds that they are a public resource. A last type of open access regime arises when the entity assigned formal ownership of the resource fails to effectively exclude non-owners from the resource. Although strictly speaking the regime is at least de jure property, it is in practice a de facto open access regime. This type of open access regime arises when a State nationalises a fishery resource without the financial or institutional capacity to properly regulate it.[10] In this sense illegal fishing effort and the general difficulties of monitoring and enforcing fishing regulations at sea contributes to open access type problems.[11] In practice attention needs to be given to addressing these fundamental problems.
It is important to hold in mind that although the tragedy of the commons may explain why overuse arises, it does not compel any particular response to the problem beyond controlling use. Historically, fisheries regulation has failed to address the core issue highlighted by Hardin - control of access to a resource. Because effort rather than access is controlled, fishermen are able to adjust their effort into areas not subject to limitation. For example, the introduction of closed seasons forces fishermen to intensify their efforts during the open season. Unless the technical and input regulations are comprehensive, they simply tend to distort fishing practice, rather than prevent over fishing. Even where such comprehensive regulations are in place, they tend to be incredibly complex, difficult to ascertain by users and difficult of expensive to monitor and enforce by authorities. Regulators must continually revise regulations to keep apace of innovations in fishing knowledge and technology that allow fishermen to get round existing restrictions. Indeed, commentators have noted that traditional approaches, which centralise decision-making responsibility on the State, exacerbate monitoring and enforcement problems because fishermen have no interest in adhering to fishing restriction. One way of getting round this problem is to give fishermen a real stake in the fishery and include them in the management process. This, of course, requires the development of more sophisticated management mechanisms beyond basic command and control regulations.
Drawing on the Hardin’s metaphor, two radically different alternatives have been adopted by critics of traditional regulatory approaches to fishing. The first embraces the use of private property rights in the form of individual fishing quotas (IFQs) as a solution to the problems of open access.[12] This approach has been adopted in varying degrees in the US, Canada, Iceland, Australia, and New Zealand. The second group of critics argue that IFQ, which focus purely on fishing effort, are misguided, and that what is needed is a ‘return’ to communal ownership.[13] They argue that the flexible and more nuanced principles of self-governance and cooperation inherent in communal property regimes are better suited to the complex ecological and social conditions found in most fisheries. In both cases excludability - control over access is at the heart of the matter. Both agree that unless effective constraints on access to resources are put in place then over-exploitation will arise. Thus debates about the regulation of fisheries have largely centred on the advantages and disadvantages of private property rights and alternative systems of communal or community property.
It is worth noting that the need to limit access is explicitly acknowledged by the FAO as an essential requirement of efficient and responsible fisheries management.[14] Further that this, linked to the implementation use rights and property rights, has become the norm in many terrestrial resource systems.[15] The practice of leading fishing nations and increased academic interest in property-rights based mechanisms suggest that such measures will become an increasingly common feature of fisheries regulation. However, the simple application of measures establishing excludability through property rights-based measures is not the whole issue, as the proponents of the latter approach have noted.[16]
At this point is it is necessary to make some rather brief and sweeping remarks about property and the intuition of property in order to understand how property rights are shaped and implemented and demonstrate how excludability is only part of the story. Property is a bivalent concept – that is to say it has both a private and public function. The private function is typified by the notion of exclusion – which is at heart an interagency right to control access to a thing. All property commentators regard this as an essential function of property, with private property being the absolute paradigm.[17] With excludability at the heart of property, the right holder is entitled to make critical decisions regard the possession, use, management and alienation of a thing.
The physical qualities of a resource may render it non-excludable, for example, a beam of light. Historically, marine fisheries in their natural state were regarded as incapable of ‘propertisation’ because of their ‘wild’ or unboundable qualities. Although this may now be possible through the use of quotas and other legal mechanisms, doubts have emerged as to whether or not the physical interdependency of marine resources should allow fish stocks to be subject to privatisation.[18] There is data to show that fishing impacts upon biodiversity at the genetic, species and ecosystem levels. In this sense it is a factual condition of most, if not all fisheries, that they cannot be exploited without impacting upon the wider marine environment and ecosystem[19] Ecosystem management places value on ensuring the health of the wider ecosystem and other components of the ecosystem that are not valuable components to humans and to the extent that a resource is regulated to the exclusion of such factors it is incompatible with ecosystem management.
Further limits on property on property arise from legal and moral considerations. Such limits are socially contingent and ensure the public function of property.[20] A resource may be legally non-excludable. For example, a particular resource may be largely contingent on legal excludability because physical excludability is difficult to achieve, i.e. a trademark. However, such excludability through law may in turn be absent because a person has failed to comply with the legal mechanism for creating the property right, i.e. registering a protectable interest. Resources may be incapable of ‘propertisation’ where there are powerful and compelling moral reasons for refusing to ‘propertise’ the resource.[21] Societies, through institutions such as the legislature and the judiciary, engage in a process of defining and redefining the moral limits to property to ensure that property remains consistent with more highly regarded human values. In the context of fisheries one could point to the need to secure and preserve adequate food supplies as one such moral imperative that may shape fisheries regulation. For present purposes, such moral factors are relevant only to the extent that they have been reduced to legal measures, although such moral (policy?) considerations may indicate the future content of hard legal norms.