Western legal systems have long recognised private rights to take, and even to own, fish in inland waters. The fundamental right of public access to fisheries in tidal waters is equally well established. It existed in English law prior to Magna Carta, where it went hand in hand with the doctrine of "capture", which held that there was no ownership in the swimming fish until they were captured. After Magna Carta, this public right under the common law system could be modified by legislative intervention. The public right to fish developed more slowly in continental maritime nations where legal systems were based on Roman law, but they gradually moved away from the Roman concept of absolute ownership, as nations extended their sway over the oceans. Open access and the freedom of the seas were developed as a legal principle in the 16th and 17th centuries starting with the writings of Grotius, a principle which was applied to the open ocean as well as to tidal waters within national territory. The only exception was the exclusion of foreign fishermen as between countries, but this was more designed to exclude foreigners from convenient ports and markets, than to deny them rights to the fish.[1]
Much of the rationale behind the open access principle was the belief in the inexhaustible abundance of marine resources. But the twentieth century has proved that this is no longer so. The problems of overfishing in an open-access regime were already becoming apparent nearly 100 years ago[2], and in 1911 Jens Warming stressed the dangers of overfishing.[3] This was borne out by observation of the changes in the quantity of certain ocean fishstocks between the two World Wars. Fisheries science and technology underwent many revolutionary developments, and fishing regulation commenced with the introduction of gear and season restrictions.
In the mid twentieth century, almost coinciding with the first assertion of national claims over oceanic fishery resources,[4] Scott Gordon, taking up Warming’s argument, proposed that the only solution to the problem of marine resource depletion is "private property or public (government) property, in either case subject to a unified directing power".[5] In 1968, the biologist Garret Hardin in his famous formulation of "the Tragedy of the Commons" again focused attention on the relationship between environmental degradation and the absence of rules governing the use of natural resources. This much-cited article has suffered tremendous criticism over the last few decades, due to Hardin’s apparent failure to distinguish a "common property" regime, subject to its own form of rules, from an open access situation in which no collectively accepted rules are in place or observed. It was the latter situation that Hardin classified as the "commons," in the process obscuring the historical fact that where collective ownership and access are accompanied by effective rules and institutions, "tragedy" is far from inevitable. As a consequence, Hardin’s article was interpreted for years as a confirmation of the dangerous consequences of collectively owned property, reinforcing the argument that individually owned private property was the only solution to resource overexploitation.[6]
In the last few decades, improved technology, increased demand for seafood, opening up of new fisheries and rising prices have seen the degradation and even collapse of many fisheries worldwide. Regulation has been stepped up, with solutions such as limitations on licensing and buy-back schemes designed to reduce fleet size, but such measures have had only a small impact on fishing effort. When fishermen only have rights to the fish they have caught, the increased pressure on them to catch as much as they can in a competitive situation has led to the "race for fish". Governmental attempts to regulate fishing by such means as limiting licences and permits, imposing stringent and complicated licence conditions and restricting fishing periods or areas have merely seen the emergence of more intensive fishing, overcapitalization in gear and vessels, widescale poaching and breach of licensing and reporting conditions. Licence-holders are locked in and non-holders are locked out. Size and season limits fail to regulate the overall catch. Harvest reduction is economically inefficient as it fails to reduce costs. Management by regulation is not working, and fishstocks continue to dwindle.
It is now clearly accepted that open access fishing and the absence of effective governing rules constitute an issue which cannot be ignored. The FAO Report The State of Food and Agriculture 1992 acknowledged that:
"Economic waste has reached major proportions; there has been a general increase in resource depletion, as fishing efforts have moved down the food chain; the marine environment has become increasingly degraded; conflicts have become more widespread; and the plight of the small-scale fishermen has intensified."
The Report states the solution as two-fold: fisheries should no longer be treated as free goods, but as a resource with a specific value; thus it will be valued by the resource-exploiters. This will come about as alternative systems of property rights in fisheries, including exclusive use rights, are developed.
Economists are the chief proponents of this view. They note that extensive, well-defined and well-enforced fisheries property rights promote higher production levels worldwide through the promotion of trade and capital accumulation, and they construct models to prove this. However, free fishing results in excessive fishing capitalization and effort, while the resource dwindles. It is therefore the aim, particularly in the fisheries sphere where property rights are non-existent or poorly defined, to attempt development and implementation of such rights (Arnason (2000) 14 ff.).
Following this view, the rationale for introduction of ITQs is set out in practical terms by Ackroyd & Beattie (n.d.) in relation to the Californian sea urchin fishery as follows:
An opposite view[8] argues that it is not the ownership stake of fishers that promotes care of the resource, but better technology and science, and increasing environmental regulation. It is the stick, not the carrot, that obliges industry to comply with the increasing demands of government management strategies.
Another argument takes the middle ground, and suggests that the evolution of property rights in fisheries is no more than "the development of the old system of licences, with more of the valuable characteristics added".[9] Fisheries rights were not consciously developed to create a property right; they were introduced merely to improve existing licence systems in the face of dwindling fish stocks by adding certain desirable characteristics, which thereby turned the regulatory regime into a form of property right.[10]
Cacaud, in writing of the establishment of a quota system in the octopus fisheries of Morocco, has noted that property rights systems appear to be more readily adopted in common law countries than in those following a civil law system.[11] This may be in part at least due to the differing origins and nature of the concepts of property and ownership in each of these two major legal systems. Roman law, upon which civil law systems are based, developed the concept of virtually absolute dominium, the ultimate ownership title, which can be legally protected as such and which contrasts with mere possession. Roman law does not distinguish degrees of ownership. In contrast, English law contains no such abstract. Ownership is no more than a "bundle of rights" qualified in their extent by law and the limitations of the actions which can be brought to enforce the rights. The three elements of ownership - the right of indefinite user; the right of unrestricted disposition; and the unlimited duration of the right of enjoyment - are each subject to qualification, direct or indirect. All property, whether real or personal, is held subject to the overriding rights of the sovereign (whether as reversionary landlord or ultimate legislating power). The classic definition of ownership in English law, states Pollock, can be no more than "the entirety of the powers of use and disposal allowed by law". English courts developed a hierarchy of actions over property, shading from the fully proprietary to the purely possessory. At common law, the dispute concerns who has the better seisin: at Roman law, the question is a stark yes or no to ownership.[12]
Many modern civil law systems have abandoned the absolute notion of Roman ownership. In the ninetinth century era of the creativity of civil law legal science, the autonomy of the individual was highly developed, and private property was a fundamental institution.[13] In the twentieth century, the dichotomy between state and individual became blurred by the introduction of a legally recognized intermediate level of various organizations and bodies. The nemo dat quod non habet rule applied in both English and Roman law, but many modern civil law systems have abandoned it, and a possessor can give good title to a bona fide purchaser for value.[14] The supreme rights of the individual over property and contract have been eroded - but it can be contended that the rights of the state over property vis-à-vis the rights of the individual are not as strongly assumed as in common law systems.
A considerable amount of theoretical discussion has ensued as to the meaning and nature of fisheries property rights systems. They are variously argued to be property, and something less than property. One cause of confusion is that the two terms property and rights are often used interchangeably. They may be distinguished as follows:
the term property is often confused with a tangible thing that is owned. Property, however, is not an object but a concentration of power over things and resources. This power is as secure as the duty of all others to respect the conditions that protect this concentration of power. Using a legal definition: "property is the right to dispose of a thing in every legal way, to possess it, to use it and to exclude every one else from interfering with it."
right is the capacity of the claimants to call upon others without such claims, to acknowledge their duty to honour the claim, with any violation of such a duty sanctioned by the state or by an authority. It is "a capacity... of controlling, with the assent and assistance of the state, the actions of the others."[15]
A further cause of confusion has resulted from the fact that different disciplines, notably those of economics and law, are talking different languages from the outset. Rights may be distinguished in economics and law in that:
Connor[16] submits the legal view of "property" as follows:
A far more detailed socio-legal analysis of the nature of property and its ownership is given by Harris in his recent work.[17] Property he defines as "the thing the object of an ownership interest". The creation of ownership of property rights is only necessary when there is a scarcity of resources, i.e. there are insufficient resources available for instant use by all those seeking to use or extract them. Where a scarcity occurs, allocation mechanisms are required. But these mechanisms may not necessarily be linked to property institutions, as for example in the allocation of priorities for hospital care.
There are two essentials of any property institution. The first is the set of trespassory rules, whether merely social conventions or embodied in law and supported by civil or criminal sanctions, which oblige members of society not to make use of the property without the consent of the individual or group who possesses some kind of open-ended relationship with the property.[18]
The second essential is the "ownership spectrum", which is the open-ended relationship supported and protected by the trespassory rules. There is no universal description of "ownership". The concept covers a spectrum from "mere property" to "full-blooded ownership", which is almost, though still not quite, totally unrestricted in nature. All ownership interests comprise some use-privileges and some control-powers. At the upper end of the spectrum, they include powers of transmission, but this is rarely a necessary feature of an ownership interest.
But all forms of property ownership have three features in common:
Absent all three of these qualities listed above, an interest falls short of true ownership. Quasi-ownership interests, of public officials in public agencies for example, lack the third element of self-seekingness: it is the public represented by the public agency which derives the benefit from the public official’s legal ownership, not the public official himself. And non-ownership proprietary interests lack the second element of open-endedness: their content is limited.[19] They are usually created out of an ownership interest by a specific contract or grant which confers a specific use-privilege over a thing. These limited rights are, however, protected by special trespassory rules[20] which ban any use of the resource which would frustrate the limited rights entailed by the interest. Where the contract or grant is protected by trespassory rules against the world in general, including the contractor or grantor and his successors, a non-ownership proprietary interest is created.
Such interests are commonly of three types:
Common examples of these from English law are, firstly, easements and profits à prendre; secondly, natural rights such as the right to light and the right to support; and thirdly, mortgages and charges of various kinds.
According to these proposals then, it appears that fishing property rights, lacking open-endedness because their content is limited by the statute which creates them, are less true "property" in the legal sense, than a form of non-ownership property interest, of the first type given above - something in the nature of a profit à prendre.
A quantified view of property comes from economists.[21] According to them, property rights have four essential characteristics:
Security
Security, or quality of title, is the ability of the right-holder to withstand challenges of other to the right. A fisheries right may be challenged by other individuals, by displacement or court verdict. It may be challenged by the state, which can withdraw or terminate the right in accordance with law.
Exclusivity
This is the ability to hold and manage the right without outside interference. Enforceability, the ability to enforce the right, is an important aspect of exclusivity. Other fishers may interfere with a right-holder’s ability to harvest fish in the manner he wishes. More significantly, the state by regulation, licence conditions, gear, area and seasonal restrictions etc. usually interferes to a considerable extent with a fisheries right-holder’s exclusivity.
Duration
This is the time-span of the property right, the period during which the holder may exercise powers of ownership. A fisheries right may last anywhere from a very limited period of a year or less (the time-span of an ordinary fishing licence) to perpetuity.
Transferability
This is the ability to transfer the property right to another. Fishing licences are not usually transferable. But as fishing rights acquire a measure of exclusivity, thereby becoming a scarce resource, they acquire value in themselves and the demand emerges for the power to transfer. A subset of transferability is divisibility, the ability to divide the right into smaller portions which can be transferred individually. Divisibility means rights-holders and potential transferees can tailor their holdings to their particular needs and abilities, and thereby attain optimum allocation of the resource between exclusive users.
Another subset of transferability is flexibility - the ability with which conditions on the right can be altered or relaxed to meet sudden changes in circumstances.
These characteristics are not absolute, but are present in different types of rights to varying degrees. The comparative strength of each one of them provides a measure of the quality of the rights. A strong balance of all four provides a "perfect" property right, which in reality can probably never be achieved. Property rights are limited for both technical reasons: The problems of defining and policing the rights; and social reasons: the opposition of the dispossessed, and the uncertainty and upheaval in social equilibrium that the creation of new property causes. But the more strongly each of the characteristics is manifest in a right, the stronger its property nature and the more it acquires inherent value.
It is this economic view which provides the more appropriate paradigm for the analysis of fisheries rights legislation. Other matters can also be noted in addition to the basic four, and, together, these features provide a context within which the rights can be discussed.
Ostrom and Schlager[22] classify the rights involved in the management of natural resources and their evaluation in terms of operational-level property rights and collective-choice level property rights. Operational-level rights consist of:
The rights of Management, Exclusion and Alienation are classified as collective choice level property rights.
The difference between the two levels of property rights is important because the Authorized Entrant or User can only exercise the specific rights allocated to him, without the additional right of participating in the design of future operational-level rights or of playing an active role in the management of the resources. To be involved in operational-level Withdrawal or Access rights, the Authorized User must hold at least one of the collective-choice level property rights. In this sense:
For fisheries, as for other natural resources, it is useful to refer to the various "regimes" which govern property rights in a particular setting. Lería and Van Houtte distinguish four access regimes. The first regime is more aptly described as the absence of any property rights regime, namely, open access. The other three are state property regimes, private property regimes, and common property regimes.
Open access
In an open access situation, the resources are considered as equivalent to res nullius. Open access cannot be considered a "property regime" as it lacks two essential characteristics: firstly, it lacks an authority system for establishing and enforcing norms of behaviour among participants; and secondly, no person or group holds exclusive rights over the resource. The harvesting of open access resources does not involve property rights but rather privileges[23] of access and possession.
In fisheries today, open access theoretically applies only on the high seas, beyond the limits of any state’s jurisdiction. There are many important high seas fishstocks, such as tuna, which have been overexploited due to their high economical value. In order to prevent their depletion, many international and regional instruments[24] oblige states to co-operate and regulate the fishing operations of their nationals in the waters beyond their EEZs. This intrusion of state control into the high seas can be viewed as transforming the unregulated open access situation into a regulated one where the resources are no longer res nullius but res communis omnium.[25]
State property regimes
State sovereignty is a construct of international law. Sovereignty is the right of a state to control matters and resources within its territory, and is distinguished from ownership. State sovereignty is exercised by legislating, within constitutional parameters, with regard to all matters and things within that control.
This power of control has been extended beyond the strict boundaries of state sovereign territory in respect of maritime jurisdiction. During the 1960s, as a consequence of the failure of the Geneva Conventions on the territorial sea, a number of Latin American and Caribbean countries unilaterally declared the expansion of their sovereign rights beyond the territorial sea into what they called the "patrimonial sea." The United Nations Convention on the Law of the Sea (LOSC), which entered into force in 1994, established the concept of the Exclusive Economic Zone, which derives directly from this "patrimonial sea" concept. By Articles 56 and 57 of the Convention, coastal states have "the sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living" in the EEZ, a portion of sea not exceeding 200 nautical miles from the "baseline from which the breadth of the territorial sea is measured. " These articles, fundamental parts of the Convention, entitle states to manage almost 35 percent of the world’s oceans; as a result, therefore, more than 90 percent of the potential resources of marine fisheries are now within state EEZs.
A state may, of course, exercise this sovereign right in different ways. It can choose to leave the resources available for free use, creating a situation of open access; or it can choose to exploit the resources directly through its own agencies. In addition to these two possibilities there is a more widely used and practical system, whereby the state grants licences - or profits à prendre - to individuals or groups, thus controlling access to the resources. Under this system the licensee (or Authorized User) has only the right - at operational level - of withdrawal.[26] Whether issued in respect of a person or a vessel, this right is "personal" (usually the holder of the right cannot sell or lease it) and it needs to be renewed regularly, usually each year. Due to the large numbers of competing Users in each fishery the right does not give the fisher any security over his future harvest, and for this reason he tends to harvest as much as he can and as fast as he can: the "race for fish". The natural consequence of this system is the overexploitation of resources and the overcapitalization of the sector, a consequence with which states have tried to cope with different input and effort controls, such as restrictions on the granting of licences, gear restrictions and limitations, technical, area and seasonal restrictions, or limits on the total harvest, often in the form of a total allowable catch (TAC).[27] These efforts, while they may have limited overexploitation, have at the same time increased the "race for fish" and consequent overcapitalization. Hence the search for alternatives.
Private property regimes (or individual property rights)
Private property regimes in fisheries are best exemplified by the Individual Transferable Quota (ITQ) system, a system proposed as early as 1973 by Francis Christy.[28] Under this system, a proportion of the TAC is assigned to an individual or a group. This gives the Authorized User an exclusive right to harvest a part of the annual yield of fish. The individual does not have a property in the resource, but has an exclusive right to harvest. Hence when the quota is rented, sold or mortgaged, the subject of these transactions is not a tangible object but a right of usufruct.[29] In its purest form this system gives the Authorized User permanent exclusivity to the harvest of the quota, with the right to manage this authorization, and to divide, sell, lease or mortgage i.e. it gives collective choice property rights (to refer again to Ostrom and Schlager’s terminology).
It must be emphasized that in none of the countries that have adopted quota systems does a "pure" property right system exist. Instead, national legislation has usually limited the right to sell, lease, divide or mortgage the quota, as well as limiting the duration of the exclusive usufruct. Theoretically, the exclusive and stable possession of the quota can resolve the problem of overcapitalization because the Authorized User can decide when and where to assert his rights to harvest without the problem that someone else will catch his quota, so he has far less reason to "race for fish." The fishing property right evolved from the licensing system and as in that system, the state continues to play a dominant role in the establishment of the national TAC, in the management of the resources and in control of users through the imposition of penalties for transgressors. Furthermore, in most fishing property right systems adopted to date, allocation has been free of charge and based upon historical participation in the industry, or other characteristics such as vessel capacity, gear characteristics (or a combination of these) and so on. Usually, the quota allocated is a percentage of the national TAC but it can also be denominated on the basis of weight, as in the original design of New Zealand’s ITQ system.
Common property regimes
The final form of property regime found in fisheries is the common property regime. This type of regime is important in a number of parts of the world, particularly in Pacific Island states, in Japan, Indonesia and also in some cases in Europe and North America. In a common property regime, a local community rather than an individual holds the exclusive right to harvest in a particular geographical area. These exclusive rights can take different forms such as rights to harvest a particular stock, to fish in a particular area, or to use a certain kind of gear or vessel. The management of the resource is carried out by the community, which assumes some measure of control, including monitoring and surveillance functions, and devises the individual rights to withdrawal and access. This means the community as a whole has collective-choice property rights to varying degrees.
The relationship between the community and the state is an important one. Usually, the state retains the overall power to devise regulations such as the establishment of the national TAC, whereas the local community devises the local rules that must be respected by the individual members of the community in the use and maintenance of the common resources. Cooperation between the national level and local level is a key to achieving sustainable development of the fishing industry, and a lack of enforcement on one or both of the levels could cause a reversion to an open access situation.
A wider analysis
Drawing on previous literature, Taylor-Moore[30] expands these four regimes into six, namely:
Within these regimes, both fishers and other interested parties exercise various generic rights:
Most writers, managers, economists and policy-makers agree that the granting of property rights in fisheries to the private sector will bring with it increased involvement in maintaining the resource. But the social scientists[31] dispute this, seeing the argument for increased property rights in fisheries as an economic rationalization that works against the interests of disadvantaged groups. By placing a value on fisheries rights, and allowing transferability which increases that value when they are freely traded, fishing rights become increasingly concentrated in the hands of the few, not necessarily fishers themselves, but rather the "armchair fishers" who are able to afford them. his works against the interests of workers in and prospective new entrants into the fishery: the actual fishers when they are not owner-operators, the crew-members who are attempting to progress up through the hierarchy, and the small-scale artisanal and traditional fishers - all of whom are already disadvantaged by the effects of modernization and the free-market economy. But it appears that the introduction of property rights in fisheries accelerates the process.
The social responsibilities of states are set out in Article 6 of the FAO Code of Conduct for Responsible Fisheries, and in particular:
6.1 States and users of living aquatic resources should conserve aquatic ecosystems. The right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective conservation and management of the living aquatic resources.
6.2 Fisheries management should promote the maintenance of the quality, diversity and availability of fisheries resources in sufficient quantities for present and future generations in the context of food security, poverty alleviation and sustainable development...
6.18 Recognizing the important contributions of artisanal and small-scale fisheries to employment, income and food security, States should appropriately protect the rights of fishers and fishworkers, particularly those engaged in subsistence, small-scale and artisanal fisheries, to a secure and just livelihood, as well as preferential access, where appropriate, to traditional fishing grounds and resources in the waters under their national jurisdiction.
There is probably little doubt that the goals of conservation and sustainability of resources are well served by the fleet reduction, industry involvement and management that a fisheries rights system brings.[32] However, this may come at a cost to the social interests of present and future generations and of those engaged in traditional, artisanal and small-scale fisheries. Symes views the social obligations imposed by Article 6 as requiring attention to:
These social obligations can probably be well served by comprehensive community or group quota schemes. Left largely to themselves, traditional or local communities are usually well-able to conduct their internal affairs in a manner which benefits them and their resources, although their methods may not be those of the large-enterprise fishing industry. The introduction of community regimes in some Lake Winnipeg fisheries saw a change from a small number of large boats to a larger number of much smaller boats, thereby creating a situation of greater community equity and social justice.[33] Even where there are no traditional fishing communities involved in fishing, rights-holders are tending towards groupings, both formal and informal, which work together with government for their common purpose.
A fisheries rights system may also do little to conserve the wider aquatic environment, being concerned only, or mainly, with the specific fisheries resource for which it was established. Indeed, an ecosystem-based approach to fisheries management has yet to be worked out, and will apparently require much greater investigation and regulation in matters such as extent of fishing effort, gear restrictions, the parameters of precautionary measures, the setting of TACs, etc. If this is so, then the future may see greater, rather than less, government involvement in fisheries regulation, and the trend towards increased security for rights-holders may be reversed.
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[1] Scott (2000b) p.
106. [2] Gislason (2000b) notes this in the Pacific halibut fishery, p. 383. [3] Property Rights in a Social and Ecological Context: Case Studies and Design Applications. [4] Particularly the 1952 Declaration of Santiago, whereby Chile, Ecuador and Peru proclaimed their exclusive sovereignty and jurisdiction over a maritime zone of flat 200 nautical miles including the fish, the subjacent soil and subsoil. [5] Gordon (1954). As did later Hardin, Gordon also used the term common property instead of open access. [6] This and several other paragraphs in this Part have been adapted from Lería & Van Houtte (2000). [7] This may be so for sedentary species which are hand-harvested, but it ignores the problems of bycatch discards in other types of fisheries. [8] Jensen (2000) p. 47. [9] Scott (2000a) p. 1. [10] This argument however overlooks the fundamental shift created by the establishment of quota rights from input controls to output controls. [11] Cacaud (2000) footnote 10. [12] Buckland & McNair (1952) pp. 60 ff. [13] Merryman (1969) 69, pp. 100-105. [14] Buckland & McNair (1952) p. 77. [15] Black’s Law Dictionary. [16] Connor (2000). [17] Harris (1996). [18] These property-specific rules must be distinguished from property-independent prohibitions, which may relate to property but are universally applied throughout the social unit and do not specifically protect the interests of any particular group or individual. [19] As, for example, the interest in an easement falls short of a true estate in land. [20] The range of protection specifically includes successive owners. [21] For detailed discussion and modelling see Scott (2000b) pp. 109 ff. and Arnason (2000). [22] Ostrom and Schlager (1992). [23] "A particular and peculiar benefit or advantage enjoyed by a person, company or class, beyond the common advantages of other citizens": Black’s Law Dictionary. [24] See in general the UN Fish Stocks Agreement, the FAO Compliance Agreement, and numerous regional fisheries agreements. In addition, a number of non binding instruments encourage states to cooperate on these matters. See, for example, the Code of Conduct for Responsible Fisheries, the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated Fishing, and the Plan of Implementation adopted at WSSD, Johannesburg. [25] High seas fishery resources can now be considered as international property, belonging to all. [26] By fishing or harvesting. [27] Logically, a TAC is applied to an entire fishstock, whether or not it is contained within the boundaries of a single state’s waters. Where the stock is straddling or migratory, states draw up national TACs, with varying degrees of cooperation and communication with other states involved. [28] See Grafton (1996). [29] In civil law, "the right of enjoying a thing, the property of which is vested in another, and to draw from it all the profit, utility, and advantage which it may produce, provided it be without altering the substance of the thing": Black’s Law Dictionary, Fifth Edition. [30] Taylor-Moore (2000) p. 72. [31] This discussion of the way forward indicated by the FAO Code of Conduct for Responsible Fisheries is derived from Symes (2000a). [32] Although this may not be entirely true in fisheries with a high volume of bycatch and undersize discards. [33] Gisalson (2000) pp. 124 and 125. |
