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A. Common Property

The condition of common property has characterized the use of most marine fisheries throughout the world for several centuries. This condition and its consequences have been fully discussed in numerous studies (e.g., Gordon 1954, Scott 1955, Christy and Scott 1965). Briefly, common property resources are those to which access is both free and open to a set of users or potential users. The set may be made up of fishermen from any country, such as on the high seas; fishermen from any particular country within its EEZ; or fishermen from any particular community. If the country, province, or community does not control access to a fishery, even though it may have the right to do so, the condition of common property exists.

Distinctions should be made between the term common property and such terms as community property, commonly owned property, public property, and the “commons”. Common property, as herein defined, relates specifically to the conditions governing access to the resource, not to the nature of the owners or the nature of those who exercise jurisdiction or control over the resource (Christy, 1975 at 697). It should be noted that there is some disagreement over this definition. For example, it has been defined as “a distribution of property rights in resources in which a number of owners are co-equal in their rights to use the resource” (Ciriacy-Wantrup and Bishop, 1975, italics theirs). This definition, however, begs the question because it removes the condition of free and open access.

Several significant consequences result from the condition of common property. First, there is a tendency to waste the resource physically. No individual fisherman has an incentive to restrain his catch in the interest of future returns, for anything he leaves in the sea for tomorrow will be taken by others today. Thus, fishery stocks tend to be used at, and frequently beyond, the point of maximum sustainable yield.

A second consequence is economic waste. In the absence of controls on capital and labour, there will tend to be too much effort spent on too few fish. In over-utilized fisheries, the same, or even larger, amounts of fish can be taken with fewer fishermen and vessels than are actually employed. This means that the same, or greater, total revenues could be produced with lower total costs.

The difference between total revenues and total costs that would occur if access to the fishery were controlled, or the common property condition were removed, is an “economic rent”. This is analogous (in somewhat over-simplified terms) to the rent that accrues to the owners of farm land, which they can extract by selling or leasing their exclusive right to the use of the resource.

In common property fisheries, this rent is dissipated because whenever it occurs (as in a newly developing fishery or with an increase in price for the product) it produces a surplus profit to the fishermen. Since access is free and open, the surplus profit will attract more fishermen (assuming there is mobility of labour). But the new fishermen will increase total costs without increasing total revenues (at least to the same amount). Only when total costs reach total revenues will the new entry stop. But at this point the rent will be dissipated.

The significance of this is that a TURF, if effective, will prevent the dissipation of rent from taking place and will produce a value associated with the resource itself. As discussed below, the amount of this value, or rent, is a measure of the effectiveness of the TURF in achieving economic objectives, even if the rent is expressed in non-monetary terms.

A related consequence is that average incomes of small-scale fishermen in developing countries tend to be at, or close to, the bottom of the scale. The common property condition is not the only cause of this consequence. There are other cultural, social and economic factors involved and the problems are complex and not readily understood. But the common property condition is certainly a contributory factor. If the condition were removed, and economic rents were produced, they could be shared among the fishermen so as to increase average incomes. This, however, would require a means for sharing that might be quite difficult to impose and enforce.

A fourth significant consequence of common property is conflict. This occurs in the form of congestion among fishermen using the same resource with the same gear. It occurs between fishermen using different gear for the same resource, typically between large and small-scale fishermen. Or it occurs between fishermen using different kinds of gear for different stocks but in the same space, as between mobile trawlers and fixed nets or pots.

In essence the consequences of free and open access are generally quite damaging. The only possibly positive result is that common property fisheries may offer employment opportunities in situations where alternative opportunities are scarce or non-existent. But this is a short-term benefit which, in the long run (when alternative opportunities improve) may be outweighed by the other damages.

B. Territorial Use Rights in Fisheries

A territorial use right in fisheries can remove, to a greater or lesser extent, the condition of common property. It is important to emphasize that this can only be done to a certain degree in the marine environment and that TURFs provide for relative rather than absolute controls. For example, an exclusive use right can be attached to a site for a raft for the culture of molluscs. But the value of the right will be affected by the flow of nutrients (and pollutants) through the site - a flow over which the holder of the rights has no, or only limited, control. The common property condition remains with regard to the flow of nutrients (and pollutants). Thus there is no clear-cut distinction between common property and TURFs.

In addition, there is no clear-cut distinction between generalized and localized TURFs, and yet it is the latter that is of primary interest for economically or socially desirable fisheries management, particularly with regard to questions of equity. At one extreme, an extended economic zone can be a form of TURF, in that fishery use rights can be controlled within the territory represented by the zone. At the other extreme, the owner of an oyster bed has a right to control use over a much more limited territory.

Distinctions between common property and TURFs and between generalized and localized TURFs have to do with the size and nature of the territory, the kinds of use rights that can be exercised, and the specificity of the ownership. These various definitional elements are discussed below.

The territory governed by a TURF can relate to the surface, the bottom, or to the entire water column within a specific area. The size of the territory will vary with the use, the resources being harvested and the geographical characteristics. It should be sufficient in size, however, so that use outside of the territory does not significantly diminish the value of use within. The territory should be readily defensible and protected by the laws and institutions of the country. The boundaries of the territory should, therefore, be clearly demarcated and identifiable.

These elements of the definition do not necessarily mean that the territory must fully enclose the whole stock of fish throughout its migratory movements. A TURF is not so much resource specific as it is site specific. For example, a site in which a fish aggregation device is placed, may provide the basis for an effective TURF even if it covers an area of only a few square miles for a stock that swims through thousands of square miles. Similarly, beach seine rights may provide the basis for effective TURFs even though they are used for pelagic stocks migrating along the coast. The significant element is not the degree of enclosure of the stock, but the degree to which there is a value associated with the territory. For stocks that migrate through individual TURFs, the value of an individual right will clearly be affected by the degree of “upstream” use. At the extreme, a barricade that captures all fish moving along a coast will reduce to zero the value of a right further down the coast. But in most cases, the movement of the fish will not be fully interrupted, and downstream TURFs will still have some value. Individual values can be enhanced by agreement amongst TURF owners with regard to amount of catch, spacing of fishing devices, and other means.

The problems of determining the content of rights that are, or should be, exercised within a TURF are complex, and even more difficult than those of determining the content of property rights on land. Property has been said to be “a constellation of highly complex adjustments of entitlements and expectations” (Carmichael 1975). Variations in these entitlements and expectations with regard to land include, among others: the right to transfer or convey ownership of the land; the right to lease the land; the right to extract benefits; the right to be free of nuisance, such as the pollutants produced by a neighbour; the right to control future use through covenants; or the right to grant easements for special uses.

Concepts of property in the sea are much less advanced and more difficult to conceive because of the three dimensional nature of the sea and the fluidity of the medium and its resources. There are also difficulties of generalization because of different cultural attitudes towards property in different societies.

However, at this preliminary stage in the development of understanding of TURFs, it can be postulated that certain kinds of rights need to be exercised if TURFs are to be effective. One of these rights is the right of exclusion; that is, the right to limit or control access to the territory. A second right that needs to be exercised is that of determining the amount and kind of use within the territory. A third is the right to extract benefits from the use of the resources within the territory. These benefits can, but do not necessarily have to be, extracted through the imposition of user fees or taxes or the lease or sale of the rights. They can also be extracted in the form of profits to the owner - whether these profits be defined as to returns to labour and capital or in non-monetary terms such as larger or more satisfying employment opportunities.

Finally, the rights should include a right to future returns from the use of the territory. The length of tenure may vary but should at least be sufficient to allow the owner to capture a satisfactory return on any capital investments he has made. In the case of a community owned TURF, the tenure may be in perpetuity.

This discussion of the rights that distinguish TURFs from common property proceeds from an economic point of view. That is, the rights that are mentioned are those that are considered necessary to achieve economic efficiency. The author is fully aware that the discussion may be legally faulty and has deficiencies but hopes that the faults and deficiencies will provoke legal scholars to address the problems of providing property rights to the users of marine fisheries.

There is no readily apparent distinction between localized and generalized TURFs in terms of the content of the rights. The extension of national jurisdiction generally provides individual countries with the right of exclusion, the right to determine amounts and kinds of use, and the right to extract benefits. Although the Third UN Convention on the Law of the Sea (to be signed in the near future) partially restricts some of these rights, it does not significantly diminish them. Countries can exercise these rights by extracting revenues from foreign fishermen or by limiting the access of their domestic fishermen. To the extent they do so, they are exercising the rights associated with a TURF, as described above. Localization of a TURF depends more upon the size of the territory and the specificity of the ownership than upon the content of the rights.

The question of the nature of the owner of a TURF is in part a matter of effectiveness and in part a matter of equity. First, it should be re-iterated that the discussion does not assume ownership of the resource but ownership of a right of use. This makes unnecessary the intractable task of defining the resource. Does it include only a particular stock, or does it include the prey on which the stock feeds, control of the predators, the nutrients which support the stock, the medium in which the stock swims, etc.?

The owner of a TURF can be a private individual; a private individual enterprise; a group of individuals such as a cooperative, an association or a community; a political subdivision such as a town or a province; a national government; or even, conceivably, a multinational agency. In addition, owners of individual TURFs can create a form of cooperative ownership in which individual rights are constrained by joint decisions. For example, owners of raft culture sites may find it mutually advantageous to agree to joint decisions on the number and size of rafts that can be placed in any one site.

Generally, the effectiveness of a TURF will be greatest where the specificity of the ownership is the highest. Individuals can usually make decisions more easily than groups of individuals.

However, with regard to the objective of improving the welfare of small-scale fishing communities, ownership of use rights by private individuals could well be damaging. In these cases, some form of communal ownership of a TURF will be desirable.

As can be seen, it is difficult to provide a clear-cut definition of a localized territorial use right in fisheries. An effective localized TURF generally refers to a relatively small and clearly distinguishable territory; provides rights of exclusion and determination of kind and amount of use and rights to extract benefits; and is relatively specific in its ownership. An effective TURF is one in which use outside of the territory does not significantly diminish the value of use within the territory. As such, effectiveness can be measured in terms of the value associated with the use right. This value will be reflected in the amount that potential owners would be willing to pay to acquire the TURF. In the case of communal TURFs held in perpetuity, the value of the TURF can only be approximated in economic terms and may have significantly greater importance to the welfare of the community than can be measured in economic terms.

There are several advantages likely to be associated with localized TURFs. Although these potential advantages need to be tested and to be studied in more detail, it is presumed that they will permit more economically efficient use of the resources and that they may provide important opportunities for improving the welfare of small-scale fishing communities. The owner of a TURF can limit the inputs of capital and labour at the point where the greatest net benefits are produced. This could be at the point where net economic revenues are maximized, but it could also be at the point where social objectives are maximized (such as maximum employment at satisfactory levels of income). One of the chief likely benefits of a localized TURF is the right to determine the objectives to be sought from the use of the territory.

An additional likely advantage is that a localized TURF provides both the opportunity and the incentive to manage the resources within the territory. Since the owner of a TURF (individual or community) has an exclusive right to future products, it will be in his (or its) interest to ensure the flow of future products. This would facilitate the imposition of management measures as well as the task of enforcement. It can be noted that the most effective form of enforcement occurs where it is in the self interest of the user to comply with the rules.

The major, and fundamental, problem is that the establishment of localized TURFs may require re-distribution of wealth. The provision of exclusive rights means that some present users of the territory are likely to be excluded. Although this may be socially and economically desirable it may also be politically difficult.

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