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RIGHTS-BASED FISHERIES MANAGEMENT - GENERAL PERSPECTIVES


Moving through the Narrows: from Open Access to ITQs and Self-government - A. Scott
Common Property Rights: An Alternative to ITQs - F. T. Christy

Moving through the Narrows: from Open Access to ITQs and Self-government - A. Scott

Department of Economics, University of British Columbia
Vancouver, B.C., Canada V6T 1Z1
<adscott@interchange.ubc.ca>

1. INTRODUCTION

I am honoured to have been invited to lead off the speeches for the next three days. It was an excellent idea for the FAO and Fisheries Western Australia, along with ICLARM, the Commonwealth, South Australia, New Zealand, Canada, Iceland and South Africa to have sponsored and organized a conference to explore national experiences in the formulation and implementation of rights-based fisheries management. The arrangements they have made for the formal and the informal parts of the conference are very promising.

It is gratifying that the first descriptions of the potential of rights-based fishing, only about 25 years ago, were not altogether wrong. While Iceland and New Zealand were actually putting quota rights schemes into effect, as a kind of regulation, academic and other prophets were debating how they might stack up as a new variety of property right. When I say gratifying, I refer to the more or less continuous emergence of the realm within which quotas are taken for granted.

But this rapid adoption of a rights-based approach has been typical of the speed at which the management of fisheries has been altered. For centuries ideas did not change. Four hundred years ago Grotius declared that offshore fisheries were inexhaustible and needed no ownership nor management, and none disagreed with him. Three hundred years later that view was repeated by Huxley, speaking of much the same fisheries.

It is true that at that time, in the mid-19th century, some jurisdictions did already have laws in place to protect a fishery or to keep it for themselves. And, it seems, many of the traditional systems of control over aboriginal fisheries were already thriving (although the sources I have consulted do not follow “tradition” far into the past (see Ostrom et al. 1988). In any event, among the western countries, Huxley’s hopeful words were soon being ignored. Biologically-rationalised regulatory regimes were being set up within and between western countries. There was no more talk of inexhaustibility. There had been in the 1920s and 1930s a cascade of regulatory innovations, offshore, inshore and in the shallows, interrupted by the world wars.

These were followed in the 1960s with individual trap limits, fixed-net licences, and offshore-limited licensing. These salt-water systems were the forerunners of the arrangements to which no one dared to attached such labels as “private property.” Roughly speaking, from 1600 to 1900, those who thought at all about the public right of fishing and the freedom of the seas felt secure in taking no action to conserve the fisheries of the high seas. But in less than the century since 1900, all that has changed. First there came intense regulation, then quasi-exclusive rights, then the present variety of property rights over the catch and, soon perhaps, over the fish.

In what follows I will deal with the evolution of regulation, then turn to the kinds of property right that were fitted into the various regulatory systems. This will be followed by a discussion of the characteristics that turn a permissive piece of paper into a deed of property. The kind of property right I talk about will be the emerging ITQ, and what we might expect to follow in the rapidly changing word of fishery protection and husbandry.

When ITQs were introduced twenty years ago, those who were interested knew the historical background in their own countries, and there was not yet much information about the newly-introduced systems, except the way they were being introduced: the transition as it were. Today many people do not know much about the eras of open access. They are familiar, mostly, with a world of limited licensing or similar limitation and exclusivity. To put this into a historical context; to project that context into the future; and to survey how ITQs are working now that the transitional period is past, takes much time and paper.

Luckily this presentation is followed by that of my colleague Francis Christy, a pioneer of the idea of right-based fishing, whose paper will put some of my material into a better focus. For the most part however, he will remind you that there are others kinds of property in the ocean fishery than ITQs, such as TURFs, and will be discussing them. We will be followed, today and tomorrow by other speakers who will give a clearer view of slices of the large canvas on which I will be sketching.

2. SOME EARLY HISTORY

2.1 Why regulate?

Ever more rapidly we are learning about the diversity, and also the similarities, of fishery management regimes as they occur in different places. We can see groupings of approaches to management by communities or governments. For the most part we realize that the groupings result because the law-makers in one country have copied the laws and rules in another. And each original fishery rule or law was tacked onto local law, perhaps on quite different subjects. But because, as far as I know, no-one has yet been inspired to trace these groupings back to their common feudal, customary, or legal origins, we cannot yet explain why some systems of management have their particular patterns. The danger is that, because we cannot explain how they got there, we will not know all about the good, or harm, we may do by changing them.

In the case of those modern regimes that have emerged from medieval Europe and the English common law, we can see back to about the time of Magna Carta, in 1215. We know that the fisheries in salt water were unimportant relative to those in ponds, rivers and lakes or in the estuaries of a few of the larger rivers. We guess that most fish were taken with fixed gear of some kind, with weirs and kiddles1 in the rivers and with traps playing a large part close inshore. Not surprisingly, therefore, the laws and rules governing fishing largely dealt with extensions of property law on land. Some kinds of fishing were entirely within one feudal manor and customs appeared saying who should have access to the fishery. Some were on larger rivers and questions arose about one lord interfering with the fishing rights of another. Customs and laws arose to deal with these conflicts.

1 A dam, weir or barrier having an opening in it for catching fish.
When the time came to make a decision about fisheries in salt water, as it did under King John in 1215, we find that the issue was not inshore or ocean fishing, but in a tidal river. Like the earlier land-based fishing questions, it concerned blocking the river against navigation just as much as setting traps or kiddles. It concerned a new application of property law: who, the king or the nobles, might issue permits for fishermen to set their traps in the main tidal rivers? The king and his rebellious barons could not agree on this question, but to keep on their good side he undertook not to grant more rights to set these traps. As a result, as time went on, there were fewer and fewer such rights outstanding. The public acted as though an informal public right of fishing (supposed to have existed under the Saxon kings before the Normans) had been reinstated. Indeed, within a century, the courts were beginning to confirm that private rights in the ocean could no longer be created and granted, and soon after that the common law courts recognised a general public right of fishing in tidal waters.

At the same time, that part of ordinary property law referred to as the “law of capture” governing wild animals, freshwater and ground water, was also applied to ocean fisheries. It resulted in the doctrine that no one could own the swimming fish until they had been caught i.e. taken into possession. These two doctrines were important for the public. But they were not derived from, and they did not contribute to the husbandry of the fishstocks, with the possible exception that a person who prevented the free passage of fish into and upstream a river was liable to be sued.

I have not been able to discover when or why France and Spain and the other continental maritime nations, having property rights based on Roman law, also in their own ways, developed a public right of fishing. They were slow to do so and certainly they never had a great event like Magna Carta to mark the transition. Indeed for centuries great nobles with land rights along the coast and over the port towns, also claimed rights over the adjacent ocean fishery. But, how far to sea?

The monographs on the law of the sea do say that the heads of the great European states began to recognise that their sovereignty was limited to a so-called territorial sea, later the three-mile limit. But the writers are vague about the extent of the rights of the coastal landowners. By the end of the 17th century such rights were on the wane, although there were still countries where some great nobles claimed exclusive rights far to sea. Probably they were unable to enforce them, except in the ports. With this long transition and uncertainty, little attention could be given to managing the fishstocks either off the British or the European shores.

For centuries there were few changes in the rules of individual access to ocean waters and to the fish therein. Most of the changes were, in the 17th century, new ideas in the law of nations - changes that led to the doctrine of the freedom of the seas.

It is noteworthy that, in the rigorous debate about the freedom of the seas, all parties seem to have agreed that fish stocks were inexhaustible. The same belief showed up when various pressure groups lobbied their governments to exclude “foreigners” from “their” fisheries. Their motive, it seems, was not that there were not enough fish for everyone. It was to deny the foreigners the rights of access to a nearby market, or to landing rights on a stretch of coast where fish might be dried or salted, or boats repaired and wintered. (See Cushing 1988 p. 88). In brief, apart from sturgeon, whales, salmon, dolphins and other extremely vulnerable species, the fish stocks of the ocean were regarded, complacently, as incapable of being over-fished. Thus, there was no need to manage the fishery.

2.2 Why fishing rights were not created

In the long period just considered, new common law property rights arose in the courts rather than in the legislature. When, for example, disputes arose about who owned some land or water, the parties would enter into litigation. Typically, the decision, recorded and cited repeatedly affected the interpretation of the existing doctrine, and contributed to a gradual and steady revision of the property-law branch of the common law. To revise the law of property is, substantially, to change the content of a person’s interest in land. In the common law world this was happening continuously in connection with farm land, miners’ rights, and so on.

But there had “never” been, at least since about 1300, property rights in sea fish. There was no occasion for litigation about rights, because neither party could suffer from a “trespass.” Neither could there be a parcel of oceanic property to suffer a “nuisance” (another frequent source of lawsuits regarding land). Thus, as no body of case law accumulated, fishery property rights were neither defined nor changed until 19th century legislatures took a hand.

2.3 The coming of regulation in the 19th and 20th centuries

This complacency about the offshore fishstocks continued well into the 19th century. There had been few events to disturb the industry. True, in Europe the industry had long been aware of large-scale shifts in the location of herring, and perhaps other species. And there were worries about the impacts of more efficient (sail) trawlers and seiners (Cushing 1988). But the general belief was that in the northeast and northwest Atlantic the offshore fishstocks were resilient and their yields unaffected by fishing. For example, in the 1890s and 1900s, to write about fish preservation and conservation was exclusively taken to refer to canning, salting and pickling.

In the 1880s and 1890s, fishermen grumbled that on certain grounds, full-sized fish were becoming hard to find and their grumbles coincided with the coming of the steam-powered Danish or otter trawler, in the 1890s. The ability of these gears to scrape the bottom to great depths soon converted many to the view that the NE Atlantic, at any rate, was not inexhaustible. This possibility was officially recognised in Britain in 1893. But fishermen could still get a full net if they tried long enough, evidence of exactly what was happening was not available, and the authorities had little experience or notion about what to do.

It was not until the end of the great war that governments and industry began to understand that many of the world's fisheries were already being "over-fished". During the war, European fishing had almost stopped. When it began again there was a striking increase in the catch. Here was the evidence that scientists needed and it was confirmed by new studies of the Pacific halibut. Between the first and second world wars, fisheries science came of age, and with it some quantitative understanding of the rationale for regulation and closure. By some, a fishstock was being likened to a herd of livestock: heavy harvesting effort depleted the stock and changed its average age and size.

Such comparisons with farm livestock herds supported champions of two kinds of regulation: of gear and of open seasons. Although no historian has yet tried to assess how widespread fishing gear regulation actually was, it seems to have been adopted in many countries, in dozens of forms, ranging from control of the minimum mesh of nets to restrictions on the size or power of the vessel, though it was true some of these were merely designed to exclude rival groups of "outsiders". Others were more science-based, designed to save younger fish to allow them to grow to a more valuable size.

The second regulation, of seasonal openings and closings, was apparently borrowed from widespread "seasons" for sport fishing, shellfisheries, and game hunting. These familiar rules were aspects of fishery management that many politicians could understand. Soon, biologists were being challenged to provide estimates of the TAC for each fishstock, and closures were being proposed, and perhaps implemented, to keep the catches down to that amount.

There were two problems. First, the governments were not equipped to enforce either kind of regulation, or to monitor their effectiveness. Second, many of the offshore fishstocks for which regulation was proposed were outside, or straddled, national maritime borders. Solving both problems was impossible without international agreements. The first world war delayed these agreements in the North Sea and the Sound, and in the northeast Pacific and not till the 1930s had many European or North American governments imposed offshore regulations.

After the second world war, each country's fishing industry expanded, with larger, faster and cheaper vessels; wider markets; new gear types; distant-water fishing; and the outward extension of fishing limits to 12, then 50, then 200 miles. The need for regulation became clearer, the marine experts had some science on which to base it, and the means of enforcement, both by licensing and by surveillance, became available. This is the modern fishing world with which we are all familiar.

3. BIOLOGICAL AND ECONOMIC EVILS: THE CONTINUATION OF OPEN ACCESS

It is not clear what kinds of regulation most of the worlds’ fishing vessels were subject to, but it is clear that the number of vessels, and the effort to which they were exposing the fishstocks, were increasing rapidly. In the 1960s Francis Christy estimated that the world catch, especially those of clupeoids, would soon top out at 70 million t/year. But this number soon looked modest.

This fishing explosion can be seen from two aspects. First, all the stocks were reduced, their size and age structure changed, and their survival, in some cases, endangered. Second, the degree of competition between vessels for the catch greatly increased. This meant that fishing costs spiralled upward as vessels raced each other to find the fish, catch them and deliver them to ports. Soon, ports were being moved toward the fishing ground.

How then did the new kinds of regulation affect these two results of expanded fishing? As far as stock reduction is concerned, the results were not too promising. The new measures did work in the right direction. But they were soon overwhelmed by expanded entry and fishing effort. As far as rising fishing costs are concerned, the results were not even promising.

Owners acted as though the new closure regulations, designed to reduce fishing mortality, were a challenge to be overcome by new strategies. Their new strategies were effective - vessels were given more power and more storage space so that every seasonal opening became like the opening of a marathon, until the closure was called. Seasons became shorter, inducing each owner to invest still more in the capital goods that would enable them to lead the pack when the season was opened.

This was pretty evident by the mid-70s. As I wrote later, in 1979: “Overfishing” regulations that reduce one component of fishing effort induce further controls to suppress increases in other components. Also, because it is becoming obvious that the setting of an overall quota [TAC] encourages private investment to outwit or anticipate competitors, rather than to attempt to increase the quality, value or amount of the catch, administrators are tempted to regulate or forbid these investments as well.” (Scott 1979 p. 728)

4. LIMITED LICENSING AND ITS EFFECTS

4.1 Limited licensing as a right of entry

As with other topics in this review, I have been unable to find a good chronology of the introduction of limited licensing. In Canada it was being phased in under new legislation in the 1960s and maybe other jurisdictions had started earlier.(Wilen 1989 p. 250) Today limited licensing is widespread, especially, I believe, where fishstocks are migratory or straddle jurisdictional boundaries.

It was perceived that gear limitations and closures were inadequate to deal with the problems mentioned. Therefore there was a search for a system that would reduce the amount of effort (rather than limit its form and timing). The answer seemed to be to reduce the number of vessels, and this was done by focussing on the licence. Previously the licence in itself had played no part in regulation, as a driver’s licence is not important for dealing with traffic congestion. The innovation was to re-interpret the licence as a kind of ticket of entry. Every vessel had to have one.

4.2 Transition by grandfathering

Seen in retrospect, a limited-licensing regime was not very different from what had preceded it. But the transition caused a great deal of upset, so different did it seem from free and open access. It was introduced when there was already over-fishing. To be sold politically as a system that would benefit already hard-pressed fishermen, the new scheme had to be based on the existing fleet and their crews. It was infeasible to start all over again, perhaps allocating a limited number of licences by a lottery, by tendering bids, or by an open auction sale. True, there was sometimes a reservation of a number of licences to be held for particular classes: foreigners, or aborigines, or owners of particular kinds of vessel or gear, and so on. Apart from these reservations, the new licenses were simply handed out to those who claimed to have recently been fishing. This was the now-familiar “grandfathering” approach.

4.3 Getting to the right number of licences

Limited licensing puts no limit on a vessel’s catch (apart from that already imposed by existing gear and closure regulations). So, by itself, it could not bring the fleets’ catch down to the TAC. So the governments had to think of supplements to limit licensing. They came up with quite a variety. One was to do nothing, allowing fisherman retirement or death to gradually reduce the number of licences. A second was to make the licences transferable, allow a market to develop, and buy some back at the market, or at a “fair” price. A third way was to buy back some vessels, with the licences attached.

4.4 Success?

Limited licensing has not been a great success. For one thing, fleet sizes were rarely reduced to the “right” level. When these schemes were still being discussed, fishermen made sure they would be eligible, so that in the transition period the number of active vessels actually increased. In the early months of buy-back schemes, the prices of the remaining licences increased. Naturally, the remaining fishermen began to speculate on how high the increases would go. As a result most vessel owners held on, refusing to sell at the “fair” offer prices.

The schemes did not reinforce the regulations in place for other reasons. Fish stocks were subject to increasing fishing effort exerted by a slowly-decreasing number of vessels. The catches increasingly consisted of young fish. Neither total catch nor catch-per-unit-effort increased significantly.

Third, the cost of fishing continued to increase. The remaining vessels had still to compete with each other for the catch. The open periods continued to shorten and the gear regulations continued to increase the time and equipment needed to fill up a vessel. To these private costs must be added the increasing public costs of enforcing the TAC.

4.5 Significance

In spite of this near-failure to accomplish what was hoped for it, limited licensing had very significant features, some accidental and some by design, that prepared the regulators and the fishermen for what was to come next.

It created a sort of marriage between the fleet and the stock. In large and offshore fisheries, a group of vessels and their owners were directly associated with a single species, or stock, or fishing ground. Those who wanted to lower costs and improve efficiency had to think about the specific fish stock being exploited; while those concerned about a fishstock had to consider the distinct part of the industry that was harvesting it. It created an incentive for the fishermen to assist the administrators in enforcing the regulations, for there was no doubt about who was hurt when the regulations were flouted.

It also created an incentive for the fishermen to develop a helpful relationship between themselves and the regulators. It became obvious there were insiders who held licences, and outsiders who could now be ignored. The insiders had in common an interest in conserving and improving the stock. The previous fierce, perpetual, wrangling, in which the regulators were regarded as stupid policemen to be defied and evaded could now be seen in need of replacement by joint consultation and collection of information.

Indeed these opportunities and incentives were evident, but they were eclipsed by rivalrous, competitive, fishing behaviour. It was clear to many fishermen that they could individually do better by getting a larger part of the TAC for their own class, port or group of vessels than by helping to increase the stock to be fished for by everyone. This involved devoting one’s time to fighting the system rather than using it. The incentives to work together created by limited licensing were overwhelmed by incentives to conceal, evade, discourage and free-ride separately. Hostility, distrust and obstruction were words used to describe the atmosphere in some important fisheries into which a system of limited licensing had been introduced.

4.6 Focus on the licence

Finally, by being limited, fishing licences became important in themselves. They had come into existence as convenient cogs in a registration and administration system, having what outsiders may call “bureaucratic” functions. Until the 1960s it would have been possible to abolish ocean fishing licences, and vessel licences, and many other kinds of paperwork, without plunging the regulatory system into complete chaos.

To my mind, the forward-looking importance of limited licensing lies in the word licensing. The license had became a permit, a certificate, that showed one had had a right to fish in a specified place and time. Those who had no licence had no such right, and if they did fish they were in a fundamental sense committing trespass. It was no longer just for the convenience of the administrator but was a control against other fishermen. Further, the group of licence holders was seen by certain courts to have rights, not only to hold a public right to fish, but of something like ownership: in early cases of oil pollution, and in the 1960s, the local licence holders did, as a group, win damages or settlements against leaking tankers that had damaged “their” fishery.

One can see that the licence now gave its holders rights with new attributes:

i. Quality of title and security. Licences were no longer free, a casual privilege to be handed out and withdrawn at the whim of the state. Many fishermen had to argue or pay for them. Having forced the fishermen to take the licence seriously, the state had now to do the same. It had to resist the temptation to cancel them, take them back or reduce their content, but rather to honour them. And, it had to protect the holder against those who claimed they had a better right to a holder’s licence than the holder himself in order to protect the quality of title.

ii. Exclusivity. There was no longer open access. As I said, some people might fish but others might not. As the latter were now excluded, the rights of those who might fish were far from being perfectly exclusive, but they were more exclusive.

iii. Transferability. Some of the early systems had licences that were not transferable. Those who had them could use them till they died, but they then reverted to the state. Whatever their initial feelings, this non-transferability became unpopular with the fishermen. Their licence had some value, but they could not cash in on it or pass it to their heirs, or use it as security for a loan. They agitated to have licences made transferable, and found ways to evade the prohibition. Soon, nearly every type of limited licence had become transferable, or marketable.

These three attributes, or characteristics, partial as they were, complemented each other. For example, transferability was more valuable if the licences were more secure, and also if they had a longer duration (yet another characteristic.) A good title and security were worthwhile obtaining if the right had some exclusivity. And so on. Those who acted politically to get more of one attribute in their local limited-licence scheme found themselves promoting the inclusion of all three.

5. PROPERTY

5.1 Characteristics of property rights

This account now jumps from this history of regulation to a short survey of what property is. In doing so the issues that have to do with personal property, with movable assets are disregarded and focus on “real property” in soil, minerals, water and other natural resources. We start with a piece of land. The person with ownership rights over it has powers to use and cultivate the land; to sell or rent it to others and to receive and keep its rent or yield.

What is it that gives the rights holder these powers? It is the collection of characteristics of the particular property right he owns. It’s a mistake to think that one either has a property right or has not. Most systems of law make provision for a variety of rights. All standard or well-known property rights have some of each of the six important characteristics, but in different amounts. If the right has too little of the relevant characteristics, it is still a property right but it does not enable the holder to fully exercise certain powers - some, but not all.

Before turning to rights over a fishery, consider a simple example. To serve those attending a fair or festival in the country a farmer’s field has been turned into a parking lot. When a driver enters the lot he receives a ticket. The driver “owns” the ticket and whatever it entitles him to. The ticket represents a feeble kind of property right usually known as a licence. A licence can be issued by a private property owner like a farmer, or by the government in the form of a variety of licences and permits to do things that would otherwise be trespasses or illegal. The parking licence gives our driver very few powers: he cannot transfer it to someone else, nor change or manage his part of the parking lot, nor get income from it. He cannot do these things because, although his licence has some of all the essential characteristics, it has not enough.

This is as true of a fishing licence as it is of a ticket in a parking lot. Consider the following six characteristics:

i. The first is exclusivity, the right to use and manage a resource without interference. The more sources of potential interference, the less the exclusivity. Every kind of property right has some exclusivity, and the fee-simple ownership held by some farmers comes close to putting the owners on isolated desert islands, nearly 100 percent exclusive. Now consider a right to use a fishery. To what extent can the right-holder exclude others from the powers of ownership (to use and manage the fishery, to sell the fishery, and to take income from it)? If the right is over an isolated fish-pond in the country, the right is nearly 100 percent exclusive. But if is merely an entitlement to fish for a pelagic species in the high seas, it has close to zero percent exclusivity.

ii. The second characteristic is duration. This is the period the holder is entitled to exercise the powers of ownership. Property rights range from a term of a few hours to a number of years. Some kinds of right that are short of exclusivity can nevertheless have a long duration. The ordinary fishing right has a duration of one year, renewable. If it is expected to be automatically renewed, then its effective duration is much longer.

iii. Security, or quality of title, is the third characteristic. If an outsider can successfully eject a possessor because his title is difficult to prove or wrongly based, the right is not secure. If the original owner can, at will, take back possession from a person to whom he granted a lease, the lease is not secure. If the government can interfere with the fisherman without notice and reduce his powers or the size of the estate, the fisherman’s right is insecure.

iv. The fourth characteristic is transferability. In the countryside, farm land has long been bought, sold and bequeathed. In fisheries waters, however, the licence was at first not transferable. Why should it be? Anyone who wanted a licence could get it free from the government. But when fishing rights began to acquire more of the exclusivity characteristic, there emerged a demand for the right to be transferable.

There are two other property-rights characteristics, divisibility and flexibility; they are sometimes treated as a subset of the characteristic of transferability.
i. The fifth characteristic is divisibility. When a fishing right is divisible its holder has powers to change the scale of his/her enterprise. The ownership can be made joint or single. The size or quantify of the thing owned, such as hours of fishing, a territory or a quota, can be split. If the holder’s right is also transferable, the holder can assemble parts of rights to match the scale of the resource or the fishing vessel. Divisibility is increased by adding to the permissible number of joint owners, or the number of units into which the thing owned, may be split.

ii. A right can gain flexibility in many ways. Typically Rights have conditions or stipulations. The more easily these can be relaxed in special circumstances, such as an unexpected change in fish migration or population, or in the seasonality of the market, the more flexible the Right is. Payments obligations can also be made more flexible, e.g. when holders may pay for the right by a royalty instead of by a set rental (when the royalty is based on net revenue instead of on weight of catch). Typically, flexibility transfers risk of unexpected events from the user/holder of the right to the leassor.

These characteristics are not abstract. One can think of ways of measuring each of them. In addition to their conceptual measurability, they are valuable. The more of a characteristic a Right has over a piece of land or water, the more valuable it is to its owner. This is because having more of these characteristics enables the holder to catch fish at lower costs, to improve the size or the quality of the catch and the stock, to sell his catch at the best going prices, to reduce his transactions costs with other fishers, and to reduce the risk of being ejected or dispossessed of some of the powers that traditionally go with ownership of a natural resource.

Security and duration, if they increase together, justify the holder in looking ahead, to husband the stock by adjusting present catches with respect to total amount, age, gender, size and season, to buy durable vessels and equipment, to eject trespassers, and improve, or protect, habitat. In such ways, having more of the characteristics in one’s ownership rights not only allows one to do more things, but it creates incentives to do them. The incentives are current and expected future income, and, if there is transferability, a higher payment to be received when the holder retires or dies. If rights are widely transferable, then an exchange or market in them will develop. If so, those who can find better things to do with their time and capital can leave, and those better suited or having more time, a closer location, a better vessel, more risk-taking propensity, etc. can buy in. Their trades may be permanent, or for a few days or months.

5.2 The standard property rights

Of course, if one wants to hold rights over a particular piece of land, or a fishery, one cannot just acquire it with whatever blend of the six characteristics one wants. Usually one must accept one of a few standard interests or tenures: allodial title (or variants with names like freehold, fee simple, free and common socage, or patent); leasehold (with a variety of characteristics added or taken away with conditions or covenants written in the bargaining); easements; “profits”; and some special ones with names like mining claim; appropriative water right; tree-cutting licence; pollution right; and so on.

At the end of the scale there are standard rights having very little exclusivity. Under the common law there are: individual licences; co-ownerships (including joint ownership and ownership in common;) and free-and-open-access (in Roman law called res nullius) of which most fisheries may be examples, especially a fishery on the high seas. There are really not many of these standard blends or categories. Very rarely, the legislature or the courts re-defines one of them, in effect changing its mix of characteristics.

5.3 Who holds the right?

5.3.1 Which government may grant a fishery property right?

One of the unsettled questions about fishery-rights systems is whether the government is prepared to admit that the right that it distributes qualifies as a standard property right under the local law of property. Here are two reasons, good and bad, why it may not.

i. A legalistic/constitutional reason is that, in some states the fisheries are under government control, but the government has never acquired a property-like interest over them. There is a legal maxim to the effect that a person/government cannot grant to another what it does not hold itself. This may also happen in a federal country. It may also happen because a fishery is outside national waters. If so a government may have sovereign rights as against another, but cannot, according to the maxim above, grant property rights in fisheries to individuals.

ii. A bureaucratic reason is that fishery administrative agencies, accustomed to making and enforcing regulations, are unwilling to share their powers with property owners.

5.3.2 Who may hold a right?

To whom may the government grant an individual fishing right? In the old days, in an open-access fishery on the high seas with large vessels, the licence to fish was usually, I believe, issued to the vessel - the vessel had a licence attached. However, as fishery regulation has moved in the direction of a system of individual rights, there is a tendency to vest the right in a person.

Doing so still leaves a choice. Should the person be the vessel owner - possibly a business corporation? Should it be a group of such individuals, a sort of co-ownership? Or should it be all the owners of all the vessels, in effect creating a co-operative or communal proprietorship or leasehold or licence over all the fishery?

Some experts raise objections to making the vessel owner or owners the units of fishery right-holder. They suggest that this system tends to unfairly exclude the hired captain and the crew. In many fisheries - but by no means all - the crews are paid in the form of percentage shares of the receipts from sale of the catch. These experts suggest that the individual property rights in the fishery should be further divided according to the crew-shares on each vessel. Sometimes this idea seems rather visionary and theoretical, but it has been a political issue in Iceland.

5.3.3 A property right over what?

In all situations where there are private property rights over natural resources, there is some uncertainty under the local system of law about the subject of the right. Exactly what is it that the right-holder owns? Take the owner of an exclusive mining right. From what may he exclude other miners? All the land, rock and minerals below the surface? All the minerals, or just those that are valuable? When half the minerals have been removed, does the holder of the right still own the rockwall and roof making up the chamber around them? May he exclude a neighbour who wants to use the chamber as a tunnel or a drainage pipe? These varieties of exclusivity have been worked over in local courts, and all are possible, in special circumstances.

There is a similar range of possible subjects of water rights on a river. If a farmer has an exclusive right to divert water to his land, does the exclusivity apply to the water itself, or just to the right to divert it? Does the exclusivity prevent a farmer upstream from diverting the flow? Does he own the flow he might divert but does not?

Similar questions to these are found in fisheries. Usually in older systems of law swimming fish cannot be anyone’s property. Only when they have been caught and reduced to possession by being brought on deck, say, does anyone own them. But there are exceptions. The old laws do also allow swimming fish that are in a lake or a private pond to be privately owned, even though they have not been caught. Sometimes the owner of inland fishing rights can rent his rights by the hour, another type of ownership. And, under the old customary laws of whaling, certain whales that a vessel had failed to capture, but had escaped, could still “belong” to that vessel even though it was later caught and brought alongside by another vessel.

What will be the usual subject for modern fisheries rights is not yet clear. Take the variety of inshore property rights. The owner of rights over an inshore fishery could hold exclusive rights to set up fixed gear - as in Japan. Or, as in other countries, the holder could own a right to use any gear or even, own the fish that have not yet been caught in a bay, fjord or lagoon. As for offshore fisheries within the EEZ, it is too early to say over what thing the right holder is going to have exclusive rights.

The economic and legal decisions are still being made. Francis Christy will be talking about the advantages and difficulties of exclusive territorial or area rights. To many it seems reasonable that, even on the high seas, one holder should have a monopoly of an area that is delimited on a map. South Africa has used this approach. Economists have long discussed setting up a private sole ownership of a particular stock of a particular species in a particular location, but there are no real-world examples, onshore or offshore water. What did emerge, in the 1960s and 1970s, and what I will be talking about, is the modern development of the limited-licensing fisheries regime: the exclusive individual property right to land a certain number of fish, in a certain location, of a certain species, during a certain period. This is the individual or vessel quota, to which I now turn.

6. INDIVIDUAL TRANSFERABLE QUOTAS - ITQs

6.1 The innovation: the quota as a development of existing licensing schemes

The ITQ, as it emerged in Iceland and New Zealand in the 1960s and 1970s was the latest development of the fishing nation progression from open access to regulated fishery to limited licensing. The administrators who introduced it were trying to improve the existing managerial regime. They looked for a scheme with greater enforceability, more revenue for government and a smaller need for a costly government presence. Its introduction was perhaps made easier because in both countries the fishermen were in the process of expanding into the widened territorial sea. Probably in neither country did the official innovators think in terms of the creation of property rights. That is also true of fisheries elsewhere that have more recently come under individual quota management systems. Indeed, many governments have discouraged their fisheries agencies from using the word property.

6.2 Characteristics of ITQs

In nearly all cases, ITQs were introduced to replace an earlier “exclusive” system such as limited licences. There were exceptions, such as that for the northern tuna in Australia and some offshore stocks in New Zealand neither of which had yet been under any kind of exclusive regulation. The holder acquired a numerical quota, denominated in pieces or by weight.

These schemes distinguished between two types of quota. One was the absolute amount that a vessel might take from the TAC in a season; the other was the ongoing percentage share of the TAC to which the quota holder was entitled every season. The initial distribution might be in terms of absolute quotas, but was implicitly in terms of a percentage share. In most quota fisheries the ongoing share percentage was based on the holder’s share on the catch in previous years under licensing. In some new fisheries - without a history - the holders were given, or were sold, equal shares.

In most places a politically-motivated attempt was made to steer the quotas to individuals. In the case of Canada’s “Enterprise Allocation Scheme”, the quotas were distributed, from the beginning, to a few large companies. There are probably other exceptions to the “individual” orientation. In most schemes, except those in New Zealand, there was no intention of charging an initial price, rental, royalty or tax.

The administrators started off many schemes nervously, giving the quota rights or licences a limited duration. However, this feature has usually been relaxed, perhaps by making renewal more-or-less automatic. Likewise, administrators initially refused to make most schemes transferable or marketable, or achieved the same effect by limiting the amount of quota that any holder could sell, or acquire. Fishermen soon expressed a demand for transferability, and/or evaded the limitations. Most laws were changed, and the IQ or IVQ became an ITQ.

6.3 Not a new kind of title to resources

The quantitative feature of the quota licence was a novelty in ocean fisheries, but the general idea had long been familiar to participants in other natural-resource sectors. Government disposes of the resources from public land in quantitative terms, and old and new holders of the resources trade all or parts of the amounts they have acquired. For example, in agriculture, farmers buy and sell livestock by the head or the pound, not attached to or confused with the land on which the stock is located. Farmers also acquire, rent and sell water for irrigation. In the power production industry it is not unusual for the trade to be in terms of cubic feet of river flow, or even in terms of horsepower.

In the petroleum and natural gas industries, ownership is in volume terms, and firms trade underground units with each other. In the lumber industry on private lands, milling firms acquire rights from landlords to cut certain lengths or volumes of timber. In all these cases, the deed may specify the place where the resource is located, but those who are trading are less interested in the location than in the amount of ore, lumber, oil, trees, water, etc. to be removed. This was also the ITQ approach to natural-resource trade: the individual does not acquire a right to a minutely-defined area, but to a minutely-defined amount within a general neighbourhood.

7. THE PROPERTY RIGHT CHARACTERISTICS OF ITQs

7.1 Listing the characteristics

Governments protest that according to their intentions, an ITQ is not a piece of property. Nevertheless, at this stage the evidence is that the fishery quota, or quota-licence, is a form of standard individual property right, with its own blend of characteristics (Scott 1989 pp. 11-38; Devlin and Grafton 1998 pp. 68-100). It is descended from the historic ocean freedom to fish, a liberty or licence that had almost none of the characteristics of property. It has emerged from reforms to the limited licence, a simple licence with added exclusivity and transferability.

It has features strikingly like those of quantitative water rights, oil rights and other real interests in land, long known to the common law, all having well-established property-like features. What is more, it has more than trivial amounts of the essential characteristics of a property right, e.g.:

i. Duration: All quota shares have a life of more than one season. Some seem to be permanent. All can be renewed.

ii. Exclusivity: A quota licence is much more exclusive than what went before it which is a great change. But the holder’s right is merely in co-ownership with other holders; and is merely a right over the catch and not over the stock. Neither the swimming fish, nor fish yet to be born, nor the fish habitat have been exclusively assigned to any individual or collectivity. However, in most instances, an individual’s right to a share of the catch is equivalent to a right to a share of the stock. That is, to have a 1% share in a TAC is implicitly to have a 1% share in the fishstock from which it is caught. Every other possible shareholder is accounted for by the initial distribution of the quotas and subsequent transfers. Further, because of the long duration of quota rights, to have a 1% share in the catch implies having a 1% share in future catches, and this, given stock dynamics, is equivalent to having a 1% share in the fishstock.

This is an important result: because the quota allots a share in the collective right to catch fish, it must implicitly allot the same share of the of ownership right over the stock. But a percentage share of the stock is not exclusive ownership. The person going fishing with an ITQ has impressively more exclusivity than his ancestors with their inherited open access to the fishery. But his share gives him little or no power over the management of what he owns. Managerial powers are diffused and dissipated among the fishermen and the administrators.

iii. Transferability (and divisibility): Like limited licences, quotas have become marketable. Private brokers, groups of fishermen and governments have established exchanges on which they can be traded. They acquire present values, related to the share of the net present value of the catch in future years. These present values are affected by speculation and hedging which can add to, or reduce, the fluctuations, uncertainty and risk in their values. In these respects their transferability is like that of certain well-established types of property value in land or natural resources. Further, in, perhaps most, ITQ systems, the quotas are highly transferable in the very short run - rights to catch and land fish can be rented by the trip, by the week and by the season.

iv. Security and quality of title: There is nothing in the ITQ rules that makes the quota right more secure than the older licences that went before it. There can still be disputes about who owns a quota, and there can still be inconstant governments that unexpectedly revise the system, depriving the holders of some of their quota. Nevertheless, the marketability and bankability of quotas, similar to that of other kinds of real property, seems to have heightened the reluctance of administrators or politicians to reduce the value of the system by casual changes in the law that govern the powers of a quota-holder.

To summarise, in the introduction of the ITQ, especially in offshore fisheries, the fishermen were transported from holding the individual powers inherent in an ordinary transferable license, with a little inherent exclusivity, to holding a property right with enforceable characteristics, in positive amounts, of long duration, transferability, exclusivity and security.

7.2 Fishermen acting like a property owner

Proprietary behaviour by fishermen was a major step with widespread effects. For example, take husbandry. The fishermens’ sometimes shrill, negative, obstruction of policies about the amount, and especially the distribution, of the catch has given way to paying serious attention to the biologists’ proposals for increases or decreases in the stock. Where once the individuals’ right to fish was a thing to be battled for; their collectively-owned stock had become a natural asset to be enhanced.

Or, take enforcement. ITQs did not cure some fishermen’s incurable addiction to getting around the rules, to catching and landing more than their entitlement, and to free-riding on the efforts of others. Indeed, preventing their cheating has now become more complicated and costly. On the other hand, once the group of fishermen saw themselves as the owners of valuable rights to the fishstock, they began to disapprove of cheating. They no longer indulgently ignored or covered up the infractions of others, for they now saw the others as thieves. It became worthwhile to obey the rules oneself, if doing so discouraged cheating by others. This has led to a new helpful attitude, born of ownership, that has prevented sky-rocketing official enforcement costs.

Finally, take competitive behaviour and uniform behaviour. Fishermen whose rights had been grandfathered in from older forms of fishing licences still tended to act as though they were in a contest. Who could find the fish first? Who could get the largest load on their vessels? Whose vessels had the greatest speed, capacity and versatility? Under ITQs however each soon learnt that the other vessels were not his antagonists. As long as each respected their quota limits, there was a greatly-reduced need to behave uniformly and rivalrously. Like a property-owning farmer, each could bring in his harvest without worrying about whether his neighbour had forestalled him. Some could perhaps stretch their fishing to a year-round activity while others could make the opposite decision: taking their share of the harvest when it suited them, fitting in the harvest of one species in one season with that of other species in other seasons. Some could fish slowly, with modest vessels, others could speed on super-vessels with larger crews and versatile gear.

8. ECONOMIC RESULTS OF INTRODUCING ITQs

8.1 Effects on the efficiency of the economy as a whole

There is no doubt that, compared with the previous systems of fisheries regulation and entry limitation, the ITQ system improves the allocation of resources. This is an economist’s notion. The economist thinks of an economy as having a limited amount of resources: workers, thinkers, capital goods, land, natural resources, and so on. The ultimate economic question is how to allocate these resources among the different industries and activities. One danger is that too many resources will be allocated to some activities, and not enough too others. In the past, with open-access, non-exclusive, fishing rights, too many resources were drawn into fishing. Some labour and capital could have withdrawn from fishing with little or no reduction in production. If this withdrawn labour and capital were used in other sectors, their production there would have been more valuable to the economy as a whole than it had been in the fishery. In the jargon of economics, the allocation of these resources would have been made more efficient.

That is why many economists, who admit they know little about fisheries and the lives of fishermen, greatly favour property in general, and ITQs in particular. When fishing rights are quantitative, their holders have an incentive to reduce the costs of landing their quota by using less labour and capital per fish landed. Some vessels, with their equipment, are made less capital-intensive. Some operators sell out, and their quotas are added to those who stayed. When all vessel owners behave this way, the result is a withdrawal of labour and capital; to others the fishery becomes a lower-cost sector, and the economy as a whole better re-allocated its resources to other sectors.

8.2 Private, social and community effects

Fishermen, or any other kind of producer concerned are not expected to be concerned about the economy as a whole: efficient allocation between sectors is not their problem. So, how do ITQs affect fishing costs, the price received, security, safety, working conditions, and the community where they live?

i. More haste, less income. Fishermen where ITQ have been adapted have been surprised by the effect on their style of work: especially the reduction of the need for speed to make the most of season openings. This change affects almost every aspect of fishing. They are so numerous that I can only allude to them here.

ii. Vessels can be simpler without loss of catch. Equipment for instant discovery of the fish is less essential. Crews can be smaller. Storage needs are less. Bycatches can be avoided or landed with less loss of the main species.

iii. Trips to fishing grounds can be longer without loss of catch. Ports need not be small nor need they be located close to particular fishing grounds.

iv. Crews’ work can be safer, they can take days or weekends off without loss of catch. The active season can be spread over more weeks, or months.

v. Fish can be landed as dictated by market price as the market need not be flooded when the fishery is opened. Vessels can time their landings for periods when the supplies are short or demand is high. Under management by closures, fish were often stored which reduces their quality and the price received. Fish often had to be processed after storage. Under ITQs more fish are sold fresh, storage is reduced and preservative is reduced. Total employment is not necessarily reduced, as fresh fish may be transported by air to distant markets.

9. DISTRIBUTIVE EFFECTS - WHO GAINS AND WHO LOSES?

ITQs can change processes, locations, jobs, incomes, and lifestyles. They can make the allocation of resources in the entire economy more efficient. But not everyone gains, and there may be losers. These have been mentioned in the technical literature, but not intensively researched. What follows is a list of probable influences on the fishery, large or small. They may be painful enough to induce policy-makers to abandon the idea of ITQs.

At first, the transition will be painful to some. Some communities may become ghost towns and property values fall and homes and shops become empty. Some people will have to leave the fishery permanently. Crews will become smaller and processing plants idle. But other communities will grow, and new jobs will be created there.

In the longer run, after the transition, other distributional effects will be observable.

i. Government revenues. In some communities, as some fishermen accumulate more quota, the government will be tempted to siphon off part of the unearned rent or surplus. This is the cash counterpart of the extra costs and waste of fishing before ITQs came in. From the beginning the New Zealand government planned to take a healthy portion of this surplus. In Iceland, there was no price or tax on quotas, but today Iceland’s politicians are debating whether to impose one.

ii. Crew shares. In communities where the rent or surplus is left with the industry, there will be debates as to the extent to which crews members, especially on vessels where it is traditional to divide the trip profits, ought to share in the increase in the value of their quota.

iii. Rich companies versus poor individual fishermen. It is often suggested that as quotas become transferable, and more valuable, it will be increasingly difficult for those from low-income fishing families to acquire them. For this, and other, reasons, those in the industry will be polarised between a few wealthy fishermen or vessel owners, and a larger number of holders of small quotas. Those who are pessimistic about the benefits of ITQs arising may predict that eventually all quota will have been concentrated in the ownership of large companies, perhaps processing companies. This is possible, although data on the first years of today’s ITQ systems show no major trends. There are fewer vessels, so fewer owners, there are not much evidence of large or wealthy owners buying quotas in order to own a whole fleet of vessels.

Much could be written about the history and future of vertical integration (processing-company ownership) in the natural-resource industries in fishing just as much as in mining and logging. Today, for instance, critics are debating whether ITQs cause an increase in vertical integration from the wholesaler or processor back to the vessel; and whether it is a good or bad thing. Two points must be made. First, long before ITQs there were some food-company ownership of vessels or licences. Second, in theory at least, there is no reason for large companies to find ITQs more attractive to hold than the earlier licences.

10. BEYOND INDIVIDUAL PROPERTY RIGHTS

10.1 Deficiencies of ITQs

The sections above have shown that ordinary fishery regulations developed into emphasis on licensing, that licensing grew into limited licensing, and this was transformed into the ITQ. Each new form has had more property characteristics than its predecessor. Nevertheless the evolution has been constrained, because each new form has had to be similar to what went before. That means that a fishery-management regime based on ITQs is good but not yet great. There is room for improvement. Here is a list of the gaps and deficiencies.

i. Racing and capital-stuffing: Few fishstocks remain available in one habitat all year waiting to be caught. Some are migratory; access to some stocks may be closed to protect spawners, or to prevent the catching of fish in a season when their value is low. These closures mean that, even under ITQs, fishermen will race each other to bring in the catch, and will acquire vessels suitable for competitive fishing. As well, in some fisheries, ITQs do not altogether prevent wastefully rapid adoption of new techniques.

ii. Public goods: providing information: Some goods and services that are inputs into fishing are in a category called public goods. When they exist they are valued by, and available, to everyone. They cannot be divided into individual units. Many services traditionally provided by governments are of this type: examples are law and order; national defence; prevention of contagious disease; a clean environment. In a fishery this is also true of certain activities that benefit all the fishermen and there is no way that any fisherman can be excluded from enjoying it equally with all the others.

One of these is information about the fishstock. We have seen that older forms of management, such as closures, gear regulations and limited licensing, led to antipathy between groups of fishermen and those who were making and enforcing the regulations. When ITQs were introduced, fishermen began to see more point in the information that biologists and regulators produce. Indeed, in some fisheries the vessel owners agreed to pay for biological studies and surveys. Nevertheless, because information is a public good, the inducement is weak for any ITQ holder to provide it, as he can just as easily free ride on information provided by others.

iii. Another public good: enforcement: The attitude of ITQ holders to the problems of poaching has already been discussed. Seeing themselves as owners of a share of the stock, they begin to resent the failure of other fishermen to stay within their quota entitlements. They may actually help the administrators to enforce the rules. However, enforcement is also a public good. Any fisherman may be glad that enforcement, monitoring, observation services, and auditing are provided, but may rationally try to evade the rules cheating himself. He is free-riding, a kind of behaviour that ITQs do little to prevent.

iv. Another public good: retaining bycatches: Nearly all stocks of fish are mixed. Most of them mix adults and juveniles of the same species. Fishing for the adults therefore typically leads to the inadvertent catching of low-value fish. These fish fill up the vessel’s storage. If the vessel is in a hurry, perhaps because of an impending closure, it discards the low-value fish. This is one reason why, long before ITQs had been invented, vessels discarded fish at sea.

When juvenile fish are caught and discarded, they do not survive to spawn or to be caught again as adults. Their mortality reduces the stock and future TACs. Hence a discard is an undivided loss for all the fleet, and the prevention of a catch-and-discard is a public good.

ITQs changed this. There were no longer closures, so vessels had more time to take the juvenile bycatch to port. However, there was a new reason for discards at sea. The juveniles used up the vessel’s quota. Captains would have to pay for more quota to legally land them along with the adults he caught. If the juveniles were worth less than the price of the quota, it paid to dump them which is why, when ITQs were introduced, the system was accused of creating a bycatch problem.

This was correct, but whether the new bycatch problem was worse than the old depended on how long the openings were in the old days, and on how much quota cost under modern ITQs. Nevertheless the new problem itself would not exist if the captain was not required to show quota for all the fish he landed, so we must add it to the free-public-good type defects of the ITQ system that I have already mentioned.

10.2 Summary

As a property right in a share of the fishcatch, ITQs give the vessel owner the exclusivity and security he needs to cut his competitive investment in vessel and equipment and to abandon his racing behaviour. They therefore cut costs. They also allow him to get a better price. But there is a contradiction. ITQs are individually exclusive property rights in an asset that is essentially collective i.e. exclusive property rights in a fishstock that cannot be divided into individual parts. The right-holder cannot protect and improve “his” property, and, because of public-good features, he has only a limited desire to try to do so. The implication is that the ITQ must be seen as the next step, but not the final step in realising the six characteristics of property at sea.

11. COLLECTIVE ORGANIZATION AND FISHERMAN SELF-GOVERNMENT

11.1 Introduction

Just as the centuries-long improvement in fisheries management waited for the addition of the characteristics of property, so I believe that in the next improvement these same property characteristics will be essential. But they will play a different role. Today in the property characteristics of ITQs, each individual has acquired useless management powers in a collectively-used stock. For the ITQ holders to exert these management powers, the fishery - the fishstock - must be managed and exploited as an entirety. This will be done by forming organization (company, firm, club or co-operative) of which the fishermen are members.2

2 Economic theorists may observe that the formation of a producers’ co-operative has elements usefully similar to those in the formation of a “club” as analysed by James Buchanan (1965). But there are significant differences between consumers’ and producers’ “club goods”. Probably greater insight can be gained from the analysis of farmers’ irrigation and marketing co-operatives by Elinor Ostrom et al. (1994) and by authors in the farm-economics literature.
I have predicted before that there will be another step in making the traditional laws of property, contract, and incorporation applicable to offshore fisheries. Much of what I wrote then was speculative, but we now have tangible examples. With differing points of departure, with or without government support, many vessel owners who take their catches from a given stock (or place) have united. Some provide services that no one provided before; some take over roles from governments. Some raise money for various purposes connected with research, information, enforcement, storage, and so on. Organizations of fishing in New Zealand, Alaska, and British Columbia provide many examples.

The state’s willingness to provide services for fishermen is definitely on the wane. Its only official recourse is to use taxation and compulsion, to pay for what it previously did for nothing. This means that the management of “private” fish will be steered by state taxation and police regulations (an anomalous way to achieve government objectives). This has alerted fishermen to the argument that, if they are to pay for the services government provide, they might as well choose them, and if their fishing is to be controlled by rules, they might as well make them.

11.2 Problems of organization

11.2.1 What we don’t know

There has not yet been study of the collective action of high-sea fishermen to match the many studies of fisheries regulation and of small coastal fishing groups. So it is not known which problems are likely, but will be insignificant in practice. Game theory may be enlightening though it is usually concerned with initial contracting, bargaining and strategy about taking a single action or providing a particular good, as opposed to bargaining in the continuing process of management. (We do however, know more about the co-management and self-management of small in-shore fisheries by communal groups, see Pinkerton [ed.] 1989).

11.2.2 Management

In thinking about the best conditions for collective action and contracting, David Hume wrote: “Two neighbours may agree to drain a meadow, which they possess in common because ‘tis easy of them to know each others mind; and each must perceive, that the immediate consequence of his failing in his part [his own part], is, the abandoning of the whole project. But ‘tis very difficult, indeed impossible, that a thousand persons should agree in any such action; it being difficult for them to concert so complicated a design, and still more for them to execute it; while each seeks a pretext to free himself of the trouble and expence, and would lay the whole burden on others.” (Hume 1739 Bk 3,2,7, p.538, cited by Hardin 1982 p. 40).

The “action” that would be most contentious in a fisheries organization is the setting of the TAC. This involves obtaining consensus on the ultimate goal of stock management and how to get there without imposing unacceptably small catches on the way. As Hume said, doing so will be difficult because the group will be very large and very heterogeneous. Hume predicted that a member would fear that the others would free-ride i.e. not play their roles. In the case of a fishery, the analogous problem would be that each vessel-owner would fear that the others would make rules that would reduce his advantage from working together to a level lower than if the group did not make rules and left him to fish on his own. (Olson 1965). This fear would lead him to oppose the idea of co-operation in the first place, and to impede it working in the second place.

As it happens, almost by coincidence, an ITQ regime automatically provides the fixed (percentage) sharing needed to win fishers’ support for co-operative management. I have already conceded that the introduction of ITQs has not met every problem of an ocean fishery. But, in the formation of the ITQ regime there was resolved an exclusivity problem that could have caused many kinds of collective organization to fail: the assignment of permanent agreed shares to vessels or persons. It follows therefore that when the fishery administrators arrange to set up an ITQ regime, they have already taken two giant steps toward exclusive membership closed to outsiders (no free-riding); and fixed permanent sharing of the catch in ITQ percentages, untouchable by the day-to-day decisions of the organization.

Almost miraculously, fishers who move on from ITQs to a self-regulatory-regime are likely to succeed. One the other hand, fishers who form a co-operative among a large number of offshore fishermen to develop a previously unregulated fishery, are likely to fail. This prediction stems from the general historical rule, that wherever property rights exist, their right-holders are able and likely to use it to form more complex organizations for self-government, protection, and production.

12. CONCLUSION

One of this paper’s main themes is that to understand the evolution of property rights in the ocean fishery one must understand why it was slow. The fishery is one of the few natural resources where, until recently, there was neither property nor government regulation. The two are inter-dependent causes. The official reason for the prolonged absence of property rights is that a public right of fishing was affirmed in the thirteenth century and maintained for five hundred years. But property rights can be changed. A more scientific reason is that there was no demand for a property right. It was recognised that the ocean fishstocks were not threatened with extinction or even serious depletion. For the same reason, there was scarcely any government regulation of fishing.

When fishstocks seemed endangered, no-one had the property rights to look after them. Open access and freedom of the seas continued. Governments took the lead, inventing and adapting ever more invasive forms of stock and catch regulation. In the last fifty years, the various characteristics of property rights in land, have been loaded onto regulation, mostly by increasingly regarding the ordinary regulatory licence as a property certificate or deed. The characteristics that really made a difference were exclusivity and transferability, and metered amounts of these turned the limited licence into the ITQ.

It seems, however, that the small scale of the individual licence can never put a fishstock under exclusive ownership and management. To approach this ideal, organizations having property characteristics, but on the same scales or extent as the fishstocks, will be needed. Now, one finds that some ITQ systems are already moving in this direction. In my presentation I have emphasised one reason: the sharing of the catch that has been grandfathered into the ITQ has provided a pattern of sharing that allows fishermen to work together without serious fear or jealously that they will become worse off.

13. LITERATURE CITED

Buchanan, J. 1965. An economic theory of clubs, Economica 32 1-14.

Cushing, D.H. 1988. The provident sea. Cambridge: Cambridge University Press.

Devlin, R.A. and R.Q. Grafton 1998. Economic Rights and Environmental Wrongs: Property Rights for the Common Good Cheltenham: Elgar.

Hardin, R. 1982. Collective Action Baltimore: Johns Hopkins. pp 248.

Hume, D. 1739 and 1978. A Treatise of Human Nature 2nd modern edition Oxford: Oxford University Press.

Olson, M. 1965. Logic of Collective Action. Cambridge MA Harvard University Press.

Ostrom, E. 1994. Rules, Games and Common-Pool Resources Ann Arbor: University of Michigan Press.

Ostrom, V., D. Feeny and H. Ficht 1988 eds. Rethinking Institutional Analysis and Investment. San Francisco: ICS Press.

Pinkerton, E. ed. 1989. Co-operative Management of Fisheries. Vancouver: UBC Press.

Scott, A. 1979. Development of economic theory on fisheries regulation in P.H. Pearse ed. Symposium on policies for economic rationalization of commercial fisheries, Journal of Fisheries Research Board of Canada. 36. p 728.

Scott, A. 1989. Conceptual origins of rights based fishing in P.A. Neher et al. Rights Based Fishing. Dordrecht: Kluwer, 5-38.

Wilen, J.E. 1989. Rent generation in limited entry fisheries in P.A. Neher et al. Rights Based Fishing. Dordrecht: Kluwer, 249-62.

Common Property Rights: An Alternative to ITQs - F. T. Christy

IMARIBA, 2853 Ontario Road NW#619
Washington DC 0009, USA
<imariba@sprynet.com>

I. INTRODUCTION

Individual Transferable Quotas (ITQs) can be extraordinarily effective in many fisheries and can lead to eventual self-management with attendant benefits to society as a whole. However, there are certain situations where ITQs cannot be used and where other approaches must be adopted.

These other approaches, which might be considered within the framework of property rights, include: a licence limitation scheme that provides exclusive rights to the holders of the licences; a territorial use right in fisheries (or TURF) providing exclusive access to a community, or to a group of fishermen over a certain area; and a stock-use right in fisheries (or SURF) which would provide exclusive access to a group of fishermen over a particular stock of fish (Townsend 1995). The latter two cases constitute essentially a devolution of management authority, rather than a management system as such. They create a form of property right for the community, or user-groups, allowing them to determine the management system, which might take several forms (e.g. ITQ, licence limit, rent extraction or others).

Property is an extraordinarily complex concept, which may contain numerous entitlements and expectations, such as: a right of exclusive access to the resource; a right to dispose of the resource through sale or lease; the ability to preclude actions by others which may damage the resource; the ability to grant easements or covenants controlling future use; etc. Each of the various approaches to management has the attribute of exclusivity and, on this basis, falls within the concept of property. Other property rights may, or may not, be associated with the various approaches.

For this paper, management is defined as those measures that are designed to lead to an increase in net benefits from the resources. Benefits are broadly defined within the context of human welfare. That is, measures that serve to increase biological yield from stocks are not herein considered management unless they also produce human benefits such as increased net economic yields, improved employment, increased community welfare or reduced conflict.

It is essential to note that some form of exclusive use rights, and therefore property rights, is necessary in order to achieve effective management. The paper begins with a brief discussion of the difficulties governments face in moving towards more effective management of fishery resources. Although these difficulties generally apply to all forms of management, there are different implications for the different approaches that can be taken. This is followed by an examination of the situations creating special and intractable difficulties for the use of ITQs, both with regard to small-scale and large-scale fisheries.

The paper concentrates to a large extent on common property rights or the use of community TURFs as a means for management. It does so for four major reasons. First, it is my belief that the most urgent and intransigent problems of fisheries management are those relating to small-scale fisheries in developing countries. Second, I suggest that community TURFs are essential for dealing with these problems. Third, the question of property rights for community TURFs is both complex in detail and broad in scope. It raises issues of determining the nature of ownership, both in terms of the character of the owners and with regard to the exercise of the property rights. And finally, although there is an abundant literature on community management of common-property resources, there is a significant lack of information regarding the incentives and conditions that foster the development of community management systems. It would be useful to know how the difficulties in the way of self-government have been removed, but this strictly historical question is not often answerable from present sources (Scott 1993). If community TURFs are to be used for fisheries management, the problems and opportunities associated with their creation must be examined.

Communities have found, and are able to invent, an infinite variety of ways to cope with problems of common property, shaped by the traditions and character of the communities and the nature of the resources. General conclusions are, therefore, difficult to reach. Nevertheless, there are certain activities and measures that can be taken to establish conditions, and provide incentives, that will facilitate the development of community TURFs. This paper concludes with suggestions that might be considered.

2. IMPEDIMENTS TO THE ADOPTION OF PROPERTY RIGHTS SYSTEMS

Creating property rights where none existed before is inevitably fraught with difficulty. It should not be surprising, therefore, that many governments have thus far failed to take the necessary steps to create them and that those that have (with a few notable exceptions, viz. Iceland) tend to be in countries without long histories in fishing and without strongly vested interests.

There are several kinds of difficulties associated with such a change. The chief one is that such moves require decisions on the distribution of wealth. Whatever system is considered (ITQ licence limit or TURF), it provides rights to some users while excluding others. Those excluded may be present users of different gears, from different areas, fishing for inter-related stocks, or potential future users. Decisions concerning the allocation of wealth are generally not within the mandate of fishery administrators but must be made within a political context. Politicians do not generally get involved in fishery matters until a crisis has emerged and the politicians constituents are hurting sufficiently to force politicians to act. Unfortunately, action under crisis is frequently subject to severe constraints so that the resulting decisions are often marked by imperfections.

A particularly difficult aspect of wealth-distribution occurs when non-monetary values are at stake. Such values are held by recreational fishermen, environmental groups, those who believe that fishing should be preserved as a way of life (i.e. those seeking MSA or Maximum Sustainable Anachronisms), animal lovers, and those who fear the take-over by ‘big business’. Although all such values may be real, some are more trivial than others. They nevertheless compound the difficulties of making distribution decisions. A prevalent problem of particular significance to developing countries is that of maintaining employment opportunities in areas where there are few, if any, alternatives.

Several other kinds of difficulties are present. In some situations, government administrators are unwilling to relinquish their authority or, perhaps, their jobs. If the characteristics of individual and collective rights can be substituted for bureaucratic decision-making and enforcement, the demand for specialized administrators should decline (Scott 1988). A corollary is the view that governments know what is best for fishermen and that fishermen do not have the understanding or the will to exercise management authority effectively. I have been told by administrators that my task was to convince the fishermen that they should adopt the government’s regulations because the government was right.

Some administrators may also be more concerned about the status of the stocks than the status of the fishery. On two different occasions, United States’ administrators told me that the US Pacific halibut fishery was the best managed fishery in the world and this was when the season was down to a few days. Such predominance of biological dogma on fishery management decisions has long been a major impediment to improved management and, unfortunately, continues today.

In addition to these kinds of socio-psychological aspects, there are also various impediments relating to the fugitive nature of the resources; the complexity of the ecosystems; and the inter-relatedness among the stocks and between the stocks and the environment. However, although information is incomplete about most fisheries, there is generally sufficient knowledge about economic characteristics to be able to adopt and implement management measures that will significantly improve net benefits. The search for the best of all possible solutions is a chimera that attracts model-builders but which has little practical application. It is neither possible, nor necessary, to acquire full information. Many of the pleas for additional information are uttered by those opposed to the measures being considered, in the hopes that they will be delayed or even defeated.

3. INAPPLICABILITY OF ITQs

3.1 Relevant conditions

Under the right conditions, ITQs provide an exceptional means for effective fisheries management. Chief among these conditions is the ability to determine the amount of fish taken by each quota-holder. This may be a count of the number of fish, weight of fish or, perhaps, value of fish. Preferably the measurement should take place at point of capture but since this is generally costly, landings tend to be used as a surrogate. The count needs to include not only the target species but also the bycatch species where these are important. Size of individual fish may also be important if there are price differentials or minimum-size restrictions. Basically, for an ITQ system to work there must be credible and reliable data on the amounts taken by each quota-holder. In addition, there should be relative uniformity in the availability of the stock during the season. If there are significant differentials in the costs of catching the fish at certain times of the year or in certain locations, due to variability in concentration or to other factors, an ITQ system will not prevent excessive fishing effort.

3.2 Large-scale fisheries

For many large-scale fisheries in developed countries, the required conditions for successful ITQ management are generally available. Most developed countries face temperate-zone waters where there are relatively large populations of individual species and relatively few species. Fisheries tend to focus on individual stocks. Observation of landings is facilitated in that there are relatively few landing points capable of handling large vessels. Observation on board is also feasible in many cases. In short, in most of these situations, the problems of counting the fish are not intractable. There may, however, be other problems that impede the adoption and implementation of ITQ systems in these areas, such as high amounts of bycatch of related species (Scott 2000).

Opposition to the creation of ITQs occurs in some countries for reasons not associated with the technical aspects. These include: (a) possible inequities associated with the initial allocation of the quotas; (b) effects of the system on related industries and activities; (c) high value accruing to the quotas and (d) high costs of entry by newcomers; (e) fear that big business will take over the fisheries (Greer 1995); (fi) the related fear that the ITQs will foster monopolies; (g) concern about the “giveaway” of a public resource to private individuals; and (viii) others.

But these issues are not unique to ITQ management-systems and apply equally to all forms of property rights, including licence limits and TURFs. Furthermore, although not all limitations can be overcome, there are techniques for dealing with them or for alleviating the difficulties.

Certain large-scale fisheries do not lend themselves readily to the use of ITQs. The North Pacific salmon fisheries represent a gauntlet fishery, following migrations along the coastline and into the rivers. A major complicating factor is that the stocks consist of many different strains related to the various rivers in which they were spawned. They are managed, not on the basis of a Total Allowable Catch (TAC) (largely because of the difficulties associated with stock assessment) but on an escapement basis in order to ensure the viability of the spawning stocks of the various strains. Because of this, the managers must adjust the catch levels at each stage of the gauntlet on the basis of the information acquired with regard to the size of the runs during the season insuring the reservation of sufficient stock at the spawning rivers. Thus, it is extremely difficult to estimate an appropriate level of catch at each of the stages in the gauntlet and, therefore, to set appropriate ITQs.1

1 I am indebted to Captain Dave Fraser, Port Townsend, Washington, USA for these points
In addition, there is likely to be significant variability in harvesting-costs in different sections of the gauntlet, depending upon the concentration of fish. There would be an incentive to apply excessive effort at the points where the costs of catching the quota is lowest. As congestion occurs at these points, effort would shift to earlier points in the runs. The results would likely include excess effort, congestion and the loss of control over individual runs to prevent depletion of some of the strains. Although it might be possible to deal with these consequences by breaking up the overall quotas into separate area quotas, this would be difficult because of the problem of assessing the different sub-stocks, as noted above. But even if it were feasible it would exacerbate the problems of initial allocations. The disputes between Canada and the US over the allocation of Fraser River salmon stocks is indicative of such allocation problems. The application of ITQs might also be difficult for other anadromous and coastal pelagic migratory stocks such as shads, sardinellas, jack mackerels, oil sardines, etc. For these kinds of fisheries other techniques than ITQs may have to be used for management.

3.3 Small-scale fisheries in developing countries

The coastline of the State of Kerala in India stretches for about 600km. Along this coast there are over 200 recognized beach-landing spots used by 22 different combinations of gear and vessels, only two of which are mechanized (Kurien and Willmann 1982). The fishermen land dozens of different species during the year. Similar situations are found throughout South and Southeast Asia and along the coasts of Africa where the tropical waters sometimes contain large numbers of different species of fish, with relatively small populations.

Clearly, there would be major, and perhaps insurmountable, problems in attempting to count the landings of the individual species by each of the fishermen over such a distance at so many landing spots. It is conceivable that ITQs might be used for sedentary, or highly localized stocks, such as reef fisheries, but not for the majority of fisheries along the coasts.

A notable exception among developing countries is the tuna fishery in the Maldives, although relative to other fisheries of the Indian Ocean, this should be considered large rather than small-scale. Almost all tunas caught are destined for export and are sold through the State Trading Organization (Christy et al. 1981). Formerly, the STO extracted a significant economic-rent from the fishery by paying the fishermen about half of the price it received at the export level. Unfortunately, that system has now been dropped. Nevertheless, the present system provides an exceptional basis for counting the fish landed and determining the source of the landings. It also provides an exceptional opportunity for the establishment of management TURFs, based on the use of Fish Aggregation Devices (Christy 2000).

There may be a few other specialized situations in developing countries where the use of ITQs would be practical and effective but, for the most part, other management measures must be used.

4. ALTERNATIVE APPROACHES: LICENCE LIMIT SCHEMES

Where ITQ systems do not work, other means must be found to manage fisheries within the framework of property rights. Simplistically, the most direct way to avoid or reduce excessive fishing effort is to limit the number of fishing vessels.

Problems

There are, however, a number of difficulties, as has been found in various fisheries where the technique has been adopted. The most serious problem is that of defining what should be limited. A limit placed on the number of vessels induces fishermen to replace their vessels with larger ones. Limits on vessel number and size induces the adoption of larger engines or other factors that make up fishing effort. As long as there are possibilities for substituting factor inputs for those that are limited, these “seepage effects” will occur. The end result, as shown in the Alaska salmon fishery, is a set of highly complex limits on different types of gear in different areas.

Perhaps a more damaging result is that these systems seriously skew the incentive for technological innovation. Such innovations as emerge are those that will increase an individual’s profit within the regulatory constraints. If effective in increasing catch, they will be tend to be prohibited. Or, they may well lead to increased wasteful capital-investment and orderly and desirable technological growth will not be possible.

Some attempts have been made to combine a licence-limit scheme with a buy-back operation designed to reduce the amount of fishing effort. There are several reasons why such systems have been ineffective. One is that they do nothing to prevent the seepage effect from taking place among the remaining vessels. Another is that the vessels that are bought out of one fishery may enter other fisheries and add to problems of over-capitalization there. Perhaps more important is that most fisheries are marked by a wide disparity among fishermen in catch-per-vessel, for a small number of fishermen tend to take the bulk of the catch. It may be necessary to buy-out more than half of the vessels before there will be a significant reduction of total catch.

These various problems have deterred most managers away from the use of licence-limit schemes. But, where the alternative of an ITQ system is not feasible and where the conditions are right, licence-limits may offer a second best solution. One advantage is that they tend to be easier and less costly to enforce since it is generally easier to count vessels or gear than to count fish. Also, certain fisheries are better suited to management by limits on input rather than on outputs.

Opportunities

Effectiveness of a licence-limit scheme depends upon the degree to which an individual licence-holder can increase his catch by substituting other inputs for the one that is limited. The less the opportunity for substitution, the more effective the system will be. Limits on the total number of fishing traps, or on the total-length of long lines, may be, at least partially, effective in controlling total catch and restraining increased capital-investment. The incentive to acquire a more powerful, or larger, vessel may not be great if it can only marginally increase the amount of fish that can be taken. In addition, where a non-substitutable input is limited, buy-back mechanisms can be used to reduce excess effort.

The conditions under which a licence-limit scheme can be effective need to be identified and, where feasible, such conditions might be fostered by government action. All the elements involved in the process of fishing, including the gear, vessel, engine, searching devices, etc., need to be examined to determine if there is one element that can be limited or that can be changed to one that can be limited in such a way as to discourage substitution. This might mean, for example, the development and encouragement in the substitution of fish traps against trawls. No limited-input system will be perfect but it nevertheless may be preferable, in some cases, to a limited-output approach. The Alaska system of limited-entry for salmon is fraught with imperfections but it has, nevertheless, served to produce economic-rents, which were formerly dissipated.

5. ALTERNATIVE APPROACHES

5.1 Common property rights

Licence-limit schemes may be useful in certain situations but it is unlikely that they could be used at national, or even regional, levels for small-scale fisheries in most developing countries. It would be just as impossible to licence and place limits on hundreds or thousands of kattamurams (log rafts) operating from the various Indian beach landing places as it would be to use an ITQ mechanism. The alternatives for achieving effective fisheries management in these situations are limited.

One approach is to establish a Teritorial Use Right in Fisheries (TURF) and grant it to a community or user-group. This is essentially a devolution of management authority to the local level. Traditionally such systems of self-government existed in many areas throughout the world, having arisen as a means for ensuring community stability. Some of them continue today. These systems of customary marine tenure have received considerable study in recent years.

Traditional systems

The cases where traditional systems of community control of resources exist provide an important lesson for management. They indicate that, where satisfactory exclusive use-rights are in place, the community will often work out effective use-patterns and behaviour. However, these traditional systems are fragile (particularly where they are not supported by government) and tend to break down under pressures of various kinds. These pressures include: intrusion of large-scale operations into inshore waters; depletion of stocks; entry into communities of displaced land-labour; population growth within communities; shift from subsistence to market-economies; and environmental degradation.

A major cause of administration breakdown can result from the intrusion of large-scale vessels into areas used by small-scale fishermen. This competition is a major source of conflict between the two sectors, sometimes resulting in violence. In some cases, both groups fish the same stocks, or they may fish stocks that are interrelated, either as competitors, or in predator/prey relationships. In other cases, conflict arises from incompatible gears. Small-scale fishermen generally lack mobility and are highly vulnerable to these forms of competition. A serious source of such conflict are industrial shrimp-trawlers that operate inshore. There is direct conflict with the gear and vessels used by small-scale fishermen, such as drift nets, which may be destroyed by the trawlers.

In some areas of Southeast Asia, the rapid increase in culture production of shrimp is leading to efforts by the producers to target small fish for use as feed. This form of “biomass fishing” is particularly destructive of the resources and the environment. Although most countries have regulations against trawlers operating in inshore waters, these have proved to be extremely difficult to enforce.

Large-scale purse-seine operations are also moving into the inshore waters of the small-scale fishing communities. In India, for example, oil sardines were once taken by small-scale fishermen for local consumption. But as demand for fish continued to outstrip supply, prices for the oil sardines increased, attracting large-scale operations.

Once these forms of intrusion take place, the small-scale fishing communities suffer from depleted stocks and conflict. The perceptions and traditions of community use-rights in fisheries weaken, or may even disappear and new forms of management are required.

Movement of workers into the community itself may also be a problem for traditional systems. In some cases, displaced farming communities may move into fishing in competition with existing fishing communities. In addition, rules governing membership in a community may not be strong, so entry by outsiders into a fishing community occurs and add pressure to the stocks. Even where membership is tightly controlled, population-growth within the community itself can add significantly to fishing pressure and create problems for management.

The shift from subsistence to market fisheries brings in economic forces that may weaken traditional management measures. In subsistence fisheries there is no incentive for individuals to catch more than can be consumed by the community. But when a market-economy develops, individuals are motivated to maximize their catch, which may threaten customs and traditions with regard to community sharing of the resources. There are, however, many communities whose traditions have survived the transition from subsistence to market-economies or, rather, have modified their traditions to accommodate the new pressures.

Finally, the degradation of the environment of the coastal zones, rivers and lakes from a wide range of sources has led to damaged fisheries and fishing-grounds and has reduced the opportunities and earnings of small-scale fishing communities. The weakened resource-base also weakens community traditions and controls.

These various developments have tended to undermine many communities’ belief that the adjacent fishery resources belong to them and that they have an exclusive use-right to the resources. With the diminished concept of a traditional TURF, the customs and traditions that regulated a community’s use of the fishery resources have also been weakened. This has led to an increase in the condition of open-access and, with it, to further depletion of the resource base. This, in itself, generates increased fishing pressure as the fishermen work ever harder to maintain their meager incomes and sources of protein. Small-scale fishing communities throughout the world face increased poverty and deprivation of basic needs.

5.2 TURF concepts

5.2.1 Property within TURFs

Although the history of traditional community-based fisheries management indicates that the systems are fragile and subject to breakdown, it does not necessarily mean that this approach cannot be used in the future. One of the main causes for their failure has been the lack of recognition by national governments of the benefits of such systems and, therefore, a significant lack of protection for them. With the strengthened awareness of the need for better management and of the role of self-regulation in achieving that goal, there are opportunities to re-establish community-based management through the use of TURFs.

Considerable effort has been spent in the past organizing fishermen into cooperatives or associations. The record of success of these efforts is not particularly good. The reasons for this are generally that the fishermen had no meaningful authority over the means of production; the attempts to establish the associations were made by government from the top down and the organization imposed on the community did not recognize or accommodate the informal organizational rules already in existence (Hviding and Jul-Larsen 1993; Platteau 1988). And, the incentives for cooperation (e.g. provision of credit or access to markets) have generally been too weak to attract the fishermen and induce them to change their patterns of behaviour.

The basic element underlying community-based management of fisheries is the provision of exclusive rights over the resources in the area adjacent to the community. This fundamental exclusive use-right, or TURF, distinguishes community-based management from fishermen’s cooperatives or associations that are not based on community-control over its resource base.

Whether this right can be used to achieve effective community-management of the fisheries depends on a number of factors. It is not a foregone conclusion that the acquisition of a TURF will lead automatically to self-regulation among the TURF-holders. The factors and conditions that will facilitate, or impede, community-based management need to be examined in detail. Basic to this examination are questions as to the meaning of the property right: who owns the right and what are the powers associated with it.

5.2.2 Community characteristics and membership in the community and fishery

There are various characteristics of small-scale fishing communities that are particularly important with regard to the possible adoption and exercise of local management authority. These relate to the membership in the community and the conditions of becoming members; the kinds and degree of authority available; the decision-making rules and arrangements; and the external forces and factors which have influence on the community.

One of the basic questions facing a decision to create a TURF and to facilitate a community-approach to management is that of defining the community that is to receive the rights and responsibilities. In some cases, the decision may be easy, for example, where the community is isolated, made up of a relatively small number of members; relatively self-contained and homogeneous. In most cases, however, defining the community is more difficult.

Community boundaries may not be clearly defined, either physically or in terms of external economic and social relationships; there may be widely varied activities, both within the fishery and the community as a whole; ethnic or religious differences may be significant; disparate and incompatible gears may be in use and it may be difficult to establish effective control over the range of fish stocks that migrate along coastlines. In some cases, residents within a fishing village may perceive themselves as members of different communities within the village.

In examining the problems of defining a community, it is important to distinguish between two basic elements. One concerns the participation in the sharing and distribution of the benefits. The other concerns the participation in the fishing-activity and production of benefits. Although these two elements may be difficult to separate in many situations, the distinction is important with regard to the ability of the community to manage the fisheries. With regard to the objectives of reducing, or preventing, depletion and of producing satisfactory economic benefits, management requires controls over the number of people engaged in harvesting the resources, i.e. those who fish. Those engaged in subsequent activities, such as processing, marketing, net-making, etc., have an influence on the number of harvesters since they affect the earnings of the fishermen. But, the problem usually lies in direct access to the fishery and the fact that there are generally too many fishermen, or too much gear, working a limited resource. Where the objective is economic, the necessity for controls on the number of fishermen or amount of gear makes it important to distinguish between actual fishermen and those engaged in related activities.

A basic element in examining community-membership a as a whole relates to the ways in which benefits produced from fishing are shared and who participates in the benefits. For a subsistence-fishery, these will be in the form of food, generally shared with all members of the community. For a market-economy, the benefits will, at the minimum, accrue to the fishermen themselves together with those who provide gear, supplies and capital and those who purchase, process and market the products. Beneficiaries will also include, less directly, those who participate in the community’s economy since the profits (presuming there are any) will be used for the purchase of goods and services such as food, clothing, shelter, etc.

Benefits may be distributed more broadly and may include social welfare, such as the provision of shares of the catch to widows and orphans; contributions to religious festivities or educational institutions; participation in infrastructure development, etc. Profits may also be transferred out of the community to relatives who have moved to other areas.

The distribution of benefits is not, of course, equally shared by all participants. Differences in the levels of benefits result from differences in skills, social and occupational position, activities, family relationships, ownership of capital and gear, health, age, education, etc. In a study of present traditional systems, Hviding and Jul-Larsen (1993) noted that “customary tenure may serve first of all as a means for those who have power to consolidate it, and exclude competitors, whether these are other families, villages, or ethnic groups”. However, to say that customary tenure reflects power relations and the struggle for resources in no way means that those in power and control of the system achieve all rights while those not in control are being marginalized to the extent that they do not achieve anything.

Patterns of distribution in wealth and power change over time and in response to internal and external developments. With regard to traditional arrangements, “they are dynamic systems that are being continuously modified according to ever-changing power relations among individuals and groups. One group who has had control of a territory may lose it to others in a process through which the system persists, but the personnel involved changes. In other cases new persons coming into power may have other interests than their predecessors. Not only may they substitute the old right-holders, but they may even change the principles of the system to make it more adapted to their interests. In this way, not only does the customary tenure system change continuously in terms of personnel; indeed the system as such with all its rules and norms changes too, introducing new types of rights and prohibitions for new groups of people” (ibid.).

In communities where customary tenure does not exist, the existing relationships among members, in terms of power and wealth, will be profoundly affected by the establishment of a TURF. The acquisition of a property right where none exists (or where its existence is weak) will cause a major perturbation in relationships and behaviour. It may strengthen the authority of those presently in power - or weaken it. The outcome will be difficult to predict and will depend upon the particular situation and the rule-changes adopted within the TURF. But, in any case, there are likely to be significant ramifications throughout the community, which suggests the importance of caution in the establishment of TURFs and community-based management.

The second aspect of membership is that of participation in fishing. Since this has a significant effect on the status of the stocks, it is a critical issue. In small-scale fishing communities, there may be many different kinds of fishermen. In some cases, they may use different gear for the same stocks. In Sri Lanka, for example, certain small pelagics are taken simultaneously in the same area by beach seines, kattamurams, mechanized and non-mechanized purse-seines, and stake fishermen. In other cases, different groups of fishermen may fish different stocks with different gears. In a few situations, all fishermen may fish the same stocks, perhaps shifting from one to another during different seasons.

The definition of a fisherman is also complicated by the fact that fishing may be a part-time activity for some and full-time for others. In some cases, participation in fishing may be seasonal, in combination with other activities or be dependent upon seasonal variations in the availability of the stocks. In other cases, certain kinds of gear may use casual labour. For example, when beach-seines are hauled, people not generally engaged in fishing may be recruited to help pull in the nets.

There may be wide variations in the degree to which any individual fishermen identifies with a particular group and also in perceptions of relationships with other groups. In part, identification with a user-group depends upon whether the individual is the owner of the craft or of the gear, or is a crew member. Identification is also influenced by kinship, ethnicity, religious affiliation and other factors relating to membership in the community as a whole. Relationships among groups may be strong where there are common interests (such as getting good prices) or weak where interests are disparate or incompatible. The quality of leadership is also important in determining group identification. These wide variations in different situations have a critical influence on how user-groups will cooperate in the management of the fisheries if they are provided with exclusive use-rights to an area.

5.2.3 Conditions of entry into the community and into the fishery

In considering the establishment of a community TURF it is essential to examine the conditions and rules under which someone can join the community, or user-group, since limits on entry are necessary to prevent an open-access condition. Traditionally, small-scale fishing communities have rules governing membership. These rules may vary widely, depending upon how the community perceives itself. Residence and kinship will certainly be important elements in all communities, but there can be variations in terms of length of residence, degree of commitment or involvement in the community and kind of kinship (such as differences in matriarchal and patriarchal cultures). In many situations, ethnicity, caste and religious affiliation will be important. It is likely that membership in a community can also be bought, perhaps through contributions to social or religious activities (or to the community’s leaders).2 Indeed, where a community is highly successful, it is likely that payments of one sort or another will be made to obtain membership. Unfortunately, there is little information available on the conditions of membership in communities.

2 Scudder and Connelly (1985) document a case in which the community chief auctions the rights to participate in a fishery. It is not clear if outsiders can participate in the bidding.
There also tend to be rules governing entry into the occupation of fishing. Membership in the community is generally required of those who seek to become fishermen. But, in addition, the prospective entrant may have to be from a fisherman family, member of a certain caste, or religious group. The kind and degree of participation may also depend upon experience, gained through apprenticeship or age. That is, to own, or be captain, of a craft, or use a certain kind of gear, a period of training may be required and appropriate skills must be demonstrated.3
3 In Chilaw, Sri Lanka, a fisheries organization was created in 1985 to manage the trawl fishery for shrimp. “An active fisherman from a traditional fishing family in Chilaw can operate up to two 3.5t motorized craft for shrimp trawling. An active fisherman not descending from a traditional fishing family in Chilaw, but resident in Chilaw town, can operate one 3.5t motorized boat for shrimp trawling” (Atapattu and Dayaratne 1993). In a village in Japan, “membership (in the Fisheries Cooperative Association) is not open to all residents. New residents must live there for one generation (or about 30 years) before they become eligible to apply for membership and fishing rights. Further, when a branch family is established by a son of a stem family of this village the new family must wait ten years before it can apply for membership and rights” (Ruddle 1987).
These traditional rules governing membership in a community and the fishery are likely to be subjected to considerable pressure in communities that receive a territorial use-right. Given the exclusive rights, the fishery is likely to produce surplus earnings which will generate pressures to join the community either as a basis for participating directly in the fishery or for sharing in the benefits produced. If successful, the newcomers to the community may bring in desirable skills, services and capital; or they may simply increase the number claiming a share in the distribution of benefits - this may result in a dissipation of the benefits. If the pressures to enter the fishery are successful, this is likely to result in open-access and a collapse of the management system. “When collective or cooperative entities accept too many members, they are exposed to the problem of incentive dilution: the larger the size of the group, the more diluted are the shares accruing to each member and the greater the incentive problem for any one of them, that is, the stronger their inclination to free-ride” (Platteau 1988). This was also noted by Hirasawa (1992, quoted in Christy 1993) in a discussion of Japanese systems. “This is a problem which never fails to happen in any area or fisheries where there has been successful fisheries-management... The fact is that the more successful fisheries-management cases appear, the more intractable question as to whom the fisheries resources belong arises.”

The whole subject of mobility in and out of communities (as well as in and out of fisheries) has received negligible attention. Indeed, most studies of fisheries communities assume that the population of fishermen is static and made up of “traditional” or “bona fide” fishermen who have a certain “way of life” that is important to maintain. Little attention has been paid to movement into or out of fisheries and to the fact that most communities are subject to change. The only study of which I am aware was done in Thailand (Panayotou and Panayotou 1986). There is a strong need for more research on this subject to better prepare for the introduction of community-based management systems.

5.3 External relationships

Small-scale fishing communities, although sometimes isolated geographically, are subject to external influences. Relationships are important in terms of labour-mobility, markets for inputs and products, environmental aspects, resource-sharing and government rules and regulations. There is a “requirement to develop an understanding, on the one hand, of the resource/fisherman/distribution continuum and, on the other hand, of the linkages among fisheries, fishing communities, and other rural sectors and institutions including government. The former is a vertical concept and the latter a horizontal concept, which taken together imply the necessity for a holistic perspective of fisheries and fishing communities” (Smith 1979).

Mobility of labour into and out of communities and fisheries depends upon the relative opportunities for employment in the community and elsewhere. In a study of Thai fisheries Panayotou and Panayotou (1986) note:

“It is found that fishermen are responsive to economic incentives and do move between occupations to take advantage of earning differentials. This mobility, however, is tempered by non-economic factors such as age, location-religion, isolation and occupational preference. Labour appears to be quite mobile between occupations but less so between locations.

Fishermen do not admit having emotional attachment to fishing but they do admit certain attachment to their area of residence and a distrust for unknown far-away places. Given a choice, they prefer other rural areas over the big city, and crop or fish farming over factory employment. Both religion and distance appear to constrain geographical mobility with Muslims being more mobile than Buddhists.

Mobility in and out of fishing, though considerable, is lower than mobility in and out of non-fishing occupations. Mobility out of fishing is, if anything, greater than mobility into fishing... Out-migration is temporary and usually in response to economic incentives, especially in fishing activities elsewhere; in-migration, on the other hand, is more permanent but less significant and it is socially rather than economically induced.

Thus, both the extreme positions of perfect mobility assumed by the open-access theory and of total immobility advanced by small-scale fisheries studies, should be rejected in favour of imperfect, but substantial, mobility constrained by location, occupation and household-specific factors. In the light of this finding, government efforts to upgrade small-scale fisheries will be successful provided the right incentives are given. However, the only way that allocation of additional resources to small-scale fisheries could benefit them in the long run is if fishing effort is controlled to prevent dissipation of resource rents and if alternative employment opportunities are developed to raise fishermen’s opportunity costs.”

In view of the lack of studies on the subject of mobility there is no way of knowing whether the factors mentioned above have universal application. However, it is likely that mobility will be strongly affected by differentials in earnings between the fishing and other enterprises. This implies that success in establishing and maintaining a community-based TURF will depend, to a large extent, on the degree to which perceived alternative employment opportunities are available.

The welfare of small-scale fishing communities is also affected by markets for its products and by the purchase of inputs. The size of the effect depends upon the kind and degree of the community’s relationship with outside buyers and sellers. Where there are strong and varied relationships there is likely to be more awareness of alternative opportunities for employment; more access to capital at competitive costs, and more possibilities for competitive pricing of catches. On the other hand, there is likely to be greater heterogeneity within the community and less cohesiveness. For isolated communities, the opposite factors are true.

The possibility of achieving mutual benefits from collective action in markets is important. Many fisheries cooperatives have been created to achieve better prices and economies of scale in the purchase of capital, goods and materials. As noted, many of these cooperatives have been imposed on the communities and failed to induce effective collective action. However, when the fishermen themselves initiate the arrangements and the situation is appropriate, the chances of success improve.

Where the quantity of fish produced by a group of fishermen has a significant affect on the prices received, there is a strong incentive to cooperate in controlling output. One example existed for a time in New Jersey. “As the seining fleet increased in size, the captains developed an overall fleet quota on how much menhaden and porgies could be caught. The size of the quota was determined through the cooperative’s manager by what the market would bear without depressing prices. In addition, they developed a boat quota program” (McCay 1989). The system fell apart when another fishery was closed, due to pollution, and those fishermen entered the seining fleet.

In Japan, there are several such, somewhat more durable, systems. In the Suruga Bay shrimp fishery, the fishermen adopted a “pooling system” under which profits from the sales are distributed equally among them. At one point the pooling system broke down but “was restored when the fishermen realized that without it the shrimp market collapsed” (Stardust Shrimp Fishery Management Cooperative Association 1993). In a fishery for mantis shrimp in Yokohama, “successive fall in prices associated with oversupply after 1975 prompted the Shiba small trawl fishermen to ask the Cooperative to devise better marketing mechanisms. Representatives of the Cooperative negotiated with consignees in Tokyo and it was agreed that daily shipments from the Cooperative to the market would be limited. This meant that the Cooperative had to introduce a landing quota and shipment limits. Thus, these limitations were introduced in Shiba from May 1977. (Production/shipment limits have been set for different size vessels, ranging from 75-125kg per vessel per day). This production/shipment limitation worked effectively: there was no drastic increase in the catches after 1977” (Shiba Branch: Yokohama City Fishermen’s Cooperative Association 1993).

In these cases, the groups of fishermen were able to adopt these kinds of individual quota, and other controls, not only because they were relatively homogenous groups but also because they were the major suppliers to their particular markets.

In addition to markets for products, a community is tied to its fisheries through the purchase of goods and services. Most notably, these include outboard motors, fuel, nets and materials for building fishing craft. Fishermen’s cooperatives have sometimes been formed to facilitate purchase of inputs and to obtain better prices. International and multilateral aid agencies, as well as non-governmental organizations, are also sometimes involved in providing vessels and gear to groups of fishermen.

Although the provision of inputs fosters cooperation within a fishing community, it does not appear to produce any particular inducement to take collective action with regard to the management of the fisheries. Indeed, it may be counter to effective management in that it tends to increase fishing effort by reducing costs and providing improved technology.

There is a growing number of situations where small-scale fishing communities are affected by external sources of pollution and environmental change. Such communities are particularly vulnerable to environmental degradation since coastal areas, rivers and lakes are frequently the end-depository of the effluents carrying the pollutants and because the fishermen’s craft have limited range and little ability to escape the harm.

To deal with these problems effectively requires cooperation among the fishermen to develop the political strength to force decision-makers to establish controls on upstream sources. However, although the need for such cooperation is important in many situations, there is little evidence of successful organization of fishing communities for this purpose. But, this may eventually result from efforts presently underway in a number of countries.4

4 The Fisheries Department of the Food and Agriculture Organization had a UNDP-supported programme for this purpose. There are also a number of coastal zone management projects underway. Although these do not focus on fishing communities, they may facilitate the organization of the communities.
An important related aspect is that of the sharing of fish stocks among fishing communities. In some cases, the stocks are restricted to a relatively fixed area, which greatly facilitates management. This is particularly true of coral-reef areas of South Pacific Islands where a large number of traditional systems of community management still exist and where many studies have been made. In most situations, however, there is likely to be a mixture of stocks, some of which may be sedentary while others may migrate over great distances. In Japan, it appears that most, though not all, of the self-regulatory systems relate to sedentary stocks: to reefs, some of which are artificial; or to fixed-gear fisheries. In the latter two instances, some of the stocks, such as horse mackerel, are migratory. In one prefecture in Japan, in 1983, 15 separate fishermen’s cooperatives organized an overall body to deal with migratory fish, This covered such varied gear as small trawlers, fixed nets and drift nets. “The history of the KFDTS (Kagawa Fisheries Development Thinking Society) is short and therefore early assessments are not possible. However, this approach is worthy of attention as a means of establishing fishery management of migratory fish from within, rather than from pressure of the government bodies” (The Kagawa Fisheries Development Thinking Society 1993).

National and regional governments can, but not always, have a strong influence on fishing communities in several regards: social, political, economic and legal. There are various aspects of social influence including support (or lack thereof) for education and training, investment, or support, of religious activities, protection (or lack thereof) of civil rights, etc. Politically, communities interact with governments in elections and in expression of their interests. The ability of communities to express their interests may be particularly important in acquiring TURFs.

Economically, communities are affected by taxes and subsidies and by government provision of infrastructure such as ports, roads, ice plants, etc. Legal influence on communities can be strong with regard to fishery and other regulations and the resolution of conflict. The role and attitudes of national fishery administrations are critically important with regard to the establishment of community-based management systems. Many of the various relationships between a community and its economic, political, social and environmental surroundings have important implications for the degree to which property rights can be granted to communities as well as for the kinds of rights that might be employed and the various aspects that must be considered if community TURFs are to facilitate fisheries management.

Organization had a UNDP-supported programme for this purpose. There are also a number of coastal zone management projects underway. Although these do not focus on fishing communities, they may facilitate organization of the communities.
5.4 Fisheries management aspects

5.4.1 Management functions

The characteristics of a community provide one dimension in the evaluation of the use of TURFs for community-based fisheries management systems. A second critical dimension is that of the characteristics of the management functions. When a community has been granted, or acquired, responsibility and rights for the management of its fisheries there are two aspects of the management that are important: (a) the degree and kind of authority required for management; and (b) the decision-making arrangements.

5.4.2 Degree and kind of management authority

By definition, community TURFs must have some kind of authority to manage the fisheries that relates to the management functions to be fulfilled. The fishery-management functions are basically the same as the functions that are fulfilled by a sole owner of a private natural resource, such as a farm. However, a community, being a social and political body, will also be influenced by factors affecting its welfare and may fulfill the functions in different ways.

A landowner’s basic objective is generally to maximize his net income from the land. To do this, he may choose to farm crops, raise trees, or use the land for industrial or other purposes, subject to any constraints that government may impose, such as zoning against a particular use. Likewise, a community may choose to maximize the net revenues it can achieve from its resources. However, its objective may also be influenced by social and political forces. Subsistence economies may wish to ensure provision of adequate food supplies. A community in a market-economy may wish to ensure community stability and value the provision of employment opportunities as well as incomes.

A significant difference between an individual resource-owner and a community-owner is that, for a community, such decisions as the choice of objectives will generally be made collectively. This requires that the community must have acquired, or be granted, the right to make such decisions. In some cases, there may be constraints or external conditions, affecting the degree to which there is freedom of choice among management objectives.

5.4.3 Acquisition of information

A farmer requires information on costs of inputs; price of products; access to markets; techniques for cultivation; costs of labour; etc. Similarly, a fishing community will need information on prices and costs, fishing and processing techniques, status and location of the stocks, etc. More particularly, in a fishing community, there will be a need for information on the behaviour and catches of individual fishermen to ensure that all participants cooperate appropriately.

With regard to information on the stocks, it is sometimes stated that local fishermen have a high degree of knowledge about the resources, e.g. Hviding and Jul-Larsen (1993): “local people often have much more detailed and elaborate knowledge about fish behaviour and its relations to environmental processes than Western scientists”. It is quite likely that there is a high degree of knowledge about the location and seasonality of individual stocks within a community’s fishing area, but it is not necessarily true that this knowledge comprehends the relationship between fishing effort and yield. Indeed, the same authors cite an example of a group of fishermen in the Niger central delta who believe that the fish come from the sky at the beginning of the rainy season. With such a belief, declining harvests are likely to be blamed on the gods rather than on overfishing. Although many fishing communities are more sophisticated, there is still a requirement for access to knowledge on the scientific aspects of a fishery, whether “Western” or not. In this regard, the function of acquiring information on stock yields cannot always be fulfilled solely by the community.

A different requirement for information is the need to be aware of the behaviour of individual fishermen in the community. For community management to be effective, it is necessary to monitor individual behaviour to ensure that community rules are followed. This may present many difficulties. In a discussion of self regulatory mechanisms, Scott (1993) makes a distinction between controls on methods and location of fishing and controls on quantity of catch. In citing an analysis by Schlager (1990), Scott states that “she finds that when cooperating groups do exist, the information they can pool or collect is not equally useful for all kinds of regulated behaviour. They find a vessel’s gear and fishing location easier to monitor than the amount of its fishing or the number of pieces it landed”. Scott concludes that “for a large group to monitor the amount taken requires more than cooperation: it requires investment in some kind of government: mostly the employment of inspectors and watermasters and other full-time and part-time officials”.

Although I disagree somewhat and believe that there are situations (cited above) where self-regulation does control amounts of catch by individuals, the point is important and indicates that the availability of satisfactory information on catches by individuals within a community is an essential requirement for an effective community TURF.

In summary, although the function of acquiring information is essential for management for both a sole-owner, and a community-owner, of a fishery, there are different requirements for its fulfillment and differences in the distribution of authority between the government and the resource owners.

5.5 Allocation of capital and labour

Both a farmer and a fishing community must determine the amount and kind of capital and labour required to produce the product or desired objective. For the farmer, the task is relatively simple. Given the objective of maximizing his net revenues and information on the relative costs of the inputs of capital and labour, he can determine the appropriate mix of inputs and invest at the most profitable level.

Although the same kind of decisions must be made by a fishing community, the problems are more difficult. In fisheries where TURFs do not exist, it is likely that the open-access condition have led to excessive amounts of capital and labour, with consequent low yields from the stocks and low economic returns to the fishermen. The granting of an exclusive right provides the opportunity, but does not necessarily diminish the difficulty of controlling the amount of capital and labour. A second difficulty is that of the importance of the community’s social objectives. Where a community has few employment opportunities outside of the fishery, it will be difficult to limit access to the fishery through controls on the amount of fishing effort. In addition, limits on access to a fishery provide fishing privileges to some and may exclude existing or potential fishermen. Such controls require agreement on the distribution of wealth, which may be extremely difficult. This may be one of the major impediments to the establishment of community-based management.

These kinds of difficulties can be dealt over time. With a TURF, the community can, at least, prevent continued influx of surplus labour and remove, or limit, competitive, or conflicting uses, by large-scale operations. The community can also alleviate some of the congestion and allow for stock rehabilitation by sharing access through systems of rotation. It can use its rights to protect nursery areas and prohibit the use of damaging techniques and gear. Traditional systems of community-based management are known to employ a wide variety of such techniques. Eventually, the community may reach a point where the opportunity to allocate capital and labour will be taken.

5.6 Monitoring, enforcement and conflict resolution

Private landowners monitor the use of their land and generally have protection in law of their exclusive rights. The other functions of enforcement (arrest, trial, punishment and reporting) are usually done by government. The resolution of conflicts between landowners and other parties are generally undertaken by the courts or through arbitration or mediation procedures.

The fulfillment of these functions by a fishing community are generally similar with regard to non-members of the community. That is, it can monitor the use of its TURF and must rely on government for the other functions of enforcement. However, for the internal aspects of a community there are other requirements that must be met. Controls over community members must be in effect to ensure that all participants comply with the community’s rules so that the arrangements do not fail. As noted above, where the rules relate to season, time and place of fishing or to kinds of gear, monitoring the behaviour of the individuals is not particularly difficult in comparison with rules governing individual quantities of catch.

The functions of arrest, trial, punishment and reporting can often be fulfilled within a community through the use of peer-pressure and traditional conflict-resolution mechanisms. As in all matters, this depends upon the strength of the shared communal interest in managing the resources and the perception of the individual members that they are better off by complying with the rules than by violating them. Here again, full information on the system and how it operates is a vital requirement for a community TURF.

5.7 Distribution of benefits

A distinctly different function between a private-landowner and a community is needed for determining and monitoring the distribution of benefits among the members. A private-landowner appropriates all benefits from his production (except for taxes). Where there is common ownership of a TURF, however, specific decisions are needed on the distribution of benefits among the community members; whether these are in the form of fishing privileges or quotas, distribution of surplus catch for food, or distribution of economic revenues.

This requirement lies at the heart of community-based systems and poses the greatest challenge to their development and maintenance. There are arguments that agreement on the distribution of benefits can only be achieved through outside intervention. “These practices of today’s groups show that the distributional obstacles in the way of self-control of individual fishing pressures cannot be solved endogenously” (Scott 1993). I do not fully accept that this conclusion always relates to small-scale fishing communities or even to groups of large-scale fishermen. Given the right incentives, institutions and conditions, groups of fishermen have made decisions on sharing in the benefits from their fishing activities. The function of making such decisions is, admittedly, the most difficult of the functions of fisheries management for a small-scale fishing community, but it can be fulfilled effectively.

5.8 Summary

In any examination of the property rights that a community must have to manage its fisheries it is necessary to consider the different functions that are required and to determine the kind and amount of authority necessary for their fulfillment. The devolution of authority to local levels is likely to be constrained in certain regards, for several reasons. One is that national governments may be unwilling to concede the full range of authority. Another is that certain functions, such as negotiating agreements among neighboring communities on shared stocks, cannot be fulfilled without some sharing of authority. A third is that some functions, such as the acquisition of information on stock yields, is most effectively fulfilled by central governments because of economies of scale. Finally, the communities themselves may be unwilling to take on some of the responsibilities, such as the distribution of benefits among heterogeneous user groups within the community. Each situation will be unique so that each may require different degrees and kinds of management authority.

A community-based fisheries management system, intrinsically, requires collective decision-making. Where collective action is not taken and individual choice is dominant, the fishery resources are, in effect, open-access resources, with all of the damaging consequences. “The basic pattern of interaction on which successful joint use of the commons depends is reciprocity... If reciprocity among users is fully abandoned [or does not exist], what follows is some pattern of mutually destructive competition and/or conflict. Users may try to drive one another out to preclude mutually subtractive use. Or they may engage in a competitive race to exploit the commons without regard to an optimal rate of use. Relevant patterns of interaction may include concealment, deceit, intimidation, threats, and violence” (Oakerson 1986).

The last sentence of this citation refers to systems where collective action has recently been abandoned. The use of terms such as “concealment” and “deceit” reflects the understanding that the members of the community perceive these patterns of behaviour to be contrary to group norms. However, in many situations, where collective action does not exist or has long been abandoned, the relevant patterns of interaction would not be described in such pejorative terms. Instead, the individual participants would be considered to be acting in their individual rational interest. Where there is a history of open-access, the damaging consequences are due to the absence of satisfactory institutions for collective organization, not to the failure of an existing organization of the community. The distinction is important since our present concern is primarily with the establishment of collective behaviour and only secondarily with its maintenance.

All communities have rules for making decisions. Some of these rules may have developed endogenously while others are exogenously determined (e.g. sets of national laws and regulations). In some isolated communities, such as those in many small Pacific islands, the rules have emerged within the community and may not be significantly influenced by outside institutions. In other communities the local organization may be weak and the rules may be entirely imposed by governments. Generally, in the former case, the rules are designed to regulate collective behaviour within the community whereas in the latter the rules tend to focus on individualistic behaviour.

Most communities fall in the range between these two extremes. The difference in balance between endogenously and exogenously-generated rules is important for the community’s receptivity to the creation of a community TURF. “Rules that establish the ability of some group to act collectively (to make decisions common to the group), are especially relevant to the management of common property. Obstacles to collective choice are at the same time opportunities for individualistic choice - decisions that individuals can make on their own without the consent of the others. When a group is unable to act collectively, individual members are left free to act separately” (Oakerson 1986).

There are various points of view in the literature on the ways in which collective decision-making arrangements are formed.

“Common sense would suggest that people who perceive a joint interest will join together to pursue this interest, and hence that a perceived common interest is a basic element in explaining collective action. The public-choice theorists say that common sense is misleading. The rational individual, they say, will not voluntarily contribute to a common goal if the group is large and if he or she cannot be excluded from enjoying the benefit. The individual will, instead, seek a free ride. As a result, any collective action (in other than very small groups) that is not based on coercion or on the availability of selective incentives tends to be fragile. Certainly, the literature describes many violations of rules of restrained use of common pool resources... that deplete the resources. But the literature also contains many cases of local groups that have been able to agree upon rules of restrained use and have enforced the rules using authority from within the group rather than from outside (e.g. government). In these cases, we can talk of a ‘public realm’ within the group, which consists of the rules and roles involved in common pool resource management” (Wade 1986).
Arrangements for rule-making require some form of organization. Most communities will already have some form of organization, both formally (legislatively) and, or, more informally through custom or tradition. The organization may, or may not, concern fisheries. In communities with customary resource tenure, fisheries are governed by a wide variety of informal arrangements. These include autocratic systems dominated by an hereditary chief or by a council of elders; representational systems governed by elected officials; and even systems where decisions are made by judicial bodies (Scudder and Connelly 1985). Combinations of these approaches are common.

Where resource-tenure is non-existent, the informal community organization may relate to fisheries but is unlikely to be effective in undertaking fisheries management. In India, for example, there are numerous fishermen’s associations formed on the basis of kind of fishing gear or craft, location and religion. In the absence of a TURF, however, they have limited ability to manage the fisheries. The question is whether, and how, the existing organizational structure can be adapted to achieve management.

In summary, there are important possibilities for facilitating the establishment of collective choice systems in small-scale fishing communities. There are, however, many complexities due to the wide variations in the make up of the communities and the characteristics of their fisheries and the resources. The challenge for governments wishing to take this approach is to carefully identify the salient elements of each situation and to proceed cautiously. Certain facilitating steps, however, can be taken at an early stage. The most important of these is the identification of the conditions and incentives that will help the members of a community to take collective fisheries-management decisions. Governments can then attempt to provide the conditions and offer the appropriate incentives so that the communities are encouraged to take them regularly. Some of these incentives and discussions are discussed below.

6. INCENTIVES AND CONDITIONS FOR THE ESTABLISHMENT OF COMMUNITY PROPERTY RIGHTS

6.1 Conditions required

In general, the search for incentives and conditions to facilitate establishing community property rights can be divided into: (a) those dealing with the difficulties associated with the devolution of management authority to the community; and (b) those dealing with the tasks of the community and government in the monitoring and enforcement of the systems (the problems of information gathering and dissemination).

6.2 The devolution of management authority

The previous discussion identified the major impediments faced by national governments in the devolution of fisheries-management authority to communities. They relate to the problems of making and enforcing decisions on the distribution of wealth; the reluctance of some administrations to relinquish their authority; and the difficulties of establishing community TURFs. In addition to those, opposition to the creation of TURF’s may also be due to the difficulties perceived in the implementation of the systems and by a lack of awareness of the potential for harnessing a community’s incentives for self-regulation.

In some situations, not all the various impediments may be fully overcome and establishment of a community TURF may not be feasible. However, the approaches suggested below will be of value in all situations and may facilitate eventual adoption of such systems in the difficult situations. There are basically two kinds of approaches: those that relate to the decision-making process within the central government; and those that relate to the incentives for communities to adopt self-regulatory mechanisms.

It is common that fisheries-management issues are not addressed until a crisis develops; such as severe conflict between user-groups or significant declines in economic returns. Faced by crisis, fishery managers tend to adopt palliative measures. They do what they can to minimize the protests or they attempt to provide some forms of economic relief, such as low-cost loans. These kinds of measures do little to address the fundamental problems of open-access and may even exacerbate the problems.

The basic difficulty is the unwillingness, or incapability, of administrators to make the necessary decisions on the distribution of wealth. Such decisions must be made at the political level and it is essential to involve politicians in such issues. To do this, two tasks are necessary: (a) improve the politician’s understanding of the problems of open-access and (b), build constituencies which will support elected representatives in making desirable decisions.

The first task requires education of politicians. In many countries, the problems of conflict, depleted stocks and low earnings are already receiving attention. There is not, however, a general understanding that the condition of open-access is the fundamental source of the problems. This is due, in part, to the conventional “western” approaches to fisheries management that emphasizes the welfare of the fish rather than the fishermen and which seeks to preserve catch levels rather than economic returns. International and multilateral aid programmes have tended to support the conventional approach, both in the advice given and in the encouragement of greater investment. Although aid programmes have been changing their approach, much more needs to be done. In particular there is a need for more studies of the consequences of open-access in specific fisheries and of the benefits to be gained by providing exclusive use-rights. Such studies would illustrate the often large amounts of economic waste associated with the excessive costs resulting from open-access. And they would show that conflict will become increasingly pervasive and severe if appropriate actions are not taken. Aid programmes have an important role to play in the support of such studies and in their dissemination.

A related approach is to mobilize and strengthen the political constituencies which support community-based management. Non-governmental organizations (NGOs) are actively working with communities in many developing countries. Few of them, however, have adequate understanding of the special characteristics of fisheries and the need for management through exclusive use rights.5

5 A notable exception is the International Collective in Support of Fishworkers, based in Brussels and Madras.
6.3 A programme for training NGOs on the needs and options for fisheries

An important requirement the adoption of community TURFs is to create the conditions and incentives that encourage communities to regulate themselves. Generally, traditional marine-tenure systems have emerged from three different motivations: equity, efficiency and enhancement (Christy 1993).

One motivation for traditional community self-regulation is the desire to maintain community stability. This is based upon a perception among the members that there is a satisfactory degree of equity in the sharing of the benefits. This does not necessarily mean that all members receive equal shares but that an individual’s efforts are sufficiently well rewarded so that they feel better-off being part of the system than by breaking it. When this is not the case, the community fails. Community regulation in the use of a scarce resource provides a means for achieving a sense of equity.

The role of governments in preventing significant inequities in the distribution of community benefits is generally limited to such measures as taxes, welfare payments, education, etc. Although it is important to ensure that community-based systems do not contribute to inequities, there is little that governments can do to make use of the equity-motivation as a means for fostering the systems.

The second general incentive for community self-regulation is that of increasing net benefits from the resources. In traditional systems, this occurs most directly when a group of users perceive the opportunity to derive benefits from the resources by allowing use subject to taxes, user-fees or shares in the catch, either from community members or outsiders. An example is that of the revenues collected by communities in the Solomon Islands who charge user-fees to the tuna bait boats fishing within their TURFs. Another example are the municipal fry-fisheries in the Philippines where the municipalities auctions off the rights to harvest the fry (Smith and Panayotou 1984). The revenues that are collected provide a substantial share of the municipalities’ incomes.

The motivation can also lead to community cooperation when there is an opportunity to influence prices. For example, the Mar del Plata fishery in Argentina is the major provider of fresh fish to the Buenos Aires market and limits its production to ensure that high prices are received (Gumy, FIPP, FAO, Rome, pers. comm.).

In these examples, the groups of fishermen have adopted controls over their own catches and regulate the fishery. In these cases, there is a presumptive exclusive-right which the fishermen claim and enforce through various means. They do so because they perceive that the benefits of the measures will accrue to them and that the benefits outweigh the economic and social costs of asserting and protecting their claims. In the case of the efficiency-motivation, as in the case of the equity-motivation, there is little that governments can do to use these incentives to foster the establishment of the systems, except to permit the groups to adopt the measures. This may be important as many governments have legislation prohibiting collusion among producers such as that designed to restrict output in order to achieve high prices. For resources that are not subject to open-access, this may be entirely appropriate. But in fisheries, the costs to the economy of maintaining open-access are likely to be much greater than the costs associated with price-fixing.

The third motivation for self-regulation is that of resource-enhancement and it offers considerably more opportunity than the other two motivations for a governmental role in facilitating self-regulation. Enhancement of the resource can be achieved by stocking of juveniles; protecting nursery grounds; and providing attractant or aggregating systems such as artificial reefs and fish aggregation devices. These techniques require investment, either direct or through restraint on harvesting. Such investments are unlikely to be made by a group unless there is assurance that the user group will achieve a satisfactory return; i.e., unless it has an exclusive right to harvest the fruits of their investment. Where such a right exists, there is an incentive to make the investment and to control the catch from the stock to ensure satisfactory returns.

Governments could provide such rights to communities and also provide monetary or other support, for the investment. For example, a community could be granted a TURF in its adjacent waters for the purpose of constructing artificial reefs or implanting fish-aggregation devices with the proviso that it assume the responsibility of managing the resources. Construction money could be made available and aid provided for training community members in management methods. The community should be free to harvest the resources with its own fishermen or to lease rights to certain fisheries to outsiders.

The use of fixed-gear, such as stake-nets, traps and pots are other approaches that can be taken that, while not related to enhancement, will facilitate development of TURFs. Where these are in use they have frequently served as a basis for customary tenure. Unfortunately, there seems to be a tendency for governments to prohibit the use of such gear. This may be due to political opposition by users of mobile-gear who want freedom of movement through the area. Or it may be due to apprehensions within the community that the techniques could lead to exclusivity by a few individuals. Governments, however, could encourage the use of fixed-gear and grant the communities the right to allocate the use.6

6 A proposal for the establishment of a property-rights system for FADs was made to the Maldives Government with regard to its tuna fisheries. See Christy et al. (1981).
The provision of a TURF to a community should provide a powerful inducement to regulate the use of its own resources. The exclusion of outsiders means that the gains of management accrue to the members of the community. If the gains of management (or the losses from non-management) are perceived to be high, it is likely that the community will adopt self-regulatory measures.
“The central conclusion is that village-wide institutions are only likely to be formed and sustained when the risks of loss are relatively high... That is, the relationship between risk and social response seems to an almost sufficient one (risk and social organization are almost always related to one another in the predicted way). The conclusion is thus in line with the argument of several economists writing about induced institutional innovation who have tended to argue that when the benefits of institutional change exceed the costs, change will occur” (Wade 1986).

“In the supply-and-demand model, the demand for institutional change arises when some gain cannot be captured under existing institutional arrangements. Changes in relative factor or product prices, changes in the size of markets, changes in technology, and changes in fundamental decision rules of government, are among the important variables that create disequilibrium in the existing institutional arrangements. Whether the demand for change will be met, however, depends on the supply of institutional change - the willingness and capability of the fundamental institutions of government to provide and/or permit and/or prevent new arrangements. The capability depends in part on the cost of institutional innovation, which in turn depends in part on the stock of existing knowledge about the design and operation of institutions. The willingness to provide new arrangements also importantly depends on the private benefits and costs of providing change to the agents who are in a position to do so, the elite decision-makers of government. Thus, the existing set of institutions and initial distribution of power will have an important impact on the kinds of new institutional arrangements that are supplied” (Thomson et al. 1986).

The provision of a TURF to a community constitutes a change in the fundamental decision-rules of the community and creates the disequilibrium necessary to induce new arrangements. The capability of the community to adopt the new institutions depends upon the community’s knowledge about the operation of the new institutions and the likely effects of change on the community’s power elite. This knowledge can be influenced by educational programs provided by governmental and non-governmental organizations.

6.4 Fulfilling the functions of monitoring and enforcement

Enforcement involves several functions. In governmental systems, these functions of monitoring and enforcement are generally distinct. The first function is the surveillance and monitoring of the measures to determine whether there is non-compliance. The second is that of the arrest of violators, followed by trial, the imposition of penalties and reporting of the outcome. Different agencies of government may be responsible for each function.

In informal community-systems, although the functions must still be performed, they are not always separated and they tend to be fulfilled by the community itself generally through the agency of the community leaders. Arrest and trial, for example, may be subsumed within the system as whole and sanctions may be imposed through peer pressure. The approaches to the tasks of the monitoring and enforcement of community TURFs depend upon the measures to be enforced. For some measures, the national governments will have responsibility and for others, the communities will be responsible although they may benefit from national government assistance.

Central government issues

A primary responsibility for national governments is to enforce exclusive territorial use-right granted to the community to ensure that there are no unauthorized intruders. To some extent, the community can conduct surveillance of its borders. But the central government will generally have full responsibility for arrest, trial and punishment of the violators.

Experience has shown that prohibitions against large-scale fishing within a certain distance from shore are difficult to enforce. However, there may be a significant difference between generalized bans and the systems that provide a coastal community with a specific TURF. In this case, the decision to redistribute wealth to the community has been made and there is an obligation to protect the community’s rights. Further, the area to be enforced is likely to be relatively small. Nevertheless, the task may be difficult and require that national governments invest in adequate enforcement equipment and personnel.

The task will be facilitated by having clear-cut, easily-identified boundaries to the TURF and by giving full publicity to its establishment. Those who are to be excluded might be more willing to respect the boundaries if they are provided with some benefit in lieu of access. This might be an exclusive right to an area in deeper water, or, it might be payments to large-scale operators for selling their vessels and relinquishing their rights to fish. Funding in the decommissioning of large-scale operations may produce large economic returns to national economies in some situations (Christy 1987). An additional task for central governments will be to provide mechanisms for settling disputes between the community and outsiders and, where needed, within the community itself.

Central governments also have a role to play in facilitating the monitoring of the community systems. Where a system uses controls on total and individual catches, accurate and credible information on catch quantities is extremely important. Governments can provide central marketing-places for communities which do not have them. They can also provide independent personnel to monitor the catches.

Community issues

There are several elements to the tasks of community-enforcement. These include control over entry into the community as well as entry into the fisheries: compliance with community regulations such as gear, season and area-prohibitions and quantities of individual and total catches by species; and assurances that the distribution of benefits is acceptable to community members. If these tasks are not fulfilled adequately there will be incentives for behaviour which may undermine the management systems. “When people do not have the assurance that other participants will cooperate or will be punished if they do not comply with the group’s rules or code of good conduct, the ‘morale’ of all the membership is gradually eroded, opportunistic behaviour spreads itself and economic cooperative performances become more and more disappointing, breeding new manifestations of free riding and adding to the people’s frustrations” (Platteau 1988).

Major issues in this regard are the degree to which the enforcement tasks are undertaken by the community other than the central government and how these tasks are fulfilled. Platteau has pointed out that these issues present a central dilemma (which would apply to community regulations though not to the protection of a TURF): “either the monitoring and sanctioning functions are performed by the cooperative membership and, under these conditions, there is serious risk that sanctions are inequitable or ineffective; or, these functions are entrusted to an external agency... in which case the danger is great that the cooperative organization degenerates to a bureaucratized form with the result that incentive problems become more serious than they were at the beginning” (ibid.)

Platteau identifies two different cases of cooperative organization. In the first, the members are relatively equal in status. Such a case might be a user-group where fishermen use the same kind of gear. In these situations, there may be difficulties in imposing sanctions since the system may be subject to the code that “a person of a given status is not entitled to judge another person belonging to the same status category. The breach of the customary norms would be especially serious if a member would have to be expelled from the cooperative group... Under such conditions, it is not surprising that so many cooperative organizations are characterized by lax discipline and morals, and are overwhelmed with all-pervasive incentive problems which in the end render them non viable”. It is perhaps this kind of case that Scott has in mind when he states “that the distributional obstacles in the way of self-control of individual fishing pressures cannot be solved endogenously” (Scott 1993).

In the second case, the cooperative members have different status, as is likely in many fishing communities. In these situations, “rule-breaking behaviour and manifestations of opportunism can be effectively monitored and sanctioned using the social prestige of the customary power structure” (Platteau 1988). The difficulty here is that “the functioning of the cooperative group is highly likely to be nondemocratic: in other words, the price to be paid for achieving efficiency would be high since it would involve giving up the fundamental cooperative ideal of human equality” (ibid.). Wade (1986) supports this view. “The second principle is that the generation of authority (the right to decide for others) is likely to be problematic within such common interest organizations, and if the organization is to be sustained it should draw on existing structures of authority. In practice, this means that the council will be dominated by the local elite, which is a disturbing conclusion for democrats and egalitarians”.

If there is sufficient inequality in the imposition of penalties, the system is likely to break down. But this need not be the case. As noted above, one motivation for cooperative community action is the desire to maintain community stability through equitable distribution of benefits. “If traditional chiefs, patrons or landlords act as enlightened... leaders, associations can develop which, even though they are not actually obeying democratic rules of functioning, turn out to be effective enough to improve the lot of the poorer members” (Platteau 1988). Further, “the robustness of the organization depends on its councillors all having a substantial private interest in seeing that it works... By including on the council only those who have a substantial private interest in seeing that the collective good is provided, the council itself comes close to becoming the minimum coalition whose members find it in their private interest to bear the transition costs of organizing others to share in the costs of providing the collective good... This effect is then greatly reinforced by the greater power of the elite councillors versus the mass of the population; the tendency of the non-elite to cheat, hoping that because of large numbers, no one else will notice, can be checked by sanctions contained in the wider order of property and stratification. Without these wider sanctions, the formal penalty mechanisms would in all likelihood constitute an inadequate barrier to cheating” (Wade 1986).

This discussion suggests that approaches to the task of establishing community TURFs should consider several elements with regard to the problems of enforcement. The community should have primary responsibility for enforcing the rules that it establishes for management, leaving to the central government the task of excluding non-members. The system should be established for the fishing community rather than for a specific group of fishermen to allow a broad range of penalties to be imposed. It should be based on the existing authority within the community and should not attempt to impose a different structure. What may be sacrificed in terms of egalitarian ideals will be more than counterbalanced by ensuring viability of the regime. If the inequalities become excessive, it is likely that the community will become destabilized and cease to function. However, the government might reserve the option of removing the exclusive use-rights in situations that persist in serious inequality.

7. SUMMARY

Effective management of fishery resources is a fairly recent phenomenon. Although there have been instances of well-managed fisheries in the past (notably the North Pacific fur seal fishery), management within national boundaries had to await the extension of national jurisdiction. This acquisition of a national property right subsequently allowed individual governments to adopt property-rights systems for fisheries. One of the most effective of these is the Individual Transferable Quota which is increasingly being adopted for large-scale fisheries in developed countries. This system sets the basis for self regulation by fishermen and reduces the onus and cost of governmental involvement.

There are, however, situations where government imposed ITQs cannot be used. Small-scale fisheries in many developing countries are marked by a multiplicity of gear, craft, species and landing areas. In these situations the only apparent solution is to devolve management authority and let communities or groups of fishermen assume the responsibility. Such community-based TURFs would permit fishermen to adopt those measures most suitable for their particular situation and reduce the conflict and waste that is prevalent at present.

Common-property management-systems have received thorough study in the past several years. But common property does not exist unless there is property, i.e. unless the community has some form of property rights. In most cases such rights do not exist and must be established. This is not an easy task. It raises significant questions as to both the ownership of the rights and the content of the rights; questions as to the definition of the community and the kind and degree of authority of the management. The immense variety in situations among fishing communities makes it difficult to generalize about approaches and outcomes. But, governments can provide conditions and incentives that facilitate the assumption of management responsibility by communities. These include deliberate decisions on the distribution of wealth and the establishment of territorial rights; enforcement of the rights; encouraging community investment in enhancement techniques and technologies; supervision of the systems; provision of information on the fisheries; support of NGO involvement in the community; and the willingness to relinquish administrative power and authority.

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