Regulating the Global Commons – Part I

WASHINGTON, DC: Fish stocks are being depleted the world over, and the reason is simple: International law has given fishermen incentives to catch fish, not to conserve them.

The problem is particularly acute for the high-seas fisheries, for stocks that straddle the high seas and for highly migratory fish – all of which elude domestic arrangements for enforcing conservation measures. In the high seas, international law says, fish belong to everyone.

Over the years, international law has changed to correct such incentives. In the 1970s, the property-rights arrangements for the oceans underwent a revolution. The centuries-old tradition of a 3-mile territorial sea was increased to 12 miles and a new concept – the exclusive economic zone – gave states the right to claim jurisdiction over fisheries up to 200 miles from shore. These changes essentially nationalized much of the world’s commercial fisheries. They amounted to the greatest reform of property rights in human history.

The reforms helped, but not enough. When overgrazing threatened the productivity of the rangelands in the western United States, the combination of private-property rights and a new technology – barbed wire – saved the resource. Some fish species are naturally territorial. Others can be confined and raised like cattle. The problem of overfishing lies with those species that can’t be confined – species that live in the high seas or whose habitat overlaps with the high seas; fisheries that straddle two or more exclusive economic zones; migratory fish that roam from one EEZ to another and the high seas as well.

Lacking a simple property-rights solution and a nifty invention like barbed wire, the only way countries can manage these fisheries is by cooperating.

Countries have tried to cooperate, many times over. The usual vehicle for doing so is the regional fisheries organization – known to fisheries insiders as RFOs. There are lots of these and all work the same way. Their members, comprising the countries that fish in a particular territory, establish rules of conduct. These might include catch limits or territorial restrictions, technology standards or capacity constraints. Their aim is to reduce the number of fish that are caught.

Getting countries to agree on these matters is difficult: Dividing up a fishery is a zero-sum game. Getting countries to enforce an agreement, however, can be even harder. Some RFO members may refuse to be bound by an agreement. Some agree, but then fail to comply.

Just as earlier overfishing caused international law to evolve, so these current challenges are planting seeds for more change.

In the Northwest Atlantic, fisheries located within Canada’s exclusive economic zone straddle the high seas in two places, called the Nose and the Tail. Overfishing in these areas caused stocks of once plentiful fish like cod to collapse. Canada placed moratoria on fishing these depleted species within its zone and so did the North Atlantic Fisheries Organization (NAFO), a RFO comprising 18 parties, which manages the area beyond Canada’s zone. The NAFO regulations, however, have been routinely ignored.

Because the Nose and Tail are contiguous with Canada’s stocks, Canada has the most to lose if NAFO fails. For this same reason, Canada has the greatest incentive to make sure NAFO succeeds.

By 1995, there remained only one plentiful fish in these waters, turbot. NAFO adopted catch limits for this species in 1995, but the European Union objected to its quota, and set a larger one unilaterally. Canada responded by amending domestic legislation authorizing enforcement action against fishing vessels operating in the high seas. In 1995, a Canadian enforcement vessel pursued and then fired shots across the bow of a Spanish trawler, Estai, for using nets with openings much smaller than allowed by NAFO rules.

The so-called “Turbot War” is reminiscent of the earlier “Cod War” between Britain and Iceland, which gave rise to the exclusive zones and the expanded territorial limit. This is how international law gets made. Institutional failure stimulates conflict, and the desire by states to avoid conflict creates incentives for institutional change.

Bilateral negotiations resolved this particular conflict. Canada agreed to give part of its quota to the EU. The EU agreed to onboard independent observers and satellite monitoring of fishing vessels in NAFO waters. The agreement was subsequently incorporated with NAFO, and it has helped. Improved monitoring is a precondition for enforcement. However, each tightening of the rules only creates an incentive for some other evasion.

An easy way for RFO members to get around their own rules is reflagging. Vessels flying the flag of a state that’s not a member of an RFO are not bound by the RFO rules. Even if this loophole could be closed, another would open in its place. As RFO parties succeed in conserving a fishery, an incentive is created for third parties to enter. The essential problem comes back to the basic legal right of any state to fish without limit in the high seas. Only one state needs to exercise this right to undermine the conservation efforts of other states.

To be truly effective, rules for fisheries conservation must therefore apply universally. A number of international agreements have tried this. Most important are the 1995 Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks and the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. Parties to these agreements accept that they have a responsibility not to undermine RFO conservation efforts. However, non-parties are not bound by these rules – the compliance agreement has not entered into force and is not binding on the countries that have ratified it so far – and so the rules do not apply universally.

There are three possibilities for devising universal rules, each with its own strengths and weaknesses:

The first is customary law. The extension of the territorial sea and the creation of the exclusive economic zones became customary law long before the Law of the Sea entered into force. One problem is that custom is not made. Rather it reflects how states actually behave. Another problem is that custom requires consensus. Too many states have too much to gain from the existing arrangements.

The second possibility is a UN Security Council resolution. The Security Council has already considered two non-conventional security threats, HIV/AIDS and climate change, though in neither of these cases was a decision taken. Resolution 1540 – which imposes obligations on all states to take measures to ensure that nuclear materials do not fall into the hands of terrorists – comes closest to what would be needed for fisheries. This approach, however, also has problems: One is that a resolution passed by the Security Council for such a purpose may be perceived as lacking legitimacy. Another is that the Security Council may lack the incentive to enforce its own resolution.

The final approach would be to create a World Fisheries Organization, with a constitution somewhat akin to that of the World Health Organization. One feature of the WHO is that it can adopt regulations that apply to all its members, except those that specifically reject them. The rejection procedure is akin to the RFO objection procedure. The advantage over the treaty approach is the presumption that all states will be “in.”

Like every previous institutional change, each of these approaches is only a partial fix. But this is the best we can hope for in a world in which sovereignty can be reigned in, but not eliminated.