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Electronic copy available at: http://ssrn.com/abstract=2229897

1

THE FREEDOM TO FISH: AN OBSOLETE INSTITUTION GOVERNING HIGH SEAS FISH STOCKS

Reed Watson

Abstract

The high seas are often characterized as the final and most challenging frontier of fisheries

governance. Stock depletions and rent dissipation persist there despite the recovery of several

fish stocks within exclusive economic zones. This article examines the legal institutions relevant

to managing straddling and highly migratory fish stocks, focusing in particular on the United

Nations Convention on the Law of the Sea (UNCLOs) and the UN Fish Stocks Agreement. It

summarizes the evolution of the freedom to fish and explains how that freedom has frustrated

efforts to address excess capitalization and stock depletion on the high seas. The article then

describes the conditions under which a communal property framework, of the type envisioned in

the UN Fish Stocks Agreement, could function for straddling and highly migratory fish stocks.

Noting that these conditions are currently absent from most regional fisheries management

organizations, the article concludes by outlining the options for collective and unilateral action to

close the high seas commons.

Research Fellow and Applied Programs Director, Property and Environment Research Center (PERC). This paper

was first presented at the workshop “Tackling the Global Fisheries Challenge,” held November 14-15, 2012 at the

PERC in Bozeman, Montana. I thank the participants at the workshop for helpful comments but take full

responsibility for any errors or omissions.

Electronic copy available at: http://ssrn.com/abstract=2229897

2

TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................................................................... 2

II. FISHING ON THE HIGH SEAS ............................................................................................................. 4

A. Emergence and Evolution by Custom .................................................................................................. 4

B. Formal Convention ............................................................................................................................... 6

III. TURBOT: A CASE STUDY IN CONFLICT ........................................................................................ 9

IV. THE UN FISH STOCKS AGREEMENT ............................................................................................ 11

A. Compelled Cooperation, Limited Influence ....................................................................................... 13

B. Self-Enforced Exclusion .................................................................................................................... 14

C. Self-Enforced Compliance ................................................................................................................. 15

D. Evaluating the RFMO Framework ..................................................................................................... 16

V. TOWARDS EXCLUSIVITY................................................................................................................. 21

A. Bolstering Communal Management ............................................................................................... 23

B. Extending the Sovereign Control of Coastal Nations ..................................................................... 26

VI. CONCLUSIONS .................................................................................................................................. 29

REFERENCES ........................................................................................................................................... 31

I. INTRODUCTION

The depletion of open-access resources is a well understood and documented

phenomenon. Garret Hardin’s 1968 article “The Tragedy of the Commons” alone has more than

19,000 citations in the academic literature. Nonetheless, numerous natural resources still

languish under open-access institutional regimes. Many of these resources are global in scale,

beyond the jurisdiction of any one nation. The widespread depletion of global commons reflects

3

the incentive of nations to free ride on the conservation measures of others and to act in their

own rational self-interest despite there being societal benefits to unanimous restraint (Walker

2009).

Few institutional structures reflect this international collective action dynamic better than

those governing straddling and highly migratory fish stocks. In the waters beyond the 200 mile

exclusive economic zones of coastal nations, hereinafter referred to as the high seas,

international law dictates that all nations enjoy a practically unfettered freedom to fish. This

paradigm example of open access has coincided with numerous stock collapses, rampant

overcapitalization, and widespread economic waste (McWhinnie 2009). Without the ability to

limit entry or enforce management rules, and with an indeterminate number of potential

participants, it is hardly surprising that some of the most challenging fisheries management

problems remaining in the world arise in what is left of the high seas (Hannesson 2011, 669;

Serdy 2010).

The purpose of this article is to examine the legal institutions governing high seas fish

stocks and, in particular, the institutional reforms needed to avoid the collapse of straddling and

highly migratory stocks. Section II reviews the customary foundations of the freedom to fish on

the high seas and the subsequent recognition of that freedom in the United Nations Convention

on the Law of the Sea. Section III provides a short case study of the tension between the freedom

of high seas fishing and the sovereignty of coastal nations. Section IV analyzes the UN Fish

Stocks Agreement and the powers it describes for regional fisheries management organizations

(RFMOs). Section V considers whether a communal property rights structure is feasible in the

context of high seas fisheries. Concluding that the characteristics of effective community

management are largely absent from the current RFMO structure, the section then outlines

4

multilateral and unilateral actions to cure those deficiencies and close the high seas commons.

Section VI concludes.

II. FISHING ON THE HIGH SEAS

The overexploitation of many straddling and highly migratory fish stocks is not

surprising given the open access nature of the resource (Barkin 2011). Originally by custom and

now by formal convention, every nation is free to fish on the high seas. Commentators routinely

characterize this freedom as the natural and egalitarian outcome of international negotiations

(Orrego Vicuña 1999). It is not. A careful examination of the institutional history reveals that the

freedom of high seas fishing originated from and was subsequently circumscribed by the

unilateral actions of coastal states acting in their own self-interest (Hannesson 2011, 668).

A. Emergence and Evolution by Custom

Most scholars trace the freedom of high seas fishing to the freedom of navigation

articulated by the Dutch jurist Hugo Grotius. In his 1609 treatise Mare Liberum, Grotius argued

that waters beyond territorial seas, historically three nautical miles from the coast, were

international and that all nations were free to use it for seafaring trade. Later in the seventeenth

century, the Dutch signed bilateral treaties with other European naval powers embracing Grotius’

doctrine and establishing as custom the freedom of high seas transit. The freedom of the high

seas expanded from navigation to include the freedom of fishing. The theory advanced was that

resources of the high seas, including the sea bed and the water column, were res communis, the

5

property of all, to which no nation could be excluded (Munro 2007). The freedom of the seas as

it specifically applied to fisheries rested upon the two assumptions, first, that coastal states could

not effectively control fishing activities beyond their territorial waters, and, second, that high

seas fish stocks were inexhaustible (Orrego Vicuña 1999).

Not until after late in the 19th

century were either of these assumptions tested (Smith

1994). Technological advancements in navigation, fish finding equipment, refrigeration, and

transportation allowed both costal and distant water fishing nations to profitably target epipelagic

species such as tuna and bill fish, as well as deep water species such as toothfish and roughy

(Valdermarsen 2001). Dwindling coastal stocks coupled with increasing global seafood demand

during the second half of the twentieth century accelerated the spatial expansion and

capitalization of high seas fisheries (Bjarndal and Munro 2003).

As these developments undermined the second assumption of resource inexhaustibility,

coastal states acted unilaterally to regulate fishing beyond their territorial waters, thus casting

doubt on the first assumption of coastal state incapacity. With the Truman proclamations of

1945, the United States unilaterally asserted exclusive jurisdiction over portions of the

continental shelf beyond the traditional territorial seas.1 A second proclamation specific to high

seas fisheries stated in relevant part:

In view of the pressing need for conservation and protection of fishery resources,

the Government of the United States regards it as proper to establish conservation

zones in those areas of the high seas contiguous to the coasts of the United States

wherein fishing activities have been or in the future may be developed and

maintained on a substantial scale. Where such activities have been or shall

hereafter be developed and maintained by its nationals alone, the United States

regards it as proper to establish explicitly bounded conservation zones in which

1 Proclamation No. 2667, "Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea-

Bed of the Continental Shelf", 28 September 1945, 10 Fed. Reg. 12303; XIII Bulletin, Dept. of State, No. 327, 30

September 1945, p. 485.

6

fishing activities shall be subject to the regulation and control of the United

States.2

The true precursors to the existing exclusive economic zone were the unilateral actions of

Chile3 and Peru,

4 who by presidential proclamation claimed sovereignty out to 200 nautical

miles. During the ensuing decades, coastal nations around the globe made similar declarations of

sovereignty beyond traditional territorial waters. As these and the Truman proclamations were

protectionist measures aimed at limiting fishing, mining, and other resource extraction by foreign

nations, the freedom of navigation was preserved (Nanada 1987).

B. Formal Convention

The formal recognition of freedom on the high seas came in 1982 with the third United

Nations Convention on the Law of the Sea. Specifically, Article 87(1) of the Convention states

“the high seas are open to all states, whether coastal or land-locked,” and articulates a non-

exhaustive list of freedoms including navigation, over flight, the laying of submarine cables,

building artificial islands, fishing, and scientific research.5

Articles 55 and 56 define the exclusive economic zone and the rights of coastal states

therein, respectively. In relevant part, Article 56 states “[i]n the exclusive economic zone, the

coastal State has (a) sovereign rights for the purpose of exploring and exploiting, conserving and

2 Proclamation No. 2668. “Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High

Seas." 28 September 1945, 10 Fed. Reg. 1230. 3 Presidential Declaration Concerning Continental Shelf of 23 June 1947, El Mercurio, Santiago de Chile, 29 June

1947. 4 Presidential Decree No. 781 of 1 August 1947, El Peruano: Diario Oficial. Vol. 107, No. 1983, 11 August 1947.

5 United Nations, “Third United Nations Convention on the Law of the Sea,”1833 U.N.T.S. 397, 10 December 1982

[hereinafter UNCLOS or Convention].

7

managing the natural resources; [and] (b) jurisdiction as provided for in the relevant provisions

of this Convention with regard to (iii) the protection and preservation of the marine

environment.” Article 57 limits coastal states from defining exclusive economic zones beyond

200 nautical miles from the baseline from which the territorial sea is measured. Explicitly

codifying the superiority of coastal state sovereignty within exclusive economic zones, Article

86 explains that the freedom on high seas “does not entail any abridgement of the freedoms

enjoyed by all States in the exclusive economic zone in accordance with article 58.”

The 1982 Convention also specifically addressed the management of straddling stocks

and highly migratory fish stocks, though it did so in a fairly opaque manner. With respect to

straddling stocks, Article 63 obligates coastal and fishing nations to “seek, either directly or

through appropriate subregional or regional organizations, to agree upon the measures necessary

for the conservation of these stocks in the adjacent [high seas] area.” Similarly, Article 64

regarding highly migratory stocks states coastal and distant water fishing nations:

shall cooperate directly or through appropriate international organizations with a

view to ensuring conservation and promoting the objective of optimum utilization

of such species throughout the region, both within and beyond the exclusive

economic zone. In regions for which no appropriate international organization

exists, the coastal State and other States whose nationals harvest the species in the

region shall cooperate to establish such an organization and participate in its

work.

Article 116 conditions a nation’s right to high seas fishing on adherence to the above provisions

though it does not specify any objective criteria or enforcement mechanisms by which non-

cooperating nations would lose their high seas fishing rights.

Given the distribution of fishing effort at the time—the FAO estimated in the period

leading up to the widespread establishment of EEZs, total fish catch beyond 200 nautical miles

8

from the coastline amounted to approximately five percent of the total catch (FAO 1994)—it

might have appeared that the tragedy of the commons had been averted in regards to ocean

fisheries. Indeed, coastal states had exclusive jurisdiction and, most importantly, the ability to

exclude vessels from other nations from the most productive fishing grounds.

Appearances can be deceiving, however, and tensions between the rights of coastal and

distant water fishing nations soon appeared. First, as Lawrence Juda explained, “the fish

themselves proved uncooperative, failing to recognize the sanctity of human-made delimitations

adopted by diplomatic conference. For them the 200-mile limit held no particular meaning, and

instead of recognizing its significance, they continued to respond to biological and physical

imperatives” (Juda 1997). Secondly, though some distant water fishing vessels returned to home

waters, others began to expend considerable time and effort fishing waters immediately beyond

the EEZs (Juda 1997). In fact, following UNCLOS passage, the portion of the total marine fish

catch rapidly increased two-fold (FAO 1994).

Articles 63 and 64 of UNCLOS, describing in generalities the duty of coastal and fishing

nations to cooperate, not surprisingly failed to alleviate the uncertainty and conflict over

straddling and highly migratory fish stocks. Indeed, by recognizing the authority of coastal states

to evict distant water fishing nations from traditional coastal fishing grounds but failing to

articulate a hierarchy of rights for straddling or highly migratory fish stocks, UNCLOS indirectly

increased fishing pressure on the high seas (Maguire 2006) and hastened the conflicts over

straddling and highly migratory fish stocks (Juda 1997).

9

III. TURBOT: A CASE STUDY IN CONFLICT

The Turbot War of 1995 is a well-worn but illustrative example of the legal uncertainty

surrounding the management and harvest of straddling and highly migratory fish stocks. During

the 1950s and 1960s, longer seasons (MacCay and Finlayson 1995) and rapid industrialization of

the fishing industry off Canada’s eastern coast began to deplete the region’s commercially viable

stocks, particularly Northern cod (DeSombre and Barkin 2002, 332). In 1992, following years of

below average catch reports, Canada’s federal government declared an indefinite moratorium on

cod fishing in Canadian waters. By 1994, the Northwest Atlantic Fishery Organization (NAFO),

the relevant regional fisheries management organization, also declared a moratorium on cod

fishing in the high seas area beyond Canada’s recently established exclusive economic zone.

In response to the cod moratoriums, the fishing-dependent communities of

Newfoundland and Nova Scotia began targeting various groundfish species on the Grand Banks

including Greenland halibut, also known as turbot. After the collapse of the cod fishery, distant

water fishing nations (DWFNs) also began pursuing turbot beyond Canada’s EEZ. In 1994,

fearing the turbot fishery would collapse as had the cod fishery, Canada’s House of Commons

amended the Coastal Fisheries Protection Act to prohibit foreign vessels from fishing for

straddling stocks in contravention of any conservation and management measures,6 and to allow

protection officers to board, inspect, and search vessels found in Canadian or the NAFO

Regulatory Area.7 These amendments effectively extended Canada’s exclusive economic zone

beyond the 200 nautical mile limit.

6 Coastal Fisheries Protection Act, 1994, c. 14 s. 2

7 Coastal Fisheries Protection Act, R.S., 1985, c. C-33, s. 7; R.S., 1985, c. 31 (1st Supp.), s. 5; 1994, c. 14, s. 4.

10

Soon after these amendments, NAFO established a total allowable catch for turbot

(Canadian Department of Fisheries and Oceans 1995a). The European Union, of which Spain

was by then a member, invoked the RFMO’s objection procedure and unilaterally set a higher

quota for itself. On March 6, 1995 Canada’s Prime Minister Chretien proposed a 60-day

moratorium on turbot fishing so that the parties could resolve the dispute diplomatically

(Gezelius 1999). The EU rejected the proposal, and Spain threatened to send warships to protect

its turbot fishing fleet.

On March 9, 1995, a Canadian Department of Fisheries and Oceans (DFO) vessel, the

Cape Roger, arrested the Spanish stern trawler Estai on the grounds that the vessel had been

fishing turbot illegally.8 The arrest occurred approximately 245 miles from Canada’s nearest

coast, well into the international waters beyond Canada’s 200 mile EEZ. Though specific details

of the event were disputed, most versions include the Estai crew cutting their nets and fleeing as

the Canadian vessels approached, then only surrendering after the Cape Roger crew fired

warning shots from a .50 caliber machine gun.

The resulting political imbroglio is what makes the Turbot War the paradigmatic example

of the tension between the freedom of high seas fishing and the management of straddling fish

stocks. Brian Tobin, then director of Canada’s Department of Fisheries and Oceans, demanded

withdrawal of all Spanish vessels from the Grand Banks. Tobin claimed the international laws

governing straddling stocks were ineffective and that Canada’s extra-jurisdictional actions were

legal and justified (Blake 19998). Tobin also accused several nations of overexploiting straddling

stocks in the Bering Sea and the Sea of Okhotsk.

8 The claim of illegal fishing was presumably based not on the EU’s objection to the NAFO turbot quota but to the

Estai’s use of an illegal drift net per NAFO regulation.

11

Spain and the EU countered that Canada’s enforcement of domestic laws in international

waters violated international law and, in particular, UNCLOS Article 89.9 Later in March, 1995,

the EU attempted to use economic sanctions against Canada and was only unsuccessful because

Britain voted against them. After much bickering, the parties agreed to a new mandatory

enforcement regime to govern Canadian and EU vessels operating in the NAFO regulatory area,

including independent, on-board observers, enhanced surveillance and monitoring, and gear

restrictions (Canadian Department of Fisheries and Oceans 1995b).

On its face, the Turbot War involved only two nations and one marginally profitable

straddling stock. But in a broader sense, the conflict reflected the widespread confusion over the

high seas freedom to fish vis-à-vis the jurisdiction of coastal nations. Perhaps fittingly then, the

Turbot War significantly shaped what remains the applicable law on straddling and highly

migratory fish stocks, the UN Fish Stocks Agreement. As discussed in Section V, the case study

is worth reconsidering as a positive example of fisheries governance and a useful guide for future

institutional reform.

IV. THE UN FISH STOCKS AGREEMENT

Following closely on the heels of the Turbot dispute, the final session of the United

Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks produced what

is officially known as the Agreement for the Implementation of the Provisions of the United

Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation

9 UNCLOS entered into force on 16 November 1994, so, to the extent Article 89 of that agreement would have

prescribed Canada’s enforcement of domestic fishing regulations on distant water fishing nations operating beyond

the 200 nautical mile boundary, the provision was untested.

12

and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, or what is more

commonly called the UN Fish Stocks Agreement. The stated objective, as included in the

unabbreviated title, was to ensure the long-term conservation and sustainable use of straddling

fish stocks and highly migratory fish stocks.10

As evidenced by the gunboat diplomacy in the

North Atlantic, the depletion of Alaskan Pollock in the Bering Strait Donut Hole, and cod on the

Newfoundland Grand Banks (Crothers and Nelson 2006), UNCLOS had failed to articulate a

hierarchy of rights or workable management framework with respect to straddling and highly

migratory stocks. The UN Fish Stocks Agreement was to be the answer.

Among the principles stated in Article 5, the Fish Stocks Agreement set out to ensure the

long-term sustainability of straddling and highly migratory fish stocks and to prevent or

eliminate overfishing and excess fishing capacity.11

Towards these ends, the Agreement compels

coastal and high seas fishing nations to agree upon the measures necessary for the conservation

of straddling stocks in the high seas areas adjacent to EEZs and to cooperate with a view to

ensuring the optimum utilization of highly migratory stocks throughout their migratory region.12

Drafters of the Fish Stocks Agreement thus did not attempt to impose top-down directives for

managing straddling and highly migratory stocks; they sought to compel cooperation, agreement,

and collective management by all interested nations.

10

United Nations, “Agreement for the Implementation of the Provisions of the United Nations Convention on the

Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and

Highly Migratory Fish Stocks,”4 August 1995 [hereinafter Fish Stocks Agreement or Agreement]. 11

Id., at Article 5, paragraphs (a), (b), and (h). 12

Id., at Article 7, paragraph 1 (a) and (b).

13

A. Compelled Cooperation, Limited Influence

Part III of the Agreement sets out the mechanisms for international cooperation and

specifies the rights and responsibilities of coastal and distant water fishing nations. Specifically,

Article 8, paragraph 3 requires relevant coastal nations and those nations fishing for straddling

and highly migratory stocks managed by a regional fisheries management organization (RFMO)

to become members of the RFMO or to agree to apply the RFMO’s conservation management

measures.13

If no regional fisheries management organization exists for a particular straddling or

highly migratory stock, the Agreement requires relevant coastal and distant water fishing states

to establish one. Per the Agreement, RFMO membership is open to every state with a “real

interest” in the fisheries concerned, though the term “real interest” is not defined and there is no

deadline for entry.14

Article 10 of the Fish Stocks Agreement enumerates RFMO functions, including the

collection and exchange of catch data, the use of scientific information in standard setting, and

the accommodation of new members and their fishing interests.15

The relevant provisions

specifically empower RFMOs to define “participatory rights such as allocations of allowable

catch or levels of fishing effort;” and to “establish appropriate cooperative mechanisms for

effective monitoring, control, surveillance and enforcement.”16

But what the Agreement does not

do is specify RFMO procedures for passing resolutions. Member and cooperating nations are

required by the Fish Stocks Agreement to consider an enumerated list of historical and biological

13

Regional fisheries management organizations and regional fisheries management arrangements are functionally

equivalent and treated the same throughout the Fish Stocks Agreement. Therefore, for the remainder of this article,

any discussion of organizations or RFMOs is applicable to arrangements. 14

UN Fish Stocks Agreement, at Article 8, paragraph 3. 15

Article 11 specifies the factors member states can consider when determining the nature and extent of

participatory rights for new members, including the status of the fisheries under management, the fishing practices

and patterns of members and participants, and the interests of coastal communities. 16

UN Fish Stocks Agreement, at Article 10 (b) and (h).

14

considerations but are otherwise free to adopt whatever rules and rule-promulgating procedures

they see fit.17

While some RFMOs have developed workable procedures for enacting conservation

measures, other organizations require consensus among membership and, as a result, have been

unable to enact meaningful limits on catch, effort, or participation (Allen, Joseph, and Squires

2010, xiii). Moreover, because the RFMOs are often comprised of diverse nations with opposing

interests, achieving any agreement can be difficult and, when it does occur, the agreements tend

to be weak (Alder and Lugten 2002) and diluted from the science-based recommendations

(Crothers and Nelson 2006). By and large, the cooperation-based conservation of high seas fish

stocks has not emerged organically from the RFMOs, as was envisioned in the UN Fish Stocks

Agreement.

B. Self-Enforced Exclusion

In perhaps the most substantive provision of the entire Fish Stocks Agreement, Article 8,

paragraph 4 limits access to fishery resources governed by an RFMO to members of the

organizations and those nations which agree to apply the RFMO’s conservation and management

measures. Similarly, Article 17 prohibits a nonmember and non-cooperating nation from

authorizing vessels flying its flag to fish for straddling or highly migratory stocks managed by an

RFMO. Although these provisions purport to exclude nonmember and non-cooperating nations

from fishing for straddling or highly migratory fish stocks managed by an RFMO, the Fish

Stocks Agreement does not expressly grant RFMO member or cooperating nations exclusion

17

UN Fish Stocks Agreement, at Article 7, paragraph 2 (a) through (f).

15

power; enforcement of the vessel exclusion is left to the vessel’s flag state.18

Member,

participating, and cooperating states are only empowered to “exchange information” on vessels

flagged by excluded nations and to “take measures . . . to deter activities of such vessels which

undermine the effectiveness of subregional and regional conservation and management

measures.”19

Aside from the enforcement powers, or lack thereof, the applicability of these provisions

to non-signatories of the Fish Stocks Agreements is questionable under international law.

Specifically, Article 34 of the Vienna Convention on the law of Treaties holds that “[a] treaty

does not create either obligations or rights for a third State without its consent.”20

If we assume

the exclusion provision of the Fish Stocks Agreement is an implementing provision of UNCLOS,

it would bind all 162 UNCLOS signatories (Juda 1997). But, if on the other hand, the Fish

Stocks Agreement is a separate and distinct convention, it binds only those 79 nations that signed

the FSA. Under either interpretation, the lack of universal application and the expectation of self-

enforcement allow for widespread for free-riding which, in turn, discourages signatories from

enacting meaningful conservation measures to rebuild stocks (Crothers and Nelson 2006).

C. Self-Enforced Compliance

Much like exclusion from the fishery, enforcement of conservation rules in the fishery is

effectively left to flag states (FAO 2001). The Fish Stocks Agreement specifies only weak

enforcement powers for RFMO member and participating nations, as against each other (Korman

18

Id., at Article 17, paragraphs 1-2. 19

Id., at Article 17, paragraph 4. 20

United Nations, “Vienna Convention on the Law of Treaties,” 23 May 1969, vol. 1155, article 34.

16

2010). Article 20 specifies the duty of member states to cooperate in the enforcement of

subregional and regional conservation and management measures, to share information on

possible violations, and to immediately investigate alleged violations by vessels flagged by the

member state.21

But, because member states can unilaterally opt out of adopted measures, or

refuse to enforce them on their own vessels, compliance is more a matter of convenience than

credible commitment—even among member states (Munro 2007).

The enforcement powers applicable to vessels of nonmember nations are even weaker.

Rosemary Rayfuse explains that flag states have limited interest in or means of enforcing RFMO

conservation measures, particularly against vessels flying flags of convenience (Rayfuse 2004).

What few enforcement powers RFMO members can apply to nonmembers are heavily

conditioned and rarely employed. For instance, Article 21 which specifies boarding and

inspecting powers for RFMO member and participating states, only allows an inspecting state to

seize a foreign vessel and prevent it from fishing if (1) there are clear grounds for believing the

vessel committed a serious violation, (2) notice has been provided to the flag state, and (3) the

flag state has failed to respond to the notice or take any enforcement action.22

D. Evaluating the RFMO Framework

Given the limited exclusion and enforcement powers described in the Fish Stocks

Agreement, it is hardly surprising that RFMOs have made little progress towards ensuring the

long term conservation and sustainable use of straddling and highly migratory fish stocks

(Cullis-Suzuki and Pauly 2010; Rayfuse 2004). The question is whether the RFMO model of

21

UN Fish Stocks Agreement, at Article 20. 22

UN Fish Stocks Agreement, at Article 21, paragraph 8, referencing paragraphs 5-7.

17

communal resource management in incurably flawed or whether it can be reformed to

successfully prevent the tragedy of commons on the high seas. In her 1990 book Governing the

Commons: The Evolution of Institutions for Collective Action, Elinor Ostrom described the

common characteristics of groups that have effectively governed common pool resources. What

she described as the “basic design principles” included:

1. Group boundaries are clearly defined.

2. Rules governing the use of collective goods match local needs and conditions.

3. Most individuals affected by these rules can participate in modifying the rules.

4. The rights of community members to devise their own rules are respected by external

authorities.

5. A system for monitoring member's behavior exists and community members undertake

this monitoring.

6. A graduated system of sanctions is used.

7. Community members have access to low-cost conflict resolution mechanisms.

8. For common pool resources that are parts of larger systems: appropriation, provision,

monitoring, enforcement, conflict resolution, and governance activities are organized in

multiple layers of nested enterprises (Ostrom 1990).

Because the regional fisheries management organizations rely on the cooperation and self-

governance of coastal and distant water fishing nations acting in their own self-interest, Ostrom’s

basic design principles provide a useful framework for understanding why RFMOs have not

been more successful at managing high seas fish stocks.

The first design principle, clearly defined group boundaries, is perhaps the most

important feature to prevent the exhaustion of common pool resources and, unfortunately, it is

also probably the characteristic most lacking from the current RFMO structure (Munro 2007).

Pursuant to Article 8, paragraph 3, RFMO membership is limited to nations with a “real

interest,” but because that term is not defined, the provision offers no meaningful limit at all. At

minimum, requiring previous participation in the fishery would limit the total number of

potential participants to an ascertainable list (Ple 2000). Developing nations might object on

18

equity grounds but, according to Serdy (2010) “those wanting to enter the fishery will most

likely have made their investments already, and in any event there are few international fisheries

in a healthy enough state for new investment in them to be encouraged.” An alternative strategy

for clearly defining the group is to require some sort of credible commitment and to set a

deadline after which enrollment is closed. Making enrollment costless only encourages

speculation, and not limiting enrollment perpetuates the free-rider problem and its chilling effect

on meaningful conservation measures.

A separate but related issue to clearly defined group membership is the exclusion of

nonmembers. Though Articles 8 and 17 purport to exclude vessels flagged by nations that don’t

join or participate with the relevant RFMO, exclusion of these vessels has proven difficult with

the Agreement’s reliance on flag state enforcement. Not surprisingly, this inability to exclude has

discouraged cooperative management and the adoption of meaningful conservation measures by

the RFMOs (Kaitala and Munro 1997).

Several RFMOs have implemented closed regional vessel registers as an initial step

towards defining group boundaries. Allen, Bayliff, Joseph and Squires (2010, 92) describe how

the Inter-American Tropical Tuna Commission (IATTC) established a closed Regional Vessel

Register (RVR) as “a form of limited entry and a hybrid of international common property and

individual use rights.” The resolution initiating the IATTC’s register requests that member

parties provide and continually update a list of authorized vessels fishing for tuna and tuna like

species in the Eastern Pacific Ocean (EPO) (IATTC 2000). Though touted for providing

exclusivity, it is not entirely clear whether this RVR binds only participating nations or whether

it grants the RFMO’s ability to enforce exclusion of non-registered vehicles from high seas

areas. The fact that the resolution creating the contracting parties only requests and does not

19

obligate nonmember nations with vessels fishing in the Eastern Pacific Ocean to provide the

relevant vessel information suggests that the RVR does not enhance exclusion powers beyond

what is described in the Fish Stocks Agreement. Moreover, because member nations can make

changes to the RVR without consent of or compensation to the vessel owners, the access rights

created by the RVR are insecure. With few exceptions, defining group boundaries and excluding

nonmembers is costly, if not practically impossible, under the freedom of the high seas and the

current RFMO framework.

The second and third design principles regarding the importance of local conditions and

member participation in rule modification are present, or at least available, in the current RFMO

structure. Their regional scope addresses the locality issue as effectively as can be hoped given

the immense range of tuna and other highly migratory species. However, regarding the

participatory requirement of rule modification, the group consensus required by several RFMOs

combined with the heterogeneity of group member objectives is thought to limit their ability to

pass meaningful conservation measures. If the consensus requirement is a strategic choice by

members seeking to limit the ability of RFMOs, other members could challenge these policies

under Article 7, specifically, the requirement of signatories to cooperate and agree to measures

necessary for the conservation and optimum utilization of fish stocks.

Like the first principle regarding clearly defined group boundaries, the fourth design

principle regarding external authorities respecting the rights of community members to devise

their own rules is incredibly important but currently lacking from high seas fisheries institutions.

On the surface, the Fish Stocks Agreement appears to recognize the right of RFMOs to enact

conservation measures, but it does not go the necessary distance of binding nations who are not

members to the organization. In essence, nonmembers are external authorities and they are

20

expressly not required to respect an RFMO’s conservation practices per the Vienna Convention.

Hence, the relevant questions become whether an RFMO conservation measure that subjugates

the freedom of other nations to fish on the high seas would be challenged by those nations;

whether the challenge would come in the form of gun boat diplomacy demonstrated during the

Turbot War or through adjudication; and, if by adjudication, how an international tribunal would

decide the case.

Regarding the fifth principle, an effective monitoring system, the Fish Stocks Agreement

describes fairly robust procedures for boarding and inspecting vessels flagged by RFMO

members and detailed, if highly conditional, authority for RFMO-member vessels to board and

inspect vessels flagged by nonmember and non-participating nations. Additionally, several

RFMOs have instituted on-board observer programs and electronic vessel monitoring systems to

ensure compliance with enacted conservation measures. The obvious problems, however, are that

RFMOs cover enormous areas, spanning millions of square miles of open ocean, and budget

constraints can reduce the impact of observer coverage and electronic tracking to insufficient

levels. Monitoring for IUU fishing at the port state is a third option but not a panacea given the

ability of nonmembers to transfer catch to member-flagged vessels or to land catches at distant

ports not involved in the RFMO.

The use of a graduated systems of sanctions is largely absent from the 1995 Fish Stocks

Agreement and the existing practices of most RFMOs. Again, the issue turns on the self-

enforcement expectation. If some flag states are unwilling to regulate or sanction IUU fishing,

the incentive for self-regulation by all flag states is reduced. The Nauru Agreement Concerning

Cooperation in the Management of Fisheries of Common Interest, or simply the Nauru

21

Agreement, provides a good example of several nations developing a treaty-based solution to this

prisoners’ dilemma problem. The Parties to the Nauru Agreement23

(PNA) collectively control

25-30 percent of the world’s tuna supply and approximately 60 percent of the western and

central Pacific tuna supply (Lan 2011). Signatory countries agreed, among other things, not to

license purse seine vessels observed fishing in certain defined high seas areas (Nauru Fisheries

and Marine Resources Authority 2010). If observed fishing in a prohibited area, a vessel’s

license to fish in a signatory’s waters can be revoked. Other restrictions are included in the

Implementing Arrangements, such as a prohibition on fish aggregating devices, and the

sanctioning system has worked to deter noncompliance (Gagern and van den Bergh 2011).

The final design principles Ostrom describes are accessible and low-cost dispute

resolution procedures and a nested organizational structure for common-pool resources that are

parts of larger systems. To its credit, the Fish Stocks Agreement provides ample flexibility for

RFMOs to develop these structures individually, and that flexibility is desirable given the

regional and fishery-specific political dynamics.

V. TOWARDS EXCLUSIVITY

Despite the possibility for regional fishery management organizations to develop some of

the characteristics Ostrom found in effective communal management regimes, it is evident that

few, if any, of these characteristics are inherent in the current RFMO structure. The first design

principle, clearly defined group boundaries and the exclusion of nonmembers, is antithetical to

23

The Parties to the Nauru Agreement (PNA) include Federated States of Micronesia, Kiribati, Marshall Islands,

Nauru, Palau, Papua New Guinea, Solomon Islands, and Tuvalu.

22

the freedom of the high seas and yet critical to the success of communal management strategy

embodied in the RFMOs. As such, a non-trivial tension exists between the freedom of high seas

fishing described in UNCLOS and the objectives of long term conservation and sustainable use

of high seas fish stocks articulated in the UN Fish Stocks Agreement. This section explores the

various actions signatories to the Agreement can take to exclude nonmember nations from

entering RFMO managed fisheries and engaging in illegal, unreported, and unregulated fishing.

Assuming that a communal property framework is untenable at the international level, the final

section describes the conditions under which coastal states might act unilaterally to extend their

sovereign control beyond the current 200 mile boundary.

As discussed above, custom has preceded formal convention in the development of the

law of the sea. Regarding UNCLOS and exclusive economic zones, the convention came after

unilateral actions by coastal states expanded sovereign jurisdiction from three to 12 and

eventually to 200 nautical miles, thereby diminishing the scope of the freedom of the high seas

as Grotius first pronounced it. Regarding the UN Fish Stocks Agreement, the convention

recognized the regional fisheries management organizations already in operation but did little to

expand their exclusion, conservation, or enforcement powers. If we assume past developments

are any predictor of the future, bottom-up custom rather than top-down convention is likely to

drive the institutional reforms needed to support ecologically and economically sustainable

management of highly migratory and straddling fish stocks. Indeed, based on the history of high

seas fishing, one could argue that the existing international conventions have served little more

than a positivist function, only pronouncing then-existing customs and norms.

23

A. Bolstering Communal Management

With the understanding that UNCLOS and the UN Fish Stocks Agreement are the by-

products of custom—not the final word on the law of the sea—institutional reform becomes a

realistic if not inevitable outcome. Nonetheless, accepting the proposition that any state can enter

a high seas fishery under current international law, Hallman et al. (2010) describe various

mechanisms for deterring nonmember nations from entering a transnational fishery managed by

an RFMO. These measures are aimed at clarifying group boundaries through self-exclusion and

voluntary compliance with RFMO conservation measures; hence they are consistent with the

freedom of fishing on the high seas and more likely to be perceived as legitimate.

The first approach Hallman et al. describe for deterring entry by nonmember nations24

involves the use of trade measures, a wide variety of actions nations can take by themselves or

with cooperating countries to compel participation in an RFMO or to render entry by nonmember

nations less profitable (Hallman et al. 2010). The two broad categories of trade measures are

prohibitions on imports from nonmember fishing vessels and prohibitions on landings, port use,

and transshipments from nonmember nations (Barrett 2006, DeSombre 2005). The Fur Seals

Treaty provides an example of success: by prohibiting the import and processing of non-

authenticated fur seal skins, the Treaty deterred entry into the fishery by non-signatories. The

import ban was particularly easy to enforce in the fur seals market because London was the only

port of note at the time (Hallman et al. 2010).25

Though such a ban would be more difficult to

enforce with multiple ports for landing tunas and other high seas species, the credible threat of

24

The first mechanism Hallman et al. describe, domestic compliance, is meant to deter additional fishing pressure

from member nations. Though important, member compliance is a separate issue beyond the focus of this article. 25

Presumably fur seal processing capacity was not easily built in other, entrepreneurial port locations.

24

trade sanctions has and will continue to enable RFMOs to restrict market access and curtail IUU

fishing (Rayfuse 2004; Ple 2000; DeSombre 2005).

The second approach Hallman et al. describe for deterring entry concerns exclusion of

unregistered vessels. In the context of high seas fisheries, Serdy (2010) notes that the treaty-

based rule of exclusion of nonmembers could have already risen to the level of custom. Joseph et

al. (2009) find support for this argument in the closed regional vessel registers, such as the

IATTC’s, which ostensibly limit participation in the fishery to registered vessels. According to

Aust (2010), however, for state action to rise to the level of customary international law there

first must be evidence of substantial uniformity across states and, second, there must be general

recognition by states that the action is sufficiently settled to be binding on all states. It is

certainly debatable whether both of these conditions are present.

The third approach, excluding nonmembers from fishing in member parties’ EEZs, is

exemplified by the Nauru Agreement described above. Of course, the success of this approach

depends on the size of the high seas area relative to the exclusive economic zones and the target

species’ range. That is to say, excluding nonmembers from fishing in an EEZ will only deter

high seas fishing if the EEZ exclusion significantly reduces the profitability of fishing on the

high seas (Hannesson 2005). In areas where a larger portion of the target species is found on the

high seas, exclusion from member nations’ EEZ will be a weaker deterrent to high seas fishing.

As Hallman et al. explain, enforcement of conservation measures is more effective when

it is perceived as legitimate by all nations, not just the members of the RFMO. The financial

disincentives created by trade measures, limiting access to registered vessels, and EEZ exclusion

are all designed to encourage self-exclusion and compliance by nonmembers, thus adding to their

25

perceived legitimacy. The question remains, however, whether the financial disincentives will be

sufficient to actually deter entry into the fishery. If not, unilateral action by RFMO member

nations might be necessary to exclude nonmembers and preserve the communal property model.

The final method Hallman et al. describe for deterring entry into a high seas fishery is

unique from the others in in that it contemplates unilateral enforcement actions by member

nations. Rather than relying on financial disincentives to prompt self-exclusion and compliance,

this approach contemplates the seizure of vessels from nonmember nations fishing in

contravention of the RFMO’s conservation measures. To enhance the perceived legitimacy,

RFMOs could pass resolutions declaring the specific conditions and deadline for entry, as well as

the unilateral enforcement procedures by which nonmembers would later be expelled from

RFMO waters.

Though such declarations and unilateral exclusion actions might seem to violate the

UNCLOS Article 87, they could be justified under either UNCLOS Article 116, which

conditions the freedom to high seas fishing on a nation’s cooperation with and adherence to

conservation measures.26

Justifying the exclusion of nations from high seas areas governed by

RFMOs requires that the exclusion criteria be reasonably related to the “real interest” language

used in Article 8, Paragraph 3 of the Fish Stocks Agreement and that the exclusion be done in

furtherance of an RFMO conservation measure. Authority to board and inspect non-complying

vessels can be found in Article 21 of the Fish Stocks Agreement (Bederman 2000) though the

seizure of those vessels and their crew would require actions not currently sanctioned by the Fish

Stocks Agreement.

26

UN Fish Stocks Agreement, Articles 87 and 116.

26

In addition to clarifying group boundaries and excluding nonmembers, unilateral action

could also garner external respect for RFMO conservation measures and buttress the internal

sanctioning of non-compliance, the other basic design principles of communal property

management most clearly missing from existing institutions. Specifically, the boarding,

inspection, and seizure of vessels violating an RFMO’s conservation measures is ultimately

necessary if straddling and highly migratory fish stocks are to be effectively managed as

communal property. Barrett et al. (2004) argue that the development of international custom

may indeed require RFMO members unilaterally seize vessels of non-signatory nations. Guzman

(2012), reflecting on the Estai incident, claims that unilateral action by Canada was required to

drive dissenting states to the negotiating table and that similar unilateral actions is necessary to

overcome the inefficient requirement of consent to establish binding international law.

B. Extending the Sovereign Control of Coastal Nations

Each of the deterrents Hallman et al. describe could reduce the incidence of illegal,

unreported, and unregulated fishing on the high seas. However, none of them is likely to achieve

the degree of exclusivity that is required to foster market-based management of straddling or

highly migratory fish stocks. Though catch shares and other market-based schemes have

prevented or reversed the collapse of numerous fish stocks within exclusive economic zones

(Costello et al. 2010), their applicability on the high seas is limited. As Hannesson (2004)

explains, individual transferable quotas (ITQs) only emerged after the establishment of exclusive

economic zones; exclusive sovereign control is a prerequisite to setting meaningful limits on

total catch, distributing catch shares among industry participants, monitoring catches, enforcing

27

rule compliance, and excluding outsiders. In only a handful of instances have multiple nations

collaborated to rationalize a fishery, and in all of them, management authority eventually

devolved to the national level.27

Serdy (2010) argues that international law does not preclude RFMO member nations

from collaborating to create a market of tradable, multi-national catch shares, but that

participating nations must first establish national quota allocations, agree on an ad hoc or

continuing basis to waive objection procedures when trades disturb the initial quota allocations,

and determine ex-ante how to accommodate new entrants. If RFMOs are incapable of excluding

non-members, the only mechanism by which market-based management could emerge for

straddling or highly migratory fish stocks is for coastal nations to extend their sovereign control

into the high seas. Indeed, the incremental extension of sovereign jurisdiction into the high seas

has shaped fisheries management more directly, if not more abruptly, than any formal

convention or RFMO conservation measure.

Since the freedom of fishing on the high seas is the remainder of coastal nations

incrementally extending sovereign jurisdiction, and since UNCLOS and the UN Fish Stocks

Agreement are not prohibitive barriers to further extensions, why haven’t coastal nations carved

up the remaining high seas or, at the very least, extended their jurisdictions to encompass

commercially valuable straddling and highly migratory fish stocks? At least four explanations

are possible. First, most of the influential coastal nations have distant water fishing fleets that

would suffer financial losses if areas of the high seas were closed. Few nations fit neatly into one

of the two categories of “coastal” or “distant water fishing nation,” and the choice of coastal

27

For example, the International Halibut Commission sets the overall catch quota for the Pacific halibut that

occupies both U.S. and Canadian waters; however, each country separately manages its own ITQ system. Similarly,

the European Commission sets catch limits for North Sea flatfish stocks, with member states receiving their own

share and determining their own management regime (Hannesson 2011).

28

nations not to catalyze the expansion of EEZs beyond 200 miles could be influenced by their

own distant water fishing interests.

Second, extending sovereign jurisdiction far beyond the coast entails significant

monitoring and boundary enforcement costs, all with uncertain benefits. Though technological

advancements have reduced the cost of detecting entry by foreign vessels, credible boundary

enforcement requires boats on the water to evict intruders or an internationally recognized

system of sanctions. Third, and on a related note, extending coastal state sovereign jurisdiction

could precipitate armed conflict. The Canadian government’s arrest of the Estai during the

Turbot War nearly did. Extending coastal state sovereign control necessitates the curtailment or

complete elimination of the freedom to fish on the high seas. The major distant water fishing

nations, Russia, Japan, Taiwan, Korea, Poland and Spain, will undoubtedly oppose such

extensions, perhaps with military force. War is perhaps the highest possible cost of boundary

enforcement.

The fourth and final explanation for why coastal nations have not extended exclusive

sovereign control further into the high seas is that jurisdictional expansion might not solve the

conflict over straddling and highly migratory fish stocks. By definition, the range of all highly

migratory stocks and most straddling stocks encompasses ocean to which multiple coastal

nations could claim jurisdiction. Neighboring coastal nations presumably could negotiate

management agreements for straddling and highly migratory stocks, as some have done for

transboundary stocks, in essence forming regional fishery management organizations that

entirely exclude distant water fishing nations. The Nauru Agreement could be characterized in

this light, though the replicability of this approach could be limited for the reasons noted above.

29

Until the benefits of extending coastal state jurisdiction beyond 200 miles exceed the

costs of defining, monitoring, and enforcing the new boundaries; the risk of future stock

collapses, continued overcapitalization, and armed conflict; as well as the foregone revenue of

fishing in distant waters, coastal nations are unlikely to act unilaterally to close the high seas

commons. This leaves RFMOs to solve the issue of excluding distant water fishing nations that

free ride on the conservation measures of member nations. And while RFMO members have

several exclusion strategies to choose from—trade measures, vehicle registries, EEZ exclusion,

and unilateral action—a more credible and comprehensive commitment to such policies is

required before market-based management of straddling and highly migratory fish stocks

becomes feasible.

VI. CONCLUSIONS

As the saying goes, freedom is never free. The freedom to fish on the high seas has come

at the cost of stock collapses, overcapitalization, and a general squandering of ecological and

economic resources as nations compete for the unowned and open-access fish stocks (World

Bank 2008). The dissipation of rents flowing from straddling and highly migratory stocks

persists despite the U.N. Fish Stocks Agreement and the conceptual appeal of regional fisheries

management organizations. The reason is simple; regional fisheries management organizations

lack the structural characteristics, the design principles, of an effective communal property

regime. Until RFMO member nations take action to exclude non-member nations, or until the

expected benefits outweigh the expected costs of coastal nations extending their sovereign

30

control straddling and highly migratory fish stocks, the dissipation of rents on the high seas will

continue.

31

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