Nowadays, referring to "the use of property rights in fisheries management" and "rights-based management" can create confusion and problems because there are many different interpretations of what this means. In fact, there are many different types of systems of property rights and many different ways in which these are used to manage fisheries.
The basic concept of property rights is a simple one. So-called "property rights" (sometimes also called “user rights”) are bundles of entitlements that confer both privileges and responsibilities. These are created, defined and specified regarding the use of fisheries resources. Usually this is done by a fisheries management authority and, increasingly, in collaboration with the communities or people who are exploiting a fishery.
Because the combinations of entitlements, privileges, and responsibilities can be very diverse, it has been said that "property rights, like the dorsal fins on different fishes, come in many different shapes and sizes". This is because the way in which these combinations are characterised in terms of their security (or quality of title), durability (permanence), transferability, and exclusivity can vary and is a function of the design of any particular property rights management program. In addition, the matter of who may hold property rights can vary greatly. Property rights can be assigned to or held by many different entities. Depending on the design of a rights-based program, the rights may be held by individuals, companies, communities or other groups of individuals, the State at the national or subnational level, or even by groups of States.
The extent of legal empowerment that comes with rights-based approaches to fisheries management is a function of four key characteristics:
Security refers to the ability of the holder of the right to hold onto his property right and to not have it challenged or revoked by other individuals, institutions or the government.
Durability refers to the time span of the entitlement and can range from virtually nothing or one season or year to perpetuity.
Transferability refers to the ability of the right-holder(s) to reassign the entitlement to other entities and is important economically – because this is what allows for efficiency gains – and socially – because it can have implications in terms the composition of participants in a fishery.
Exclusivity refers to the extent to which the property rights holder to use and manage his entitlement – such as a share of a fish stock - without outside interference such as other regulatory restrictions (on methods of harvesting, seasons, etc.).
Sometimes these characteristics are very clearly spelled out, as under community-based quota systems or territorial user right systems or individual fishing allocation systems. However, frequently they are not and, thus, it is not uncommon to hear about a "lack of clearly defined property rights" in a fishery that is managed using gear, temporal, or spatial restrictions.
Perhaps the most important issue regarding property rights and fisheries management is the fact that rights-based management create incentives (motivating forces) for the participants that are very different from those created by command and control fisheries management programs. As a result, the different systems will create different management outcomes and results in terms of the sustainability of fishing activities.
Possible solutions One of the major sources of confusion when discussing property rights and rights-based management is miscommunication.
Because the phrases "property rights" and “user rights”can refer to vastly different bundles of entitlements, privileges, and responsibilities, it is important to understand the meaning of the phrase depends on how the "property rights" in question are designed and described – and this will depend on the particular social, cultural, and legal context and for a particular fishery. In short, the solutions to the many basic issues of property rights and rights-based fisheries manage are related to understanding:
- how the rights are defined - namely, who has the right to use the resources of a fishery, which portion of the fishery may be used, and how and when it may be used; and
- how the rights are conferred and upheld.
It is also important to know how rights create incentives for those involved in the fishery by allocating potential benefits to participants. For example:
- disparate incentives may arise when management programs are strictly based on spatial or temporal limitations on access, the use of other controls such as gear restrictions, or total quota systems;
- group incentives may arise if management rights and responsibilities are devolved to communities by means of co-management or even community-based management strategies, including community development quotas (CDQs), territorial use rights (TURFs), or cooperative quotas; and,
- that aligned individual incentive may arise if rights are relatively well specified such as those conveyed by the use of individual transferable effort (ITE) or individual vessel quota (IVQ) systems, or systems such as ITQs, IFQs and the like.
Interest in the use of more clearly defined property rights has grown considerably in recent years, both in relation to the management of fisheries on the high seas and to those within national jurisdictions.
During the last decade, international agreements that extend and more clearly describe the governance of fisheries on the high seas have sought to establish mechanisms to limit fishing on the high seas. This process of defining who has access to high seas stocks means granting rights to some while excluding others, and the mechanism used to achieve this has been done in two ways: first, by extending and further defining obligations arising from flag state jurisdiction over vessels flying their flag; and, second, by building on the responsibility of all states to cooperate in the conservation and management of high seas fish stocks (established by UNCLOS). These developments represent a major step in the direction of more effective management of fisheries resources although the ability to enforce rights on the high seas remains weak.
Regional interest in the use of rights-based fisheries management is also increasing. In the ASEAN region, countries are actively considering innovative ways to use a variety of rights-based fishery management approaches, particularly in small-scale coastal fisheries.
Nationally, countries continue to work to clarify the issues of who, how, where, and when fishing may occur. In some instances, this is being done through the development and implementation of fisheries management plans that clarify the rights and responsibilities of fishery participants such as in Australia, Canada, Iceland, New Zealand, the United States of America and others, where this is being done through the implementation of specific programs such as CDQs, ITEs, ITQs, IFQs or IVQs.
Until recently, the “the use of property rights in fisheries management” was neatly summed up by the people working in the fisheries world with the phrase “rights-based management”, and the greatest criticism of doing so was that this was not particularly precise – because there are many different forms of property rights or user rights systems and many different types of rights-based management.
Nowadays, discussions referring to rights-based management" or “rights-based approaches” has become even more complex as the discussion of rights-based approaches has now expanded to include human rights.
Regardless of how expansively rights-based approaches are defined, globally, the increasing scarcity of fisheries resources and the growing demand for fish and fish products will continue to expose the unsustainable nature of open access utilisation of fisheries resources. In turn, this will increase pressure for fisheries management bodies at all levels to more specifically define and enforce property rights in ways that more clearly designate who can catch fish as well as how fish may be caught.
Interest in the use of management systems that clearly resolve these issues is expected to continue to grow, especially as more is understood about the incentives that are created by such systems and as more is learned about the relationship between these systems and effective fisheries management. And, because rights-based fisheries management programs do resolve the fundamental problem of overcapacity (which occurs in the absence of clearly defined property rights), managers and fishers seeking to address overfishing caused by overcapacity are turning to rights-based approaches to fisheries management as a key component of implementing national and regional plans of action for the management of fishing capacity.