Letters

Property Rights and Ocean Governance

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Science  27 Oct 2006:
Vol. 314, Issue 5799, pp. 593-595
DOI: 10.1126/science.314.5799.593

In their insightful Policy Forum “Resolving mismatches in U.S. ocean governance” (4 Aug., p. 617), L. B. Crowder and colleagues identify several key weaknesses in oceans governance. They propose “ocean zoning” to replace the current “mismatched and fragmented approaches” and ad hoc decision-making, and they provide insights into present spatial and temporal governance mismatches. To these insights can be added a third mismatch—property rights.

The importance of well-defined property rights in the success of natural resource governance (ocean- or land-based) is well recognized, as is the impact of mismatches (13). When mismatched property rights distributions occur, the result can be as fragmenting as those described by Crowder et al.

Property rights are not a unitary concept, but rather a bundle of separable rights that can be split or shared in different ways. Ostrom and Schlager (4) break property rights into a grouping of operational-level rights, including access (right to enter), withdrawal (right to extract), management (right to regulate use), exclusion (right to deny access), and alienation (right to sell, lease, or transfer).

Coastal fisheries resource management in New Zealand illustrates how conflicting property rights distributions can result from ad hoc decision-making [see Supporting Online Material (5)], yielding a pattern of fragmentation similar to that described by Crowder et al. Five sectors are shown, with each having a distinct bundle of rights. Property rights also can have spatial and quantitative distributions.

Unintended conflicts can result. For example, commercial fishers' right to a certain catch size can be diluted by their inability to fish in new marine reserves, resulting in greater harvesting pressure and subsequent quota cuts for stocks outside the new reserve. Here the conflict between spatially and quantitatively defined rights leads to a diminution in the value of the quantitatively defined right. In addition, poorly defined property rights may on occasion be preferred. Recreational fishers have actively fought efforts to define their property rights, perhaps believing that poorly defined rights (but strength at the ballot box) protect their interests.

Property rights are critical to strong natural resource governance regimes. Explicitly including each sector's property rights in ocean zoning would further strengthen the proposed governance approach.

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Response

Yandle comments that confused property rights in the sea can also produce fragmentation and mismatches. Of course, a comprehensive system of ocean zoning must specify the rights and obligations of users within each zone. Some activities within a particular zone may occur by right, while others may be allowed only by permit (1).

Fundamentally, ocean governance must rest on a clear distinction between imperium (the exercise of authority) and dominium (property rights) (2), a distinction ignored by Yandle. The oceans and their resources are predominately common property held in trust for the people and managed for the benefit of the public by governments of coastal nations (35). U.S. courts sometimes slide perilously close to the idea of the seas as private or public property, but more often, they call on the government to exercise its trust responsibility (3). Further, prominent scholars of ocean law have discussed priority rules applicable to resolving conflicts over the use of ocean trust resources (68).

To carry out their trust responsibilities, governments can and should exercise authority to apply the principles of ecosystem-based management (EBM). Before approving a new generation of ocean industrial facilities, governments should employ ocean zoning as a scientifically based platform for resolving conflicts among new uses as well as ongoing activities like fishing and maritime commerce.

Governments have created certain limited private rights or quasi-rights to marine resources. Some people see the solution to problems of ocean governance in wholesale privatization (9), but we disagree. Privatization strategies are significantly more problematic in the seas than they are on land.

We should continue to treat marine systems as common property rather than as private or public property. Understanding that the authority of the government over common property does not include the right to permanently dispose of (sell, grant, or transfer) ocean space to private owners is key to protecting the rights of the common property owners (i.e., the people). As demands for ocean resources (including exclusive access) multiply, we need management systems that protect the public interest and at the same time provide security of investment for existing and new ocean industries. The needs of private investors can be met while protecting the public trust by contracts (leases, easements, rights of way, and concessions) that ensure periodic review of performance and updating of contract terms to take into account new knowledge (regarding ecosystems and technology) (5).

References

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