In order to understand the conditions that may favour the creation of localized exclusive use rights, it is helpful to examine the countervailing forces and factors that have led to the widespread condition of common property. Generally, it can be said that where the costs of acquiring and defending exclusive use rights are greater than the benefits, the condition of common property will exist. Costs and benefits, in this regard, are only partly economic. They must also be considered in social, political, and cultural terms.
One of the most obvious difficulties is that of attempting to enclose a fugitive resource. For a stock that swims thousands of miles, no nation, group, or individual can readily prevent others from using the stock. Even where the migratory movements are not so extensive, no individual country can readily defend exclusive rights if the stock is shared with a neighbouring country or countries. The obvious difficulties of trying to acquire exclusive national rights over a migratory stock contributed strongly to the emergence of the principle of the freedom of fishing. It was generally said at the time that the principle was becoming formalized in international law (the 17th and 18th centuries) that a country could acquire exclusive jurisdiction in the seas only to the extent it was defensible from land -- that is, the range of a cannon shot: “imperium terrae finiri ubi finitur armorum potestas” (van Bynkershoek 1737).
The difficulty of enclosing a fugitive resource, however, is a relative matter. It depends upon the extent of the migratory movement of the stock, which ranges from sedentary resources such as seaweeds and oysters to highly migratory resources such as some species of tuna. It also depends upon the extent of the relevant geopolitical boundary, whether this be the coastline of a community, country or, possibly, group of countries acting in concert. Furthermore, as noted above, it is not always necessary to enclose the whole stock (or its environment) in order to acquire a territorial use right that has value.
A particularly important difficulty in acquiring or maintaining exclusive use rights results from the pressures of individual fishermen to increase their shares of the sea's wealth. Prior to the extensions of national jurisdiction, the principle of the freedom of seas led to a distribution of wealth that favoured those who had the ability to invest in large vessels capable of fishing in distant waters. Within present extended economic zones, the same pattern of distribution occurs although on a smaller scale. Where there are no, or few, territories governed by exclusive use rights, those with the most powerful vessels acquire the largest shares of the catch. The owners of such vessels are generally opposed to the creation or extension of territories from which they would be excluded, and they tend to favour maintaining the condition of common property.
In situations where territorial rights have been acquired, there is a tendency for them to break down if there is no strong legal and institutional protection of the rights and if outsiders perceive a high value in gaining access. For example, salmon trap rights at the mouths of Alaskan streams were eventually outlawed as a result of rising prices for salmon and growing pressures by the excluded fishermen to increase their access to the resources and reduce the ability of the trap owners to control the resource. This redistribution of wealth was facilitated by the fact that most traps were owned by non-residents of Alaska, who could not mobilize effective political support in the state.
Traditional territorial rights, with even less protection under law, have not generally been able to withstand the pressures resulting from a large increase in the value of access to the territory.
Breakdowns in traditional territorial rights can also occur from within. In a subsistence economy, the amount of catch taken from a territory is limited by needs of the community. Competition for the favoured fishing sites within the territory may not be particularly strong, and there could be large benefits derived from systems allowing equitable access to the favoured sites. But where there is a shift to a cash economy, the competition increases and generally tends to break down the fragile traditional allocation system and the territorial control.
The forces towards common property are also present in many technological developments, particularly where there is a shift from fixed to mobile gear and from country craft with limited range to motorized vessels with larger range. These developments, combined with the move to cash economies, have been a major force in breaking down traditional territorial use rights.
An additional factor in the maintenance of the condition of common property is that of the North Atlantic historical and cultural traditions of the principle of free fishing. According to this tradition, anyone has a right to fish wherever he pleases. Although this tradition derives from, and is supported by, the concept that the sea's wealth should be distributed in accordance with power, it carries a weight of its own. In North America, the tradition is often advanced as a fundamental right that should not be abrogated by such regulatory techniques as limited entry or fisherman quotas (passim in Rettig and Ginter, 1981). This tradition has undoubtedly influenced fishery advisers from North Atlantic states to encourage the breakdown of exclusive rights systems which they find existing in developing states.
Partly as a result of the above factors and forces and partly as a result of the lack of knowledge of the benefits of TURFs, there are few countries where legal and institutional mechanisms exist to protect territorial use rights.
In view of these forces, the costs and difficulties of acquiring or maintaining exclusive territorial rights have generally been great. From the opposite point of view, the benefits derivable from such rights have frequently been perceived as being small. One of the major arguments in favour of the freedom of the seas advanced by Hugo Grotius in the 1600s was that the fishery resources of the ocean were so abundant that exclusive territorial rights had little value. No one is willing to pay for exclusive access to a resource that is freely and abundantly available elsewhere.
On a global scale, there have been significant changes in the costs and benefits of acquiring territorial rights over fishery resources. The benefits of such rights have increased considerably as scarcity, and the awareness of scarcity, in fishery resources has grown. The costs of acquiring the rights have diminished, in part, as a result of the discussions at the 3rd UN Conference on the Law of the Sea and the widespread acceptance of extended jurisdiction in international law.
Defense of such rights is facilitated by modern military control and surveillance systems. As a result, large-scale TURFs in the form of EEZs have been created.
This has some influence on the creation and maintenance of localized TURFs because of the increase in national authority. But the costs and benefits of exclusive territorial rights must still be considered in terms of the specific conditions and situations that exist in the different fisheries and areas.
