RECIEL September 29, 2009
The ‘cannon-shot rule’ is a particularly interesting and instructive historical example in Richard Barnes’ Property Rights and Natural Resources of how property rights have been established over natural resources like fish in the sea.
Barnes’ sets the goal for his meticulous book as evaluating “the capacity of property to address the crises facing global and domestic fisheries and to provide a mechanism for achieving legally defined conservation and management objectives.”
Given the characteristics of fisheries as a natural resource relative to less mobile resources like forests, oil, and minerals this emphasis somewhat limits this thorough work for readers interested in a broader range of resources.
The cannon-shot rule serves to underline a key historical pre-requisite for the assertion of a property right at that time, namely, the ability to occupy the property in question. And, conveniently in this case, the assertion of a claim over part of the sea could be backed up with a little firepower.
Barnes begins his work with a review of the functions of private property: property as a natural right, as liberty, as utility, as desert (a reward for one’s labour and investment) … and as propriety (“an approach to property law that accords to each person or entity that which is proper or appropriate.”) Barnes is quick to explain that the function of private property goes far beyond allowing a person to accumulate wealth or to exclude others, as might be the general conception.
Private property serves important societal functions — especially relevant in the context of natural resources — and is therefore often constrained by key public or community interests. Barnes divides these public interests into three orders. The first is to meet the physical needs of the community and to provide for the survival of the community itself. This order of interest may also be used to limit property rights to provide for the needs of future generations.
Indeed in attempting to reconcile the private and public functions of property Barnes says we ought perhaps to talk about property holdings instead of property rights, since the former may better reflect the broader public function of property. In the context of natural resources this distinction is particularly apt given that public interest considerations — conserving a particular natural resource, for instance — are often used, especially in a modern law of the sea context, to limit the exploitation of the natural resources of the sea.
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Barnes is drawn to the idea of stewardship for natural resources management, which he sees as an approach or policy that “seeks to ensure that certain resources are used in a manner which does not override community interests in the resource.” Stewardship will have certain attributes of property — the right to profit from a resource, for example — while also incorporating broader social objectives such as obligations to conserve and manage a resource for the long term.
Barnes provides a careful history of the development of sovereignty rights over the oceans and its resources — and how property concepts influenced this development. Of course in the early days no one much contemplated controlling the high seas (or contemplated that its resources could be exhausted) because of the impossibility of asserting control. The ensuing development of legal theories to justify property claims over the sea created a tension between the freedom of the seas and the exercise of coastal state control.
In the mid-1600s the legal advocate Grotius applied a particular concept of property, namely necessity, to show why the oceans could not be ‘owned.’ Other scholars — Puffendorf, Underkuffler, and (my personal favourite) Cornelius van Bynkershoek, among others — provided their own legal justifications for property claims, often influenced by the particular masters they served. Today’s sovereignty claims over the seas are largely based on legal excludability created by multilateral treaties.
The author provides a useful summary of rights-based fisheries management systems from around the world established by domestic law to manage fish stocks in coastal areas. These systems do not give property rights over the natural resource — because it would be difficult to exclude others from the fish, until captured — but rather a property-type right to a certain amount of the resource by way of fisheries quotas (which can thereby be used to exclude others). Although Barnes observes that the jury is still out on whether these systems have addressed the problem of over-exploitation, he notes that these systems have at least helped generate a good return to fisher and even led to under-fishing in some cases. In short, some progress has been made to avoid the tragedy of the commons – but there is not much reason to believe that the damage that has been done is being un-done.
Barnes’ contribution to the understanding of property rights in the context of natural resources, particularly fisheries, is solid, comprehensive, and meticulously researched – although he writes in a style that will make his work more accessible to academics than legal advocates in the field.
We leave Barnes’ book with a slight sense that the punch line is missing – that the careful historical review and comprehensive analysis fail to give the devoted advocate special insights into the best approaches or regimes for protecting natural resources from the many threats they face.
