by Richard Barnes. Oxford: Hart Publishing, 2009. 472pp. Hardcover. £60.00/$110.00. ISBN: 9781841135892.
Reviewed by Daniel H. Cole, R. Bruce Townsend Professor of Law, Indiana University School of Law – Indianapolis. Email: dancole [at] iupui.edu.
Aristotle, writing in the Fourth Century BCE, remarked that goods held most in common receive the least care. In other words, unowned or open-access resources tend to be over-exploited, degraded, and sometimes destroyed. During the course of the twentieth century, Aristotle’s observation became known as the “tragedy of the commons.” Decades before the biologist Garrett Hardin (1968) coined that expression in his eponymous 1968 article in Science, economists including Jens Warming (1911), Scott Gordon (1954), and Antony Scott (1955) had analyzed the problem in the context of open-access fisheries. Subsequently, economists (including Clark 1973 and Umbeck 1981), legal scholars (including Ellickson 1991 and Cole 2002) , political scientists (including Ostrom 1990 and Sened 1997), anthropologists (including Ensminger 1990 and Hann, ed., 1998), and historians (including Merrill 2002 and Richards, ed., 2002) developed a large, if not always well integrated, literature on the application of property regimes to natural resources. In particular, much has been written about (a) “common pool resources,” which, because of physical or economic attributes, such as size, mobility, or the expense of bounding, defy ownership or control by a single individual or even a single state, and (b) the means by which states or groups of resource users have sought, successfully or unsuccessfully, to avert commons tragedies through the application of private, common, or public ownership regimes, domestic or local regulatory systems, or hybrid property and regulatory regimes. Somewhat surprisingly, given the international scope of many common pool resources, little attention has been paid, until now, to the international legal dimensions of commons problems and solutions.
Richard Barnes, Senior Lecturer in Law at the University of Hull, fills the gap admirably with his superb new book, PROPERTY RIGHTS AND NATURAL RESOURCES. A more accurate title might have been “Sovereignty, Property Rights, and Marine Resources” for Barnes’s book is concerned exclusively with the extension of sovereignty and property rights to marine resources. Land and air resources are not included. But the book is no less valuable for its narrower focus, which is hardly narrow at all. Marine resources give Barnes plenty to write about. His 400-page treatise is a comprehensive, detailed, and eminently readable history and assessment of international legal regimes developed over the centuries to facilitate sovereignty-based conservation of scarce marine resources, including through the use of private, common, or hybrid property regimes. In addition, the book provides an accessible and nuanced survey of theories and justifications of private property, as well as a chapter comparing domestic marine fishery [*807] management systems in various countries.
The first part of the book rehearses general theories and justifications of property. There is not much here that is novel but the exposition is lucid and useful, particularly for readers previously unacquainted with those theories and justifications. Barnes canvasses all of the major theories and justifications, including both positive and natural law-based theories of property, and justifications based on liberty interests (protection from the state), economics, and “propriety.” Certain specific points in his exposition might be questioned. For instance, he asserts quite confidently (on pages 22-9) that excludability is the sine qua non of property. Although some legal scholars (such as Merrill 1998) would agree, others (such as Fennell 2009) have argued that other rights of property, such as alienability, are every bit as fundamental. There are also a couple of outright errors in Chapter 2’s section on economic approaches to property rights (the Pareto efficiency criterion does not in fact require interpersonal utility comparisons; and the combined Kaldor-Hicks efficiency criteria do not generate the Scitovsky Paradox). But Barnes is hardly the first legal scholar to make technical errors in describing economic concepts.
One element missing from the opening chapters is a clear delineation of the types of property systems. Barnes uses the terms “private property,” “common property,” and “collective property,” as if they were self-explanatory. In fact, they are not. Confusion often arises among various property categories, particularly between common property (res communes) and state/public property (res publicae), and between common property and nonproperty (res nullius). Barnes, himself, conflates common property and open-access at one point in Chapter 4 (p. 153) (although he quickly corrects himself by noting that common property “may resemble private property” if access is limited to one group of co-owners, which is the case by conventional definition). In fact, most common property is private property, in that it is privately owned by a group of owners. It is distinguished from not from private ownership per se but from individual private ownership. More to the point, common property is not characterized by the absence of the right to exclude, as Barnes’s suggests – and if that’s what the court held in the case he sites, then so much worse for that ruling – but by joint ownership of the right to exclude non-members of the ownership group (among other rights) (see Cole 2002, p. 11). The complete absence of the right to exclude is, rather, the hallmark of open-access (res nullius). Understanding that crucial point would have helped Barnes when, later in the book, he attempted to define just what property regimes applied on the high seas. Instead of recognizing that complete non-exclusivity on the high seas denoted a system of non-property (which actually denotes the absence of any property system), Barnes falls into a needless debate (with O’Connell 1982, 1984) as to whether it was a regime of common property, public property, or non-property (p. 167). A resource that is common to all is not common property but non-property.
In Chapter 3, Barnes addresses the “public functions” of property rights. In this context, when he uses the term [*808] “property,” it is implicit that he is referring only to private property, as distinguished from public or common property. Had he established a clear typology of property systems prior to Chapter 3, Barnes could have distinguished the public functions of private property from the public functions of public property. That said, the chapter provides an important discussion, especially in the light of existing international legal regimes, of first-, second-, and third-order public interests. Among the first-order public interests is a guaranteed minimal level of subsistence, regardless of who holds what property rights in resources. Second-order public interests include institutions that are required to secure the social order, including sovereignty and jurisdiction. Property itself, Barnes asserts (p. 112), is rooted in the social order. Finally, third-order public interests include more society-specific institutions designed to achieve domestic aims and ambitions, including for example freedom of expression and guarantees of due process. At the end of Chapter 3, Barnes suggests that the public functions of property are marginalized in most accounts of property, which focus on its libertarian private function. However, Barnes’s own account of public-interest regulation of private property rights is incomplete for neglecting the substantial challenges posed by public choice theory (for example, Buchanan and Tullock 1963 and Olson 1965). Moreover, in discussing the plenary legal communities that impose public interest restrictions on property, Barnes focuses exclusively on the State and the international community, ignoring local resource user groups, which he clearly knows (given his citations to Ostrom 1990) are capable, at least sometimes, of successful collective action to protect scarce resources. In addition, when discussing the “public functions” of private ownership in Chapter 3, as well as “stewardship” duties in 4, Barnes misses an opportunity to introduce a strong and ancient common-law basis for property duties in the form of nuisance law. Such a discussion would have come in handy later in Chapter 6, where Barnes notes limitations on sovereignty, akin to nuisance law, imposed by international law: states must ensure that activities within their jurisdiction or control do not cause damage to other States or the environment outside of their borders (p. 236).
Chapter 5 provides an overview of the influence of property concepts on the historical development of the international law of the sea. That law, Barnes notes, is rooted in two concepts in inherent tension. One is freedom on the high seas, based on a conception of no sovereignty, jurisdiction, or property. The other is a notion of state sovereignty over coastal seas and resources, which has extended over the centuries from near-shore areas. Importantly, as Barnes notes back in Chapter 4 (p. 135), the extension of sovereignty up to 200 miles from the shoreline (the “exclusive economic zone” or EEZ) was based not on physical excludability of ocean resources but on the proxy of “legal excludability.” The move from physical to legal excludability was both historical and political. The first treatise writers on international law, including Hugo Grotius, believed that property rights could not exist in something, like the [*809] ocean, that could not be “seized or enclosed.” Thus, Grotius described the ocean – inaccurately, according to the Roman typology of property systems – as “common property in perpetuity” (p. 171) (again, goods that cannot be controlled by anyone or any group exclusively do not constitute common property but non-property or open-access (res nullius)). In contrast to Grotius, the English jurist John Selden believed that the sea was both divisible and potentially bounded by identifiable geographic features, such as islands or outcroppings of rocks. As a consequence, at least some parts of the sea could be – indeed, must be – bounded to protect the sovereign interests of those who controlled adjacent lands (p. 175). Selden’s notion of the mare clausum or closed sea, though apparently at odds with Grotius’s mare liberum (open sea), nevertheless recognized the traditional importance of free navigation and fishing on the high seas, that is, those areas not immediately adjacent to sovereign territories. Thus, Selden distinguished between open-access high seas and sovereign-controlled – public property or Crown (private) property? – “inner seas” or coastal waters.
With the rise of the European “Great Powers” in the eighteenth century, pressure increased to legally enclose coastal waters. What Barnes does not explain was that this pressure was exacerbated by mercantilist economic theories (which are sometimes manifested even today), according to which economic growth is a zero-sum game between sovereigns seeking to maximize domestic growth (at the expense of other sovereigns). They do this by protecting domestic producers from foreign competition and promoting exports. Mercantilism increased pressure to extend sovereignty, jurisdiction, and property rights over ocean resources that increasingly were valuable for trade, particularly fisheries. So, the extent of coastal waters subject to legal enclosure expanded, as Barnes notes, in accordance with the “cannon-shot rule.” Sovereignty extended as far as a canon ball could be shot from the shore. Barnes claims that this approach was consistent with the notion of res nullius, according to which the ocean could become property by “effective occupation” (p. 184). It is not clear how the ability to fire a cannonball, however inaccurately, up to three nautical miles from the shore constituted “occupation.” Nevertheless, as Barnes explains, the cannon-shot rule was firmly entrenched in international law by the time of the American Neutrality Act of 1794, which claimed a three nautical mile zone of sovereign control around the US coast (p. 185).
Even more significant for the future development of international law was the customary practice of the Scandinavian countries to assert, without any actual occupation, sovereignty over coastal waters extending two to six leagues from the shore for the exclusive use of domestic fishers. By the middle of the twentieth century, states were claiming “territorial seas” extending from a few miles to as far as 200 miles from shore. Barnes notes that these claims were mostly premised on domestic, rather than international, law (p. 197). Nevertheless, he locates support for the claims in the writings of various jurists, including Grotius, Puffendorf, and Bynkershoek. One big difference between these twentieth-century claims and earlier claims was the focus of concern not with the ocean itself but with marine resources [*810] including fish and sea-bed minerals. Barnes explains that this shift had technological origins with the rise of offshore drilling in the 1920s. “Economic and political drivers, combined with a technological capacity to exploit the mineral resources of the seabed, gave rise to claims to exclusive economic jurisdiction over the continental shelf” (p. 199). The Truman Proclamation of 1945 clearly articulated a “reasonable and just” claim of contiguous nations to natural resources found in or under seas covering the continental shelves. After all, those resources could not be adequately conserved without the cooperation of those contiguous nations. Part IV of the 1982 Law of the Sea Convention ultimately codified the extension of state sovereignty over waters above the continent shelf.
Meanwhile, concern over fisheries and fishing rights led to a further extension of state sovereignty that ultimately led to the international legal codification of 200-mile Exclusive Economic Zones (EEZs). Barnes explicates the history, including conventions, treaties, and international legal disputes over fishing rights, that led up to this codification. The “catalyst” was, once again, the 1945 Truman Proclamation, which included a unilateral claim by the American government to exclusive rights to exploit resources in coastal seas. This Proclamation, Barnes notes, did not constitute international law, but it spurred other states to make similar claims (p. 206). For instance, in the Santiago Declaration of 1952, Chile, Ecuador, and Peru recognized one another’s 200-mile EEZ. In fact, the newly independent and developing countries pushed more strongly than the traditional maritime powers for more extensive sovereignty over coastal waters. The traditional powers, for the most part, sought to maintain minimal coastal state jurisdiction. By 1978, Barnes reports (p. 214), 23 states had claimed 200 nautical mile exclusive fishing zones, and another 38 had claimed exclusive economic zones. Although the 200 nautical mile limit is “something of an accident,” without “geographical, ecological or biological significance” (p. 283), Article 56 of the 1982 Convention on the Law of the Sea expressly recognized the EEZs. At the same time, however, Article 56 imposed duties on sovereigns asserted EEZs, including the duty to use the “best scientific evidence” to avoid over-exploitation of resources in the EEZ (p. 284). Barnes acknowledges, however, that the Convention lacks the enforcement mechanisms needed to give teeth to this requirement, which explains why massive over-fishing in territorial waters continues (p. 284). This observation simply reflects the fundamental challenge of virtually all international legal regimes, which is enforcement.
To this point in his book, all of the historical developments Barnes describes are focused on the extension of state sovereignty over marine resources. He devotes Chapters 6 and 7 to explanations, respectively, of how the extension of sovereignty (a) could be viewed as establishing property in marine resources (at least as between sovereigns) and (b) satisfied a prerequisite to the institution of private property regimes in marine resources. In Chapter 6, Barnes acknowledges that sovereignty is a power of governance or “exclusive regulatory authority” rather [*811] than property per se. But he asserts, as the legal philosopher Morris Cohen (1927) did more than 80 years before him, that property and sovereignty are closely related terms. Whereas Cohen stressed the governance quality of property, establishing the owner with sovereign-like qualities, Barnes stresses the ways in which sovereignty orders property-like relations between nations (p. 223). Like Cohen, Barnes ultimately concludes that property and sovereignty “amount to much the same thing” (p. 274). But, in contrast to Cole (2002, pp. 708), Barnes does not posit that government regulation of access to and use of marine resources itself constitutes a shift in property regimes from res nullius by res publica. Barnes does, however, agree that territorial sovereignty is, like property, “comprised of [Hohfeldian] jural relations” (p. 228). It includes the right to exclusive possession, against other sovereigns and their citizens, the right to use the resources and to benefit from their use.
Not all traditional property rights are encompassed by assertions of sovereignty over natural resources. Although Barnes does not use the precise phrase, sovereigns have a “public trust” responsibility to their citizens not to waste, destroy, or alienate irrevocably marine resources subject to state sovereignty. In addition, international law imposes additional conditions on sovereign management of marine resources within their exclusive control, including a nuisance-like requirement that states, in managing their resources “do not cause damage to the environment of other States or of other areas beyond the limits of national jurisdiction” (p. 236, quoting Principle 21 of the 1972 Stockholm Declaration). International law also requires States to engage in notice and consultation with other states that might be affected by their management of shared natural resources, such as cross-boundary fisheries.
In Chapter 7, Barnes discusses the scope of property rights in territorial seas and substantive international legal limitations on sovereignty/property rights in territorial seas, including for example, the right to “innocent passage” of ships through territorial seas (p. 259). Like easements or rights of way on land, “innocent passage” is not an unconditional right, but is subject to the laws and regulations of the sovereign coastal state relating to navigation, resource conservation, pollution control, scientific research, customs, etc. (p. 260). Most importantly, Barnes notes, “[a]s coastal State sovereignty extends to the territorial sea it follows that the State may implement property systems in this zone in the same way that it can in respect of its land territory” (p. 261). In other words, the State can convert its public property into private, or partly-private, property. Privatization of marine resources in the territorial seas is most commonly seen with respect to fisheries, oyster beds, and offshore oil leases.
Chapter 8 focuses on the various property regimes that states have deployed to more efficiently exploit and conserve marine fisheries in territorial (that is, sovereign) waters. His descriptions of the several types of input controls, territorial use rights, individual quotas, community development quotas, and stock use rights in fisheries are clear and very useful, as are his descriptions of how those various types of property regimes are variously used in countries [*812] like Australia, Canada, Iceland, New Zealand, and the United States. As Barnes notes, in none of these countries do property rights in fisheries amount to “full ownership.” They may be limited in scope, in duration, in alienability, and in use. In Cole’s (2002) terms, they amount to partial privatization of public rights in fisheries. Thus, they are a hybrid property regime. But this does not render them ineffective. Barnes finds that, generally speaking, they are sufficient to create incentives for fishers to more efficient exploit and conserve the fisheries.
In sum, Richard Barnes has written the most extensive and detailed book to date on sovereignty and property rights in marine resources under international law. Regardless of quibbles over certain details, Barnes has done a masterful job of combining theory and history to explain how international law has gradually expanded sovereignty and property rights to one of the two great global commonses: the oceans (the other is the global climate). As such, it makes a great contribution to the larger cross-disciplinary literature on the emergence of property rights in natural resources. It should be read by every legal scholar, economist, and political scientist interested in common pool resource problems.
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© Copyright 2009 by the author, Daniel H. Cole.