Human Rights vs Property Rights Implementation and Interpretation of the SSF Guidelines

For years, representatives of small-scale and artisanal fishers have been engaging with processes in the UN Food and Agricultural Organization’s Committee on Fisheries (COFI). This engagement has involved asserting their rights towards COFI’s member states and influencing processes in COFI. In 2014, after years of struggle by small-scale and artisanal fishers to contribute ideas to the drafting process and ensure that these are included in the final version, the Voluntary Guidelines on Responsible Governance of Small Scale and Artisanal Fisheries (SSF Guidelines1) were approved in COFI. The SSF Guidelines is the first and only international instrument dedicated to securing the human rights of fisher peoples. While the text is not perfect, the approval nonetheless marked a historic victory for fishing communities around the world. Now that the text is approved, the challenge is how to take these potentially transformative Guidelines and put them into practice at the national and local level in the current phase of implementation. Many fishing communities and their allies are already actively working to build awareness among fishers, activists, lawyers, and lawmakers about this powerful instrument. And a number of workshops on the implementation of the SSF Guidelines have provided important spaces for exchanging ideas and experiences in these efforts.

During the 32nd session of the FAO Committee on Fisheries (COFI) in July 2016, a number of issues specifically relevant to the SSF Guidelines, as well as for small-scale and artisanal fishers more generally were discussed. Namely, agenda item 9 discussed two distinct and, as this brief argues, contrary proposals for how to move forward with implementation and governance related to small-scale fisheries globally. The first proposal focused on developing a global work plan on ‘User Rights’. The second proposal presented the Global Strategic Framework (GSF) for the implementation of the SSF Guidelines. COFI approved both of these proposals, which represent important milestones in the global discussion on SSF.

These two proposals reflect a much longer history of competing political visions and strategies about how to engage with small-scale fishers. On one hand, user rights can be understood as an extension of the ‘Rights Based Fisheries’ agenda, which historically has promoted the privatization of fishing and tenure rights through programs like Individual Transferable Quotas (ITQs), Catch Shares, or Transferable Fishing Concessions (TFC). On the other hand, the GSF proposal is an effort promoted by the civil society working group on fisheries of the International Planning Committee on Food Sovereignty (IPC), including representatives from fisher organizations (WFFP, WFF, and ICSF), in order to outline a clear path forward for implementation of the SSF Guidelines that ensures effective participation by SSF and upholds a HRBA.

In order to clarify these differences, contextualize the decisions taken at COFI, and inform future initiatives, the following text briefly outlines the lead-up to these two agenda items. This background then helps to politically map the range of current efforts to implement the SSF Guidelines. Finally, we present some points of discussion moving forward with the implementation of the SSF Guidelines according to the HRBA.

Rights-based approach to fisheries

The idea of the ‘tragedy of the commons’ was made famous by Garret Hardin in 1968.2 Writing in the Journal Science, he introduced the concept to argue that natural resources held in common would inevitably be destroyed through the competing individual interests of users in order to exploit the resources as much as possible. As a result, he argued, the only way to avoid overexploitation and this ‘tragedy’ would be through control or coercion by either the state or private entities.

While many are familiar with Hardin’s argument and the wide controversy that this sparked, few are aware that in fact, fisheries economists had made similar arguments already in the mid 1950s, focusing on the dynamics surrounding property rights in fisheries. In 1954, Scott Gordon, for example, placed ‘the commons’, at the heart of the discussion on the ecological and economic crisis in fisheries.3 He argued that the depletion and overexploitation of fisheries resources were a result of a lack of property rights over these resources. This would inevitably lead to individual fishers continuing to invest in order to maximize profits from the ‘open access’ commons. This would, in turn, lead to overfishing, as the rational fisher would catch as many fish as possible, leading to the notion of ‘the race for fish’. In tune with neoclassical reasoning, Gordon argued that the only way this ‘crisis’ can be avoided is by introducing clearly defined and strongly enforced (private) property rights as a management tool in fisheries.

Inspired by this first intervention, many fisheries economists have followed in the tracks of Gordon, carrying out the same analysis and thereby reaching the same policy conclusions. The next landmark publication came in 1989 when a group of fisheries economists produced a book called ‘Rights Based Fishing’. The economists applied Gordon’s reasoning, but framed their ideas as ‘rights based fishing’ and identified Individual Transferable Quotas (ITQs) as the policy proposal that most closely adheres to Gordon’s logic. ITQs essentially turn claims to a certain quota of fish stock into private property often accompanied by a market to create ‘free’ trade as the means of distributing these new property rights. Indeed, the authors stress how ITQs are ‘one of the great institutional changes of our times: the enclosure and privatization of the common resources of the oceans’.4

Despite the broad term of ‘rights’, which could encompass a range of different types of rights, ‘rights-based fishing’ is primarily about establishing property rights, and for the most part private property rights, in fisheries; it has very little, if anything, to do with human rights. For small-scale fisher peoples’ movements, real world experiences with rights-based fisheries has often meant massive social disruption in fishing communities through increases in distinction between social classes with severe impacts on the struggle for equity and social justice. Small-scale fisher peoples’ movements have therefore been contesting the term ‘rights-based fishing’ whenever and wherever it is mentioned in fisheries policy discussions. Despite this opposition from representative movements, since the term was put forward in the late 1980s, rights-based fisheries has spread widely in policy discussions and it can now be found in fishery reform processes around the world5. Particularly in the past 6-8 years, the term ‘rights-based fishing’ and a focus on creating the right ‘incentives’ for individual use of fisheries resources has received new attention from a wide range of interests, including environmental NGOs, financial actors, and multilateral institutions.

1 The SSF Guidelines can be accessed in different languages here: http://www.fao.org/fishery/ssf/guidelines/en

2 Hardin, G. 1968. The Tragedy of the Commons. Science. 162 (3859), p. 1243-1248

3 Gordon, H.S. 1954. The economic theory of a common-property resource: the fishery. Journal of Political Economy 62 (2), p. 124-142

4 Neher, P.A., Arnason, R. & Mollet, N. 1989. Rights Based Fishing. Kluwer Academic Publishers. Dordrecht / Boston / London

5 For a recent overview, see: Longo et al. 2015, The Tragedy of the Commodity: Oceans, Fisheries and Aquaculture. Rutgers University Press.