Workshop on International Law, Natural Resources and Sustainable
Development
Control of the Sea: Privatisation or Protecting Public Interests?
Richard Barnes
School of Law, University of Hull
In recent decades, there has been increasing interest in the use of private property
(sometimes referred to as rights based mechanisms (RBM)) to regulate marine living
resources. States such as New Zealand and Iceland have implemented forms of RBM in
commercial fisheries, with a degree of success in improving the efficiency of management.
In Europe, a system of transferable fishing concessions will form part of the new common
fisheries policy from 2014. Regional Fisheries Management Organisations are exploring the
possibility RBM for tuna and other stocks occurring on the high seas. This latter
development is perhaps critical since it may directly affect developing States and their
access to natural resources. It is also important since high seas fisheries are a form of
common property regulated by international law. The introduction of RBM presents a
challenge to this long-standing status.
In my previous work, I argued that the absence of a coherent account of the public interest
weakens the capacity of property rights regime to properly service public needs/goals
(Barnes 2009). In broad terms this means securing, or at least properly balancing against
private interests, fundamental individual and community interests. I also argued that the
structure of international law makes it difficult to identify and support an account of public
interests.
In this paper, I present a schematic account of the public interest. This is closely associated
with the conference themes of environmental protection, human rights and governance).
The aim of this paper is to explore how property rights based mechanisms can be
implemented in RFMOs, and, more specifically, to test the extent to which RFMO are
capable or ensuring that public interests can be protected.