Problem of the Commons, Global Scale

In economics, there is a postulate that what everyone owns no one cares for, because (in a rough form of the argument) I get more enjoyment out of appropriating it entirely to my temporary use than having a share that is of uncertain future use because I know that others think the same way I do. The world's high seas fisheries are a current illustration of this point.

The law of the sea is one of the best developed bodies of international law, in large part because it has been around long enough that practices and norms have had a chance to develop. Additionally, seafaring states are generally also coastal states, and vice versa, so that all states have a stake in a stable system that balances free navagability with the security, commercial, and environmental interests in protecting coastlines. This has led to the current UN Convention on the Law of the Sea (UNCLOS) regime, which allows countries territorial rights and responsibilities up to 12 nautical miles out to sea (so long as they respect flagged vessels rights of transit for non-military and non-exploitative purposes), and an exclusive economic zone (EEZ) up to 200 nm out to sea (this mostly deals with fishing, oil, and mining).

Beyond the 200 nm limit, however, are the open seas, and ships are only bound by their own flag. In theory this would work fine, as each country would enforce its own laws and treaty obligations on its own ships, and because all coastal parties to UNCLOS have strong incentives to make sure that its terms are respected, complaints about abuses are generally dealt with quickly and effectively.

For a handful of countries, however, particularly landlocked countries, countries with minimal economic interests (e.g., St. Vincent), or countries with unusual maritime circumstances (such as Panama, which has few locally-owned ships, but controls the canal), a ready means of making money and creating influence is to allow ships to register under its flag, with minimal restrictions on what it can do. For example, several American-operated non-profit organizations with ships register them in Panama instead of the United States so they are not subject to OSHA regulations.

When it comes to fishing, however, the UNCLOS gives deference to regional fisheries authorities such as the Northwest Atlantic Fisheries Organization (NAFO). UNCLOS also recognizes that some conservation duties are best carried out by the nearest country and gives limited environmental jurisdiction beyond the 200 nm EEZ limit where there are fish populations whose habitat straddles that line (Canada was particularly active in getting this concession, since the continental shelf around them is both extensive and rich in commercial fish and was being overfished outside the EEZ, particularly by Spanish flag ships).

Because no one owns high seas fish, there is no incentive for any fishing vessel or any country to unilaterally limit its catch. Some multilateral law exists in the form of regional fisheries authorities, which seem to work reasonably well so long as their member states enforce their restrictions. Getting the flag countries to enforce their obligations can be difficult in the case of flag-of-convenience countries with limited contact with their ships and limited ocean-going enforcement power. (Canada at one point was so fed up with Spanish fishing vessels' depridations that they began capturing and boarding them on the high seas.) Of particular interest in this area is the EU, which, as economic authority for Europe, undertakes fishing negotiations for its members. As the EU grows in power, it will hopefully also grow in influence over flag ships such that it is able to enforce its agreements without having to defer to the local politics of member states. This may end up being an important test of the EU's ability to function as economic head of Europe and influence the rest of the world's willingness to trust its agreements.