The Freedom to Fish: An Obsolete Institution Governing High Seas Fish Stocks

Abstract

The high seas are often characterized as the final and most challenging frontier of fisheries governance. Stock depletions and rent dissipation persist there despite the recovery of several fish stocks within exclusive economic zones. This article examines the legal institutions relevant to managing straddling and highly migratory fish stocks, focusing in particular on the United Nations Convention on the Law of the Sea (UNCLOs) and the UN Fish Stocks Agreement. It summarizes the evolution of the freedom to fish and explains how that freedom has frustrated efforts to address excess capitalization and stock depletion on the high seas. The article then describes the conditions under which a communal property framework, of the type envisioned in the UN Fish Stocks Agreement, could function for straddling and highly migratory fish stocks. Noting that these conditions are currently absent from most regional fisheries management organizations, the article concludes by outlining the options for collective and unilateral action to close the high seas commons.