Fishing for Principles: The Fairness of Fishing Quota Allocations

Abstract

Allocating fish quota is a hotly disputed issue across the world, and many different criteria have been employed to achieve it. However, little attention has been devoted to examining the fairness of those criteria. This study aims to fill this gap by focusing on the eight most prominent criteria that have been used or proposed—prior use; market forces; historical entitlement; geographical proximity; sovereign right; economic dependence; environmental stewardship; and equal shares—and examining their respective ethical credentials as principles of distributive justice. The assumption lying behind this aim is that if agreement can be reached on which criteria are the fairest, future conflicts over quota allocations might be averted. The method used to conduct this research was normative analysis, and the materials analysed were obtained from databases such as the Web of Science. However, the study found that the ethically strongest criteria are environmental stewardship and economic dependence, but the most prevalent criteria are historical entitlement and geographical proximity (zonal attachment). So, the principles of distributive justice that are most likely to be applied are not the fairest principles but the principles with the greatest political support. For some commentators, this signifies that justice and ethics have been sacrificed to power and politics. However, there is some evidence that the tide is turning and the arguments in favour of fairness, perhaps in hybrid forms, are beginning to gain momentum.

1. Introduction

Quota allocation systems are designed to determine “whom” is allowed to catch “how much” of “what” fish. They are typically introduced in circumstances when fish stocks are in limited supply, and there is a need to regulate their exploitation to protect them from decline. In this paper, the main focus is on the quota allocation systems operated by some regional fisheries management organisations (RFMOs), though examples of national systems are also considered. The effectiveness of such allocative systems depends on their perceived fairness. The importance to effective fisheries management of acceptable criteria for allocating fish quota is hard to overstate [1,2]. Ref. [3] says the success of RFMOs depends on their perceived legitimacy, which in turn rests on the equity of their allocative decisions (see also [1,4,5,6,7]. Ref. [4] says inequitable allocation leads to instability and defection. Ref. [8] says unfair allocation threatens the sustainability of fisheries.

However, quota allocation is a complex and controversial issue [9]. According to ref. [10] (p. 109), it is an “almost always contentious aspect of RFMO activity”. Similar assertions are made by [4,11,12]. According to [8], there is an assumption among member states in RFMOs that allocative principles should be equitable. However, the notion of equity is rarely if ever defined. Moreover, as [4] points out, there is little international guidance on what counts as equity in allocative decision-making. The most authoritative direction for RFMOs comes from the UN Convention on the Law of the Sea (UNCLOS) 1982 and the UN Fish Stocks Agreement (UNFSA) 1995, but neither UNCLOS nor UNFSA prescribes the allocative criteria that RFMOs must adopt [13,14]. They leave that task for RFMOs to conduct. For example, Article 7 of UNFSA lists a number of criteria that RFMOs ought to bear in mind, but it does not describe them in any detail, justify them, weigh them, or rank them in order of priority. Accordingly, as [15] points out, the application of UNFSA’s criteria is invariably a political exercise in which states interpret the principles according to their own interests (see also [8]).

Few RFMOs manage to resolve conflicts over quota allocations by agreeing on fair principles of justice [4,11]. Ref. [2] says differences in values, interests, and power between states prevent agreement on allocative criteria. Decisions are invariably made through political bargaining rather than through the application of principles of equity [4]. Ref. [16] describes lists of allocative criteria as shopping lists from which states choose the items that suit them best. Different criteria have been employed by different RFMOs [8,17], sometimes without being explicitly acknowledged or recognized. Ref. [18] (p. 522) says a lack of transparency is “rampant”. Often, RFMOs operate several different criteria at the same time [15]. Ref. [19] states that this leads to opaque and unfair allocation decisions, which result in organizational instability.

However, ref. [8] says there is now a search for a fairer allocation framework. The present paper is part of this search. Analysing the credentials of the eight criteria of distributive justice that have been used by decision-makers could help to bring systematic structure and moral rigour to debates on quota allocation criteria in RFMOs, and thereby reduce conflict and conserve fish resources. As [2] puts it, the aim is to move from allocations based on politics to allocations based on principles. One way of supporting this aim is to analyse the normative credentials of each of the candidate principles of distributive justice to see if the member states in a RFMO can be persuaded to agree which is the fairest, irrespective of whether they themselves would be better off if their RFMO adopted that principle [8].

This is what the current study aims to do. Section 2 explains the normative methodology that is used in this research alongside the theoretical framework that informs the paper—distributive justice theory. Section 3 outlines the eight main criteria that have been used or proposed for fish quota allocations and analyses their respective ethical strengths and weaknesses. Section 4 discusses the central issues raised by the normative analysis conducted in Section 3. Section 5 concludes the paper by rejecting the argument that allocative decisions on fisheries quota are inevitably made by RFMOs on the basis of political power rather than ethical principles.

2. Methodology and Theoretical Framework

2.1. Normative Analysis

Studies of decision-making processes between and within states over natural resources have long been dominated by “neo-realists” who view such processes through the lens of power, seeing them as opportunities for groups to gain advantages over other groups. Neo-realist theorists regard their interpretation as based on objective facts—i.e., evidence of how groups actually behave—rather than subjective opinions of how groups ought to behave—which is what normative theorists’ interpretations are based on. Neo-realists contrast their value-free research methodology with the value-laden research methodology of normativists, which they see as reflecting personal ideals and values, not empirical facts, and is, therefore, unscientific [20]. In this competition between the positivist neo-realist and the normative idealist interpretations of decision-making, the former have generally prevailed. However, in recent years, there has been a normative turn, and issues of moral value have begun to attract the attention of researchers to international and national decision-making bodies [21]. Normative theorists are pointing out to positivists that the line between facts and values is blurred; that even their own empirical theories may contain moral values embedded within them; that much decision-making over the use of natural resources is permeated with implicit ethical principles; and that a proper understanding of such decision-making required an analysis of these principles and the assumptions underlying them [22,23,24,25,26].

This normative turn can be seen in development studies where scholars are making increasing use of moral concepts like environmental justice and human rights in their assessments of management policies [27,28]. In fisheries management policies, we can observe the same trend. In the global north, fisheries management has traditionally been linked to positivist approaches. For example, it restricts fishing efforts on a target stock to calculations of maximum sustainable yield (MSY) based on research data obtained by fisheries scientists employed by research institutions such as the International Council for the Exploration of the Sea (ICES). However, not all fisheries management decisions can be made by positivist methodology. For example, while a value-free scientific decision may be reached on a total allowable catch (TAC) to prevent a stock from declining, any distribution of that TAC to individual fishers inevitably entails making value judgments. As we shall see, there are many different criteria that could be used to share out the TAC: which one(s) should be chosen is an ethical issue.

Many studies of fisheries management reflect this normative turn and base their analyses on the ethical concepts of human rights and equity. Examples of such studies are [29,30,31,32,33,34,35,36,37]. In particular, there is a growing body of scholars who study the criteria for allocating fishing quota in decision-making bodies like RFMOs employing moral principles of fairness and distributive justice. These studies include [1,10,13,14,15,16,17,38,39,40,41,42,43,44,45,46].

However, few of these studies discuss the ethical credentials of allocative criteria: they restrict themselves to describing what the different criteria are and which fisheries management organisations adopt which criteria. Two exceptions to this largely descriptive literature on quota allocation principles are [47]’s criticism of the EU for employing the criterion of historical catches using an outdated reference period of 1973–1978 to allocate the total allowable catch (TAC) of the Northern European Anglerfish stock; and [42]’s study of the fairness of the allocation rule for tuna quota applied in the International Commission for the Conservation of Atlantic Tunas (ICCAT), which concludes that the success of international regimes rests on their perceived fairness in allocating quota opportunities.

The materials used for this normative analysis were obtained from a literature search for papers and chapters on distributive justice and quota allocations. The databases searched for these materials included Scopus; Web of Science; and ProQuest. Many items were sourced from reference lists of peer-reviewed papers and from Google Scholar. The main search tool used to select materials for study was distributive justice in fish quota allocation decision-making.

2.2. Theoretical Framework

The theoretical framework that informs this paper is distributive justice theory. As ref. [48] (p. 3) points out, distributive justice theory is not just an academic pastime but a very real practical exercise, because whether we are aware of it, all economic decisions are based explicitly or implicitly on principles of distributive justice: “Societies cannot avoid taking positions about distributive justice all the time”. Several scholars have recognised that this applies to decisions about fisheries quotas: all allocations are necessarily normative decisions [49,50]. Even the default decision of not allocating quota at all is ipso facto to endorse a value-laden criterion of first possession.

Distributive justice theory provides us with a variety of different criteria that have been used or proposed to determine who gets what and in what amount [48]. For example, ref. [51] identifies five criteria of justice that can be applied: moral desert; contractual entitlement; equal shares; satisfaction of need/welfare; and maximization of utility/efficiency. Ref. [52] refers to contribution (desert); equality; and need. Ref. [53] lists egalitarianism, prioritarianism or need, and sufficientarianism. Ref. [54] highlights equality; utility; prioritarianism; and fair equality of opportunity.

There are a number of studies that focus on fish quota allocation criteria, some of which allude to distributive justice or equity; for example, refs. [7,10,13,14,15,16,17,38,39,40,41,42,43,44,55,56,57,58,59,60,61]. But most of these studies concentrate on describing what the criteria are and which ones have been adopted by which organisations. Only three publications—[8,44,53]—discuss the ethical credentials of the criteria.

The present paper seeks to widen and deepen these tentative and partial normative analyses of quota allocation by identifying the eight most prominent allocative criteria and comparing and contrasting their respective moral strengths. The study accepts [62]’s description of concepts like justice as “essentially contested”, i.e., as being capable of many different legitimate and valid interpretations. However, the study contends that it is possible to evaluate their respective moral strengths to arrive at a rational conclusion about which one(s) best meet the ethical requirements of a fair allocation of fisheries quota.

3. Eight Criteria for Fish Quota Allocations

The following eight criteria for fish quota allocation have emerged from a lengthy study of the literature on fisheries management that I have conducted over three decades. They also reflect my training in political theory, which includes philosophical analysis of the concept of distributive justice. So, although the eight criteria are chosen by me, they originate in both long-established practices of fisheries management and deep academic ethical debate. They have not come out of the blue. Another note of clarification is that the recipients of quota allocations may be states in the case of RFMOs, or they may be sectors of fishers in the case of national or sub-national decision systems.

3.1. First Possession—First Come First Served

Perhaps the most basic and simple criterion is first possession. According to [6] (p. 179), “First-possession… assigns ownership on a first come, first served basis or first-in-time, first-in-right”. Ref. [56] (p. 28) notes its origin in Roman law, referring to “the ancient Roman law dogma of ‘first in time, best in right’”. The principle of first possession is applied in fisheries by setting a total allowable catch (TAC) and permitting fishers to compete for the stock until the TAC limit is reached after which further fishing is forbidden. Strictly speaking, first possession is an unallocated system [11] in that it is “open to all comers, not subdivided into national shares” [63] (p. 138). Ref. [63] explains that in the North Atlantic, it was the norm before quota allocation was introduced by the predecessor of NAFO (North Atlantic Fisheries Organisation) in 1972. Several writers refer to it as “Olympic fisheries” [1,13,15,17]. Ref. [64] depicts it as “derby fishing”. The first possession principle is used today in two RFMOs—IATTC (Inter-American Tropical Tuna Commission) for the South Atlantic albacore stock [65] and CCAMLR (Commission for the Conservation of Antarctic Marine Living Resources) for the krill and toothfish fisheries in the Ross Sea [51]. Ref. [8] claims it is the de facto system for high seas fisheries generally.

The justification for the principle of first possession is that it rewards entrepreneurs and innovators. “First-possession rules… recognize first-movers, innovators, entrepreneurs, who first experiment with and use a resource. Society benefits from innovative, risk-taking activities, and first-possession recognizes such actions” [6] (p. 179). Moreover, the modern notion of intellectual property rights is based on such a principle.

However, first possession is an ethically weak and conditional claim. In the case of intellectual property rights, there is usually a time limit after which the right expires. In the case of fisheries, the first possession principle permanently discriminates against new entrants [6,63]. How long is it justifiable for the first user to enjoy exclusive access to the stock? Suppose the first user is quickly followed by a second user and then a third user and so on: at what point does the first user have to share the stock with subsequent users? Presumably, the right of prior use does not extend to awarding the whole of a stock permanently to the first fisher of it. That would violate a sense of fairness in the same way as planting a flag on the moon would unfairly entitle the flag planter to claim ownership forever of the entire moon. As [8] notes, many writers reject such absolute protection of first use as inequitable. But what limit on the first user’s right would be fair? The criticism here is that the prior use criterion is indeterminate: it cannot tell us what the moral limit is to the claim of the first user. However, if the principle of first come first served does not mean that the first user has exclusive and permanent access to a fishery but only a right to compete with other early users to catch as much of the stock as possible until the TAC is reached, then the principle becomes determinate. This is what the terms “Olympic fisheries” and “derby fishing” mean.

Another criticism of the first possession criterion is that it is discriminatory in that it benefits large-scale fishers (LSF) at the expense of small-scale fishers (SSF) because LSF can travel considerable distances to new locations, whereas SSF is largely confined to inshore waters where there are few if any new opportunities to exploit.

Critics of Olympic or derby fisheries also say that as a race to fish it encourages over-fishing [15]. However, if the TAC is set at a sustainable level, and all fishing is brought to a close as soon as that TAC is reached, the charge of overfishing lapses. Another criticism is harder to refute—that Olympic or derby fishing is a morally bankrupt system because it encourages selfishness, greed, and excess. There is nothing edifying about a race to fish. But the question in this paper is whether it is unfair, and being unedifying does not necessarily mean being unfair.

3.2. Market Forces—Supply and Demand; Itqs

The second criterion of quota allocation is market forces. Neo-liberals refer to the justice of the marketplace whereby the forces of demand and supply determine which vessel owners can afford to pay for quota allocations [66]. The argument here is that market forces are fair because they are neutral and non-discriminatory—everyone is free to enter the market and bid for quota. Markets reward entrepreneurs who are responsible for increasing productivity by keeping down the costs of production; capitalising on economies of scale; and seeking out new export opportunities. Here, justice is associated with economic efficiency [67], stability, and flexibility [8].

A typical market system of quota allocation is based on individual transferable quotas (ITQs), which are repeatedly traded among fisheries companies until they are held by the most efficient operators [68]. Many other advantages are attributed to an ITQ system [69]. For example, ITQs are claimed to reduce over-capacity because since fishers are guaranteed a quota, they do not need to overinvest in bigger vessels and more sophisticated gear. Also, ITQs are held to reduce overfishing because their permanence provides fishers an incentive to preserve future fish stocks [29]. Advocates of ITQs claim there is evidence that these benefits have been achieved. For example, ref. [70] (pp. 54–55) asserts that where ITQs have been established, overfishing has been reduced; declining stocks have recovered; the quality of fish landed has improved; employment has increased; and economic rents have risen. There are now more than 200 ITQ systems in place across the world [71] accounting for over 10% of the global catch [68].

However, ITQs are widely regarded as responsible for increasing unemployment, reducing the number of small-scale and artisanal fishers, and impoverishing local communities because they generally benefit large-scale industrial vessels [68,71,72,73,74]. Another criticism is that ITQs lead to overconcentration of quota ownership in fewer and fewer hands [75], thereby creating an elite group of powerful companies that can exert unfair influence over decision-making in the fishing industry to favour their interests at the expense of the interests of other stakeholders, including conservationists and small-scale fishers (SSF) [63,68,69]. Ref. [76] (p. 284) rejects the claim that privatisation of the fisheries will turn exploitative industrial fishers into “exemplary stewards” of the sea: “We will give you, for free, all of that wealth and all we ask in return is that you now behave better than you have heretofore”.

A further criticism is the charge that the initial allocation of ITQs is morally problematic. Many writers have pointed out that, invariably, fishers have received the initial allocations free of charge, based on their historical track records [40,77]—what is called “grandfathering” [5,68,70,78,79,80]. Ref. [6] (p. 194) claims “No ITQ could be implemented in a fishery where the interests of established fishers are ignored or importantly compromised”. Grandfathering has occurred in Iceland’s ITQ system [80]; in Canada’s ITQ system for offshore scalloping [81]; in Canada’s allocatory system for Scotia Fundy’s inshore mobile groundfish [82]; in New South Wales’ ocean trap-and-line fishery [83]; in New Zealand’s ITQ system [84]; in the red snapper ITQ in the Gulf of Mexico [85]; in the Australian Southeast trawl fishery [5]; and in many member states of the EU, including Denmark and the Netherlands [38,86].

According to commentators, such grandfathering is inherently inequitable for four reasons. First, it allocates all the quota rights to the vessel owner and nothing to the crew or other stakeholders [87]. This is intra-generational injustice [79]. Second, it rewards the more aggressive vessel owners who have built up large track records not by conservation behaviour but by targeting stocks to the limits and damaging the benthic ecosystem. Third, it privileges some fishers over other fishers and over the rest of society by allowing public rights over national resources to be appropriated by private owners [29]. As ref. [87] (p. 196) puts it, “according ITQs to the few fundamentally shorts the many” (see also [88]. Ref. [8] points out that this discriminates against new entrants. Fourth, it entails inter-generational injustice: “There is a notable inter-generational inequity involved in having initial recipients receive a free gift of quotas from a public resource, while subsequent generations have to pay exorbitant purchase or lease rates” [75] (p. 176) (see also [68]).

An alternative method of initial allocation of ITQs is to auction the initial quota allocations. This was done in the Chilean fishery for the Patagonian Toothfish where ITQs were auctioned to the highest bidders for 10-year periods [89]. However, auctions provide wealthy bidders an advantage over poorer bidders and reinforce the inequality that already exists in the fishing industry [75].

Many writers like [63] predict that despite all their inequities, ITQ systems will eventually be adopted widely across the world.

3.3. Historical Entitlement—Past Track Record; Status Quo

As the previous section shows, an ITQ system may be based on initial quota allocations that reflect historical catch track records. However, historical track records are often used as a criterion for allocating fishing quotas outside ITQ systems. The rationale for this criterion is that a state that has a lengthy history of fishing for a stock should be allocated more quota than a state that has only a short history of fishing for that stock. According to [44], historical entitlement is synonymous with stability: it is essentially the principle of the status quo. Ref. [15] calls it “flag state allocation”, indicating that it is characteristically applied to high-seas fisheries and generally benefits distant water fleets (DWF). According to many commentators, historical entitlement is the most prevalent criterion in the world [4,8,40,41,44,55,86,90]. Ref. [38] (p. 248) shows it is applied in France, Germany, Portugal, Sweden, and the UK (see also [91,92]) and that “For stocks managed under either EU, ICCAT, or distant water TACs (NAFO and NEAFC [North East Atlantic Fisheries Commission]), all quotas are allocated purely on the basis of historical fishing activity”.

According to [41], historical entitlement is the easiest criterion to operate since it is quantitatively measurable (see also [93,94,95]. Ref. [13] say this is because catch data generally provide a statistical record. Ref. [41] says it is also the most difficult politically to dislodge because it is so extensively and deeply entrenched in everyday practice (see also [6]). Ref. [42] claims that quota allocations based on historical entitlement develop a momentum of their own (path dependency). Ref. [6] says that when agreement on the criteria for quota allocation cannot be reached, the default position is invariably historical entitlement.

What are the ethical credentials of the historical entitlement principle? There does seem to be something persuasive about saying that if fishers have been conducting fishing operations for a long time, committing considerable effort and investment, they have acquired an entitlement to be allowed to continue to do so [86]. It also seems sensible to say that the amount of quota allocated should be proportional to the amount of fish regularly caught by each vessel [96]. Ref. [97]’s entitlement theory provides an ethical foundation for this criterion, asserting that people have rights to their holdings if they have acquired them (either by original mixing of their labour with them or by transfer of them from another party) without theft, fraud, or force, and if there is “enough and as good left for others”. Ref. [97] rejects the notion that holdings can be redistributed according to abstract principles such as desert or equality or need or any other “pattern” as though existing holdings were manna from heaven waiting to be distributed. Holdings are already properly distributed by historical entitlement. There is no virgin cake to split up: the cake has already been legitimately split up [53].

Ref. [98] also adds ethical support to the historical entitlement criterion, arguing that the sheer longevity of practice means it has accrued moral legitimacy. The very fact that a practice has survived over a long period of time means it has demonstrated its appropriateness of being fit for purpose and serving a valuable social function by providing stability and security to society. Ref. [8] points out that international law accords protection to historical entitlement: both the Permanent Court of Arbitration and the International Court of Justice affirm that long usage confers justification on practices. This doctrine of prescription has a place in UK law, which stipulates that if a practice operates for 20 years, it qualifies for legal recognition. Ref. [99] (p. 5) rehearses the argument that UK law upholds the “legitimate expectations’ of existing quota holders” since “recipients of quota have planned their businesses on the strength of future quota allocation and have come to rely on their allocation”. As ref. [13] states, the historical entitlement principle exemplifies the status quo.

However, there are many objections to the historical entitlement criterion for quota allocation. For one thing, its application is indeterminate. As ref. [4] (pp. 4–5) asks, “What period of time should be considered in calculating historical catch? Different States are likely to have had different levels of catch at different times, so the time period on which catch history is based can make a significant difference to a state’s allocation”. Ref. [45] says the validity of historical catch records diminishes the further back it goes. Ref. [55] asks: Who should receive the quota? When should “history” begin? Does a track record of illegal fishing count towards a quota? Does recent history trump remote history? (see also [13]). Does it have to be continuous history? Should the average catch over a period be counted or the best year’s catch? Ref. [86] raises similar concerns. Also, there are sometimes difficulties in comparing like with like in historical catches because different sectors and vessels may have different practices and protocols when defining fish and sorting catches.

For another thing, the application of the historical entitlement criterion may be unfair. As ref. [4] (p. 5) points out, historical entitlement can favour states that have subsidized fisheries, “thus rewarding past fisheries subsidies with future fishing opportunities” (see also [42]). The principle may also be used to reward illegal, unreported, and unregulated (IUU) fishing. Ref. [79] reports that applying the historical entitlement criterion to the surf clam fishery in the USA in allocating ITQ shares rewarded some illegal fishers. Another criticism is that it encourages a race to fish [13,100], favouring fishers who have overexploited the stocks in the past [42,59]. Ref. [94] refers to the perverse incentive that it creates for States to increase their effort and inflate their catch history immediately before joining an RFMO (see also [93,100,101].

Ref. [70] says the historical entitlement criterion also encourages exaggeration of catches to boost entitlements. Refs. [44,60,63] say it also punishes fishers who temporarily stop fishing to allow stocks to recover. Moreover, it discriminates against countries in the global south that do not have records of fishing histories [4,90]. Ref. [15] points out that the historical right criterion discriminates against any new entrants because they do not have a track record. Also, the historical entitlement criterion faces the same objection as the market principle’s initial allocation of ITQs—to whom should the catch record be assigned: the owner of the vessel, the master, the crew, or the processor? [40]. Ref. [14] says the past should not take precedence over the present and future. Finally, ref. [102] reports that states generally choose whatever interpretations of the historical entitlement principle that best suit their self-interest.

So, although the historical entitlement criterion has an intuitive appeal at first sight, is supported by some persuasive ethical theories, and is widely employed across the globe, it faces considerable moral challenges.

3.4. Geographical Proximity—Zonal Attachment

The geographical proximity or zonal attachment criterion is based on the argument that quota allocations should reflect where the fish are located [103]. Quotas are awarded to states in proportion to the stocks that are found in their waters [39,104]. It is a biological criterion in that its application requires biologists to determine precisely where the fish are. Ref. [55] (pp. 126, 127) claims it is a scientific criterion that is “straightforward” and “the least political of the possible allocation mechanisms… if governments accepted scientific calculations where stocks reside as (the) basis for distribution, there would really be no need for negotiations”. Ref. [8] (p. 234) says “it is a neutral and objective criterion”. Ref. [42] argues that the zonal attachment argument holds for fish outside as well as inside a state’s exclusive economic zone (EEZ), so the geographical proximity criterion ranges wider than the sovereign right criterion (see next section).

According to [8], geographical proximity has always been an element of allocation decisions for straddling stocks, and its popularity is increasing. Norway is a strong advocate of zonal attachment, and its agreement with the EU on seven shared straddling North Sea stocks incorporates it [46,105]. Ref. [106] reports that regional biomass estimates are used to distribute Pacific halibut and sablefish quota between Canada and the USA.

Ref. [43] points out that NAFO uses zonal attachment to allocate herring quota. Ref. [107] says the zonal attachment principle has been strong in NEAFC. Bjorndal (2023 personal email) says North African countries have been allocated a higher quota for tuna based on the criterion of zonal attachment. The post-Brexit UK government evidently prefers zonal attachment to the EU’s historical entitlement criterion of relative stability [108]. Ref. [15] says it benefits coastal states but not DWF states.

Many writers defend the geographical proximity criterion [42,106]. Ref. [45] says if a fish species lives, spawns, or feeds in the waters of a state, this is a valid reason for that state to claim a quota to fish it. Presumably, the argument is that the fish are making use of the state’s resources; therefore, the state has a right to take rent for providing that service. Ref. [56] argues that the zonal attachment principle encourages states to look after the stocks in and around their waters.

However, critics of the geographical proximity criterion argue it has several flaws. First, it is not a straightforward objective criterion but a complex and contentious one. As refs. [8,14,109] explain, it can be defined in several different ways. For example, some fish may spawn in one country’s waters but become mature and, therefore, fishable in another country’s waters; some fish may spend a lot of time in one country’s waters and much less time in another country’s waters [110]; and some fish may put on a lot of weight in one country but very little weight in another country. Moreover, fish biomass is very hard to measure [108], especially if it includes eggs and larvae [13].

Furthermore, we don’t really know how much fish is in the waters of a country. According to an ICES report of 1978, “it would require an unrealistic amount of work to collect all biological data necessary to determine zonal attachment” [111]. Also, as ref. [59] points out, changes in fish migration behaviour patterns can undermine calculations of stock size at a particular time (see also [14,112]. Ref. [110] (p. 2) says ICES provides no indication of how all these different factors are to be “quantified, weighed, and added into an overall formula for calculating the respective sub-quotas of the zones”. Refs. [8,14] claim decisions on what metrics to use for zonal attachment are ultimately political not scientific. So, it comes down to politics in the end.

The geographical proximity or zonal attachment criterion has some moral traction—that nearness seems to confer more ethical weight to a quota claim than remoteness does—but it is very difficult to operationalise because of its conceptual complexity, and because of fish migration, so it will inevitably lead to political disputation over what it entails.

3.5. Sovereign Right—A Coastal State’s Right to Set Quota for Stocks in Its Own EEZ

The criterion of sovereign right is closely related to the criterion of geographical proximity, but it is a legal rather than a biological criterion. It refers to fish residing within a country’s EEZ, whereas zonal attachment may include fish residing outside an EEZ. Ref. [8] says this principle is rooted in international law where national sovereignty is a pillar. As ref. [90] points out, until 1982, a fish catch was attributed to states according to the nationality of the vessel fishing rather than its location. But when the 200 nm EEZs were established by UNCLOS in 1982, each coastal state was granted the legal right of ownership over the natural resources in its EEZ, including the right to set its own quota for the migratory/straddling fish stocks within it [14,90]. Ref. [56] notes that coastal states also have the right to determine whether foreign vessels can fish in their EEZs”. Ref. [18] says UNCLOS provide coastal states almost complete authority over the fishery resources within their EEZs. Although the coastal state was charged with some duties, such as maintaining its EEZ stocks at a sustainable level and offering to other states fisheries opportunities which it does not itself exploit [13,113], to all intents and purposes it enjoys absolute jurisdiction over the fish in its EEZ (see also [1]. According to [42], this provides coastal states an important priority in any RFMO’s quota allocation system (see also [45]).

The list of Western and Central Pacific Fisheries Commission (WCFPC)’s quota allocation criteria includes the fishing rights of coastal States in whose EEZs the stocks occur [15]. In NEAFC, the allocation of mackerel quotas during the last 15 years has been regularly set unilaterally by coastal states including Iceland, Faroes, Greenland, and Norway, despite objections from the Commission [113]. Ref. [63] reports that in 2000, Iceland left ICCAT because the organisation’s allocation rules on bluefin tuna (including a ban on fishing it) breached its sovereign right. South Africa and Indonesia urged the Indian Ocean Tuna Commission (IOTC) to prioritise the sovereign right of coastal states over the claims of distant water fleets to tuna quota [114]. Ref. [115] says IOTC favours distant water fleets (i.e., historical entitlement), but the global trend in international law is towards coastal state priority (i.e., sovereign rights).

The criterion of sovereign rights of coastal states is most frequently challenged by the advocates of historical entitlement, according to whom, “flag” vessels with a track record of fishing in coastal state waters claim allocative rights [8,44,95]. In this conflict, ref. [90] argues that state sovereignty generally trumps flag state historical entitlement, but [63] reports that both the European Community and Japan reject the criterion of sovereign right on grounds that no international law confers preferential rights on coastal states.

This conflict reveals a potential drawback of the sovereign right criterion—that it might embolden coastal states to feel they have an unlimited right in international law to exploit the fish stocks in their EEZs. However, to prevent such over-exploitation, under international law this right is subject to two conditions: first, the coastal state must not exploit these stocks to the point of threatening stock sustainability; second, the coastal state must allow other states access to fish for any surplus stocks which it cannot, or chooses not to, fish [113]. This restriction derives from Article 56(2) of the UNCLOS Convention, which requires coastal states to have “due regard” for the rights and duties of other states. Another problem with the sovereign right criterion is a lack of data on fish stocks within coastal states’ EEZs.

The sovereign right criterion for fish quota allocation has an intuitive feel of fairness about it, drawing support from the notion of state sovereignty, which is connected to the highly emotive concept of nationalism. However, that intuitive fairness does not extend to granting coastal states an absolute right over the fish stocks in their EEZ. There are ethical limits to state sovereignty to safeguard the stocks and the rights of other states to access the stocks under certain conditions [90]. The whole point of RFMOs is that member states accept some limits on their EEZ sovereignty in exchange for access to stocks in other states’ EEZs.

3.6. Economic Dependence—Need

The economic dependence criterion relates to the concept of need. If a state is highly dependent on the fishing industry for its economic survival, along with its social and cultural well-being, it could claim an additional quota to meet that need. Ref. [42] says UNCLOS endorses this criterion in the case of developing countries (see also [4]).

However, there is some controversy about whether the economic dependence criterion is currently applied in any RFMO. On the one hand, ref. [43] asserts that socio-economic factors do not significantly affect allocation. On the other hand, ref. [8] (2010) points out that RFMOs like WCPFC (Western and Central Pacific Fisheries Commission) and ICCATdo recognise the claims to quota allocation made by fisheries-dependent coastal states on behalf of their small-scale, artisanal, and subsistence fishers (see also [95]). Ref. [15] refers to Article 10(3) of WCPFC’s constitution, which states that allocation must take into account the needs of small island developing states (SIDS), which are particularly dependent on fisheries. Ref. [15] reports four needs criteria employed by WCPFC, and seven needs criteria employed by ICCAT.

Generally, the economic dependence criterion applies more to developing than developed countries, because, as ref. [42] notes, food security is more at stake there. However, some developed countries like Iceland and the Faroes have also invoked this criterion. In Iceland, ref. [87] say its only significant natural resource is fish, which contributes 75% of its export earnings. In the Faroes, ref. [116] notes that fish make up 95% of its exports. In Sweden, part of the national quota is reserved for SSF because of their dependence (ref. [38] (pp. 292, 293)). In Canada, ref. [81] reports that the introduction of individual quotas for the inshore fleet was justified by the need to protect employment in local communities. In the UK, ref. [117] notes there are four examples of socio-economic dependence being used as a criterion for quota allocation.

What is the ethical strength of the economic dependence criterion? Ref. [67] says simulation experiments provide evidence that most people regard need as a matter of distributive justice, because meeting basic needs such as nutrition and housing is deemed to be fair. According to [118], the ideological and spiritual roots of the concept of need lie deep in religious culture. Applying these moral sentiments to fisheries, ref. [45] argues that if the fish in a country is a vital part of its nutritional diet, or if coastal fishers are completely dependent on fish for their livelihoods, this is a morally compelling reason for the extra quota (see also [17,119]). There is also a case for arguing that special consideration should be given to the claims of artisanal and other small-scale fishers (SSF) who form the bedrock of local communities and unless quota allocations are awarded to them, these communities would be impoverished with the vast social upheaval that would cause [120].

However, there are several drawbacks with the economic dependence criterion of quota allocation. One drawback is that economic need is not always a morally compelling distributive principle. For example, it could be used to grant more quota to a vessel owner with many debts than to a vessel owner who was solvent. A more general drawback is how do we measure “need”? As ref. [51] (p. 195) points out, “the concept of need is… so open-ended that it admits of almost any practical deployment”. For example, how do we differentiate between need and want? What would be considered a want in one situation might be classified as a need in another. The concept of dependence is equally elastic and ambiguous. As ref. [8] notes, it can refer to the importance of its fishery sector to a state’s GDP; the livelihood dependence of some of its fishers on a particular fishery; or the nutritional dependence of coastal communities on specific fish species. Each state can find some interpretation that would support its own interests. Another drawback is how do we compare the needs of one state with the needs of another state? Can we quantify need and develop a metric for measuring amounts of need to distribute quota fairly between needy states?

Perhaps it is not surprising, therefore, that as [8] notes, not many RFMOs have worked out how to apply the economic dependence allocative principle.

3.7. Environmental Stewardship—Sustainability; Desert; Merit

Environmental stewardship is a criterion that links quota allocation to responsible marine behaviour, which protects the resource base [73]. Ref. [42] (p. 73) explains what it entails: “Countries that make expenditures to monitor and maintain the fish stocks should be rewarded with enhanced allocations. Those countries that misbehave by abusing the flag-of-convenience system, by permitting IUU fishing, by allowing their vessels to engage in destructive high-seas bottom trawling, and by subsidizing their fishing industry should be punished by having their allocations reduced” (see also [13]). Ref. [8] characterises it as “good governance”. Ref. [45] adds to the list of environmental stewardship credentials the following: restocking of species at risk; protecting spawning and nursery grounds; restoring important ecological habitats; foregoing marine mining; and investing in pollution clean-up. Ref. [117] suggests factors, including using specified gears; refraining from harmful fishing practices; taking part in scientific research; and installing remote electronic monitoring systems (REMs). Ref. [68] adds conformity to the precautionary principle and the principle of maximum sustainable yield (MSY), thereby linking quota allocations to “ecological performance”.

Several writers claim that environmental stewardship is used as an allocation criterion in many RFMOs [4]. Ref. [15] notes that the criterion of environmental stewardship is applied in four RFMOs—WCPFC ICCAT, IATTC, and CCSBT. For example, Article 10(3) of WCPFC’s constitution stipulates that quota allocations should consider states’ contributions to the conservation of stocks, including their generation of accurate data, their participation in scientific research, and their compliance with management regulations. Ref. [15] also notes that three criteria of environmental stewardship are applied by ICCAT (see [19]). Ref. [43] reports that NAFO and CCSBT reduce the quotas of member states who exceed their allocations. Ref. [8] points out that six RFMOs list environmental stewardship among their quota allocative criteria: CCSBT; WCPFC; SEAFO (South East Atlantic Fisheries Organisation); SPRFMO (South Pacific Regional Fisheries Management Organisation); ICCAT; and NAFO. Ref. [41] says CCSBT, NAFO, CCAMLR, and IAATC all apply environmental criteria of one kind or another to their quota allocation decisions. Ref. [121] reports that in the Patagonian toothfish fishery in South Georgia, quota allocations are based exclusively on environmental criteria. Ref. [117] sees some elements of environmental stewardship in the UK’s FQA system and in the Scottish Conservation Credits Scheme, which awards extra quota (“quota bonuses”) to vessels, which undertake environmentally responsible practices. Ref. [121] points out that the UK’s southwest mackerel box uses environmental criteria for allocating quota.

With regard to the ethical credentials of the environmental stewardship criterion, the main justification for it is that it is founded on desert, which is a fundamental concept of justice [48]. Advocates of the environmental stewardship criterion say it is morally superior to other criteria such as geographical proximity. Fishers who claim to have been working hard for many years to safeguard the stocks find it unacceptable that other fishers who have never contributed to such stewardship think they have a claim to catch whatever they like because the fish happen to be in their waters. Ref. [45] sees it as morally superior to the historical entitlement criterion because investing in the sustainability of a stock ethically trumps investment in its exploitation.

Another ethical justification of the environmental stewardship criterion for quota allocation is that it exemplifies the principle of inter-generational justice. As ref. [8] (p. 131) states, “… Intergenerational equity is a fundamental principle of the overarching concept of sustainable development”. She notes that both the 1992 Cancun Declaration on Responsible Fisheries and the 1993 FAO Code of Conduct refer to the obligation of states to protect the stocks for future generations to consume.

However, many criticisms have been made of the environmental stewardship criterion for fish quota allocation. First, it seems unfair to hundreds of thousands of vessel owners and fishers who have invested considerable amounts of capital, energy, and time in building up companies whose viability depends on stability in the quota allocation system [117]. Many of these companies’ fishing practices might not meet the environmental stewardship standards required by RFMOs and, therefore, would forfeit their quota allocations, which could put them out of business. Is this just? SSF might be particularly disadvantaged because they are unlikely to have the financial resources to pay for a Marine Stewarship Council (MSC) accreditation or similar inspection processes to assess and improve their environmental credentials. Another criticism of the environmental stewardship criterion is that it could push up the price of fish because environmental restrictions generally increase costs and reduce catches [117]. Also, it could increase pressure on inshore non-quota stocks by displacing large vessels from targeting offshore quota stocks.

Second, the criterion of environmental stewardship is ethically challenged by the complexities of the concept of desert. While few would dispute that justice is providing people what they deserve, there is little agreement about how to measure desert. Is desert best measured as contribution, effort, or compensation? All three are legitimate conceptualisations of desert, but each one leads to a different distributive outcome [48]. There are problems even in measuring a single conceptualisation of desert. For example, in contribution, ref. [67] claims that people can only claim rewards for those parts of their contributions that are due to their own responsibility. But when most jobs entail close working relations with other people, how can we determine which part of a person’s contribution is due to their own responsibility and which to another’s responsibility?

Third, the elements of environmental stewardship are numerous and incommensurate with each other. Suppose one vessel complied with all fisheries regulations but did not participate in fisheries research or monitoring of stocks, and another vessel failed to comply with some regulations but played a leading part in research and monitoring; which of them should receive more quota? Another complication is that fisheries regulations include non-environmental rules governing health, safety, and working conditions [86]. Are these rules to be included in the calculation of good stewardship? Also, as ref. [45] asks, for how long do “past sins” justify lower quota? A past record of poor environmental stewardship cannot reasonably justify lower quota allocations in perpetuity. Third, some elements of environmental stewardship may clash with each other—such as the conflict between the EU’s landing obligation (discard ban) and its minimum landing size (MLS).

In summary, the criterion of environmental stewardship is intuitively appealing in stating that fishers who restrain their fishing effort to take care of the fish stocks deserve to be awarded a higher quota than fishers who plunder the stock for maximum self-gain. But there are some ethical and practical challenges that make its application seem potentially unfair.

3.8. Equality—Equal Allocatory Shares

Equality is a familiar criterion of distributive justice, and its meaning seems clear. Ref. [122] (p. 5) defines it as “treating people identically, without regard to circumstance” (see also [48,123,124]). Ref. [67] claims it is probably the oldest principle of justice. Ref. [48] says it is one of the simplest (see also [53]).

The ethical case for equality is based on the oft-expressed claim that everyone is of equal moral value [48,122]. It is often claimed that an equal share is the normal or default criterion, which does not require justification, whereas an unequal share does [53]. For ref. [51], equality is one of the most compelling criteria of justice because it is founded on the intuitively appealing nostrums of equal reward for equal work and treating like cases alike.

Applying the equality criterion of justice to fisheries means identical quotas for everyone. There are many examples across the world’s fisheries of the equality criterion being applied. For instance, ref. [122] says the equality criterion is applied in the South Australian abalone fishery (see also [83,125]). Ref. [126] says it also applies to the South Australia pilchard fishery, and [127] reports its application in the abalone fishery in Tasmania. Ref. [40] provides examples of equal share allocations in Iceland, Canada, Australia, and Hawaii. Ref. [38] says the equality criterion plays a dominant part in the systems of quota allocation in Belgium, Ireland, the Netherlands, and the UK. Refs. [81,128] report its operation in Canada’s initial allocation of ITQs in the Pacific herring fishery.

However, the equality criterion of justice has been criticised for three reasons. First, critics argue that what matters for justice is not how well-off someone is relative to other people, but how well-off someone is in absolute terms [53]. In other words, the needs principle is ethically superior to the equality principle. Second, ref. [53] says egalitarianism is vulnerable to the criticism that it would justify leveling down. In circumstances where leveling up was not possible, egalitarians might have to admit that a policy of leveling down would be required to satisfy their criterion of equality, which would be patently unjust. For example, if a smaller vessel is physically unable to catch as much fish as a larger vessel, it would not be fair to restrict the larger vessel to the maximum level that the smaller vessel could catch. As ref. [67] states, a difficulty with the principle of equal shares is that no two cases are ever identical. Third, there is the problem of timeframes. Even if every vessel is provided the same quota at some initial starting point, over a period of time, this could lead to very unequal holdings as some vessels will catch a greater proportion of their equal quota than others or sell their quota to other vessels. To avoid such inequalities developing, some egalitarians argue for periodic (e.g., annual) redistributions, but this could prove disruptive and unpopular.

In conclusion, equality has a strong intuitive appeal as a principle of distributive justice, but it carries with it some moral and practical drawbacks. Perhaps its greatest value is to serve as a default criterion for quota allocation when all other criteria have been found to be ethically flawed or too costly or impracticable to implement.

4. Discussion

There are five questions raised by the normative analysis in Section 3 of the eight criteria for quota allocation. First, which allocative criteria are the most convincing ethically? Second, which criteria are the most prevalent in RFMOs across the world? Third, why are the most ethically convincing criteria not the most prevalent criteria? Fourth, is a hybrid system the answer? Fifth, will the optimists prevail against the pessimists?

4.1. Which Allocative Criteria Are the Most Convincing Ethically?

Table 1. The eight allocative criteria ranked in order of moral weight.

Distributive Criterion	Ethical Pluses	Ethical Minuses
1 Environmental stewardship	Based on the highly praised moral principles of desert and merit. Rewards fishers who comply with fisheries regulations that protect spawning and nursery grounds, have low discard rates, keep reliable records of catch data, participate in scientific research, monitor stock levels and ecosystem conditions, and endorse the MSY and precautionary principles.	Difficult to apply because there are competing metrics of desert/merit. Hard to separate my contribution to environmental stewardship from other people’s contributions and from circumstances outside my control—i.e., luck. Difficult to compare different fishers’ claims to environmental stewardship because they are not always commensurate.
2 Economic dependence	Founded on the notion embedded in every moral code that basic human needs should be met. Rewards fishers whose food security relies on fish.	Need may be the result of wasteful behaviour. Difficult to differentiate need from want. Dependence is an ambiguous concept, and each state can find an interpretation of it that suits its own selfish interests.
3 Sovereign right	Sovereign right is established by international law including UNCLOS and UNFSA as coastal states’ rights to the resources in their EEZs. Linked to the deeply held emotion of national identity.	Encourages coastal states to think they have a right to over-exploit the fish stocks within their EEZs. Lack of data on fish stocks within EEZs.
4 Geographical proximity	Based on the principle that if fish are feeding on resources within a state’s waters, that state is entitled to a quota to catch them. Encourages states to look after the stocks in their vicinities.	In the case of migrating stocks, it can lead to states fishing hard to catch the fish before they move on to another state’s waters. Highly contentious to apply: many different metrics can be used to determine the presence of a stock in a given area, including total biomass, spawning fish, eggs, larvae, juveniles, and mature fish.
5 Equal shares	Intuitively appealing because it is an intrinsic human right to be treated equally. Equality is also instrumentally valuable because it leads to good outcomes.	What is morally important is ensuring that every fisher/state has a sufficient, not an equal, amount of quota. Absolute equality cannot be applied to fisheries where there are different types of vessels. What most egalitarians demand is not absolute equality but like cases to be treated alike. However, what are like cases when every case is unique?
6 Historical entitlement	It seems fair that fishers who have been fishing for many years have built up a historical record of entitlement to quota. Nearly every fishery recognises historical entitlement as a legitimate claim to quota.	Fishers who have been overfishing for many years cannot claim to have a moral right to continue to do so. Historical right favours states from the global north because their large-scale fleets were fishing long before states from the global south could develop their large-scale fleets. Many small-scale fishers do not have logbook evidence of their past catches, so they lose out to large-scale vessels (which invariably keep detailed records of catches) when quota are allocated. Practical questions arise such as do recent or past catches take precedence? Do historical IUU catch records generate legitimate claims to quota allocation?
7 Market forces	The marketplace is fair because it is open to all and is non-discriminatory. It is also the most efficient way to make use of natural resources because it rewards the most productive entrepreneurs. It incentivises fishers to look after the stocks because effectively they own them.	The initial allocation of ITQs is invariably unfair, favouring elites. ITQs consolidate quota holdings in fewer hands, squeeze out SSF, increase unemployment, and impoverish local communities.
8 Prior use	Prior use reflects a familiar norm of first come first served—i.e., the early bird gets the worm. It is easy to apply.	It does not indicate the extent of the area over which first users can claim exclusive use. It does not determine the length of time that first users can claim exclusive access to a stock.

lists the eight criteria for quota allocation in order of ethical weight. Environmental stewardship is morally the most convincing criterion; prior use is morally the least convincing.

In my view, the criterion with the greatest ethical weight is environmental stewardship, since it favours fishers who have the best sustainability credentials because of their compliance with regulations; their low ecological footprint; and their commitment to inter-generational justice [8]. The second best ethical criterion is economic dependence since it appeals to the fundamental principles of human needs and food security [17]. Third is sovereign right because it is linked to the basic notion of national identity. Geographical proximity is fourth since it is based on a strong notion of reciprocity: in return for providing a habitat for migrating fish, coastal states have a right to target them [45]. Fifth is equal shares because treating like cases alike is a critical condition of good governance [48]. Sixth is historical entitlement because despite its tendency to favour large-scale fishers, it embodies a truth that long engagement in an activity generates prima facie claims to continue [99]. Market forces is seventh because although ITQ reinforces elitism, it can use fisheries resources efficiently and drive down fish prices to consumers [67]. Finally, eighth is prior use, which has a limited moral core that may justify some temporary claims to quota.

I have a caveat to make to the above analysis. I acknowledge that my rank order in Table 1 reflects my own evaluation of the relative ethical weight of the eight principles of justice. Other scholars may well disagree with my rank order. My aim is not to insist that my evaluation is objectively valid, but to suggest that fisheries management bodies who are making quota allocation decisions should reflect on the ethical weight they attach to different criteria.

4.2. Which Criteria Are the Most Prevalent in Systems of Quota Allocation across the World?

The most prevalent criterion appears to be historical entitlement followed by sovereign right [17], then geographical proximity, market forces, economic dependence, environmental stewardship, prior use, and equal shares. To some extent, prevalence depends on the type of fishery. For example, as [13] notes, historical entitlement is prevalent for high seas stocks, whereas geographical proximity is prevalent for straddling fish stocks. It is particularly disappointing that environmental stewardship and economic dependence come well down the list of prevalent allocative criteria. Ref. [38] (p. 347) expresses regret at this deficiency in EU fisheries: “The allocation of fishing opportunities often do not account for wider social and environmental outcomes…Equity concerns, particularly the needs of small-scale fishers, are often not taken into account in allocation”. This is a lost opportunity to initiate a “race to the top”, as [121] (p. 7) puts it.

4.3. Why Are the Most Ethically Convincing Criteria Not the Most Prevalent Criteria?

There are several reasons why the criteria which have the greatest moral weight—environmental stewardship and economic dependence—are not the most prevalent criteria. First, different states have different conceptions of justice: there is no consensus on what the most convincing ethical conceptions are. Ref. [67] (p. 1228) refers to the view that “justice norms are culturally relative”. Second, states pick and choose different conceptions of justice for different fish stocks according to their own interests in these stocks [129,130]. This is because states regard quota allocation decisions as a matter of politics, not justice. Quota allocation decision-making in many RFMOs has been politicised, and discussions of the ethical value of distributive principles have been put aside as states joust for political advantage. There are two opposing interpretations of this politicisation process: (1) that politics may exclude ethics; and (2) that politics may include ethics.

4.3.1. Politics May Exclude Ethics

An example of politics excluding or replacing ethics is ICCAT [65]. Ref. [101] (p. 59) reports that “It took four years for ICCAT to negotiate allocation criteria, and yet they are rarely explicitly used; most quota setting and allocation is done by political negotiation”. Another example is WCPFC, as ref. [131] (p. 5) notes: “Allocation is an inherently political and subjective process, and it is recognised that decisions regarding the final allocation pattern in the WCPFC will be the outcome of an intense political negotiation”. A third example is NEAFC, as ref. [14] (p. 31) affirms: “NEAFC has not itself laid down definite principles for the allocation of fishing rights. The result is that it depends on the bargaining power of the parties what fish quantities in the NEAFC regulatory area each country will be allotted”. Ref. [129] (p. 1842) says “agreed allocations are the result of incessant bargaining, a process where ‘all that matters is strategy, legislative strength, bargaining power and “cleverness’” [56] (p. 362).

According to [86], most states have abandoned attempts to get RFMOs to adopt ethical criteria for quota allocations. Ref. [101] says four RFMOs have put the allocation issue indefinitely on hold: NAFO; NEAFC; ICCAT; and CCSBT. Ref. [8] (p. 293) says most RFMOs are reluctant even to discuss the justice of quota allocation arrangements: “References to equity… are remarkably absent in such instruments. Furthermore, explicit references to equity, or equitable allocation, have been consciously avoided on several occasions. This vacuum has led to a necessary analysis on whether equity is even considered as a principle of high seas fisheries management” (see also [43]). Some states may still use the language of distributive justice but merely to provide their self-interested arguments a coping of moral veneer. Ref. [101] (p. 59) says “the quota allocation criteria are so broad that they can be used to justify almost any allocation permutation”. Ref. [8] (p. 122) reports the view that “the ICCAT criteria have served as little more than a ‘shopping list’ from which each State seeks the equity arguments that suit their national interest”. A working group in NEAFC implied that member states rejected allocative criteria because they could not be quantified, which made it difficult to perform a comparative analysis of the strength of the different claims [132].

4.3.2. Politics May Include Ethics

Interpretation (2)—that politics may include ethical preferences—[8] argues that despite the rejection by RFMOs of explicit endorsement of normative criteria, there is evidence that RFMOs incorporate some assumptions about distributive justice in their political negotiations over quota allocations—e.g., in relation to inter-generational justice. So, according to [8] (pp. 296–297), “Allocation can be viewed not subject to bargaining and bargaining alone, but also subject to certain equitable principles”. In other words, although it is virtually impossible to replace politics with ethics, it is not impossible to moderate politics with ethics. Ref. [8] (p. 311) claims “there is currently a search for a definition of equity and equitable allocation of high seas fishing opportunities” and urges states to encourage this shift “from pure politics to a principled and controlled mechanism to arrive at acceptable distributional results”. In Section 4.5 and the conclusion, I develop and defend this argument.

4.4. Is a Hybrid System the Answer?

It could be argued that each and every distributional criterion has some moral value, but that none of them has supreme moral value. All of them have flaws or drawbacks, and if any of them were taken to an extreme, it would have damaging consequences. Any solution to the problem of quota allocation, therefore, must try and take from each criterion the value that is in it, avoid its damaging extremes, and blend it or synthesise it with other criteria. This would be to recognise that since there is no silver bullet or single panacea that fits all circumstances, the answer is to choose a combination of criteria. Ref. [15] (p. 47) says “The various options are not mutually exclusive—different options could (indeed, should) be used for different species” (see also [39]). A two-part hybrid system is recommended by [133], suggesting differentiating between large-scale and small-scale fisheries: large-scale fisheries could be allocated quotas on the basis of historical track records, while small-scale fisheries could be allocated quotas on the basis of economic dependence. Ref. [86] says support for this proposal came from the 2012 EU CFP Green Paper. Ref. [38] finds elements of this dual approach in fisheries in some EU member states, including Sweden and Denmark. Ref. [111] reported a Working Group recommendation that historical entitlement be used for high seas fisheries, while zonal attachment should be used for allocations in EEZs.

Hybrid systems can be found operating across the world [86]. Ref. [43] says most RFMOs operate a combination of historical and geographical criteria (see also [106,134]). Such a combination has been adopted by the UK in distributing the extra quota obtained post-Brexit [135]. Ref. [13] says NAFO employs a hybrid system combining historical entitlement and sovereign rights. Ref. [136] reports a hybrid system of initial ITQs in the USA wreckfish fishery, combining the criteria of historical entitlement and equality. Ref. [127] mentions a similar arrangement in Tasmania’s giant crab fishery.

Multi-criteria hybrid systems also exist. A combination of more than two criteria was recommended by UNFSA when it listed seven criteria that should be considered by RFMOs. According to [10], ICCAT and NAFO both make use of four criteria, though [13] says ICCAT has five main criteria (see also [95]), while ref. [16] says it has 15. Ref. [16] says NAFO uses three criteria. Ref. [47] reports that the EU’s regulation of Northern European Anglerfish is based on three criteria. According to [86], Norway also operates a three-part hybrid system, combining historic catch levels, environmental criteria, and to a lesser extent economic dependence. Refs. [15,41] report that WCPFC lays down 10 criteria that must be considered. However, both commentators point out that WCPFC does not give any guidance on how these 10 criteria are to be applied, including their relative weighting. Ref. [16] sees this as a general problem for RFMOs: they lay down many criteria that should be considered but do not apply them. In a note of caution, ref. [63] warns that although the adoption of a single criterion is almost impossible to get agreement on, adopting too many criteria could destabilise an RFMO.

4.5. Will the Optimists Prevail against the Pessimists?

In this section, I use the word “pessimists” for those writers who are sceptical about the prospects of determining quota allocations by principles of distributive justice, and the word “optimists” for those writers who are sanguine about those prospects. For many commentators, the difficulties of clarifying the meaning of principles of distributive justice and applying them to the issue of fish quota allocations, combined with the record of almost universal failure of RFMOs to implement agreed criteria of justice, lead them to conclude that allocation decisions are ineluctably matters of politics, not ethics. However, other commentators (including myself) are more optimistic about the possibility of guiding political decision-making by principles of distributive justice. In this sub-section, I rehearse the arguments made by the “pessimists” and attempt to refute them.

Commentators who are pessimistic about the prospects of governing quota allocation decisions by principles of distributive justice include those like [16], who hold that agreement on fair quota allocations will never be possible because of ineradicable differences of opinion on distributive justice. My response to this objection is to say that the existence of different interpretations of distributive justice does not mean there cannot be dialogue and rational discussion of these differences to try and resolve them.

Another objection from the pessimists is that despite 30 years of trying, no RFMO has yet succeeded in reaching an agreement on distributive principles [95]. My response to this objection is that past failure does not prove that future success is impossible. Rather it means we must try harder.

Critics also argue that fairness is not the most important consideration that must be borne in mind. For example, ref. [7] argues that distributive justice will not in itself ensure the protection of fish resources: we need to stop IUU fishing first, otherwise RFMOs may be undermined by free riding. My response to this observation is that the best way to deal with unregulated IUU fishing is to strengthen RFMOs so they are empowered in their fight against IUU, and an important way of strengthening RFMOs is to unite their members by establishing fair allocative quota decisions.

A further argument is that any attempt to get states to agree on a single distributive justice principle is doomed to failure because every fisheries situation is unique within its own context: no one principle fits all circumstances [54]. On this view, there is no silver bullet or universal panacea: each allocative decision must reflect the specific context of the fishery: “People solve justice problems in a ‘local’ way” [67] (p. 1224) (see also [15]). My response to this argument is that rejection of a universally applicable distributive principle does not undermine the principled approach to quota allocation decision-making. The principled approach can fully acknowledge the importance of context in choosing particular distributive criteria: different circumstances may well justify different ethical criteria being applied. As ref. [67] (pp. 1224–1225) says, “If context precludes a ‘first-best’ justice solution, principles of justice may guide one to a ‘second-best’ justice solution”.

Another objection is that once a distributive principle has been adopted it will become set in stone, persisting even if it is no longer fair [86]. This is the path dependency argument [130]. My response to this argument is to say that time limits can be imposed on distributive principles so their continued fairness can be regularly assessed by member states.

A final argument used by pessimists is that no matter how hard idealists strive to inject principles of fairness into quota allocation decisions, in the end such decisions inevitably come down to raw politics. This is claimed to be a fact of life in international relations [13,39,121,129]. My response to this argument is to say that even if it is true that every decision in the end is political, this does not mean it must be devoid of ethics. As ref. [10] (p. 101) points out, politics does not operate in a vacuum but in a context of principles: “Although allocation is essentially a political, or negotiated, process, in devising their allocation strategies RFMOs and their member states act within the context of a wide-ranging body of legal principles”. I would argue that behind these legal principles lie ethical principles—principles of distributive justice. Even states that push hard for their own self-interest invariably attempt to justify their strategy by appealing to principles of distributive justice. Ref. [130] (p. 115) voiced this argument 44 years ago when he reported that in NEAFC’s meetings, the concepts of fairness and rights were far more in evidence than the concept of power: “Most of the arguments used in the official NEAFC meetings will be framed in terms of ‘fairness’ or ‘equity’ (including the principles of ‘need’ and ‘responsibility’”). Ref. [130] (p. 142) says “all parties were at pains to portray their positions as reasonable, most often arguing that it corresponded to some widely accepted principle(s) of equity or fairness”. Such justifications may seem self-serving or disingenuous, but they may be true. For example, in NEAFC, the unilateral self-allocation of mackerel quotas by Iceland and the Faroes during the last 15 years are often defended as exemplifications of geographical proximity and/or sovereign rights.

5. Conclusions

The overall conclusion of this paper on the issue of quota allocation is that it is false to claim that politics necessarily excludes ethics. Indeed, it can be argued that politics necessarily includes ethics in that every policy decision made by politicians (whether or not they make this explicit) entails a normative choice. The way forward, therefore, is not to adopt the pessimistic mantra that politics has replaced ethics, nor the over-optimistic scenario that we can replace politics with ethics, but to infuse politics with the right ethics. This means persuading states to adopt the principles of distributive justice, which have the strongest ethical credentials—environmental stewardship and economic dependence—rather than the principles which have the lowest ethical credentials—prior use and market forces. The task is to challenge the power of self-interest with the arguments of fairness. As ref. [130] (p. 152) observes, “a fairness argument may be a source of bargaining strength”. Ultimately, such a challenge is down to the collective will of RFMO member states: they alone have the authority to inform political power with ethical principles—to speak ethics to power [101].

Ref. [63] argues along similar lines using the concept of state responsibility to affirm that member states have a moral duty to refrain from pushing stocks over the edge of sustainability in the pursuit of their own short-term economic self-interest (see also [59,137]). Ref. [58] (p. 3) is confident that principles of justice can prevail. Indeed, it points out that ethical principles have already prevailed in many other multilateral environmental agreements, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the International Court of Justice (ICJ). Ref. [58] claims there is a growing desire to agree on such principles, and that this desire can be fulfilled with suitable deliberation. Ref. [2] (p. 242) says “Incorporating principles into resource allocation remains a major opportunity” [16]. A positive note on which to end is the reflection that a research network has been established that may help keep RFMOs up to the mark of observing justice in their allocative decisions—the Fisheries Equity Research Network [138].