Helga Law Journal - 01.01.2021, Page 77

Helga Law Journal Vol. 1, 2021
78
Helga Guðmundsdóttir
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1 Introduction
Much like a classic playwright tragedy, the playing out of the ‘tragedy of the
commons’ theory has the ultimate outcome that the protagonist’s self-interest
results in a catastrophic ending. In particular, the gist of the theory is that
unconstrained exploitation of a shared resource by parties acting only in
accordance with their own interests can result in the ultimate devastation of that
resource.1
The risk that the tragedy of the commons actualizes in respect to the
exploitation of fish stocks has likely been increased with the effects of climate
change. Scientists estimate that 70 or more countries will experience distribution
of new fish stocks within their exclusive economic zones (‘EEZ’) due to changed
migration patterns resulting from warming waters by the year 2100 if the current
trajectory of greenhouse gas emissions is not halted.2 While climate change
mitigation is critical, it is imperative that governments recognize the effects already
transpiring and consider how to adapt to the changing patterns of shared fish
stocks (that is, stocks that fall under the jurisdiction of two or more States). Where
governments are unable to agree on the appropriate management measures, they
may become deadlocked in disputes, in particular over each party’s share of a
particular fish stock’s overall quota, resulting in all parties overfishing the common
stock. An example of such deadlock is the over one decade-long dispute
concerning the North East Atlantic mackerel stock (between the European Union
(‘EU’), Norway, the Faroe Islands, Iceland and Greenland), which has appeared in
the headlines with the EU threatening sanctions against Iceland and Greenland in
an attempt to force them to reduce their unilaterally set quotas.3 This dispute is a
prime example of parties failing to agree on how much of a shared stock each of
them is entitled to fish, resulting in the fisheries of the mackerel far exceeding the
quota recommended by scientists to ensure its proper conservation – ultimately
threatening the very existence of this stock. To phrase it more dramatically, these
parties have set the stage for a rendition of a classic tragedy – the Tragedy of the
Commons – the finale of which is unsurprisingly not looking particularly joyful.
In this article, I suggest that parties to protracted fisheries disputes – and, in
particular, the parties to the mackerel dispute – make use of the tools already
available in the law of the sea framework, before resorting to other general tools
of coercion and – more importantly – before staging the tragedy of the commons.
Specifically, the use of the procedure of compulsory conciliation should be
introduced to each coastal State’s radar as a potential tool to resolve current and

1 See, e.g. Brett Frischmann, Alain Marciano and Giovanni Ramello, ‘Retrospectives: Tragedy of the
Commons After 50 Years’ (2019) 33 Journal of Economic Perspectives 211.
2 ‘Climate change has fish moving faster than regulations can keep up’ (Science Daily, 14 June 2018)
<www.sciencedaily.com/releases/2018/06/180614213727.htm> accessed 23 October 2021.
3 Josh Barrie, ‘EU plans to threaten sanctions on Iceland and Greenland as ‘mackerel war’ looms’
(iNews, 20 August 2019) <inews.co.uk/news/politics/mackerel-fishing-eu-sanctions-iceland-
greenland-328516> accessed 23 October 2021.
further suggests that by resorting to compulsory conciliation the parties to the
North East Atlantic mackerel dispute could bring this measure to the fore and not
only resolve their own dispute, but also lead the way for future fisheries dispute
resolution.