My thoughts on Daniel Bromley's critique (3): Are ITQs private property rights?

In my first post in this series I argued that although open access is just about the worst property rights regime to have in a fishery, it is too simple to blame all overfishing on 'lack of property rights'; rather, we need to go into the details of the institutional setting. In my second post I argued that asking whether private property rights can manage a fishery is a waste of time: marine ecosystems are too complicated to implement any real form of private property.

But wait a minute. Aren't ITQs supposed to be private property? You can find many articles in the scientific literature and the press, whether they're in favour of ITQs or against them, that present ITQs as private property. Daniel Bromley does not agree. In his Fisheries article he lists as one of the deceits of fisheries economics its claim that "ITQs are private property rights." His objection to this idea is that the Magnuson-Stevens act (which is by far the most important fisheries law in the United States) states that ITQs are permits, which can be revoked, limited, or changed by the government without compensation to the owner of the permit.

The reply of some economists is that in practice, even American ITQs are traded between fishers, they are used as collateral for loans, and they are subject to legal disputes over divorce and inheritance, just like houses or cars are. So de jure they might not be private property rights, de facto they certainly are.

In any case, I'm a European, and in Europe we could decide to make ITQs irrevocable rights that have an unlimited life span, and cannot be changed by the government (unless in cases of eminent domain). Would they then be private property rights?

If I were a German I would say: jein. The certificate would be private property: the law can be made such that you can freely trade the certificate, the government cannot take it from you without compensation, you can use it as collatoral, and if you die your kids might fight over it in court. But that's the certificate - not the fish. As I argued in an earlier post: owning an ITQ does not mean that there's a fish with your name on it.

As far as I know the closest equivalent of ITQs (assuming the most extreme case of privatization) would be shares in a corporation (or LLC, PLC, SA, BV, NV, whichever country you happen to live in - I'm no legal expert). In the fishery, the 'company' would be the fish stock; the 'dividend' would be the TAC; the 'shareholders' would be the fishers, who, unlike regular shareholders, are supposed to come and catch their 'dividend' for themselves. I'm no more a business economist than I am a legal expert, so I don't know whether I should consider a corporation private property or common property. If I strictly follow Bromley's terminology I'd guess they are common property, because it is the shareholders who commonly own the asset and have influence - albeit sometimes limited - on the company's management. But I'm glad I'm writing this on a blog and not in a peer-reviewed article (that's what blogs are for, aren't they?).

There are some interesting differences between ITQs and corporate shares, but I'll save that for later.