Finding Nemo & Owning Him

I. Introduction


In the Bering Sea, overfishing causes the decline in the king crab population.[1] In Australia, parts of the Great Barrier Reef are dying off and expected to worsen.[2] The Gulf of Mexico experienced one of the worst pollution disasters in history when the BP oil rig, Deepwater Horizon, blew up in 2010, spilling 3.19 million barrels of oil into the ocean, which affected everything from the environment to tourism and fishing.[3] The Atlantic Ocean contains islands of trash that pollute its waters.[4] On the coast of Somalia in 2011, pirates murdered Scott and Jean Adam, Robert Riggle, and Phyllis Macay, who were sailing around the world to hand out Bibles to eager Christians.[5] These are pressing problems that need a remedy immediately. There may be a simple answer: John Locke.[6]


First, the article will discuss the inability of independent nations, as well as international authorities such as the United Nations (U.N.), to control and manage the issues discussed above.[7] Second, a history of privatization and John Locke’s theory of private property will be expounded.[8] Next, the article will discuss the process economic benefits of homesteading the ocean.[9] Finally, the effects of the privatizing will have on fishing, the environment, and piracy will be analyzed.[10]


II. Background


Before analyzing the benefits of privatization, describing the current problems for the legal regime is a must.[11] Currently, the legal regime consists of either independent countries with each having their own laws and motives, and the U.N.’s Law of the Sea Treaty (UNCLOS).[12] The question is, then, how well are these institutions doing in regards to protecting the oceans and its resources?[13]


A.    The Failure of Sovereignty


Independent countries control an area of 200 nautical miles of their coasts, called Exclusive Economic Zones (EEZ), while the rest is Open Ocean, which is owned by no one, but governed by the U.N.[14] This means the vast majority of the ocean is not even protected by sovereign nations.[15] Within the EEZs, there is no private ownership, or, at best, a permit or quota system that changes at the whim of regulators and politicians.[16] Many of these countries have a 200-mile extension that overlaps with another country, enhancing the likelihood of military conflict, like in the South China Sea.[17] A recent study based on empirical evidence has found that the EEZ system has actually encouraged more armed conflicts and standoffs.[18] However, even if these extensions of EEZs are peaceable, countries have done nothing to ease the problem of overexploitation.[19]


The U.N. and the 1958 Geneva Convention prevents sovereign states from exercising imperium or dominion over the high seas.[20] The U.N. treaty’s preamble makes certain that no nation, much less an entity or person, owns any of the ocean’s precious resources:


[T]he area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States[.][21]


The U.N. from the outset rejects the notion of private ownership in favor of regulation since the ocean and its resources are for all of mankind.[22] This may sound noble; however, the concept is rather utopian and does not reflect human nature, or human action—i.e., praxeology.[23]


Many societies have tried the idea of non-ownership for the benefit of everyone; these attempts have all failed miserably.[24] That is not an exaggeration because there are multiple examples of non-ownership societies: the Soviet Union, North Korea, Cuba, former South Yemen, and former People’s Democratic Republic of Ethiopia.[25] One can certainly argue that these were simply run by bad dictators, which they certainly were.[26]


However, critics cannot use the “bad dictator” argument in regards to Plymouth Rock or failed kibbutzim.[27] The Plymouth Plantation was originally founded on communal ownership of land, and the religious community would rely on Christian principles to share the workload and encourage everyone to work for the good of their brethren.[28] The settlement almost went extinct due to the lack of production and motivation to work the land, despite the threats of government coercion or hellfire that awaited them for their sins of sloth.[29] The council decided to divide the land and give it to each family; the town had a surplus year.[30] Historians have noted that after privatizing the land, “women now went willingly into the field, and took their little ones with them to set corn; which before would allege weakness and inability; whom to have compelled would have been thought great tyranny and oppression.”[31]


Even in kibbutzim, where all work is completely voluntary, systems of anarcho-socialism, have failed and forced to turn to semi-capitalism to maintain their lack of private ownership.[32] These kibbutzim rent out their rooms and charge people for experiences; therefore, they have abandoned their initial goals of self-sustainable utopias, while some have completely privatized.[33] The Plymouth Plantation and kibbutzim definitely do not share the “bad dictator” dilemma.[34] Instead, the principle of entrepreneurship—the best investment is in one’s self—rings true.[35] As John Locke explained, private property is an extension of one’s self; thus, homesteading is investing in one’s self.[36]


Today, countries that claim rights over certain areas have simply sectioned off various tragedies of the commons since the area is not privately owned.[37] The open ocean, governed by the U.N., faces the same problem.[38] The centralization of governing authority has created an inefficiency, and the lack of resources and information does little to stop the exploitation of the resources in the open ocean.[39] Australia, despite its rigorous regulations, is powerless to stop the bleaching of the Great Barrier Reef, caused by climate change.[40] The BP oil spill forced the company to only pay a small price for the massive damage caused by their negligence, with much of it being tax deductible,[41] and a few years’ worth of dividend payments.[42] Despite multiple nations patrolling the seas around Yemen and Somalia, terrorism and piracy abounds.[43]


The governing entities in charge of these issues have failed miserably, and, due to their monopoly on power, have not been held accountable for these failures.[44] Had these been solely private actions for damages to private property, property owners could hold each of the tortfeasors to their true damages.[45] For example, BP paid approximately $65.4 billion in fines, penalties, and relief.[46] However, the conservative estimate for damages is approximately $100 billion.[47] Theoretically, plaintiffs could get those damages if they had owned plots of the ocean.


Exploitation has severely damaged the fish population since the 1960s, piracy has gotten worse, and militarized tensions have become more common since the establishment of UNCLOS.[48] Clearly, the current regime is not working.[49]


B.    Has Privatization Been Done Before?


Does the reader own a house or ranch, or knows someone who does? Then obviously privatization has occurred before.[50] The premise of this article is that water is nothing more than quickly moving land.[51] If land can be privatized, then so can the ocean.[52]


Fish are definitely not available in unlimited quantities relatively to human wants. Therefore, they are appropriable—their stock and source just as the captured fish themselves. Indeed, nations are always quarreling about ‘fishing rights’. . . . [F]ishing rights to the appropriate areas of ocean would be owned by the first users of those areas and then usable or salable to other individuals. Ownership of areas of water that contain fish is directly analogous to private ownership of areas of land or forests that contain animals to be hunted. Some people raise the difficulty that water flows and has no fixed position, as land does. This is a completely invalid objection, however. Land ‘moves’ too, as when soil is uprooted in dust storms. Most important, water can definitely be marked off in terms of latitudes and longitudes. These boundaries, then, would circumscribe the area owned by individuals, in the full knowledge that fish and water can move from one person’s property to another. The value of the property would be gauged according to this knowledge.[53]


Some countries have privatized parts of the ocean already.[54] However, what is being privatized is purely the seabed.[55] The mostly likely explanation of why only the seabed is being privatized while other parts are not is because scarcity has not quite demanded it yet, and seabeds are no different than land, a system of privatization that humans and legal systems understand.[56] However, countries have allowed privatization of other bodies of water, but just on a very small scale. Private lakes abound throughout the United States and other countries.[57] Although the owners also own the banks and shores, their management of private lakes demonstrates that privatization of large bodies is possible.[58]


C.    Lockean Homesteading & Property


John Locke described the process of procuring property:


[E]very man has a property in his own person. This nobody has any right but himself. The labour of his body and the work of his hands, we may say are properly his. Whatsoever then that he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature placed it in, it hath by his labour something annexed to it that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to. . . .[59]


Therefore, when something is not owned, such as the oceans, by adding labor to the property, the homesteader takes the object out of nature and makes the property an extension of himself through that labor.[60] However, Locke adds a proviso that has proven unworkable: “The appropriator of land must leave as good and sufficient for others before his own homesteading can be justified.”[61] The economist and legal theorist Murray Rothbard demonstrates Lockean homesteading is more efficient and virtuous if Locke’s proviso is eliminated because it prevents all property from being privatized.[62] In other words, the proviso encourages small-scale tragedy of the commons.[63]


The Lockean homesteading is in line with society’s traditional notions of private property as well as the free-market system:


[E]ach person just owns whatever previously unowned resources he appropriates or “mixes his labor with.” From these twin axioms—self-ownership and “homesteading”—stem the justification for the entire system of property rights titles in a free-market society. This system establishes the right of every man to his own person, the right of donation, of bequest (and, concomitantly, the right to receive the bequest or inheritance), and the right of contractual exchange of property titles.[64]


Thus, just because an individual may mix his labor with a piece of nature, does not mean that title of an entire region will vest with the individual.[65] What the individual owns is a technological unit of the resource.[66] “The size of that unit depends on the type of good or resource in question, and must be determined by judges, juries, or arbitrators who are experts in the particular resource or industry in question.”[67] Once the homesteader mixes his labor with the resource, he claims that resource and the necessary appurtenances.[68] These homesteads, therefore, should not be rigid allotments, as the Homestead Act of 1861 demonstrated.[69]


American land settlement is a history grappling, often unsuccessfully, with the size of the homestead unit. Thus, the homesteading provisions in the federal land law of 1861 provided a unit of 160 acres, the clearing and use of which over a certain term would convey ownership to the homesteader. Unfortunately, in a few years, when the dry prairie began to be settled, 160 acres was much too low for any viable land use (generally ranching and grazing). As a result, very little Western land came into private ownership for several decades. The resulting overuse of the land caused the destruction of Western grass cover and much of the timberland.[70]


Therefore, each homestead should reflect the particular resource intended to be privatized.[71]

III. How Would Privatizing Work?

A.    Homesteading the Ocean


The tragedy of the commons becomes apparent as resources become more and more scarce.[72] Until then, very few realize the necessity of privatizing common pools and its resources.[73] That has been the history of the ocean until now, and because of that fact, very few have even thought about privatizing the ocean, much less how it would work.[74] Proper understanding of how privatization will work is essential for all actors during this process.[75] For example, under Lockean homesteading, simply getting in a boat, and setting off buoys will not create a homestead.[76] Actual, beneficial labor is required.[77] No doubt the term “beneficial” can be interpreted liberally, but there needs to be some form of improvement that increases the value or productivity of the homestead.[78]


Some people have already “homesteaded” parts of the ocean, although their efforts and claims are not recognized by any government or organization.[79] For example, many Somalis believe they already have a claim to parts of the Gulf of Aden.[80] Assuming that they can demonstrate that they have historically introduced labor in homesteading that particular part of the ocean, then they can have a past claim.[81] Indeed, some Somali pirates have justified their attacks because various countries are “stealing” their resources.[82] This respects the property right already vested in indigenous peoples, which have not been respected.[83] This prevents the tragedy that occurred with the Native Americans and the Homestead Act.[84] Native Americans, theoretically, had a claim to the lands that the U.S. declared unowned.[85] This created an enormous injustice, since the Native Americans relied on the land and its produce.[86] In addition, it created unnecessary violence.[87] Therefore, the oceanic homesteading should be mindful of previous ownership claims.[88]


The U.N. could act as the governing authority through this process; however, its history of enforcing international law through its court systems counsels against the U.N.’s involvement.[89] The UNCLOS gives sovereign authority over the 200-mile EEZ to individual countries, but the South China Sea demonstrates there are major questions as to who really governs the EEZ.[90] However, most of the EEZs are uncontested and well respected among most countries.[91] Another possible alternative would be to create separate governing authorities for each ocean, separate sovereignties from the U.N. and independent countries. Although this system is the least likely to occur, it is probably the most favorable form of judicial authority.[92]


The adjudication of controversies needs swift, certain, and predictable resolutions.[93] The U.N. has either been unwilling or unable to enforce rights, which has left its legitimacy in question on some aspects of its mission.[94] In addition, the U.N. is, for all practical matters, an international government.[95] Its ability to adjudicate local matters becomes less efficient, and less respected, the more localized the issues are.[96] Therefore, more localized and independent authorities should be considered.[97] For example, different court systems could be set up for the Atlantic Ocean, Pacific Ocean, Artic Ocean, Indian Ocean, Mediterranean, etc. These differing authorities could encourage formulation of better laws, under the same theory that states are laboratories for democracy.[98]


A different individual or entity can homestead each layer of the ocean.[99] The homesteader does not capture the entire geographic area of the ocean; to hold otherwise would violate Lockean principles of homesteading and the resurrect the antiquated ad coelom doctrine.[100] “Using the homesteading principle, the ad coelom rule never made any sense, and is therefore overdue in the dustbin of legal history. If one homesteads and uses the soil, in what sense is he also using all the sky above him up into heaven? Clearly, he isn’t.”[101] Therefore, the underground mining, seabed, underwater creatures, and ocean surface could each have a different owner.[102] Each of these owners, stacked on top of each other, would not be allowed to interfere with the other properties, being subject to the traditional laws of trespass and nuisance.[103]


B.    The Economics of Privatization


Within the Lockean-Rothbardian view of private property, people are encouraged to tend their property in a manner that is self-preserving; thus, an improvement of the tragedy over the commons.[104] “Privatization works extremely well in situations where boundaries can be clearly and effectively drawn.[105] Private fisheries do not fish their product to extinction, as doing so would amount to professional suicide.”[106]


Men value property because it generates rents. To the economist to reverse the preceding sentence, rents are the value generated by the asset. However, beyond the frontier, income is negative. That is to say that the effort to generate revenue is of more value than the proceeds. At the current time, much of the sea and other bodies of water are beyond the pale.[107]


Many have criticized the potential inequitable allocation of privatizing the ocean. However, there is a strong argument against such concerns:


[S]uppose that one man can fence, cultivate, or otherwise use, only five acres of a certain land, while the most economic allocation would be units of 15 acres. However, the rule of first ownership by the first user, followed in a free society, would not mean that ownership must end with this allocation. On the contrary. In this case, either the owners would pool their assets in one corporate form, or the most efficient individual owners would buy out the others, and the final size of each unit of land in production would be 15 acres.[108]


The key mechanism is not the equal allocation of resources, but the equal opportunity of receiving an allocation.[109]


As mentioned above, some states have already begun to privatize part of their ocean. “[H]omesteading of oyster beds is permitted. Private oyster beds are more prolific and profitable than public ones. The owners, who profit when the oysters thrive, have incentive to invest money in caring for the beds and harvesting them sustainably.”[110]


The reason privatization and the market work better than a top-down regulatory approach is primarily because lack of personal investment.[111] A regulator generally looks at the situation in an objective manner (assuming that the regulator is unaffected by political pressure), but with limited knowledge.[112] The regulator may be the world’s top expert on fish population; however, expertise is of little value if some of the information is not available.[113] There may be shifts in consumer demands or unknown and unexpected climate and environmental changes, all of which would require a change in the top-down regulations.[114] In addition, the top-down regulation assumes there is only the halibut market in the U.S., when in reality there are many markets within the halibut market.[115] For example, the U.S. has a rather robust beef industry, which is exported all over the world.[116] Is the cattle market just the future contracts traded on the board of the Chicago Mercantile exchange? Absolutely not. The market can be much smaller. In various rural, as well as some urban, cities have sale barns where they auction cattle.[117] A buyer (Buyer 1) wins a bid of a steer to be sent to the slaughter plant. The Buyer 1 walks in to the next room to pay for the steer. However, he hears another buyer (Buyer 2) on the phone stating that he needs another steer to fill his quota. The Buyer 1 sells the steer to Buyer 2 for a higher price then what Buyer 1 paid for just a few minutes ago. In this scenario, Buyer 1 has engaged in two markets, in the same building, only a few minutes apart. Many regulatory schemes are not equipped to handle multiple markets.[118] In addition, the scenario above demonstrates the subjective theory of value.[119]


Ludwig von Mises wrote extensively on the subjective theory of value:


Value is not intrinsic, it is not in things. It is with us; it is the way in which man reacts to the conditions of his environment.

Neither is value in words and in doctrines. It is reflected in human conduct. It is not what a man or groups of men say about value that counts, but how they act.[120]

. . . .

An inveterate fallacy asserted that things and services exchanged are of equal value. Value was considered as objective, as an intrinsic quality inherent in things and not merely as the expression of various people’s eagerness to acquire them. People, it was assumed, first established the magnitude of value proper to goods and services by an act of measurement and then proceeded to barter them against quantities of goods and services of the same amount of value . . . . People buy and sell only because they appraise the things given up less than those received. Thus the notion of a measurement of value is vain. An act of exchange is neither preceded nor accompanied by any process which could be called a measuring of value. An individual may attach the same value to two things; but then no exchange can result. But if there is a diversity in valuation, all that can be asserted with regard to it is that one a is valued higher, that it is preferred to one b. Values and valuations are intensive quantities and not extensive quantities . . . .[121]


The value of goods, such as fish, cannot be decreed by the government, since it is purely subjective, based an individual preferences and opportunity costs.[122] The subjective theory of value is one of many reasons that black markets are created when the government creates price controls.[123] Since every individual is unique, the value will be unique in each transaction, even in circumstances where the price is the same.[124]


The typical regulation tries account for the future needs.[125] However, “the typical political ‘solutions’ overlook the crucial role that market prices play in resource allocation, both among competing uses in different areas of the world today and among competing uses in different time periods (i.e. today verses the future).”[126] The market’s planning for the future through pricing is known as Hotelling’s rule.[127] “In a general equilibrium, the spot price would rise with the interest rate (Hotelling’s Rule) and consumers of [a finite resource] would purchase their optimal number . . . per day (depending on the price at the time), such that the total consumption into the future would just equal the original size of the pool.”[128] The allocation of resources would be efficient because at any moment the price reflects the decision of whether the resource should be used today or in the future.[129] By this mechanism, the market jealously preserves resources for the future as the price adjust according to consumer demands.[130] The relationship between price systems and resource allocation works even when future demand and supply is unknown.[131]


A final note about problems with regulatory schemes must be made on the isolation fallacy.[132] Regulators control the amount of King Crab that can be fished, setting a limited amount of production.[133] This is usually done without regard to other industries. Henry Hazlitt discusses the isolation fallacy in his discussion of price systems:


There are so many fallacies in this view that they cannot all be disentangled at once. But the central error . . . comes from looking at only one industry, or even at several industries, or even at several industries in turn, as if each of them existed in isolation. Each of them in fact exists in relation to all the others, and every important decision made in it is affected by and affects the decisions made in all the others.[134]


To further illustrate this problem, imagine that there is a water shortage in county that produces the most peanuts in the country. The government believes paying the farmer to not grow peanuts will save water. The farmers are completely content with this proposal because they do not have the regular expenditures of planting and harvesting crops, nor are they at the mercy of Mother Nature, which risks ruining their crops. The water level is restored; thus, the regulation was a “success.” But at what cost? The town had employed many truck drivers that relied on farmers producing crops, but never received work. Workers at the peanut drying plants were laid off because the plants did not have peanuts to process. Local restaurants suffered, and some closed down, because there was no excess income for many of the town’s citizens. Mechanics, who made most of their money repairing equipment during the planting and harvesting seasons, went broke. Candy companies were forced to buy peanuts that were more expensive and of lower quality. Their stock prices went down, affecting the IRAs of steel factory workers thousands of miles away. People saw their life’s work vanish before them, to never be recovered. The farmers, however, who were the abusers of the common, unowned water pool, were still content, as they were unaffected by the change in production since they were paid as if they had produced peanuts. Obviously, this regulation was not a success, unintentionally injuring people not even in the same industry. Setting production controls that vary year-to-year run into this isolation fallacy.[135]


According to Dr. Mark Drabenstott, former Vice-President of the Kansas City Federal Reserve, one of the most important aspects of economic growth, if not the most important, is proper legal systems.[136] The laws can be perfect, but they are irrelevant if the court system is unreliable.[137] Laws of contract, at least under the English common law system, allows the participants to virtually create their own laws, subject to obvious restrictions.[138] Courts simply decide and enforce the intentions of the parties at the time of creating the contract.[139] However, with homesteading, where there are no transfers of property since it is unknown, the rules are slightly different. In addition, in the open ocean, there is no governing authority, except for some treaties supported by the U.N.[140] A legal body, therefore, needs to be established to encourage certainty, a prerequisite for economic growth and privatization.[141]


The most common explanation of how privatization helps maintain resources and protects nature is the Coase Theorem.[142] Ronald Coase and Harold Demsetz explained that externalities must be captured, through privatization, to preserve and respect private property.[143] This theory states that no entity can simply throw out waste or use property without permission or compensation.[144] These externalities are then either negotiated or litigated in court.[145] Privatization reduces the negotiation costs, but for the Coase Theorem to properly work, analysts must assume the transaction costs are zero.[146] This obviously causes some problems because in reality transaction costs are never zero.[147] In addition, the Coase Theorem ignores the psychological costs and the subjective theory of value.[148] Although the Coase Theorem is an immense improvement over previous systems, the outcomes are neither based in reality, nor the ethics of justice.[149] Dr. Murray Rothbard explains the problems with the Coase Theorem and its application in law:


In recent years . . . jurists and “Chicago school” economists have attempted to develop theories of value-free property rights, rights defined and protected not on the basis of ethical norms such as justice but of some form of “social efficiency.” In one such variant, Ronald Coase and Harold Demsetz have asserted that “it doesn’t make any difference” how property rights are allocated in cases of conflicting interests, provided that some property rights are assigned to someone and then defended.

. . . .

There are many problems with this theory. First, income and wealth are important to the parties involved, although they might not be to uninvolved economists. It makes a great deal of difference to both of them who has to pay whom. Second, this thesis works only if we deliberately ignore psychological factors. Costs are not only monetary.

. . . .

Another serious problem with the Coase-Demsetz approach is that pretending to be value-free, they in reality import the ethical norm of “efficiency,” and assert that property rights should be assigned on the basis of such efficiency. But even if the concept of social efficiency were meaningful, they don’t answer the questions of why efficiency should be overriding consideration in establishing legal principles or why externalities should be internalized above all other considerations.[150]


Therefore, assignment of the property right ignores Lockean homesteading and traditional notions of property rights in the name of efficiency.[151] During litigation, values are assigned based on evidence formulated by witnesses who are not subjectively invested in the transaction, and imposing a post hoc judgment.[152] The Coase Theorem violates the ethical implications that homesteading takes into consideration.[153] The criticisms notwithstanding, the simplistic explanation by Coase and Demsetz remains true: individual property rights capture externalities for the benefit of the community.[154]


C.    Regulating Fishing


Some have argued that oceans have been partially privatized by individual transferable quotas (ITQs).[155] However, these are not rights, but government granted privileges.[156] This creates similar motives as privatized rights, but individuals are more hesitant because of the reliance on the government granting those privileges.[157] In addition, these privileges change from year to year, and at times due to political pressures and not hard science or the best interests of the economy and ecology.[158]


However, Dr. Drabenstott stated that this form of market regulation is an improvement over a methodical approach, allowing for some market allocation.[159] He gives an example of London and Beijing traffic regulations.[160] Beijing’s method of regulation would be that any one with an odd-numbered license plate would drive on Monday, while even-numbered license plates would drive on Tuesday.[161] London’s method would be to create a pricing system to allocate driving privileges.[162] London’s price and market approach is always a better system for everyone.[163] This theory was applied to fishing in Iceland, Australia, and New Zealand, with overall success.[164] However, Dr. Robert Murphy has criticized this method, referring to it as “market socialism.”[165] The primary problem is that the market is not allocating the resource from its inception; rather, the quota is set by government regulation.[166] What the market allocates is who is participating in collecting the resource (i.e., the fish).[167] This creates incentives for establishing black markets, as well as wasting fish in order to get “better” ones within the quotas.[168] This does not create the incentive to preserve fish:


One problem with [ITQs] is that they do not go far enough. Privatizing merely fish, while a good step in the right direction, leaves this industry suspended, as it were, in a sea of non-ownership. Private entrepreneurs should be allowed to own not only the rights to catch fish, but the fish themselves, as in fish farms. Under ITQs, there is little or no incentive to do the equivalent of sowing, for example, what the farmer does when he plants the next crop. Provision is made under this system for limiting the reaping, so that fish stocks will not go extinct. This is a necessary condition for good governance, but not a sufficient one. With very tiny amounts of ocean privatized by fish farm firms, this oversight is corrected. [The best method] is making . . . the entire fishery a farm if that is what the owners want, which is very far removed from ITQ schemes.[169]


Like the confusion over Chile and its supposed privatization of water, what is actually being created is market socialism, not actual privatization.[170] The incentive to preserve and increase the resource is nonexistent or minimal under these schemes.[171]


Instead, title directly in the fish would prove to be a better form of ownership and regulation (self-regulation).[172] “On land, ranchers prudently husband their herds to preserve their future livelihood. Aquaranchers would care for their charges with the same due diligence.”[173] These owners could employ technologies to control quantity and quality, as well as locality, of the fish.[174] Integrated Undersea Surveillance Systems and Advanced Very High Resolution Radiometry allow virtual, electronic fencing of the ocean, and even prevent poaching.[175] Herding fish can be accomplished through Autonomous Underwater Vehicles, similar to how cattle are herded today by pickup trucks.[176] Currently, “[a] Japanese company is experimenting in fertilizing phytoplankton to increase fish stocks, and, on the increases observed, has estimated that a mere 100,000 square miles of ocean could produce the equivalent of what the entire world now produces in terms of tonnage of fish.”[177]


With competition of these owners, better quality fish for lower prices will help the poor because fish is their primary diet.[178] Currently, poor people in poor countries suffer from overfishing, causing higher prices and preventing their rise in the standard of living, all of which can be directly traced to the tragedy of the commons.[179] The biggest beneficiary will be the poor, which is one of the reasons the World Bank has been one of the biggest proponent of privatization.[180]


Many are concerned that with the privatization of the ocean and its resources, there will be inequitable allocation of resources, and thus greater corporate control over markets, harming poorer consumers.[181] However, evidence has shown this to be untrue.[182] Dr. Murphy gives the following example: Does a cancer patient need be an owner of a drug company to benefit from its breakthrough products? Suppose a drug company comes out with a cure for cancer. The company, no matter the size, wants to maximize its profits. If the vast majority of cancer patients cannot afford expensive drugs, then there will be no profit maximization. In addition, the cancer patient had to invest no money for this creation. Thus, the patient is benefited without any investment.[183] Patient only has to purchase the cure. The same theory can be applied to fishing. The majority of people who purchase fish are poor people from poor countries. Therefore, the target consumers are the poorest of the poor. By privatizing the ocean the supplies are increased, dropping prices, while at the same increasing the resources (i.e., the fish swimming in the sea). Since consumers dictate the market, producers will want to cater to their needs and wants if they want to maximize profits.[184]


D.    Regulating the Environment


Privatizing the ocean creates a cause of action for trespass.[185] This has a major advantage considering the current regime.[186] Currently, since no one owns the ocean, and for many parts of the ocean, has no sovereign protection.[187] However, private ownership prevents pollution by increasing the consequences (i.e., monetary compensation).[188] Various people, or even companies, dumped the floating islands of trash in the Pacific and Atlantic Oceans.[189] These collections started at different areas of the ocean and came to be collected in one spot.[190] There were multiple actors.[191] By the time it is noticeable as giant islands, there is little that can be done, as it is impossible to prove which acts caused the pollution.[192] By privatizing, owners would stop the pollution at their sources, wherever they begin.[193] The owners have essentially three methods of doing this: (1) trespass and nuisance claims for dumping waste into their owned ocean; (2) privately and routinely clean up their portion of ocean to maintain their property;[194] and (3) create a garbage and waste disposal business at sea. Major polluters, such as state-owned companies in Russia and China, would be forced to either properly dispose of their waste, or face major lawsuits that would include both compensatory and punitive damages, which would likely be more expensive then the waste disposal fees.[195]


The Great Barrier Reef is undergoing bleaching, where major parts are dying off due to the change in the acidic and temperature levels, caused by climate change.[196] Currently, the Australian Great Barrier Reef Marine Park Authority is in charge of the famous reef; they have been powerless to stop the onslaught of destruction.[197] Budget constraints prevent a lot of the protection methods.[198] In addition, the government bureaucrats do not have the same incentives as private owners have, and that is not to say that these bureaucrats are not noble in their intentions and efforts. [199] Statutes restrict bureaucrats, which may not be changed for many years.[200] Their incentive is not to the beneficiaries, in this case scientists and tourists, but to the governing bodies.[201] If the Great Barrier Reef was privatized, “[e]ndangered species and magnificent reefs could be preserved in the same manner that species and their habitats [would be] preserved in certain areas of Africa. These species are huge tourist draws; profits from nearby resorts hinge on the presence of animals and pristine landscapes.”[202]


In proportion to the rest of the ocean, these areas are very small and can have some of the biggest impacts on aquatic populations.[203] “[P]reserving 4 percent of the ocean could protect crucial habitat for the vast majority of marine mammal species, from sea otters to blue whales.”[204] Many countries are attempting to create artificial reefs to encourage aquatic growth:


Owners would . . . be more likely to invest in artificial reefs to bolster the fish population. Whalers could operate only with the permission of owners, much as hunters must request permission to stalk deer on privately owned land. Ocean owners profit most by making sure that the valuable species in their region are not hunted to extinction.”[205]


There have been some efforts to privately create artificial reefs, quite successfully.[206] “Many fish thrive around artificial reefs, which are relatively inexpensive to construct and sink. Only Japan recognizes the ownership by those who construct such reefs. As other nations start doing the same, more reefs will be built and fish stocks will increase.”[207]


Private owners can pool resources and innovation in a more flexible manner than the government can, which relies on legislative bodies to tell regulatory bodies what they can and cannot do, and with what money.[208] Companies can easily raise capital to invest in preserving wildlife in the ocean.[209] The company’s survival depends on creating hunting trips and tourist observations that are meaningful to the consumers, as well as sustainable since investors expect to have long-term returns.[210]


As mentioned above, the BP oil spill caused a lot of damage to businesses and the environment.[211] The disaster caused an enormous amount of outrage among the public because it could have easily been prevented.[212] However, BP got off relatively easy, and the victims have not been justly compensated as the money is gobbled up as it makes its way through the bureaucratic maze.[213] By privatizing the ocean, companies would have potentially unlimited liability toward private owners.[214] These owners could bring thousands of trespass claims against BP or future oil companies, receiving their compensatory damages, and maybe even punitive damages, directly and quickly.[215] BP’s payout would not be tax deductible.[216] Privatizing the ocean would hold BP accountable for the disaster it created.[217]


E.     Regulating Piracy


As mentioned above, navies cannot control the entire ocean, or even current hotspots.[218] Privatizing the sea may be a better solution than various military forces.[219] Navies could not enter private lands unless there was absolute necessity.[220] Therefore, the security of the shipping routes and fishing vessels would fall on the shoulders of private persons.[221] Since the shipping routes would be privately owned, and probably separate from other forms of ownership of that particular plot of ocean, the owners could hire security services to protect their property.[222] These security services could hire the local people to protect the sea vessels.[223] Local populations have encouraged piracy against Western ships because they feel the Westerners have come to “steal” from their lands and ocean.[224] This is not an unreasonable belief considering the recent history of colonialism.[225] With localized security forces, the local population has less of an argument against these ships.[226] In addition, the hired security forces, invited by the owners, would have the incentive to constantly protect the ships at all times; otherwise, they would not get hired again.[227] This can lead to less armed encounters by using nonlethal because the ocean owners do not want the bad press, or bad reputation, of causing death and violence, especially in the current age of social media.[228]


“[I]f these waters were privately owned, the owner would have a strong incentive to maximize the waters’ value since he would profit by doing so. That would mean suppressing and preventing pirates.”[229] Many of these owners may be the former pirates. As mentioned above, Somalis view other countries as taking their resources. There is some truth to this claim:


Most Somalis view their problems as stemming at least in part from foreign intervention: first from colonial masters, Britain and Italy, then from Russia, and finally from America and the U.N. Somalia, speaking in generalization, view all of these as well as current interventionists, India, Italy, the United States, France, the United Nations, etc. as booty seekers attempting to steal resources from their country. Fishermen feel threatened, and have suffered attack by international naval forces.[230]


Somalia’s history consists of an absolute pillaging of its resources by the Italians while it was colonized under Mussolini.[231] More recently, since the government (if one can call it that) of Somalia has no real military power to protect its coast, fishermen from other countries have overfished the area, substantially decreasing the fish population, harming locals. For that reason, the locals view the pirates as social justice warriors, getting back at the countries whose navies have fired upon fishermen who may be innocent.[232]


As mentioned above, the Homestead Act did not recognize the homesteads of the Native Americans, to the detriment of these indigenous peoples.[233] With the Gulf of Aden, Somalis and Yemenites have already homesteaded the surface water and the below-surface waters, as well as much of the sea life.[234] Once the Somali’s rights are recognized, self-preservation mechanisms, such as piracy and terrorism, dissolve.[235] Private owners would prevent “interventionists” from fishing or polluting their waters, and would have an incentive of preventing their neighbors from engaging in any further nefarious activities.[236] In the words of the economist Ludwig von Mises, “If historical experience could teach us anything, it would be that private property is inextricably linked with civilization.”[237]


IV. Conclusion


The engine of innovation is scarcity.[238] Although not very noticeable yet, mankind is facing scarcity that will affect not just local areas or a group of countries, but potentially everyone. Oceans cover most of the world and produce much of its resources. Privatization, and the incentives and price-systems it brings with it, has the potential to bring back the King Crab population in the Bearing Sea, as fishers want to increase their stock while selling more of their produce; environmentalists could preserve the Great Barrier Reef and provide scientists with groundbreaking research, all funded by eager tourists who enjoy its majestic beauty; citizens and ocean owners could protect their property and industry from major polluters who never see real penalties from their careless actions; the islands of trash that float around our oceans could be prevented and managed in an environmentally friendly way; Somali pirates could turn their “swords into ploughshares”[239] once they get back what is arguably theirs.[240]


This paper is not arguing that this will completely remedy the problems listed. However, what is argued is complete privatization, not partial privatization, is an immense improvement over the current regime of either no jurisdictional authority, or top-down regulation that is plagued with basic economic fallacies or cannot be enforced because of a failed state. Private owners that can freely dictate their own resources, but can rely on levelheaded laws and dependable enforcement, have shown to work on land. These principles should be extended to the ocean, which society should see as fast moving land. By following John Locke’s theory of homesteading, finding Nemo and owning him will be in the best interest of both the owner and Nemo. Privatization means fish can both be our friends and our food.

[1] Overfishing—A Real Threat, Ocean World, (last visited Apr. 12, 2016).

[2] Carol Driver, ‘Irreversible Damage’ to Great Barrier Reef by 2030 Unless Urgent Action Taken, Daily Mail (Mar. 6, 2014, 8:01 AM),

[3] Gulf Oil Spill, Smithsonian, (last visited Apr. 12, 2016).

[4] Kirsten E. Silven, Plastic Contamination in the Atlantic Ocean, Earth Times (Mar. 6, 2011 8:29 AM),

[5] Somali Pirates Jailed in US over American Deaths, BBC News (Nov. 15, 2013),

[6] See infra Parts III­–IV.

[7] See infra Part II.A.

[8] See infra Parts II.B–C.

[9] See infra Parts III.A–B

[10] See infra Parts III.C–E.

[11] See infra Part II.A.

[12] See infra Part II.A.

[13] See infra Part II.A.

[14] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3.

[15] Id.

[16] See Environmentalists Spar with Obama Administration Over Fish Catches, KSKD (Apr. 6, 2016, 7:53 PM), (environmentalist groups are pressuring to Obama administration over fish quotas); see also Sean Regan, A Peaceable Solution for the Range War Over Grazing Rights, PERC (Apr. 22, 2014), (calling off partial enforcement of protecting land from cattle grazing due to public pressures and potential violence).

[17] Keith Johnson & Dan de Luce, Fishing Disputes Could Spark a South China Sea Crisis, Foreign Policy (April 7, 2016),

[18] Sarah Mitchell, Stephen C. Nemeth & Elizabeth A. Nyman, Ruling the Sea: Institutionalization and Privatization of the Global Ocean Commons, Univ. of Iowa, (last visited May 1, 2016). Prior to the U.N. 200-mile rule, countries controlled approximately 3 miles of ocean, under the cannon-shot rule (how far a cannon ball can travel before falling into the sea). These conflicts increase because countries are rushing to expand from their 3-mile authority. See id.

[19] See Walter Block & Peter L. Nelson, Water Capitalism: The Case for Privatizing Oceans, Rivers, Lakes, and Aquifers 18 (2015).

[20] Gail Osherenko, New Discourses in Ocean Governance: Understanding Property Rights and the Public Trust, 21 J. Envtl. L. & Litig. 317, 336 (2006).

[21] United Nations Convention on the Law of the Sea, supra note 14, at 3.

[22] Id.

[23] See Garrett Hardin, The Tragedy of the Commons, The Garrett Hardin Society (Mar. 13, 2005),

[24] Block, supra note 19, at 22–23.

[25] Id.

[26] See 13 Deadliest Dictators, The Daily Beast, (last visited May 1, 2016).

[27] See Block, supra note 19, at 37–38.

[28] Id.

[29] See id.

[30] Id.

[31] Id. at 38.

[32] See Eli Ashkenazi, After 100 years, the Kibbutz Movement Has Completely Changed, Haaretz (Jan. 7, 2010, 5:09 AM),

[33] Id.

[34] See Block, supra note 19, at 37.

[35] Telephone Interview with Dr. Mark Drabenstott, Former General Secretary, Global Coalition for Efficient Logistics (Apr. 14, 2016).

[36] See infra Part II.C.

[37] See Hardin, supra note 23.

[38] See United Nations Convention on the Law of the Sea, supra note 14, at 3.

[39] See supra Part I.

[40] See Drive, supra note 2.

[41] Charles Kennedy, Most of BP’s $20.8 Billion Deepwater Horizon Fine is Tax Deductible, (Oct. 7, 2015, 4:24 PM),

[42] See Annual Report , BP, (last visited May 1, 2016).

[43] Block, supra note 41.

[44] Id.

[45] See id. at 161–63; Murray Rothbard, Law, Property Rights, and Air Pollution, Mises Institute (Apr. 22, 2006),

[46] See Kennedy, supra note 41.

[47] See Kimberly Amadeo, BP Gulf Oil Spill Facts, About News, (last visited Apr. 12, 2016).

[48] See Mitchell, supra note 18.

[49] Id.

[50] See infra Part II.C.

[51] See infra Part II.C.

[52] Block, supra note 19, at 41–43.

[53] Murray N. Rothbard, Man, Economy and State with Power and Market 174 (2009).

[54] Mary J. Ruwart, Healing Our World: The Compassion of Libertarianism—How to Enrich the Poor, Protect the Environment, Deter Crime & Diffuse Terrorism 360 (2016).

[55] Id.

[56] See Block, supra note 19, at 41–43.

[57] See Managing Private Lakes & Ponds, Texas Parks & Wildlife Department, (last visited May 1, 2016).

[58] See Block, supra note 19, at 41–43.

[59] Id. at 38

[60] Id.

[61] Id. at 39.

[62] Murray N. Rothbard, Ethics of Liberty 244–45(1998).

[63] See Block, supra note 19, at 38.

[64] Rothbard, supra note 45.

[65] Id.

[66] Id.

[67] Id.

[68] Id.

[69] Id.

[70] Id.

[71] Id.

[72] Hardin, supra note 23.

[73] Block, supra note 19, at 52–53.

[74] See id.

[75] Telephone Interview with Dr. Mark Drabenstott, supra note 35.

[76] Block, supra note 19, at 41–45.

[77] Id.

[78] See id.

[79] Id. at 161–63.

[80] Peter T. Leeson, Want to Prevent Piracy? Privatize the Ocean, National Review (Apr. 13, 2009, 2:41 PM),

[81] Block, supra note 19, at 161–63.

[82] Id. at 159–60.

[83] Id. at 161–63.

[84] Telephone Interview with Dr. Mark Drabenstott, supra note 35.

[85] Id.

[86] Id.

[87] Id.

[88] Block, supra note 19, at 159–63.

[89] Take, for example, the trial of Milosevic for genocide. The crimes he committed occurred in the 1990s and the trial started in 2002. He died in 2006 before the trial was over. Another example is the indictment of President Omar al-Bashir of Sudan. He was indicted for alleged crimes he committed. However his allies have rallied around him, making the U.N. powerless, or unwilling, to do anything. The U.N., whose constituents are countries rather than individuals, is in a weak position to carry out justice.

[90] Mitchell, supra note 18.

[91] Id.

[92] See Block, supra note 19, at 49–52 (arguing for anarcho-capitalism).

[93] Telephone Interview with Dr. Mark Drabenstott, supra note 35.

[94] Richard Spencer, UN at 70: Five Greatest Successes and Failures, The Telegraph (Sept. 15, 2015, 7:00 AM),

[95] U.N. Charter art. 11, para. 1–4.

[96] See Spencer, supra note 94.

[97] See id.

[98] See New State Ice, Co. v. Liebmann, 254 U.S. 262, 311 (1932).

[99] Rothbard, supra note 45.

[100] Id.

[101] Id.

[102] Block, supra note 19, at 60–70.

[103] Id. at 62.

[104] See generally, Rognvaldur Hannesson, The Privatization of the Oceans (2004) (arguing for the “privatization” of the ocean via ITQs to save the fish population).

[105] Logan Albright, Let’s Privatize the Oceans!, Mises Canada (Oct. 22, 2013),

[106] Id.

[107] Block, supra note 19, at 2.

[108] Rothbard, supra note 53, at 174–75 (emphasis original).

[109] Telephone Interview with Dr. Mark Drabenstott, surpa note 35.

[110] Ruwart, supra note 54, at 360.

[111] Interview with Dr. Robert P. Murphy, Research Professor, Texas Tech University, in Lubbock, TX (Apr. 13, 2016).

[112] Id.

[113] Id.

[114] Id.

[115] See Henry Hazlitt, Economics in One Lesson: The Shortest & Surest Way to Understand Basic Economics 104 (1979).

[116] Export Statistics, U.S. Meat Export Federation, (last visited May 1, 2016).

[117] See Texas Livestock Auctions, Texas Department of Agriculture, (last visited May 1, 2016).

[118] See Hazlitt, supra note 115, at 104.

[119] See Ludwig von Mises, Human Action: A Treatise on Economics 96 (2012).

[120] Id. (emphasis added).

[121] Id. at 204–205 (emphasis added).

[122] Id.

[123] See id.

[124] Id.

[125] Interview with Dr. Robert P. Murphy, supra note 111.

[126] Robert P. Murphy, Oil Prices, Library of Economics and Liberty (Apr. 7, 2008),

[127] Id.

[128] Id.

[129] Id.

[130] Id.

[131] Id.

[132] See Hazlitt, supra note 115, at 104.

[133] See Commercial Fisheries Regulations, Alaska Department of Fish and Game, (last visited May 1, 2016).

[134] Hazlitt, supra note 115, at 104.

[135] See id.

[136] Telephone Interview with Dr. Mark Drabenstott, supra note 35.

[137] Id.

[138] Id.

[139] Id.

[140] Id.

[141] Id.

[142] Rothbard, supra note 45.

[143] Id.

[144] Id.

[145] Id.

[146] Id.

[147] Id.

[148] Id.

[149] Id.

[150] Id. (emphasis original).

[151] See id.

[152] See Mises, supra note 119, at 204–04; Kameron Mazurek, The New Uniform Voidable Transactions Act: Should Texas Adopt the Proposed Law?, The Tex. Bank Lawyer, Jul. 2015 (discussing the courts disregard for subjective theory of value).

[153] Rothbard, supra note 45.

[154] Interview with Dr. Robert P. Murphy, supra note 111.

[155] Gregg Easterbrook, Privatize the Seas, The Atlantic, (last visited May 1, 2016).

[156] Interview with Dr. Robert P. Murphy, supra note 111.

[157] Id.

[158] Id.

[159] Telephone Interview with Dr. Mark Drabenstott, supra note 35.

[160] Id.

[161] Id.

[162] Id.

[163] Id.

[164] See Easterbrook, supra note 155.

[165] Interview with Dr. Robert P. Murphy, supra note 111.

[166] Id.

[167] Id.

[168] See Hazlitt, supra note 115, at 123–24.

[169] Block, supra note 19, at 83.

[170] Interview with Dr. Robert P. Murphy, supra note 111.

[171] Id.

[172] Block, supra note 19, at 66.

[173] Id.

[174] Id.

[175] Easterbrook, supra note 155.

[176] Id.

[177] Id.

[178] Interview with Dr. Robert P. Murphy, supra note 111; Telephone Interview with Dr. Mark Drabenstott, supra note 35.

[179] Interview with Dr. Robert P. Murphy, supra note 111.

[180] The World Bank, however, has not formulated a true form of privatization. Instead, they are currently encouraging villages and communities to have greater control of their geographic location. This will reduce large-scale problems of the tragedy of the commons, but will still allow for small-scale tragedies of the commons. Although much preferable because it will increase the likelihood of sustainability, the plan is still far from ideal since it does not encourage incentives to jealously maintain resources. See Albright, supra note 105.

[181] Interview with Dr. Robert P. Murphy, supra note 111.

[182] Id.

[183] Id.

[184] Id.

[185] See Rothbard, supra note 45.

[186] See id.

[187] See supra Part II.A.

[188] See Rothbard, supra note 45.

[189] See Silven, supra note 4.

[190] See id.

[191] See id.

[192] See id.

[193] See Rothbard, supra note 45.

[194] The incentive is similar to farmers who have land near a highway. Motorists often times throw their trash out the window to the side of the road. That waste ends up in the field. To prevent this trash from harming their crops, farmers, at their own expense, and because they do not know who is specifically responsible, will clean the land themselves to maximize the profits from their harvest.

[195] See Rothbard, supra note 45.

[196] See Driver, supra note 2.

[197] See Coral Bleaching, Great Barrier Reef Marine Park Authority, (last visited May 1, 2016).

[198] See id.

[199] Interview with Dr. Robert P. Murphy, supra note 111.

[200] Id.

[201] Id.

[202] Wendy McElroy, Obama Wants to Close the Oceans. Privatize Instead!, The Future of Freedom Foundation (July 17, 2014),

[203] Id.

[204] Id. (internal quotation marks removed).

[205] Id.

[206] See Ruwart, supra note 54, at 361.

[207] Id.

[208] Interview with Robert P. Murphy, supra note 111.

[209] Id.

[210] See Ruwart, supra note 54, at 361.

[211] See supra Part I.

[212] See Gulf Oil Spill, supra note 3.

[213] See Jeffrey Jones, Bureaucracy Frustrates Gulf Oil Spill Efforts, Reuters (June 19, 2010, 4:18 PM),

[214] See Rothbard, supra note 45.

[215] See id.

[216] See Robert W. Wood, 10 Things to Know about Taxes on Damages, Forbes (Apr. 29, 2010, 3:13 PM),

[217] See Rothbard, supra note 45.

[218] See supra Part II.A.

[219] See Block, supra note 19, at 161–63.

[220] See id.

[221] Id. at 127–28.

[222] Id.

[223] Id.

[224] Leeson, supra note 80.

[225] See Block, supra note 19, at 159–60.

[226] Leeson, supra note 80.

[227] Block, supra note 19, at 127–28.

[228] Take the example of Martin Shkreli, or as social media labeled him, Pharma Bro. He raised to price of his cancer treatment pill from $13.50 to $750.00 per pill. The outcry from social media caused Shkreli’s company a lot of public damage. The best thing to come out of this story is not the exposure of Shkreli’s pricing practices, but a company sold the same pill for $1.00 per pill. Arturo Garcia, San Diego Company Slaps ‘Pharma Bro’ Down by Offering Same Cancer Drug for $1 a Pill, Raw Story (Oct. 22, 2015, 6:18 PM),

[229] Peter Leeson, Want to Prevent Piracy? Privatize the Ocean

[230] Block, supra note 19, at 160–61.

[231] Id.

[232] Leeson, supra note 80.

[233] See supra Part III.A.

[234] Block, supra note 19, at 162.

[235] Id.

[236] See id.

[237] Mises, supra note 119, at 264.

[238] Interview with Dr. Robert P. Murphy, supra note 111.

[239] Isaiah 2:4. “And He will judge between the nations, And will render decisions for many peoples; And they will hammer their swords into plowshares and their spears into pruning hooks. Nation will not lift up sword against nation, And never again will they learn war.” Id.

[240] See supra Part III.

Learn more about privatizing the ocean and support this blog by purchasing Water Capitalism: The Case for Privatizing Oceans, Rivers, Lakes, and Aquifers (Capitalist Thought: Studies in Philosophy, Politics, and Economics)Learn how current water law affects you by purchasing Water Law in a Nutshell.

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