Security governance over territorial waters in maritime areas of limited statehood

Territorial waters have received little scholarly interest as an area of limited statehood. Such waters have been defined by the United Nations Convention on the Law of the Sea (UNCLOS) as the space up to 12 nautical miles or 22 kilometres from a state’s coastline. Territorial waters are considered to be sovereign territory, for the exclusive use of the state, with the exception of permitting trade and innocent passage.⁹ Beyond the territorial sea is the Exclusive Economic Zone (EEZ), which is ocean space up to 200 nautical miles or 370 kilometres from the coastline of Somalia. The EEZ enables the state to harvest, conserve, and manage marine natural resources.¹⁰ Outside of these perimeters is deemed to be the high seas and beyond any single state’s sovereign control. For this analysis, the chapter considers the territorial waters and EEZ as Somali sovereign waters.

Existing research in this area has focused on governance regimes over fish stocks, specifically on such regimes on the high seas, rather than within territorial waters. This perspective tends to infer that the fish stocks are “open resources” that are accessible to all fishermen¹¹ This phenomenon has been documented by theorists as the “fish wars”,¹² typically understood through the lens of the prisoner’s dilemma outlined in Garret Hardin’s “tragedy of the commons”.¹³ Where a global governing body is absent, questions arise about how best to manage competing users of a resource - particularly in the case of a finite one like fish stocks - to ensure sustainability and longevity of the resource in question. In the maritime domain, the tragedy of the commons results from fishing practices that are destructive and hauls that are detrimental to the long-term viability of fish stocks. For Hardin, and indeed most proponents of the fish wars theory, fish stocks in the commons are likely to face ruin without intervention in the form of privatization or state control. In contrast, Thomas Dietz, Elinor Ostrom, and Paul Stem have contended that resource users such as fishing groups, when facing the threat of resource collapse, can seek to construct self-governing institutions to sustain the productivity of the resource.¹⁴ Ostrom contends that these structures, which resemble neither the state nor markets, have governed shared resources effectively over periods of time.¹⁵

While this literature is predominantly focused on resources shared by multiple states, or spaces in which multiple users have the right of access to commons, it is also of relevance to understanding governance dynamics in areas of limited statehood. Despite not being a commons in the traditional sense (as the state still retains sovereignty over these waters), where the reach of the government fails, these spaces come to resemble a commons. In other words, once state protection of these waters and their resources breaks down, sovereign seas are effe -tively rendered a “commons” and the space becomes liable to overexploitation, encroachment by foreign fishing vessels, and subsequent long-term damage and destruction of fish stocks in much the same way that the high seas are liable to resource exhaustion. The absence of regulatory infrastructure or enforcement in areas of limited statehood can mean that there is little incentive for users to adhere to limits or quotas, risking at the veiy least resource overexploitation and in the worst-case scenario complete resource depletion or collapse of fish stocks¹⁶

Within Somalia’s territorial waters, numerous self-governing regimes have emerged through the actions of various actors to fill the gap left by the absent state, mimicking the findings of Ostrom and Dietz, Ostrom, and Stem.¹⁷ What is perhaps not emphasized as clearly in these previous studies is that these self-govemance structures are fluid regimes. These regimes are not only time sensitive but also dependent on a constellation of actors who are operating within the area of limited statehood. Yet, often these security regimes are restricted in scope, and protection is afforded to only a few groups within the waters. Ostrom et al., in examining conditions that foster or undermine cooperation in the commons, note that where multiple regimes operate, macro regimes that can incorporate the interests and grievances of smaller, often informal regimes will likely gamer stronger cooperation and compliance. Similarly, scenarios where conditions of instability or uncertainty are rife are less likely to produce sustainable use of the resource because of reduced incentives to prioritize future access.¹⁸ As a result, conflicts between competing resource users emerge, hi the case of Somalia, this has often arisen between artisan fishermen and industrial fishing fleets, leading to competing attempts to securitize the issue of illegal fishing