Responsibility on the High Seas

Abstract

This chapter examines the development what responsibility (primarily, but not only, legal responsibility) means in the context of the oceans as a global commons. This examination begins with a discussion of the common pool resource characteristics of ocean governance and centers on the historical evolution of state responsibility in the management of that commons in the last century, in a context that worked to carve out sections of the formerly common areas of the ocean that states control, separating those from a newly evolving high norm of collective responsibility for resources on the high seas. We demonstrate how this norm has evolved in the context of management of marine living resources (e.g. fisheries), pollution, and minerals at the same time that a norm of responsibility for environmental effects of state behavior was developing more generally in international environmental law. The limitations of this developing norm of responsibility in the context of the commons characteristics of the high seas form a counterpoint to this evolution; norms require matching mechanisms for implementation to have the intended effect on commons resources. We therefore conclude both by lauding the shift from norms of open access to those of responsible management and by calling for better mechanisms of implementation to back up those norms.