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The global commons, especially the high seas, present particular challenges to the concept of transboundary harm or damage from activities under one State's jurisdiction. In general, it is clear that large-scale industrial, agricultural and technological activities being conducted within the territories of one country are capable of causing damage beyond the territory of the State. Such transboundary harm that is caused by or originated in one country, but affects the territory of another, is a matter of special concern.1 A plethora of modern international treaties address various forms of transboundary damage. Some of these incorporate direct rules on liability, while others deal more generally with State responsibility and liability, rather than direct implementation, which they leave for future action. Where the area or resource impacted is a part of the global commons, however, challenges of this type are not fully resolved.
This paper begins with a discussion focused on the development of the doctrine of transboundary harm. It next considers the binding obligation of States to prevent transboundary harm under customary international law. At that point, it addresses its main focus: the harm caused to global commons with special attention to the destruction of a particular resource of the global commons - sharks in the high seas.
Development of the Doctrine of Transboundary Harm
The Harmon Doctrine: The Era of Absolute Territorial Sovereignty
In 1895, as a response to Mexico's protest against US diversion of water from the Rio Grande (the river that forms the border between the US and Mexico), then Attorney General Judson Harmon stated that "the rules, principles, and precedents of international law impose no liability or obligation upon the United States".2 This "Harmon Doctrine" (also known as the "Absolute Territorial Sovereignty" doctrine) was developed in the 19th century, and holds that every State has the freedom to engage in activity within its territory regardless of whether these activities adversely affect other States. Countries continued to cite this doctrine until well into the 1940s, particularly in disputes over use of river water. Upper-riparian States would rely on it to claim that they could indulge in any activity over the watercourse, irrespective of how it affected the downstream States.
Almost half a century later, this theory lost its relevance. States no longer considered...