Environmental protection of the global commons

Abstract

The paper focuses on the problem of the environmental protection of the global commons. It is first clarified what constitute global commons and the concepts that used to rule these areas. It is then portrayed the deficit of environmental protection of the global commons, which flows from the  application of the “tragedy of the commons” to these areas, from the present principles of international environmental law and, primarily, from the lack of liability provisions for compensation of the ecological damage enshrined in the treaties that rule the global commons. The concepts of common heritage of mankind and common concern of humankind are then presented, claiming that from these concepts flows an erga omnes obligation to protect the environment of the global commons. It is then stated that the global environmental protection is of such relevance that it fulfills the criteria of “the importance of rights involved”, undoubtedly acquiring the status of erga omnes obligation. It is furthermore shown the viewpoint and understanding of the International Court of Justice regarding the existence of environmental erga omnes obligations throughout several cases. The paper concludes affirming that the adoption of the Draft Articles on Responsibility of States of Internationally Wrongful Acts, of 2001, marked a turning point in the environmental protection of the global commons, by recognizing legal standing of all States to claim erga omnes obligations.