Resumo

RODRIGUES, Filipe. Environmental Protection of the Global Commons. e-Pública [online]. 2017, vol.4, n.2, pp.145-170. ISSN 2183-184X.

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 2 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. Summary: 1. Introduction; 2. Tragedy of the commons; 2.1 Global commons; 2.2 Res nullius; 2.3 Res communis; 2.4 Global tragedy of the commons; 2.5 Failure to take action by the international order; a) Area; b) Outer space; c) Atmosphere; d) Antartic; e) Others; 3. Common Heritage of Mankind; 4. Common Concern of Humankind; 5. Erga omnes obligations; 5.1 Erga omnes obligations for the protection of the environment; 5.2 International Court of Justice cases; 6. Conclusion.

Palavras-chave : Environmental protection; global commons; common heritage of mankind; common concern of humankind; erga omnes obligations.

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