The latest United Nations (UN) Emissions Gap Report (2022) stated that the “international community is falling far short of the Paris goals, with no credible pathway to 1.5°C in place”. This means that our present strategy of fighting Climate Change has been ineffective and may lead us to cascading effects towards a catastrophic global warming in a near future. But there is still a pathway of hope that, according to the latest reports of the Intergovernmental Panel on Climate Change (IPCC), requires us not only to reduce emissions but also to massively remove CO2 from the atmosphere and actively undertake large-scale restoration of ecosystems to achieve the Paris Agreement’s goals and avoid climate catastrophe.

Collective actions that allow for cleaning the atmosphere to stabilize climate imply substantial investments and dedicated work sustained over a long period of time, and this is only possible if these investments that benefit climate are recognized as wealth creation in society. This could become a reality if the benefits generated by the natural processes or human actions which contribute to maintain a Stable Climate (currently considered positive externalities in our economy) are passed on to those who were responsible for generating these benefits. The solution is to compensate for the private costs associated with the activities that generated the common benefits. These benefits should, therefore, be “internalized” in our global economy, otherwise there will not be any compensation mechanisms for the costs of restoring or preserving natural processes, meaning that States or individuals, moved by self-interest, will lack incentives to produce benefits to the Common Good Stable Climate. All of this means that, currently, there are no economic mechanisms designed to pay for cleaning the atmosphere (i.e. negative emissions), which must be distinguish from just neutralizing new emissions. In our current global scenario, no one would be compensated for producing positive impacts that will inevitably spread across the planet for the benefit of all. We need to establish a system with congruent rules between performing benefits (from which rights should arise) and damages (from which duties should arise) on the Stable Climate.

Planet Earth’s climate has been relatively stable for the past 11 700 years, a period known as the Holocene, in which human civilization thrived. The Holocene’s stability allowed for humans to develop agriculture and the complex societies we have today. Since the Industrial Revolution, human actions became the main driver of environmental changes, which characterized a new geological epoch, the Anthropocene. Human activities have been pushing the Earth System outside the stable state of the Holocene, which can eventually lead to climate and biodiversity catastrophe. Literally everything in our society was built from a Stable Climate, thus Planet Earth without a Stable Climate (that results from a well-functioning Earth System) is not suitable for being our Common Home. Nevertheless, we have a global economy that only recognizes wealth creation through the destruction rather than the maintenance of the natural processes that support life. The value of a territory like the Amazon Forest, for example, only becomes visible in the GDPs of Amazon countries on the day its ecosystem is destroyed and turned into timber or grazing land. The vital value of the natural processes that contribute to the well-functioning Earth System (that result in a Stable Climate) should be considered incomparably higher than the value of the commodities that can be extracted from the ecosystems. What we consider wealth creation in our society is key for being able to collectively commit to our common future.

Because the natural processes that regulate climate are indivisible; are invisible and intangible; spread across and beyond borders; cannot be subject to sovereignty; cannot be excluded from being used by anyone; can be impacted by everyone; do not fit our territory-based legal system, these natural processes that regulate climate remain invisible to International Law and our global economy. To illustrate what this means, take the biochemical composition of the oceans and atmosphere (which results from natural processes): their composition cannot be divided not even in an abstract way, as it is in constant movement, spreading across the globe, beyond countries’ jurisdictions (thus sovereignty cannot be claimed). These characteristics do not fit our territory-based legal system, and as a consequence, there are no rules for performing benefits (from which rights should arise) and damages (from which duties should arise) on the global processes that are fundamental to maintain a Stable Climate and support today’s complex societies. This result in a profound involuntary interdependency: everyone on the planet can impact and be impacted by all the others with their respective damages and benefits performed on the Earth System.

A Stable Climate is a visible manifestation of a well-functioning Earth System which, in turn, relies on the natural processes that derive from a resilient and well-functioning biosphere. This stability is based on well-defined patterns of atmospheric and ocean circulation. A pattern of the stable dynamics of the functioning of the Earth System can be understood as the ‘Software’ of the planet, as a separate object from its territory, the ‘hardware’. The pattern of stable dynamics of the Earth System that corresponds to a Stable Climate refers to how matter and energy move and circulate around the planet. Matter is always changing through chemical reactions and physical processes. But the patterns and rates of these changes, and their interactions to form higher order structures such as ecosystems, follow well-defined patterns of organization and stability. At the planetary scale, the ways matter and energy move around the planet, creating various patterns of atmospheric and oceanic circulation, follow the laws of thermodynamics and result in a Stable Climate. A stable global climate is something that can only be legally classified as an Intangible Natural Good. Moreover, a Stable Climate is a Common Good not only from a legal perspective, for being materially and legally indivisible, but also from an economic perspective, as it is limited, exhaustible, and rival in consumption. The Stable Climate is also a Global Public Good as those goods whose benefits extend to all countries, individuals and generations. However, there are no international policies to encourage the provision (performing benefits) and protection of this Common Good. We are currently on a “first-come, first-served” basis for the use of natural resources, while in a system of voluntarily declarations for attempting to reduce harm/emissions.

Being the Common Good Stable Climate a non-territorial natural reality with a functional dimension, intangible, indivisible, and materially non-appropriable, it has been invisible in our legal and economic systems (read topics 4 and 5). Thus, the well-functioning Earth System with a Stable Climate has been progressively used as a “no man's land”, operating in a free-for-all scenario, where there are neither restrictions on its depreciation (although the Paris Agreement does promote voluntary contributions to decrease emissions) nor compensation for those who clean the atmosphere and contribute to maintain the Stable Climate. For not belonging to anyone an unavoidable Tragedy of the Commons took place on a global scale: a tragedy of this true Intangible Global Common, with the most visible consequence being Climate Change. Because the Common Good Stable Climate is not legally recognized, it is impossible to internalize, in our economy, the benefits that ecosystems perform on Climate, because from the society’s perspective these disappear into a global legal void.

In 1988, the Ambassador of Malta requested the inclusion of a “Declaration proclaiming climate as part of the Common Heritage of Humankind” in the Agenda of the 43rd session of the UN General Assembly. But because of climate’s functional, non-territorial, intangible, indivisible, and materially non-appropriable natural reality (read topics 4 to 6), scientifically defining and delimiting a stable climate as what it really is in the real world - a Common Good, that is a Heritage of all humankind and generations - was not possible considering the available knowledge and technology at the time. With the impossibility of approaching a Stable Climate as a Common Good and the collective management of its use, a derivative solution was to mitigate the problem of Climate Change, by establishing it as a “Common Concern of Humankind” (UN Resolution 43/53, 1988, later confirmed in Rio 1992 Declaration), which remains the framework of the Paris Agreement. Limiting the action strategy to mitigating “the problem”, by reducing and removing new emissions (and not historical ones), made it impossible to develop a system to restore and permanently maintain the Common Good Stable Climate. By not recognizing an Intangible Common Good which exists de facto, the benefits and damages performed on the Stable Climate disappear in a legal void, and therefore it is impossible to generate rights and duties. Without the definition of rights and duties regarding the common use of the Common Good, collective action became an impossibility since then. In the Concern logic, carbon sequestration is only considered in new projects as a way of neutralizing new emissions and not historical ones. This makes it impossible to clean the atmosphere, i.e. removing CO2 from the atmosphere for the benefit of all (negative emissions). This also prevents valuing the services provided by the already existing ecosystems. That means that our economy does not recognize the vital value that the ecosystems’ services represent to our society. As a result, it is currently impossible to develop compensation mechanisms for those who clean the atmosphere or perform other activities on the Stable Climate for the benefit of all. That is, making improvements to climate is considered an “externality” in our economy because it is a benefit performed in a Good that does not exist from a legal perspective, and consequently these improvements are invisible to the economy. By not recognizing the Common Good, there is no object of governance, nor is it possible to build a regenerative economy capable of cleaning the atmosphere and subsequently maintaining the Stable Climate.

By focusing only on the problem of Climate Change as a Common Concern of Humankind, rather than focusing on the management of the use and maintenance of the Common Good Stable Climate, we ended up developing a system of “voluntary obligations” that tries to reduce damages on the Stable Climate. In this system, each State commits to self-contain damages, creating a burden-sharing system to avoid damages, but it lacks a global project to clean the atmosphere and permanently maintain the Stable Climate. These mechanisms represent a negative-sum game where the Stable Climate resource constantly decreases and the reward results from making new, but fewer, emissions. Alternatively, one can sell carbon credits that have not been used, but will be used by others. Perversely, for there to be “value”, there must be emissions coming from those who need to pay to neutralize their emissions, or have to buy credits that have not been used to be able to emit, resulting in a zero-sum game. These negative- and zero-sum games have been determinant in the lack of effective results in fighting dangerous Climate Change. In a game of negative or neutral summation, there are no incentives to clean the already existent excessive CO2 in the atmosphere, nor is it possible to promote a paradigm shift in what is considered wealth creation in the economy. Thus, the result is always an increase in the total emissions. By not recognizing value in ecosystem services that contribute to maintaining a Stable Climate and activities that effectively remove CO2 from the atmosphere, it is impossible to change what we currently consider to be the wealth creation in society and the logic of our current economy. Without changing this logic, we will not achieve the desired reduction in the total emissions. Currently, wealth creation is generally associated with emission production, thus emissions inevitably continue to increase.

The current Common Concern legal framework has been ineffective for the past 30 years of climate negotiations and it is entirely unfit for our common future. To collectively clean the atmosphere, the natural intangible processes that produced and contribute to maintain a Stable Climate, and thus life as we know, must be considered as the most vital and necessary wealth creation in society. This requires a legal system that recognizes their existence, captures their value and make them visible in the economy. From both a human-activity and ecosystem-services perspective, there are positive impacts (those who contribute to keep the Earth System within the Safe Operating Space/Stable Climate, thus representing a value-gain to the Common Heritage) and negative impacts (those who push the Earth System outside the Safe Operating Space/Stable Climate, thus representing a value-loss to the Common Heritage). The Stable Climate as a Common Heritage (the object of governance) allows for capturing the positive and negative actions performed to the Common Heritage and the benefits and damages can be valued and become visible in the economy (internalized). Congruent rules between the provision and appropriation of the Common Good Stable Climate can be developed and applied – i.e. one of the structural conditions needed to enable collective action. Currently, there is also scientific knowledge available for the development of accountancy and management systems, which will allow for developing a truly Regenerative Economy capable of cleaning the atmosphere and permanently maintaining the Stable Climate.

The concept of Common Heritage of Humankind has been enshrined in International Law since the seventies with the Moon and other Celestial Bodies Treaty. This concept keeps elements of humanity’s Common Heritage held in trust for future generations and protected from exploitation by individual States and other entities. Another example of a Common Heritage of Humankind was proclaimed in the UN Convention on the Law of the Sea, open for signatures in Montego Bay, Jamaica, in 1982, which established a comprehensive regime for dealing with some of the matters of the sea, namely the seabed. In the 1960s, the author of this legal concept, the Maltese Ambassador to UN, Arvid Pardo, was already aware about the limitations of the territorial approach when he proposed an Ocean Space Treaty in 1971 that "attempted to show how the Common Heritage concept could be implemented in the marine environment as a whole". (1) The rejection of the proposal was inevitable at that time, because by then there were no scientific instruments to define, measure, and delimit what would be this non-territorial “marine environment”, and to distinguish it from the territorial waters under the States’ jurisdictions. The original impetus underpinning Pardo’s proposal has intuitively included the vision of what is actually common to all humanity and unites us all as something that transcends the territorial dimension of the planet. The challenge issue is how to represent this irrefutable fact from a legal standpoint, and then to organize the human relationships that emerge from the shared use of this Common System – the non-territorial “global environment/ life support system” as a single whole. By applying the legal regime of Common Heritage of Humankind to achieve a Stable Climate resulting from a well-functioning Earth System, we end up building on some of the positive features of the Paris Agreement, such as materializing common interest (in the favourable biogeophysical conditions of the Holocene epoch, represented by the Safe Operating Space for Humanity, in which we have a Stable Climate); concretizing the embryo project of the Common Heritage by being able to distinguish the “functional space” from the territorial space; representing the diversity and complexity of the Earth System, as it exists and functions in the real world, as a legal single integrated system; allowing benefit- and damage-sharing by everyone in the planet (with the legal framework for the emergence of a regenerative economy); defining one object of Global and Shared Governance (allowing to promote a fair distribution of the efforts and rights), and; addressing and regenerating our ultimate Global Common, the Stable Climate, for present and future generations (with a global legal support and an accounting system). (1) Arvid Pardo, "The Origins of the 1967 Malta Initiative," International Insights 9, no. 2 (1993).

The law has long recognized intangible Goods, such as “intangible assets”, and Brand Value or Intellectual Property (trade secrets, patents, trademarks, and copyrights). Specifically, the recognition of “human creation” as an incorporeal idea conceived personally by an author and externalized by means that allow others to perceive it through their own senses (for example, through the printing of a text), has become an object legally relevant in 1710 through the Copyright Act. This law allowed for reproduction rights to belong to authors and not publishers. The author's intellectual creation as an intangible legal object was a structural condition, without which it would have been impossible to build the knowledge-based society we have today. In terms of International Law, Intangible Natural Assets have already been recognized, such as orbital slots in the geostationary orbit, or the orbits of the moon and the Earth, in addition to frequencies. Unlike the Copyright, which results from a human creation, the recognized outer space objects refer to natural facts that exist in the universe and that can be damaged or depleted by use. Although humans have only ventured into space since the mid-1950s, we already organized ourselves to enable the definition and management of the use of the natural intangible assets of outer space. Therefore, we already have the necessary principles and instruments to legally recognize the immaterial biogeophysical cycles that underlie and condition the functioning of the Earth System, and that were at the base of the emergence of a Stable Climate, which we absolutely need to recover and permanently maintain. The first fundamental step for human societies to achieve sustainability within the system in which they are inserted and on which they depend is to distinguish the operating mode of the Earth System as something different from our planet’s territorial space. These two separate entities should be approached differently, and the Intangible Earth System with a Stable Climate should be managed as a Common Good. The vital value associated with restoring and permanently maintaining this Common Good should become visible in the economy.

When Malta first proposed that Climate be recognized as the Common Heritage of Humankind in the Agenda of the 43rd session of the UN General Assembly (1988), the scientific instruments needed to define in detail a Stable Climate as a new legal object did not exist. Fortunately, recent advances in Economic Sciences led to a better understanding about the necessary structural conditions for the management of Common Goods, being the first step the detailed definition of the Good at stake. Also, the emergence of the Earth System Sciences led to the development of the so-called nine Planetary Boundaries, which qualitatively define the key processes that drive and condition the functioning of the Earth System as a whole. The Planetary Boundaries can be used to measure qualitatively and quantitatively the favorable biogeophysical structure corresponding to the Earth System in a well-functioning state, which results in a Stable Climate. Thus, it is now possible to define the Common Good Stable Climate as a new object whose ownership is inevitably common to all humanity and all generations, as well as define a legal regime to organize its use and the institutionalization of its permanent maintenance.

The Planetary boundaries framework (see Topic 12) define the Safe Operating Space for Humanity, a non-territorial and qualitative space defined and maintained within critical thresholds of planetary control variables (being CO2 levels one of them), with a favorable biogeophysical structure corresponding to a well-functioning Earth System with a Stable Climate. Thus, while the legal concept of Common Heritage of Humankind can be the legal framework to represent within human societies the Common Good Stable Climate, the Safe Operating Space can be the tool to define the intangible pattern of a well-functioning Earth System that corresponds to a Stable Climate. The Common Heritage should represent the functional aspect of the Earth System whereupon a system of accountancy can be developed, in which the provision of Global Public Goods – production of positive impacts (benefits) that contribute to the well-functioning of the Earth System corresponding to a Stable Climate – can be measured and accounted for. Because this intangible space that supports life is subject to depreciation or qualitative improvement by means of human actions, we need a legal framework that recognizes the existence of the Common Good Stable Climate inside and outside of all national sovereignties. Around this new object of International Law, a permanent system should be developed to ensure the provision of the Public Good – the well-functioning Earth System with a Stable Climate - to all humankind.

The first two key conditions that allow for the successful management of a Common Good (see topic 12) are: FIRST, to define and delimit the Common Good at stake. SECOND, build a congruent system between the rules of appropriation and provision of the Common Good. As seen in Topics 1 to 13, the legal invisibility of the Common Good Stable Climate, which exists in the real world, led us to a Tragedy of the Commons on a global scale, whose most visible result is Climate Change. The absence of a legal status for climate, and the current strategy of addressing the “problem” of Climate Change, without recognizing the existence of the Common Good Stable Climate that is the subject of Climate Change, resulted in the inexistence and a management plan for the Common Good Stable Climate. Such management plan would necessarily have to include not only rules for limiting the use, but also rules to ensure the permanent maintenance of the Stable Climate. Our current approach that lacks incentives to provide and permanently maintain a Stable Climate, contributes to maintain our current economic model which underlies the problem of the emissions and, consequently, the lack of results in combating extreme Climate Change in the past 30 years. Our current approach of focusing on the problem of Climate Change, and not on the Common Good Stable Climate does not allow for the development of the aforementioned system of rules for the appropriation and provision of the Common Good Stable Climate - that is, a system of rights and duties to manage the use and maintenance of the Stable Climate. Also, the current legal framework of Climate Change as a Common Concern of Humankind does not allow for the development of such system of rights and duties, because the only Good from which these rights and duties could emerge - the Stable Climate – is not recognized as existing from a legal standpoint. On the other hand, a Stable Climate recognized as an Intangible Common Heritage of Humankind allows for the definition of an international legal object, thus defining an object of governance around which an accounting system can be developed in which the production of positive impacts and negative effects on the Earth System’s functioning with a Stable Climate can be measured and accounted for. This will allow for the development of a congruent system between the rules of appropriation and the provision of the Common Good Stable Climate, leading to the development of the necessary conditions to enable cleaning the atmosphere and reducing emissions, as a result of a paradigm change in the concept of wealth creation. This "system of rights and duties", therefore, will require an institutional solution that ensures the permanent management of the rights and duties regarding the permanent maintenance and use of the Common Good Stable Climate. This means that those who restore and maintain the smooth functioning of the Earth System with a Stable Climate, such as those who actively clean the atmosphere, will be compensated economically. This makes it possible to build a true regenerative economy based on the Planetary Boundaries (beyond just simple CO2 mitigation) and break the current economic cycle of destruction in which the products extracted from ecosystems are more valuable than the services provided by them. And because everyone impacts and is affected by climate, a Stable Climate recognized as our Intangible Common Heritage will generate cascading effects in reducing emissions, regenerating the biosphere, redistributing income, equity and climate justice among peoples, taking into account historical responsibilities and hope for future generations.

The last report of the International Law Commission (ILC Report-A/76/10 2021) recognized that the atmosphere (dynamic functional aspect) and the airspace subject to the sovereignty of States (static and spatial) are "two totally different concepts that must be distinguished". Also recently, the Portuguese Parliament approved on November 5th, 2021, the Portuguese Climate Law, which defined in its Article 15, paragraph f, the diplomatic goal of recognizing the Stable Climate as a Common Heritage of Humankind by the United Nations. If the ILC’s statement opened a path for autonomizing the functional dimension of the Earth System relative to the static territorial element of sovereignty, the Portuguese Climate Law pointed the direction. “Climate” as a manifestation of the functioning of the Earth System as a whole can and should be used as the vehicle to introduce the Earth System into International Law.