One Earth System, One Common Heritage, One Global Pact

A stable climate is a visible manifestation of a well-functioning Earth System. A planet with ONE EARTH SYSTEM outside a favourable state cannot serve as our "Home". Thus, our common home is an intangible well-functioning Earth System.

 

Earth System Science allows us to understand the planet as a whole, an interconnected, complex, evolving system, beyond a mere collection of ecosystems or isolated global processes. This new knowledge about the global dynamics that support life on Earth, represents a significant paradigm shift because it creates a new way of thinking about the Earth… and it challenges our fundamental legal categories, reflecting a change in the normative conception of the Earth as well.

 

The indisputable fact that we are facing a single integrated system, that is impossible to divide conceptually, materially or through any legal abstraction, to which everyone has access, and with an exhaustible well-functioning state, makes it, from a technical point of view, a common good at the global scale. The successful management of any common good  implies the prior definition of the global common good that is at stake (a well-functioning Earth System), its legal status (Common Heritage) and who has access rights to it (all of humanity). ONE COMMON HERITAGE.

 

As the window of opportunity for avoiding very disruptive climate change is rapidly closing and scientists are warning about a planetary tipping point that can lie just ahead, an initiative towards ONE GLOBAL PACT, such as the Global Pact for the Environment, can be the last opportunity to make a conceptual evolution in international environmental law.

 

Whether we want it or not, the way we address climate change in international law as a “concern” ( and, by doing so, refusing to accept the existence of a truly common good), the substantive content and the characteristics of this normative “taken for granted” assumption, are inevitably linked to the (lack of) results achieved until today. Thirty years after its start and 25 Conferences of the Parties (COP) of the UNFCCC, it is of utmost importance to reopen a discussion that has been abandoned regarding what is climate from a legal point of view. Although this question seems to be a purely conceptual one, it has significant practical effects once it is structural to all subsequent discussions.

 

The Global Public Good that a Stable Climate represents is not yet defined and recognized as common good. This is why we need ONE GLOBAL PACT, to build a society that is able to manage the use of the global common of which it is a part and depends on, and pave the way for a paradigm shift and a way out of an indefinite deadlock. 

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KEY MOMENTS OF THE CAMPAIGN

The 50th Anniversary of UNEP, also known as Stockholm+50 (June 2022)

The Global Pact for the Environment - a way for a social and political transformative process

The Civil Society Roadmap to Stockholm+50: the Stockholm+49 global event

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The 50th Anniversary of UNEP, also known as Stockholm+50 (June 2022)

The commemoration of the 50th anniversary of the creation of the United Nations Environment Programme (UNEP) may bring a new approach to the initiative launched by the Global Pact for the Environment (GPE) and a critical momentum to introduce a new substantive content in the political declaration foreseen for this United Nations high-level meeting. A new social and political Pact that introduces the Principle of the Integrity and Unity of the Earth System can open the door for future legal innovations like the recognition of the Earth System as Common Heritage of Humankind, with cascading effects on health, economy, social justice and international relations.

The Global Pact for the Environment: a way for a social and political transformative process

The final consensual recommendations of the Ad Hoc Open-ended Working Group established by United Nations General Assembly (UNGA) resolution No. 72/277 of 10 May 2018, entitled “Towards a Global Pact for the Environment” (GPE), and approved by the UNGA Resolution No. 73/333 of 30 August 2019, paved the way for a wider global conversation on a new global agreement for the Environment to be unleashed during the landmark of the 50th anniversary of the United Nations Conference on the Human Environment of Stockholm 1972 – Stockholm+50.

As the window of opportunity for avoiding very disruptive climate change is rapidly closing and scientists are warning about a planetary tipping point that can lie just ahead, an initiative towards a Global Pact for the Environment can be the last opportunity to make the necessary conceptual evolution in international environmental law.

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The new GPE should become the transformative process to make a paradigm shift in international environmental law towards a comprehensive system of Earth System law and bring a new conceptual basis to initiate a constructive approach to restore the Earth System functionality, enabling governments to embark on a scientifically informed path to build a successful environmental governance model.

The interconnections between economy, social justice, climate emergency, biosphere degradation and pandemics are becoming more and more evident. And today it is also possible to define how the global environment functions within our Earth System with a high degree of scientific accuracy. Postponing the process of integrating this scientific knowledge into legal instruments could prove to be fatal given the urgency of the climate crisis and the pressures the planet is under.

 

An Earth System approach to GPE can also make this agreement fairer in terms of historic responsibilities, while allowing easier and clearer integration of the bio-geophysical cycles in the functioning of the economy.

The Civil Society Roadmap to Stockholm+50: the Stockholm+49 global event

The Stockholm+49 global event aims to be the key Civil Society movement event for building our Common Home. In a post-pandemic time, this maybe the last collective chance to rebuild better our Home and preserve our Common Heritage. Together, Civil Society – clustering individuals and collective organizations, NGOs, companies, schools and academic institutions, regional and local governments – will propose to organize one Global Event in Stockholm in 2021, one year before the commemorations of the 50th anniversary of United Nations Conference on the Human Environment of Stockholm 1972 – Stockholm+50, to discuss in between and with States, how it is possible to build one transformative moment for our civilization to safeguard a well-functioning Earth System.

1. What is the critical legal innovation proposed by the Common Home of Humanity?

CHH proposes, in summary, two innovative aspects:

i) – Instead of an approach exclusively focused on greenhouse gases (GHG), as it is adopted by the UNFCCC, we propose a critical legal innovation based on a systemic approach supported by the most recent scientific knowledge of Earth System Science and the Planetary Boundaries framework. The Earth System is a highly interconnected system, and only by approaching it as a single unity, addressing all the interconnections between its core elements can we succeed. From a governance perspective, the first step is to address its unity and indivisibility from a legal standpoint. This indivisible well-functioning Earth System can only be legally classified as a global intangible common good, within which to develop global public policies.

Sovereignty is deeply grounded in the concept of the physical territorial space, while the Earth System concept is grounded in an intangible qualitative understanding of planetary functioning. CHH advocates that it  seems entirely possible to harmonise the co-existence of both from a legal approach.

ii) The model of climate change mitigation and the tentative process of cutting emissions clearly has shown that it is dysfunctional and it does not change the “rule of the economic game”. For now, relatively to nature, it is only through resource extraction often accompanied by the destruction of ecosystems that the economy recognizes the production of value and wealth creation. Based on the recognition of a Global Common without borders – the Intangible Earth System as Common Heritage – we can not only stimulate the positive and regenerative impacts (and therefore recognize economic value to these ones) but also to reduce the negative impacts on the Earth System. Because the definition of an intangible object has everything to do with how we manage its tangible part,  we propose to change one initial condition of the system, to produce systemic cascade effects and promote a constructive scheme of incentives to restore ecosystems and clean the atmosphere. If we recognize the intangible work of the forests and ecosystems (evapotranspiration, chemical changes on the atmosphere and water, soil, etc…) we will definitely have a different conception of value and of what is wealth creation in a forest/ecosystem. We will not consider trees as commodities that can only become visible on the GDP of countries after being destroyed and transformed in timber.

The recognition of the Earth System as an intangible Global Common is the legal support to make possible one economy that is able to restore and maintain a well-functioning Earth System. Based on the core structural conditions that Elinor Ostrom very well explained,  to successfully manage our intangible global common, we need:

a)   To define the Common Good that is at stake: The Earth System as Common Heritage.

b)  To define a congruent system between the rules of appropriation and the rules of provision of the global public good: The base of a constructive incentive system of restoration.

2. Why do we need a Critical Legal Innovation to tackle the climate emergency?

A stable climate is a visible manifestation of a well-functioning Earth System. Climate as “an intangible natural resource, which spans across and beyond the national territories of States”[1], challenges the very foundations of International Law, because it is subversive to any kind of physical/territorial division, even if in a legally abstract way. For so, a stable climate/well-functioning Earth System, is a truly intangible global common without borders that still does not exist from a legal point of view.

Although this is not an issue normally addressed as such, the legal non-existence of a stable climate remains the determining structural factor underlying the deadlock of climate negotiations.

Currently, there are no economic mechanisms designed to compensate human activities or natural processes that have positive impacts (factoring in biosphere feedbacks) and contribute to restore the well- functioning of the Earth System. This means that our economy is still being designed as an exclusively extractive and destructive economy, where benefits to the Earth-System functioning are not considered as wealth creation.

But before being a question of designing economic mechanisms, this is a juridical problem. Who are the beneficiaries that should receive the benefits of negative emissions? Who should pay and to whom? To whom does the Earth System belong? Which is the institution in charge of managing the use of that common good?

Therefore, from a social point of view, the benefits to restore the Earth System disappear in a global legal gap, and consequently are invisible to the economy. This structural problem makes it technically impossible to build an economy capable of producing the needed positive contributions to the recovery of a well-functioning Earth System, and consequently to maintain a stable climate as well.

 

[1] Simon Borg - Climate Change as a Common Concern of Humankind, Twenty Years Later... From UNGA to UNSC. IUCN Academy of Environmental Law, “Towards an Integrated Climate Change and Energy Policy in the European Union”. 2007. University of Malta. Retrieved from: http://www.iucnael.org

3. What is Climate today, from a legal standpoint?

"What is the climate from a legal point of view?" After the Maltese proposal of 1988 to recognize “Climate as Common Heritage of Humankind”, the UN General Assembly in its resolution 43/53 of 1998, explicitly stated that climate change was considered as “Common Concern of Humankind”.

Despite the calls for a future evolution and a clear definition of the content of the concern concept, in terms of rights and obligations, climate negotiations have bypassed these conceptual/structural discussions since the approval of the United Nations Framework Convention on Climate Change[1] (UNFCCC);

So, whether we want it or not, this option of addressing climate as a “concern” remains the formal framework in which we still move nowadays (including the Paris Agreement). Its substantive content and characteristics are inevitably linked to the (lack of) results achieved until today:

  • Common Concern is a derivative concept from Common Heritage of Humankind, which is still considered today as exclusively founded in the territorial dimension of the planet and dealt with its tangible resources, with all the subsequent conflicting interpretations;

  • Common Concern does not require the existence of a legal object (Heritage), but rather it exists on the subjective side of a collective human feeling (concerned community[1]), demonstrating one collective willingness to act to achieve a common goal. ”As a general concept it does not connote specific rules and obligations, and only establishes a general basis for the community to act”[2];

  • The concern is focused on the mitigation of one problem, and not on building a permanent system of management or restoration of a common good (stable climate). It is rather an appeal to equitable sharing[3] of burdens resulting from a problem (climate change).

  • “Common Concern is a vague political formula”[4] (…) that has only created “a general framework for possible future legal developments to deal with global environmental challenges”[5], but it was not a legal development in itself.

What was at the time a new path, clearly proved to be incapable of meeting the challenges of the global, complex and deeply interconnected functioning that the Earth System poses, and to also tackle the ecological disruption of the human-induced age of the Anthropocene. After 25 years of negotiations, Einstein would argue that you can’t continuously repeat the same actions and expect different results.

 

[1] Dina Shelton – “Common Concern of Humanity” Environmental Policy and Law, 39/2, 2009.p. 3

[2] Idem

[3] Idem 25

[4] Mustafa Tolba -  The Implications of the “Common Concern of Mankind Concept in Global Environmental Issues”. Revista IIDH, 1991, 13, 237–246. Retrieved from:

http://www.juridicas.unam.mx/publica/librev/rev/iidh/cont/13/doc/doc 27.pdf

[5] Idem

4. What is the sovereignty paradox?

As a result of the interconnected processes that occur in the Earth System…all humans share the positive and the negative consequences of the acts of one another at a global scale.

This fact leads to tensions resulting from an unwanted and imposed interdependence, that also goes unrecognized and unharmonized - a contradictory phenomenon called the sovereignty paradox[1], where the failure of coordination results in deeper dependence of states that also lose sovereignty due to the lack of cooperation - the less a country cooperates in common and indivisible questions, the more dependent it becomes… on decisions that will inevitably affect this country, and in which it did not participate.

The huge task before us is to define how in,  a highly interconnected world, can we move from a system exclusively based on territorial sovereignty to a system based on well-defined rights, shared responsibilities and erga omnes obligations among states and other actors. This enormous task will firstly demand a clarification of what the “commons” are.

 

[1] Kaul, I. (2013). Global Public Goods, A concept for framing the Post-2015 Agenda?. Bonn: Discussion Paper, Deutshes Institut für Entwicklungspolitik. Retrieved from http://www.die-gdi.de/uploads/media/DP_2.2013.pdf

 

5. Why is the unsolved “Amazon paradox” of international law at the center of climate emergency?

Very little known – and thus not discussed – is the Amazon Paradox[1]: This unsolved paradox is one of the key reasons why we are driving our planet onto a “Hothouse Earth[2]” pathway. 

The Amazon rainforest, as one of the key terrestrial ecosystems that are critical for the maintenance of a well-functioning Earth System, is inevitably at the centre of this paradox.

There is an a fundamental conflict between the concept of tangible territorial sovereignty - which has clearly defined territorial boundaries - and the global functioning of the Earth System, which is global, indivisible – that is, it does not respect territorial boundaries – and intangible from a legal standpoint.

At the root of the controversy about the Amazon lies the contradiction between its true value, and the way in which today’s economies recognize value and wealth creation. The outstanding ecological importance of the Amazon cannot be measured in km2, or tons of timber, soy or meat; rather it should be measured in terms of the total amount of biogeochemical functions and physical processes that this ecosystem provides. The fundamental role of the Amazon in the stabilization and functioning of the Earth System is incomparably higher than the value of the commodities that can be extracted from it. Unfortunately, because the global common (Earth System) in which these biogeochemical benefits are realized does not exist from a legal point of view, this natural "work" is also legally non-existent, and consequently considered as "external" and invisible to the economy. In other words, because this work is dispersed globally, and because we cannot touch, divide or store it since it is intangible, it is ignored by law and considered an externality for the economy. Under current international law, those countries that have been historically gifted with a piece of the Amazon rainforest have been condemned to destroy parts of it to incorporate “wealth” into their GDP; and they still see this destruction as the only economic “value” of such an ecosystem. For this reason, the Amazon represents a perfect example of the legal dysfunctionality that underlies our economies, which – as Mariana Mazzucato puts – are focused on extracting value rather than creating it[3].

Only with a legal innovation it is possible to change this scenario, and to create an economy that produces true wealth - and respects the intangible conditions that support life itself.

 

[1] Magalhães, P. et Al. (2019) The Earth System upon which all life depends must be legally recognised if it is to be protected .https://together1st.org/blog/the_earth_system_upon_which_all_life_depends_must_be_legally_recognised_if_it_is_to_be_protected

[2] Steffen, W. et. Al. (2018) Trajectories of the Earth System in the Anthropocene - Edited by William C. Clark, Harvard University, Cambridge, MA, and approved July 6, 2018 (received for review June 19) https://www.pnas.org/content/115/33/8252

[3] Mazzucato, M. (2017). The Value of Everything. https://marianamazzucato.com/publications/books/value-of-everything/

6. Why is the Earth System humanity’s ultimate global common?

While all planets have a physical territory, larger or smaller than the Earth, what the other planets do not have, as far as we know, is a system that has been co-created by, and is co-maintained by, life and can continue to support life. Our planet is much more than a territory of 510 million square kilometres, with the global commons still being seen as only the leftovers of the territorial divisions of nation states. This planetary software, of fluxes and exchanges in a network of energy and matter, which unites all creatures in the (re)production of life’s existence, is the most outstanding feature of nature on planet Earth and our most valuable asset. Operating beyond all countries and borders, these global cycles that are the core engines of the functioning of the Earth System are the necessary biogeophysical conditions for all life forms we know to exist. Although it is intangible, a well-functioning software - as a pattern of stable and predictable dynamics of the Earth System that includes a stable climate and a resilient, well-functioning biosphere - exists in the natural world. Thus, a well-functioning Earth System can best be classified as an intangible global common, requiring us to identify and define this favourable state. 

The Earth System as a single, integrated system is impossible to divide conceptually, materially or through any legal abstraction. Because everyone has access to it, and its well-functioning state is exhaustible, it becomes a common good at the global scale. Therefore, it must be considered our ultimate global common, because it is shared by every living being on the planet, including humans, and it unites us all. We are part of it and we depend on it for our survival.

7. Why is a positive and deliberate human approach critical to steer the Earth System away from a dangerous threshold?

 

Currently, the Earth System is on a Hothouse Earth pathway driven by human emissions of greenhouse gases and biosphere degradation toward a planetary threshold at ∼2 °C, beyond which the system follows an essentially irreversible pathway raising the temperature further in a domino-like cascade that could take the Earth System to even higher temperatures. Even if the Paris Agreement target of a 1.5 °C to 2.0 °C rise in temperature is met, we cannot exclude the risk that a cascade of feedbacks could push the Earth System irreversibly onto a “Hothouse Earth” pathway. The challenge that humanity faces is to create a “Stabilized Earth” pathway that steers the Earth System away from its current trajectory toward the threshold beyond which is Hothouse Earth.”[1]

The Stabilized Earth Pathway that we urgently need requires deliberate human action (production of environmental benefits and not only the reduction of damages) to create feedbacks that keep the system on a Stabilized Earth pathway.

It is clear that the activity of caring for and restoring a stable climate, requires a new legal framework that defines the rights that emerge from restoration actions and obligations based on its depreciation. A positive human approach should define the activities recognised as beneficial to the conservation of the climate, the mechanisms of measuring and defining value, and the entity responsible for the management of this common good. The human stewardship to create and maintain a stable climate implies an economy of restoring and permanently caring for a well-functioning Earth System. This is only possible if the most basic requirement that makes possible any human enterprise is in place: an appropriate legal framework. In the case of a stable climate, this legal framework must designed for the management a common good that is global, intangible, impossible to divide and but is exhaustible by overuse – a well-functioning Earth System with a stable climate. The first step to make its restoration and future maintenance possible is recognition of the common good itself as a legal object – A Common Heritage of Humankind.

 

[1] Steffen, W. et. Al. (2018) Trajectories of the Earth System in the Anthropocene - Edited by William C. Clark, Harvard University, Cambridge, MA, and approved July 6, 2018 (received for review June 19) https://www.pnas.org/content/115/33/8252

8. Why is it impossible to restore a stable climate and meet the Paris Agreement targets without a legal innovation?

We live in a world where the window of opportunity for avoiding dangerous climate change is rapidly closing and scientists are warning about a planetary tipping point that can lie just ahead.

According to One Earth[1] we have three main pillars of action to meet the Paris Agreement climate targets: (1) 100% decarbonization of energy by 2050, (2) a major conservation/restoration effort spanning 50% of lands and oceans; and (3) transition to regenerative, carbon-negative agriculture by mid-century.

The biggest finding of these studies was that without BOTH the energy transition and nature-based solutions together we just can’t get there in time. While it is absolutely essential that we achieve a total decarbonization of the economy by 2050, or preferably earlier, we likely won’t meet the Paris targets without nature-based solutions also. Natural green infrastructure acts as a “global carbon sponge” that works towards stabilizing our climate system, absorbing about a quarter of human emissions per year). This means we can’t afford to lose any of the remaining natural green infrastructure and, in addition, we have to restore some of what has been lost.

 

[1] Bukart, K. (2019) One Earth Project, Rockefeller Philanthropy.

Figure 1. Global aggregate of sequestration pathways. Source: One Earth Notes: The big yellow curve shows a potential of about 300 Mha of tropical reforestation possible through 2100 and another 50 Mha of temperate reforestation. The blue lines shows the potential for increasing carbon density through rewilding of existing forests. The orange lines show potential for better forest management practices. And the purple lines at the bottom show potential of planting trees on croplands.

As shown in Figure 1, using a statistical approach to include natural restoration into the climate models, forest-related pathways are the most commonly used, and reforestation is the biggest. How can such an enterprise be possible if the vital intangible work of a forest to help maintain a stable climate disappears into a global legal and economic void? How could restoration of natural green infrastructure be possible if we are still living in world where only through the destruction of ecosystems is it possible to create wealth and increase a nation’s GDP?

The massive investments needed to maintain what is leftover and to restore what has been lost demands a legal innovation that makes the intangible work of nature - those that contribute to maintaining a stable climate, thus representing a value-gain to the Common Heritage - internalized, visible and accountable in the economy.

9. Why can Common Heritage of Humankind be considered as a positive approach?

The Heritage approach implies the existence of a legal object – the Heritage itself.

The possibility of recognizing climate as a common heritage implies the prior definition of the global common good that is at stake (a well-functioning Earth System), its legal status (Common Heritage) and to whom this good belongs (all of humanity).

With the heritage approach, it is possible to capture not only the damages made to the common good that belongs to everyone, but also to make visible the positive benefits to the common good produced by ecosystems or human activities that actually create an environmental benefit by reducing the amount of carbon dioxide emitted to the atmosphere and by removing additional carbon dioxide from the atmosphere (removals and sink of CO2, ecosystem services, that goes beyond achieving net zero carbon emissions or avoided emissions). In other words, both the positive actions (those that contribute to maintaining a stable climate, thus representing a value-gain to the common heritage) and negative actions (those that contribute to climate disruption, thus representing a value-loss to the common heritage) can become internalized and accountable.

This approach results in a fundamental difference: because the common heritage approach implies the existence of a legal object (climate) and the definition of common ownership and tutelage, rights and obligations can emerge. From the definition of the object and its belonging, it is possible to build a congruent system between the rules of appropriation (negative impacts) and of provision (positive impacts) as a structural condition for a successful management of commons[1], and create an economy of restoration and maintenance of a well-functioning Earth System, including a stable climate system.

Figure 2. The intangible Common Heritage of Humankind as the legal support for capturing positive and negative externalities. (Paulo Magalhães 2018)

[1] Ostrom, E. et al. (1999) “Revisiting the Commons: Local Lessons, Global Challenges Science 284(5412), 278–282. doi:10.1126/science.284.5412.278.

10. Why is the state of the Earth System intangible from a legal standpoint?

From a legal point of view, a well-functioning state of the Earth, as described the natural sciences, has a number of characteristics that identify, define and classify it: 

1: We cannot cit or see it;

2: It is global and cannot be delimited geographically;

3: Is materially and legally indivisible;

4: It cannot be appropriated although its quality can be degraded and is exhaustible;

5: It is measurable and identifiable, and thus it is not only possible to distinguish it from the territorial space of the planet, it is also possible to consider it as a separate legal entity.[1]

Nature is not only what is touched and seen, but its most valuable dimension is its intangible dimension. Fortunately, human societies have a long history of recognising intangible assets and granting them legal protection. Examples include the Intangible Cultural Heritage (UNESCO), good will value of companies and intellectual property rights. These solutions, which are based on the legal recognition of new intangible assets, have proven to be essential for the structure and functioning of today's society. Because international law is still based on an exclusively territorial approach, phenomena like a stable climate, although it is certainly real and can be clearly and quantitatively described by science, remains invisible to our legal system because it is intangible. Only by recognizing its existence from a legal point of view is it possible to organize our relations that emerge from its common use.

 

[1] Magalhães,P. (2020) Climate as Heritage or a Concern? Addressing the structural roots of climate emergency. Revista Electrónica de Direito, https://cije.up.pt/client/files/0000000001/6-artigo-paulo-magalhaes_1592.pdf

11. Why restoring a stable climate requires a holistic Earth System approach?

The most critical scientific principle that underpins the Earth System framework is that the Earth System functions as a single integrated system at the planetary level.[1] If some of its critical components are degraded or its fundamental cycles are disrupted, the risk that the Earth System is driven out of the Holocene stability domain (the recent, stable state of the Earth System) rapidly increases. If we address single processes or components in an isolated way, we will be ignoring all the other critical processes that interact with this one, as well as all the feedbacks and domino effects that could happen throughout the system because of interactions.

 

For example, the processes that are central to the climate system are closely connected to global biogeochemical cycles, such as the carbon cycle. It is now possible to understand the interacting chemical, biological and physical processes of the Earth System that are conducive to maintaining a favourable state for humanity (i.e., the Holocene) and those that act to push the Earth System out of this stable, desirable state. Because there are many interactions among the biotic and abiotic features of the planet, with a myriad teleconnections and feedbacks that together create a single complex system, the most appropriate way to tackle the climate emergency is to address the Earth System in integrated way as a single whole, as embodied, for example, in the Planetary Boundaries framework[2]

 

[1] Will Steffen et. Al.  – Trajectories of the Earth System in the Anthropocene - Edited by William C. Clark, Harvard University, Cambridge, MA, and approved July 6, 2018 (received for review June 19, 2018)

[2] Rockström,J. (2009) et. al. – “A Safe Operating Space for Humanity. Nature” . 461(7263), 472. doi:10.1038/461472a

 
 
 
 
 
 
 
 
 
 
 
 
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