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

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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.

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

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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

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

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"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

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4. What is the sovereignty paradox?

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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

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

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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/

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

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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.

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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