Climate is a Common Heritage. Not just a Concern.
Transcriber: Norberto Amaral
Reviewer: Margarida Ferreira
According to the last
United Nations report
about the new nationally determined
contributions to meet the Paris Agreement,
it is predicted
that global emissions levels
will only decrease 0.5 percent by 2030,
while to meet the goal of limiting
global warming to 1.5 degrees,
emissions would have to drop
not only 0.5 percent,
but at least 45 percent by 2030.
And even if the Paris Agreement targets
of staying well below two degrees is met,
due to the internal dynamics
of the Earth system,
we cannot exclude the risk
of a global cascade of tipping points
which could push
the Earth system as a whole
into another state,
into a “Hothouse Earth”.
In a scenario like this,
no amount of economic
cost-benefit analysis is going to help us.
We are already in a
very dangerous zone
approaching a planetary threshold,
where there will be a point of no return.
But there is a possible
stewardship trajectory,
in which we are running
out of time to get on to,
but we still can,
if we are able to really act together.
Before anything else,
climate change is a problem defined
by the difficulty of collective action.
Therefore, the biggest challenge we face
is to create the conditions
to make it possible to act together.
A proper legal framework is the most basic
requirement for any human action.
This is why I am here
to talk about something
that although is not usually discussed
it underlies our inability
to tackle climate change.
I will talk about how the law views
the global climate system.
Think about this: to have any chance
of being successful,
we need not only to make
huge cuts on emissions,
but also to deliberately remove CO2
from the atmosphere
by completing a large scale
biosphere restoration.
These two efforts can, in theory,
recover a stable climate.
But how can this be done, if the
benefit of Nature that produces
a stable climate are intangible,
legally and economically invisible,
and do not stay within
the borders of any country?
To understand the problem that is at stake
let’s try first to understand
what a stable climate is.
A stable climate is
a visible manifestation
of a well functioning earth system,
which in turn relies on a resilient
and well functioning biosphere.
This stability is based
on a well-defined pattern
of atmospheric and ocean circulation.
A pattern of stable dynamics
of the functioning of the Earth system
can be compared
to the software of the planet,
like the software and the hardware.
This software is being damaged by human
activities that have been changing
the biochemical composition
of the atmosphere,
driving an increase in global temperature
which, among many other consequences,
is contributing to the melting
of the polar ice.
This changes the variation of
temperature between poles and tropics
and the stable pattern
of global thermodynamics.
Take a look at what
is happening in the North Pole
and the consequent destabilization of the
atmospheric circulation patterns,
as well as the slowing down
of the ocean circulation.
The tragedy of the Commons
is a problem in Economics
that occurs when individuals neglect
the well-being of society
in the pursuit of personal gain.
This is a truly tragedy of the Commons
in a planetary scale.
The way how matter moves
around the planet,
creating these stable circulation patterns
that correspond to a stable climate
can only be classified
as an intangible asset.
A planetary system with a stable,
correctly operating software,
although intangible, is our most
outstanding global Common.
It is the very foundation of everything.
It is the planetary system that
supports life on Earth,
the basis for all human civilization,
and our most valuable asset.
However, although climate change is
accepted as a tragedy of the commons,
in the world of law, a stable climate is
not recognized as a common good.
The great issue that is at stake
is that this correctly operating software
is not a material thing,
it is something global in Nature.
We cannot touch it or divide it
and it spans across national borders.
No claims of sovereignty can be made.
Because of this, the legal status
of climate is still not very clear.
Thus, when climate change
entered in the UN agenda,
a completely new question emerged.
What is a stable climate
from a legal standpoint?
In 1988, there was a proposal
to recognise a stable climate
as a common heritage of humankind.
But countries refused to accept
a common good that exists inside
and outside of borders,
and chose another approach.
Climate change was established
as a common concern of humankind,
which is still the legal framework
of the Paris Agreement.
A concern is a vague political concept,
meaning that we are worried
about something.
But in legal terms, until today,
nobody knows what the concern is.
We don’t know the rights and duties
of countries arising from that concern.
On the other hand,
the acceptance of the heritage concept
would mean that we accept
the existence of this truly common good
that belongs to everyone,
that exists inside and outside
all the jurisdictions of states.
I will try to explain why
this makes all the difference.
Let’s take a minute to think about
the consequences of the concern option.
Under the current concern paradigm,
each country commits
to produce less emissions,
but even if accomplished,
at the end of the day, the sum
of less damage is still a damage.
It is a negative sum game.
But the current paradigm also
adds another dimension.
You can sell the credits resulting
from making fewer emissions
to someone else
that will make these emissions.
Or you can sell the credits
resulting from the sequestration
of carbon in the forests
to neutralize the emissions of someone
else who has already made the emissions.
In this case, it is a zero sum game.
In either case, emissions must exist
in order to recognise the value
of removing said emissions.
In this paradigm, removing or “cleaning”
all the emissions for everyone’s benefit
has no value!
And why? Why does this happen?
This happens because
the concern approach does not consider
the existence of this common good
that belongs to everyone
and to all generations.
And therefore, removing CO2
from the atmosphere
for the benefit of all humanity is like
cleaning something that belongs to no one.
No one will compensate you
for the benefits spread across the planet
for the benefit of all.
This is like cleaning in a legal void,
and thus, today there are
no economic mechanisms
to compensate for the benefits
that someone creates for the common good.
Sadly, in the current
concern legal paradigm,
we only have mechanisms
to neutralize emissions,
and this way, we maintain the rule
that only through the destruction
of Nature we can create wealth.
In a scenario like this, it is impossible
to have what we really need:
a society able to restore
and maintain a stable climate
for the benefit of all humankind
and the next generations.
What should have more value for us humans?
The intangible biochemical work
performed by forests to stabilize climate
or cutting the trees to extract timber?
Unfortunately, our current economy
only values commodities
like timber, soy, cattle, and others.
But value is not a given thing!
It was always shaped and created
throughout the history of economics!
Today what is perceived as wealth creation
is to make less damage
and not to produce the natural intangibles
that support life on Earth.
And to make less damage
is only to avoid losses.
What creates real value for our societies
is the intangible benefit
of the work of Nature
that maintains a stable climate.
Our current economy
is valuing the wrong things
and ignoring or underestimating
the value of Nature.
This happens because
we are unable to legally recognize
this intangible global common good
and therefore the work of Nature
that supports life on Earth
is considered as an externality
by economists.
So, if you can say that there is
already a border perception
that what has more value
is the work of Nature
for introducing this value
into the economy,
there is a need for a legal innovation
capable of recognizing
this natural software
as our intangible common good.
This can be the legal basis that will
enable us to value what really matters
and to build a regenerative economy
with a permanent governance system
to maintain a stable climate.
Truly, a paradigm shift.
Today, economic sciences
have already designed the mechanisms
to avoid the fatality
of the tragedy of commons
and to allow for a collective action
to successfully manage the Commons.
Earth System Sciences have also
designed the planetary boundaries.
Thus, we have the conditions
not only to legally define
this well-functioning software,
but also to successfully manage it
as a common good.
And this is not a new concept.
Our contemporary society is already built
on top of intangible goods
like copyright,
the goodwill of enterprises,
or the value of brands!
In outer space law, we have even
recognised intangible goods in nature,
for example, orbits and frequency bands.
Why can’t we recognise
this pattern of stability
that corresponds to a stable climate
as an intangible common heritage
of humankind on Earth? Why..?
With this legal innovation,
it would be possible to give value
to the work of Nature
without destroying it,
and to account for its benefits
made for the climate
as our common heritage.
It would be possible to include
activities that restore and maintain
a stable climate
in the GDP of each country,
enabling each actor to be encouraged
not only to avoid damage,
but also to produce benefits
for the common good.
This is only possible
with a system of accountability
capable of giving economic visibility
to all the positive and negative impacts
that everyone produces in the common good.
With the Planetary Boundaries,
we can define the Safe Operating
Space for humankind
and the intangible global common
that will unite us all,
and around the common good,
to organize the system
of governance to manage its use.
Can you imagine the cascading effects
in terms of reduction of emissions,
regeneration of biosphere,
redistribution of income,
finance between peoples,
and hope for the next generations?
We must build a world
where the creation
of the natural intangibles
that support life on Earth
corresponds also
to the creation of wealth
for most societies.
It is really a game changer.
To rethink the legal status of climate
is not a theoretical discussion.
It is the possibility of overcoming
the biggest obstacle we face:
Our current inability
to take global collective action.
After the negotiations
on the Global Pact for the Environment,
the UN General Assembly decided
to postpone this process
for a High-Level Declaration
foreseen for 2022
at the commemorations of the 50 years
of the UN Environment Programme.
This is a unique opportunity
to address this system as a single whole
in which climate change,
biodiversity crisis and global pandemics
are all interconnected.
We need to recognise, restore and protect
our intangible indivisible planetary home.
We must create a beacon of hope
for our generation
and generations to come.
Thank you.