What is climate from a legal point of view?

The structural step to overcome climate emergency

By Paulo Magalhães,  CIJE – Centre for Legal and Economic Research of University of Porto and President of Common Home of Humanity

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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 in a legally abstract way. Answering to this paradigm challenge, by framing and organizing the relations of interdependence that emerge from the shared use of a unique and highly interconnected Earth System in a global scale, is certainly the biggest challenge to enable our common future.

Almost 30 years after  the “adverse effects of climate change” being considered  as a common concern  of humankind, there has been no consensus on what it means from a legal standpoint. Even though it remains the legal framework of the Paris agreement, there is today no official definition of what the implications of this approach are. A common concern is a vague political formula that does not legally recognize the existence of the common good itself (stable climate), it neither helps to create the necessary legal capacity- building among nation-states to monitor, maintain as well as to restore the Earth System for present and future generations.

 It fails to legally protect, the rights associated to its maintenance and establish obligations associated to the deterioration that necessarily result from the shared use of the same resource. Due the fact that the concern approach almost exclusively targeted on mitigation of the problem (climate change), the strategy is a damage-containment and burden-sharing approach, working in a negative sum-game in which the total of the “resource stable climate” always decreases. The core of the issue is that, because this intangible resource constituted by a stable climate is not legally recognized, the production of benefits that contribute to the well-functioning of the Earth System, disappear from a legal standpoint in a global legal gap.  As a result, the positive impacts that contribute to the maintenance or restoration of one well-functioning Earth System, are not directly visible to the economy of nations (positive externalities), staying at the margin of any decision making of governments. The outcome of this approach is that it makes it technically impossible to build an economy capable of producing the needed positive contributions to the recovery of a well-functioning Earth System (nature based solutions or the deliberate removal of carbon dioxide), consequently preventing the maintenance of a stable climate.

Common Home of Humanity proposes the establishment of the legal status of the Earth System as new object or trust in international law. We advocate that a  global legal framework is a structural condition to build an economy that actively restores and maintain a well-functioning Earth System, highlighting the evolution of the legal framework of Common Heritage of Humankind, as a central concept in the emergence of the Anthropocene and development of an Earth System Law.

Such a global legal framework can be initiated by the United Nations General Assembly (UNGA) in support of the capacity building goals of the Paris Agreement (2015). The first step is for the UNGA to recognize in a nonbinding resolution the Earth System as a Global Trust – an intangible Common Heritage of Humankind. Once the UNGA takes this preliminary step, it can then call for the rapid negotiation and ratification of a treaty to achieve such legal recognition. Alternatively, should this course of action fail, a group of interested states or a regional organization can also initiate negotiations for the drafting and fast track ratification of such a treaty.

[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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