The integrity and unity of the Earth System: a principle for a new Pact for the Earth

Today humankind has extraordinary science knowledge and data on the state of the Earth, our common home. Every day new scientific reports are published warning us that the climate system is destabilized, that Covid-19 is linked to biodiversity loss and highlighting what actions must be taken.

Scientists have emphasized that life on Earth is possible due to the functioning interaction of the planet’s physical, chemical, and biological processes known as the Earth System (ES) and that the ES is a single integrated system whose conditions are increasingly unstable. To keep the ES under stable conditions, a scientific framework known as planetary boundaries was designed identifying nine key processes that jointly describe the functioning of the ES and that should not be trespassed: climate change, change in biosphere integrity, stratospheric ozone depletion, ocean acidification, biochemical flows of phosphorus (P) and nitrogen (N) cycles, land system change, freshwater use, atmospheric aerosol loading and introduction of novel entities. With all this knowledge, it is imperative to act.

Law plays a fundamental role in establishing the rules that organize our societies and guide our actions. Law covers most of the aspects of concern for humankind. Since the United Nations Conference on the Human Environment, the 1972 Stockholm Conference, an extensive body of Law has been developed at the international, regional, and national levels to protect the environment, named environmental law. Despite the many commitments adopted in these almost 50 years, the stable conditions of the Earth required to keep life on it are in danger. The 2019 UN Secretary General’s report on “Gaps on international environmental law and environmental-related instruments: towards a global pact for the environment” already pointed out the deficit in accomplishing those commitments.

Two of the gaps identified by this report are the underlying causes of the current unstable conditions of the Earth: international environmental law is piecemeal and reactive, and the structure of international environmental governance is characterized by institutional fragmentation. Fragmentation is one of the main characteristics of environmental law. This is just a reflection of the available scientific knowledge when international environmental law and international institutions were established. However, now in the third decade of the 21^st century, we have a better understanding of our Earth and its systemic functioning. Nevertheless, this is not reflected in our legal systems, which must aim at maintaining the Earth System in a favourable state. Paragraph 80 of that report recognizes that “the proliferation of multilateral environmental agreements and the resultant distinct and separate mandates ignore the unity, interconnectedness and interdependence of the Earth’s ecosystem”.

The international legal framework, which is made up of Multilateral Environmental Agreements (MEAs), already covers several planetary boundaries:

• The primary objective of the international regime to fight climate change provided in the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement is to protect the climate system, which is, after all, an intangible resource like the ES.
• The preamble of the Convention on Biological Diversity states the consciousness “of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere” and its objectives are paramount to avoid dangerous change in the biosphere integrity.
• The Vienna Convention for the Protection of the Ozone Layer and its Montreal Protocol on Substances that Deplete the Ozone Layer have served to adopt measures “to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer”. And therefore, not to trespass that planetary boundary.

It can be said that for some of the planetary boundaries, there is a regime established in an international instrument that at least theoretically establishes a suitable platform for advancing a more focused legal and governance regime to avoid exceeding those boundaries. However, international environmental law ignores the unity, interconnectedness, and interdependence of the ES. This ignorance cannot continue in view of the current scientific knowledge. It is necessary and urgent to give a legal response to take into consideration the ES as an object of law, as well as to consider planetary boundaries and its interactions.

Protecting the Earth System might seem a challenge as it is an intangible good. However, given the characteristics of the climate system, the UNFCCC implicitly establishes an international legal framework for the protection of an intangible good. Likewise, the CBD protects biodiversity because of its importance for the maintenance of the systems necessary for life in the biosphere. Thus, any initiative to recognize the Earth System as an object of law and to protect it would not be the first to protect an intangible good under international environmental law.

We definitively need One Pact for the Earth. The 50^th Anniversaries of the creation of UNEP and the Stockholm Conference represent a unique opportunity to overcome the silo approach of our legal framework which does not recognize that, the Earth System by its nature and given its characteristics functions as a global system that is common to all states. That Pact should recognize this reality and introduce a principle on the unity and integrity of the Earth System. This idea is reflected in some way in the EU Green Deal, which aims to abide by planetary boundaries.

This recognition would only be the first step. After, it will be necessary to tackle the governance fragmentation, which lacks a systemic approach to embrace the unity and integrity of the Earth System as well as to advance in the development of an Earth System Law.