Can the 2022 Declaration be a Game Changer?

What is the “Global Environment” from a legal standpoint? During the three 2019 Nairobi sessions of the Ad Hoc Open-ended Working Group established by United Nations General Assembly (UNGA) resolution No. 72/277, entitled “Towards a Global Pact for the Environment” (GPE), the following questions were asked more than once: What is a Global Pact about? Is it about climate? Biodiversity? Oceans? Plastic?

The idea of having a single GPE, instead of individually addressing each one of its different components separately, is a major conceptual challenge for International Law, and represents a paradigm shift in the way that the environment has been addressed in multilateral negotiation processes. The goal of the GPE was to achieve a comprehensive codification aimed at filling the gaps in international environmental law and strengthening the implementation of Multilateral Environmental Agreements (MEAs). It is worth highlighting that the initial aim of this project was not supported by any concept or definition that could be the base of such a holistic and systemic approach. In the current legal systems, the perception of the existence of a single “global environment as an integrated whole” has only been mentioned in the preamble of several international legal instruments, but it has never been defined by substantive operational norms. “The environment is not an abstraction but represents a living space, the quality of life and the very health of human beings, including generations unborn”.[i]

The greatest obstacle for approaching the “global life support system” as the base for the holistic approach proposed for a GPE is that this support system is intangible and non-territorial. These characteristics challenge the very foundations of International Law, because these characteristics are subversive to any kind of rigid and exclusively physical/territorial division, even in a legally abstract way. Even though it is legally possible to divide the areas of the oceans and airspace abstractly, in distinct zones, the same operation (of legal abstract division) is impossible to be performed at the level of the biogeochemical composition of the oceans, atmosphere or climate, given that the fluids of which they are constituted circulate continuously all around the entire planet. Addressing the paradigm challenge that undermines the idea of a Global Pact, requires the redefinition of the current concept of “Global Commons”, which is exclusively based on a territorial approach, to include the intangible and non-territorial character of what science identified as the Earth System. Without a legal framework able to represent the global commons as they exist intangibly in the natural world, we will not have in place the conditions for managing the common good that exists “de facto” in the real world and enabling collective action [ii]. This is certainly the biggest challenge that Law theorists and diplomats have in order to rescue our common future from the abyss of environmental and climate catastrophe.

The case of a Stable Climate, “as an intangible natural resource, which spans across and beyond the national territories of States”[iii], is the utmost challenge to the territorial foundations of International Law. Because a Stable Climate is a manifestation of a well-functioning Earth System, the answer to this challenge is key to allow for the conceptualization of a Global Pact for the Environment.

When in the 1980s the issue of climate change entered the UN agenda, the very first question raised was: “What is climate from a legal point of view?”, and two different approaches immediately arose:

• (a) To consider a Stable Climate as a common heritage that belongs to all humankind, which points to an intangible Global Common that spans across borders, that must be protected and managed as common good that belongs to all generations, or;
• (b) To consider that the damages on Climate should be avoided, which points to Climate Change as a Common Concern of Humankind.

The possibility of recognizing for the first time an intangible Global Common across borders was first introduced by Malta in 09/1988, when the recognition of a Stable Climate was proposed as Common Heritage of Humankind. In 12/1988, UN resolution 43/53 established climate change as a Common Concern of Humankind, later confirmed in the Rio 1992 Declaration. If Climate had been accepted as our Common Heritage, today we could have in place the two first most basic conditions that economic science[iv] defines as the structural conditions to successfully manage a common good:

First: the definition of the common good;
Second, fairness between who provides a Stable Climate and who uses this common good.
In the current climate policy, none of these conditions are in place.

Regardless of the option taken at that time, a Stable Climate is a common good not only from a legal point of view – materially and legally indivisible – but it is also a common good from an economic perspective – for being limited and exhaustible – and its management requires establishing the rules for their appropriation and provision. The fact is that the pattern of stable and predictable dynamics of the Earth System that corresponds to a Stable Climate and a resilient well-functioning biosphere is our most valuable asset, which, although intangible, exists in the real world, and it is not only a mere human concern.

All planets have a physical territory, larger or smaller than that of the Earth; what the other planets do not have, as far as we know, is a system that has been created by life and is able to continue to support life. Although today we can define this non-territorial “living space” through the “Safe Operating Space for Humankind” concept, we still live in an exclusively territorial legal framework unable to explain the “whole global”, which considers “the commons” as mere leftovers from sovereignty or private property. From a legal perspective, the Planet has so far been treated as a geographic territory of 510 million square kilometers divided among States with the remaining territorial leftovers as global commons. This oversimplified one-dimensional view leaves out the core expression of nature – the functional Earth System as a single, complex life-support system.

This current normative vision of the planet is the base of the view considering climate change as a Concern, which is still the legal framework of Paris Agreement, and marks the difference between two different worlds:

1. The Concern Concept

A Concern is a vague political formula that means that we are worried with something, but in legal terms, nobody knows very well what a concern is; we don’t know what are the rights and duties arising from that concern. Consequently, we live in a system of voluntary obligations to reduce damages, where each State commits to self-contain the damage, unfolding a burden-sharing system to avoid damages. These mechanisms represent a negative-sum game where the “stable climate resource” constantly decreases, and the reward is “to make less emissions”.[v]

This is the conceptual error of the common concern. When the harm is mitigated, all the society does not benefit, but rather is less harmed. To make less harm is not to produce a benefit. This a central point on how our societies tackle climate change. The truth is that the society only benefits when a positive action is taken, which contributes to enhancing the stability of the Earth System within the safe operating space. Although with some evolution during the recent years, the basic concept of the “Concern approach” is to avoid emissions, or to avoid deforestation.[vi] The forests which have already been cleaning the atmosphere for centuries, are not considered credit in the Concern approach because these forests have not been deliberately added as means for reducing harm. In the Concern approach, value does not emerge from the benefit itself, but rather from the avoided damages. And this is critical in the dynamics of the economy and society.

Our current climate policy has a legal framework behind it. In the Concern approach, a Stable Climate does not exist for the law. A Stable Climate is not recognized as a common good that belongs to everyone, thus positively cleaning the atmosphere for the benefit of humanity is like cleaning something that belongs to no one: It is cleaning in a legal void. That is the main reason why today there are no economic incentives for capturing CO2 from the atmosphere.[vii] What has more value for human societies? The intangible benefits produced by ecosystems to stabilize climate, or cutting the trees to extract timber or produce crops?

In a cascade effect, the legal non-existence of the intangible Stable Climate further prevents the construction of a society capable of managing and restoring the common good, because all the benefits that contribute to maintaining the common good disappear in this global legal gap that makes these benefits invisible to the economy.

2. The Heritage Concept

To have any chance of being successful, we need not only to reduce of emissions but also to deliberately remove CO2 from the atmosphere and actively perform large-scale restoration of ecosystems. These intentional actions to restore climate imply large investments and dedicated work sustained over a long period of time, and this requires an innovative legal framework that allow us to do it!

In the Heritage Concept, the Stable Climate exists as an intangible legal object across borders, which belongs to all present and future generations. Therefore, a Stable Climate is common good that can be the object of an international system of governance with transparent democratic institutions. As very well questioned by Alexander Kiss, “how can a good that belongs to no one be subject to a legal regime?”[viii]

The legal regime of the Common Heritage should define which activities and technologies are accepted as beneficial, which are harmful, which are the rights resulting from the activities of restoration and maintenance, which are the obligations resulting from its use, which is the system of accountancy, which are the compensations for all the users providing benefits for their common good, creating “congruence between the provision and appropriation of the Common good”[ix], as a structural condition for a collective action.

The legal recognition of a Stable Climate as a common good is a game changer, that can give economic visibility to the work of nature without being necessary to destroy it, which will promote nature-based solutions, protection and restoration of nature without threatening the sovereignty of the countries where key ecosystems are located, and contribute to mitigate the imbalance of different historical responsibilities. In this scenario we have the structural conditions needed for what we really need: A society capable of actively cleaning, restoring, and maintaining a Stable Climate. In Outer Space law, we have already recognized that nature is not only what we can see and touch, and thus we legally recognize orbital slots or frequency bands, with the goal of organizing their use. Why can’t we recognize the intangible software of our planet and organize ourselves around its use and permanent maintenance? Can the Declaration of 2022 open the doors for an innovative approach to the Global Pact for the Environment, and build the foundations for a new social contract between humanity and the system to which belongs? The Earth System.