Climate is our Common Heritage
Not just a Concern campaign
Paulo Magalhães, Will Steffen, Diana Chacón, Sara Pires, Michael Rickwood, Karl Burkart, Norberto Amaral, Earl James, Gabriela Morello
Francisco Ferreira - Escola Artística e Profissional Àrvore
Bruna Sousa Pinto / Júlia Alegre - Escola Artística e Profissional Árvore
Luma - Mónika Naranjo-Shepherd
What is actually the most important? Commodities extracted from nature or a climate that is stable and able to sustain human life?
The work made by nature that produced and maintain as stable climate, is invisible to the economy and therefore only a critical legal innovation can recognize its true value. 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 this means from a legal standpoint. Even though this remains the legal framework of the Paris agreement, there is today no official definition of this approach. Nonetheless, it influenced how we are trying to solve the problem of climate change, and is inevitably linked to the results (or the lack thereof) achieved in this fight.
To change this paradigm of destruction Paulo Magalhães, researcher in law at the University of Porto and founder of the non-profit Common Home for Humanity, proposes a new legal status of the climate based on the ‘common heritage’ legal concept, making it possible to reward those who care for and restore ecosystems and reduce CO2 in the atmosphere for the benefit of humankind, and to overcome the deadlock of the current climate policy that is exclusively based on mitigation and neutralization.
“Why we need a critical legal innovation to save our climate”
The “Hothouse Earth”, a Wake-Up Call
To avoid dangerous climate change, we have been trying to decrease CO2 emissions, but the history of 25 years of climate negotiations have shown that none of our attempts have had significant effects on the reduction of emissions. According to the latest United Nations report on the new Nationally Determined Contributions (NDCs) to meet the Paris Agreement, global emission will decrease only 0.5% by 2030 compared to 2010. However, to meet the Paris Agreement’s goal to stay below a 2.0°C increase in global average temperature, emissions would have to drop not by 0.5%, but by at least 45% by 2030!
Moreover, even if the Paris Agreement’s 2.0°C limit is met, due to the internal dynamics of the Earth System, the risk of a global cascade of “Tipping Points” cannot be excluded, which could push the Earth System as a whole into “Hothouse Earth” . In a scenario like this, no amount of economic cost-benefit analysis is going to help us. Earth is already in a very dangerous zone, approaching a potential planetary threshold where there will be a point of no return. But there is still a possible stewardship trajectory, and we are rapidly running out of time to get onto it. We still can, but only if we are able to really act together very quickly.
The “Hothouse Earth”, a Wake-Up Call
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 well-defined patterns of atmospheric and ocean circulation. A pattern of stable dynamics of the functioning of the Earth System can be understood as the ‘Software’ of the planet. This ‘software’ is being damaged by human activities which 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 sheets. This changes the temperature variation between poles and tropics, leading to the destabilization of atmospheric circulation patterns and the slowing of ocean circulation.
Why is a stable climate an intangible global common?
When we refer to the pattern of stable dynamics of the Earth System that corresponds to a stable climate, we are not referring to “matter” or to the physical planet, but rather to how matter and energy move and circulate around the planet. Matter is always changing through chemical reactions and physical processes – and, in the longer term, through biological evolution. But the patterns and rates of these changes, and their interactions to form higher order structures such as ecosystems, follow well-defined patterns of organization and stability. At the planetary scale, the ways matter and energy move around the planet, creating various patterns of atmospheric and oceanic circulation, follow the laws of thermodynamics and result in a stable climate. A stable global climate is something that can only be legally classified as an intangible natural good. These circulation patterns and the global climate system are “nature’s software”.
Why is it intangible?
The patterns that correspond to a stable global climate is something that can only be legally classified as an intangible natural good.
At the planetary scale, the ways matter and energy move around the planet, creating various patterns of atmospheric and oceanic circulation, follow the laws of thermodynamics and result in a stable climate.
Why is nature’s “intangible software” relevant for the climate crisis?
Climate as “an intangible natural resource, which spans across and beyond the national territories of States” , challenges the very foundations of International Law, because these characteristics are subversive to any kind 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 into distinct zones, the same operation (of legal abstract division) is impossible to be performed at the level of the biogeochemical composition of the oceans and atmosphere, or the climate system as a whole, given that the fluids of which they are constituted circulate continuously all around the entire planet. These facts of the natural world demand a new way of thinking about the Earth, and challenges law to find new solutions capable of dealing with this scientific reality. Addressing the challenge of legally recognizing the intangible functioning of the Earth System as a single whole requires the redefinition of the current concept of “global commons”, which so far has been exclusively based on a territorial approach. In the future, it must also include the intangible and non-territorial character of the functioning of the Earth System, our planet’s ‘software’ .
Global commons: inevitably at the crossroads of our common destiny
Although “Climate Change” is widely accepted as a “tragedy of commons”  on a global scale, a stable climate is not accepted as a common good, but rather a Common Concern  (see below “A stable climate is a common good de facto, but not recognized as such”). This distinction is critically important.
In a globalized society that regards the management of common goods as something that inevitably results in a "tragedy", where no one changes their behavior to benefit the collective, the only two traditional solutions to overcome the dilemma of the tragedy of commons, seem to be privatization or state coercion.
However, Elinor Ostrom’s innovative work on the institutional conditions for collective action and on self-organizing systems for community-based management of Common Pool Resources (CPR) reset the discussion on the management of commons. She proposed that, in the presence of appropriate structural conditions, it is possible to balance both collective and individual interests.
However, despite the good examples that can be drawn from the already large literature on the application of CPRs at the local and regional levels, it is much more difficult to apply the CPR approach to a global common. Moreover, no physical or abstract divisions are possible for climate, thus there is no alternative but to accept the challenge of designing a governance model able to manage a global common that spans across borders, such as a stable climate.
For further reading see :
The challenge: recognizing a global common that spans across borders
The most outstanding and vital feature of Planet Earth is its “operating mode”, which is intangible and indivisible even in a legal abstract way. This challenges humanity to accept the existence of a common good across borders, and to develop at least the two most basic institutional conditions that are necessary to enable the successful management of a common good [6-8]:
First: the definition of our common good, and
Second: congruence between the rules of provision and appropriation of the common good, to allow for its maintenance.
In the current climate policy, none of those basic conditions are in place.
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 the collective action needed to manage the common good that exists “de facto” in the real world. 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. Such legal recognition will promote nature-based solutions, protecting and restoring nature without threatening the sovereignty of the countries where key ecosystems are located. It can also contribute to mitigating 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.
As stated by Nicholas Stern, former chief economist of the World Bank and author of the landmark Stern Review on the Economics of Climate Change , "The world is confronting a complex set of interwoven challenges". Unless we build a concept that allows us to tackle them together, we will not do very well on any of them.
A stable climate is a common good de facto, but not recognized as such
In the real world, a stable climate is a common good not only from a legal perspective as it is materially and legally indivisible, but also from an economic perspective, as it is limited, exhaustible, and rival in consumption. Thus, a stable climate should be managed as a common good. These facts are highly relevant in the failure of carbon markets aimed at reducing global emissions. Current climate policy tries to reduce the impacts on the common good without, however, legally recognizing that a stable climate is a common good. Furthermore, a stable climate is not only a public good in terms of consumption, but also in terms of provision. At present, however, there are no international policies for the provision and protection of this common good. This inevitability underlies the current failure of climate policies that are a natural consequence of building policies on the current economic model. Provision of the global public good – i.e. the benefits on the common good stable climate – is thus something invisible to the economy. The outcome, as stated by Nicholas Stern, is global warming being ‘the greatest market failure of all times’. By this, Stern meant that free markets, left to their own devices, have failed, and will continue to fail, to control the behavior that is leading to a harmful and continuous increase in the temperature of the world’s atmosphere, oceans, continents, and ice sheets.
The current climate policy is centered around attempts to mitigate or avoid damages, and because a stable climate is not legally recognized as common good, there is no way to recognize a stable climate as necessary for wealth creation. The natural processes that can ensure the provision of the “global public good” stable climate have an outstanding value for our society – a truly meta-value – the value that allows all living beings (including humans) and goods to exist, reproduce, and create wealth in human societies. To operationalize this value, it is absolutely necessary that this value is recognized as a benefit made on the “operating mode” of the Earth System - the “common good de facto” - which will allow for it to become visible in the global economy.
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. Current climate policy lacks a system to promote the provision of the global public good (stable climate that corresponds to the well-being of society) and tries to address this structural problem only by self-containing damages (self-containing personal gain). This is typically the result of a poorly governed common good, often with uncertainties about its belonging or its legal status.
This places the common resource, i.e. our planet’s ‘software’, the Earth System, under such pressure that it becomes degraded and eventually exhausted due to overexploitation. A dual tragedy is in place; first due to the absence of regulating exploitation and pollution, and second due to the lack of rewards for the maintenance of stability (that is, the impossibility to restore and to maintain). We are not only exhausting the resource, i.e. nature’s services, but also destroying the source, i.e. nature itself [5,11].
Our most outstanding global common
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 planetary-level system that has been created by life and is able to continue to support life. Today we can define this non-territorial “living space” through the “Safe Operating Space for Humankind” concept [12,13], but we still live in an exclusively territorial legal framework unable to recognize the “whole global”. Our current legal system 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 feature of nature – the functional Earth System as a single, complex life-support system.
A planetary system with stable, well-functioning ‘software’, although intangible, is our most outstanding global common, the very foundation of life. It Is the planetary system that supports life on Earth; it is the basis of all human civilization; and it is thus our most valuable asset. However, although climate change is now accepted as a tragedy of commons, in the world of law, a stable climate is not recognized as a common good.
This oversimplified one-dimensional view leaves out the core expression of nature, i.e. the functional Earth System as a single and complex life-support system. This is the reason why today there are no economic mechanisms designed to explicitly recognize and reward human activities or natural processes that have positive impacts and contribute to the restoration and maintenance of a well-functioning Earth System with a stable climate [3,14]. In our current legal framework, it is impossible to build an economy able to actively clean, restore, and maintain a stable climate.
Thus, for the climate’s legal framework to have any chance of fighting dangerous climate change, it must enable the development and implementation of management conditions that build international cooperation and multilateralism.
Climate from a Legal Standpoint
“International law itself was (and to a certain extent remains) ill-equipped to address state activities affecting negatively an intangible natural resource which spans across and beyond the national territories of states” . The intangibility and the non-territorial character of climate is still an unsolved problem for the law. 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?”. 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 to the 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. However, 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 already mentioned most basic conditions that economics [6,7] defines as the structural conditions to successfully manage a common good:
The definition of the common good – a stable climate is a common good not only from a legal point of view – materially and legally indivisible – but also from an economic perspective – for being limited and exhaustible. And the development of a system of governance, as the management of the common good requires establishing the rules for its appropriation and provision. The pattern of stable and predictable dynamics of the Earth System that correspond to a stable climate and a resilient well-functioning biosphere is our most valuable asset, thus should be formally recognized, and its permanent management should be institutionalized as an asset that is not merely a human ‘concern’.
This current definition of climate change as a Concern, which is still the legal framework of the Paris Agreement, marks the difference between two different worlds:
1. The Concern Concept
A Concern is a vague political formula that means that we are worried about 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, creating a burden-sharing system to avoid damages. These mechanisms represent a negative-sum game where the “stable climate resource” constantly decreases, and the reward results from making fewer emissions [see 16].
This is the conceptual error of the Common Concern. When the harm is mitigated, society does not benefit, but rather is simply less harmed. To make less harm is not to produce a benefit. This is 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 . Despite some evolution in recent years, the basic concept of the Concern approach is to avoid emissions, or to avoid deforestation . The existing forests which have already been cleaning the atmosphere for centuries, and are contributing to a stable climate for the benefit of all humankind, are not credited in the Concern approach.
These mechanisms of rewarding less damage have another dimension in terms of mitigation of greenhouse gas emissions:
A) Credits resulting from fewer emissions can then be sold to someone who will then make these emissions.
B) Or credits resulting from the sequestration of carbon in a forest can be sold to ‘neutralize’ the emissions of someone else who has already made these emissions. In this case, it is zero-sum game.
In either case, emissions must exist in order to recognize the value of removing these emissions. In this paradigm, removing or “cleaning” ALL emissions for everyone’s benefit has no value. This explains the Amazon Paradox [9,18,19].
How is it possible that the value of a territory like the Amazon Forest only becomes visible in the GDPs of Amazon countries on the day it is destroyed and turned into timber or grazing land? The fundamental role of the ecosystems in the stabilization and functioning of global biogeochemical cycles is incomparably higher than the value of the commodities that can be extracted from it. But unfortunately, this natural “work” is ignored by law and thus invisible to our economies and societies.
In the Concern approach, value does not emerge from the benefit itself, but rather from avoided damages. This is critical in the dynamics of the economy and society.
Our current climate policy is based on this particular legal framework. 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 . What has more value for human societies? The intangible benefits produced by ecosystems to stabilize climate, or cutting the trees to extract timber or for crop production?
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 into this global legal gap that makes these benefits invisible to the economy.
We must consider that a stable climate is a natural phenomenon that exists de facto in the natural world, and thus does not necessarily have to be reduced to an issue of common interest in international law, as a Concern of a worried international community. "Environmental Concerns are more than just concerns, these are a structural problem” .
2. The Heritage Concept
To have any chance of being successful, we need not only to reduce emissions but also to deliberately remove CO2 from the atmosphere and actively undertake large-scale restoration of ecosystems. These intentional actions to restore climate stability 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!
To successfully operationalize the management of this common good that exists de facto in the natural world, the common good must be first recognized and institutionalized, then managed as such. The first step for the successful management of the commons is the adoption of a clear definition of the common good, as well as the definition of the community of users, or to whom the common good belongs. As emphasized by Alexander Kiss, “how can a good that belongs to no one be subject to a legal regime?” . In reality, as well as in conscience, the patterns of stable and predictable dynamics of the Earth System that correspond to a stable climate should belong to all humanity and future generations, should have a proper regime of use, should have rules for provision and appropriation, boundaries, usage monitoring, sanctioning of free riders, and social norms. We already have an adequate legal regime available for a good with such characteristics - the Common Heritage of Humankind. We also have the scientific tools to define this common good and to operationalize its management - The Safe Operating Space for Humanity , as well as the economic knowledge to establish the common good as a positive communal resource that can be harnessed for the well-being of humanity.
It is important to emphasize that the intangible character of this common good will imply some evolution on approaching its nature, ”but the diversity of regimes corresponding to the Common Heritage of humanity and unity of its foundations”  clearly indicates the possibility for improvements and adaptation.
The legal regime of the Common Heritage can be also the opportunity to define which activities and technologies are accepted as beneficial, which are harmful, what are the rights resulting from the activities of restoration and maintenance, what are the obligations resulting from its use, what is the system of accountancy to be used, what are the compensations to all users providing benefits for their common good, creating “congruence between the provision and appropriation of the common good”, an institutional condition for collective action [6,7].
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 own planet and organize ourselves around its sustainable use and permanent maintenance?
For further reading, please see :
1. Steffen W, Rockström J, Richardson K, Lenton TM, Folke C, Liverman D, et al. Trajectories of the Earth System in the Anthropocene. Proc Natl Acad Sci. 2018;115(33):8252–9.
2. Borg S. 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”. University of Malta. 2007.
3. Magalhães, P. (2020). Climate as a Concern or a Heritage? Addressing the legal structural roots of climate emergency. Revista Electrónica de Direito. RED, 21(1), 99-134.
4. Schwartz P. Climate Change: A Tragedy of the Commons? Relections from Eur Libr Econ Lib [Internet]. 202AD;1–9. Available from: https://www.econlib.org/library/Columns/y2020/Schwartzclimatechange.html
5. Magalhães P, Steffen W, Bosselmann K, Aragão A, Soromenho-Marques V. The Safe Operating Space Treaty: A new approach to managing our use of the Earth System. Cambridge Scholars Publishing; 2016.
6. Ostrom E. Governing the Commons The Evolution of Institutions for Collective Action. Cambridge Scholars Publishing; 1990.
7. Ostrom E, Burger J, Field CB, Norgaard RB, Policansky D. Revisiting the commons: Local lessons, global challenges. Science (80- ). 1999;284(5412):278–82.
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9. Magalhaes P, Barreira A, Chácon D, Espinosa-Garcés MF, James E, Jiborn M, et al. Redefining Global Commons in the Anthropocene. Solut J. 2020;11(4):1–15.
10. Stern N. The economics of climate change: The stern review. Econ Clim Chang Stern Rev. 2007;9780521877:1–692.
11. Aguila Y, Bellis M-C de. A Martian at the United Nations or Naive Thoughts on Global Environmental Governance. Gov Glob Groupe d’études géopolitiques. 2021;(2):101–10.
12. Rockstrom J. A safe operating space for humanity. Nature. 2013;461(7263):472–5.
13. Steffen W, Richardson K, Rockström J, Cornell SE, Fetzer I, Bennett EM, et al. Planetary boundaries: Guiding human development on a changing planet. Science (80- ). 2015;347(6223).
14. Magalhães P. Why we need a legal framework that recognizes a stable climate. one earth [Internet]. 2020;1–10. Available from: https://www.oneearth.org/why-we-need-a-legal-framework-that-recognizes-a-stable-climate/
15. Borg, S.Key Note Speech at the unveiling ceremony of the Climate Change Initiative Monument, University of Malta, 21 April.p.1. 2009. Available from: https://www.um.edu.mt/newsoncampus/features/?a=62770
16. Rapier G. Tesla has made hundreds of millions of dollars selling tax credits to other automakers. Now we know who bought them [Internet]. Insider. 2019 [cited 2021 May 28]. Available from: https://www.businessinsider.com/tesla-sold-carbon-emissions-credits-to-general-motors-fiat-chryser-2019-6
17. REDD – Reducing Emissions from Deforestation and Forest Degradation.
18. Paulo Magalhães, Will Steffen, Alessandro Galli. The Earth System upon which all life depends must be legally recognised if is to be protected. 2019. Together First. Available from: https://together1st.org/
19. Magalhaes P, Steffent W, Galli A. L’Amazzonia e il Sistema Terra. Panda WWF Mag. 52(4).
20. Negative emissions: why, what, how? [Internet]. Energy and Climate Intelligence Unit. [cited 2021 May 28]. Available from: https://eciu.net/analysis/briefings/net-zero/negative-emissions-why-what-how
21. Teixeira, I at Common Home Conversations - Pathway to 2022 (second series), Podcast Episode 1, Part 1. Statement of Izabella Teixeira, 1 Jul. 2021. Available from:https://www.theplanetarypress.com/2021/06/maria-espinosa-izabella-teixeira-common-home-conversations/.
22. A. Kiss, La notion de Patrimoine Commun de L’Humanité, RCADI, Vol. 175 T. 2, 1982.
23. Magalhães P. Can the 2022 declaration be a game changer? [Internet]. Pathway to the 2022 Declaration. A blog by Jurists for Diplomats. 2022 [cited 2021 Jun 30]. p. 4–7. Available from: https://www.pathway2022declaration.org/?post_type=article&p=631