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.