A Legal Framework for Protecting the Biosphere and Living Sustainably – A MAHB Dialogue with Paulo Magalhães, Founder of Common Home for Humanity

Geoffrey Holland | December 10, 2020 | Leave a Comment

Geoffrey Holland – Your focus is on the creation of a common legal framework that would define how humanity relates to our Earth system. Why is that important?

Paulo Magalhães – The window of opportunity for avoiding dangerous climate change is rapidly closing. A climate emergency was declared, students are striking, and scientists are warning that a planetary tipping point could lie just ahead. Biodiversity is being lost at an accelerating rate, with over a million species at risk of extinction this century. How is it possible that humanity could knowingly and willingly undermine its own life support system? How can we continue to move towards a disastrous future, even when the warnings are clear and the evidence is mounting? This requires us to confront long-held legal and economic beliefs that are trapping us in a vicious cycle.

The Earth functions as a single integrated system at the planetary level, beyond a mere collection of ecosystems or isolated global processes. This ‘natural softwareis global and indivisible, and – though intangible as a whole – exists in the real world. Thus, the Earth System is our most relevant global common, functioning both inside and outside the sovereignty of states. Economic Sciences have already defined the structural conditions needed for the successful management of common goods. Why can’t we apply this knowledge to our most vital global common – the Earth System?

A well-functioning state of the Earth System is the result of the biogeochemical processes produced by life, continues to support life, and provides the basis of all wealth creation of our societies. Why is this vital intangible work produced by our biosphere still invisible to our economies?

The global interconnectivity of the Earth System, our own life support system, is an unquestionable reality which we must acknowledge, respect, and preserve. However, the current international legal order is far from being equipped to handle it in an appropriate manner. Addressing these global-level problems in an isolated, piecemeal, and wholly inadequate way – as we have done until today – implies that we will continue ignoring the feedbacks and domino effects that occur within the Earth System.

The climate and biosphere emergencies are the logical outcomes of the unregulated use of the Earth System, a ‘tragedy of the commons at a global scale. This is typically the result of a poorly managed common good, often resulting from the lack of a legal adequate definition of the good itself. And a Global Commons without borders, like a stable climate, is subversive to any kind of rigid and exclusively physical/territorial division, even in a legally abstract way. Answering 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 at a global scale, is certainly the biggest challenge that Law theorists and diplomats have before them to rescue our common future from the abyss of environmental and climate catastrophe we are heading towards.

GH – Tribalism is a powerful factor in human society. How do you convince the broad family of nationalities, ethnicities, creeds, and genders to set aside self-interest and embrace this common legal framework?

PM – Although “climate change” is widely accepted as the “ultimate tragedy of commons” on a global scale, the current legal status of climate continues to not consider it as a common good. When, in the 1980s, climate change entered into the UN agenda, the first question raised was: “What is the climate from a legal point of view?” After the Maltese proposal of 1988 to recognize “Climate as Common Heritage of Humankind”, the adopted UN resolution considered climate as “Common Concern of Humanity”. This option has its structural origins in a mindset where some kind of “tribalism feelings” is still being the determining activators of human behavior.

The favorable Holocene-like state of the Earth System – today identifiable through the Planetary Boundaries (PBs) framework – is a global intangible good, which is impossible to legally divide and privatize. This “legal indivisibility” has become one of the most daunting challenges for a globalized society that regards the management of common goods as something that inevitably results in a “Tragedy of the Commons”, and which considers the regime of division, private property rights, and markets mechanisms as the sole way to solve this inevitable tragedy. According to Garret Hardin ( the first author to conceptualize this phenomenon in 1968), if placed in a regime of free access to common goods and resources, each individual will act independently in the pursuit of self-interest, motivated by the goal of maximizing individual benefits, despite the fact that the collective result of such individual action is the suboptimal use of resources and overexploitation of the commons that in turn impact everyone. This dominant underlying reasoning continues to misrepresent the concept of the commons as an open-access regime, operating in a free-for-all scenario where there are no boundaries to the usage of a common, no tools for monitoring such use or rules for managing it, and no cohesive representation of the community of users.

Elinor Ostrom, Nobel Prize for economics 2009, pointed out some basic design principles for “successful commons management”, and debunked the established paradigm of fatality: a properly managed commons has boundaries, rules, monitoring of usage, the punishment of free-riders, and social norms. Moreover, being a “commons”, it requires the existence of a community willing to act as a steward of its own Common Pool Resources (CPRs).

A well-functioning Earth System is indeed humanity’s CPRs: as such, what is at stake is not “saving the planet” but rather maintaining the Earth System in that specific state – the Holocene-like state – that is acknowledged to be favorable for humankind to thrive. Our “home” relies on favorable, life-supporting intangible conditions and therefore a planet with an Earth System outside such favorable state cannot serve as our “Common Home”. All planets have a physical territory, bigger or smaller than the Earth. What the other planets do not have, as far as we know, is a system that has been created by life and can continue to support life. Our Common Home is indeed a well-functioning Earth System: an Intangible Home.

Although the “tribalism feeling” is there and determining many of our behaviors, there is also a common feeling of mutual interdependence and the sharing of a Common Home and a common destiny. Humans are made also of paradoxes. What is needed is to create the structural conditions to emerge a collective action, because without this, the natural process is the emergence of nationalism, as we are seeing. To work on building these conditions should be our great goal. If we achieved this, everything will be possible in the future.

GH – The great challenge is to accept the existence of a Global Common without borders. What does this look like from a legal point of view?

PM – Under international law, the planet is merely a territory of 510 million km2, divided between States, where the global commons are the territorial leftovers.

However, what distinguishes this planet from all others, as far as we know, is the existence of an outstandingly self-regulated and highly interconnected system able to support life. Because until recently science was not capable of defining it, and because it is not restricted to the traditional territorial global commons but spans across areas subject to national jurisdiction, this system is ignored by international law. Currently, the Earth system is an intangible ‘no man’s land’, operating in a free-for-all scenario, where there are neither restrictions on its use, nor compensation for those who maintain its function.

It’s now possible to qualitatively define the key processes that underpin the functioning of the Earth System – the planetary boundaries – and to quantitatively measure the favorable biogeophysical structure corresponding to a well-functioning Earth System. This is the Safe Operating Space for Humankind, and this space is not a territorial space, but rather an intangible space that represents the state quality of the system.

Thus, it is now possible to identify the favorable state of the Earth System as an intangible Global Common that must be subject to a legal regime, able to organize its sustainable and fair use. But more importantly, having this objective description as a point of departure, it is possible to consider as separate legal entities the biogeophysical global-scale cycles and energy flows of the Earth System on one side, and the physical planet and the space of territorial sovereignties of the States, on the other side.

Thus, from a legal point of view, we now have the scientific and technical capability to quantify a stable and well-functioning state of the Earth System as an intangible object of international law which, by being global and indivisible, should belong to all humanity – the intangible Common Heritage of Humankind. Until now, the legal non-existence of the Earth System has resulted in a global economic model in which planetary biogeophysical processes are ‘invisible and external’ to economic processes – despite their being vital factors for the well-being of humankind and indeed for a functioning economy.

By incorporating concepts from modern science in international law, it is possible to build an accounting system where not only the negative impacts that have contributed to the depreciation of this common heritage can be accounted for, but also the positive impacts (by ecosystems as well by human action) that contribute to its maintenance must be included. The economic visibility of positive impacts on the Earth System could be the opportunity to break the vicious cycle of destruction, and to foster the evolution of the legal framework for building a sustainable regenerative economy able to produce, restore and renew the core natural services provided by the Earth System. Around this new intangible Common Heritage with no borders, new forms of cooperation and inclusive multilateralism could be designed, grounded, and developed.

GH – World affairs are already held together by the United Nations, the World Health Organization, and other groups focused on specific aspects of life. How would they figure in the design of your legal framework for proper stewardship of our Earth System?

PM – One of the most crucial challenges of the Anthropocene is to reconcile the rigid dichotomy between two key diverging approaches for the governance of the Commons: on one side, the classic view of Hardin calling for division and private property rights as the only way to avoid the “Tragedy of the Commons”; on the other, Ostrom’s suggestion of coordinated actions for community-based management of common-pool goods and resources.

Both views, on a global scale, have been derived from a society that is territorial, which considers “the commons” to be that which is left over from sovereignty or private property. From a legal viewpoint, the Planet has so far been treated as a geographic territory divided among States and the remaining territorial 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. As such, we argue that the favorable Holocene-like state of the Earth System – i.e., the set of interacting physical, chemical, and biological global-scale cycles and energy fluxes that allow life on the planet – is humanity’s ultimate global common that is an intangible and legally indivisible good, which the science of the Planetary Boundaries (PB) framework clearly defines as the “Safe Operating Space for humankind”, as we have already explained.

The global and non-territorial nature of this intangible space coupled with the territorial nature of sovereignty and private property require the views of Hardin and Ostrom to coexist.

To achieve this, we propose up-scaling the legal model regulating human interactions in condominiums to the global level: A condominium is an object with a unitary structure and common functional systems, which belongs to various co-owners; each co-owner has private or exclusive rights of ownership over determined fractions (e.g. apartments) while sharing ownership over structural elements (e.g., foundation) and functional systems (e.g., water or electricity). This is the only legal model using different types of legal divisions (functional and spatial) thus allowing different legal regimes to coexist within the same physical space.

We argue that the functional and spatial divisions found in a condominium are almost perfectly similar to that of the territorial spaces of the Planet and the functional indivisibility of the Earth System. Thus, for the functional and spatial divisions to co-exist in a Planetary Condominium we propose: a) recognizing the legal status of the Holocene-like state of the Earth System as a Common Intangible Natural Heritage of Humankind, b) using the Condominium framework to solve the overlap between this heritage and the State’s territorial jurisdictions, and c) using Ostrom’s design principles to ensure the maintenance of this Heritage.

Like in the Condominium model, the mission of keeping the common system in a functional state should be institutionalized. Currently, the only relevant institution with global membership and legitimacy to host such a mission is the United Nations. To act upon the whole Earth System rather than its individual components through multiple UN agencies, and taking into full consideration the known difficulties in amending the UN Charter, we propose instead, to revive the UN Trusteeship Council (TC) with a mandate to serve the mission of humanity’s Common Heritage.

In the early 1990s, the TC was suspended as it had accomplished its mandate of administering trust-territories. A first proposal for a revival of “UN Trusteeship of the Global Commons”, advanced in 1994 by the Commission on Global Governance, highlighted the need for international trusteeship to be exercised over the management of the physical and territorial environment (i.e., the oceans beyond national jurisdiction, outer space, and the related environment and life-support systems). This proposal was rejected leaving the TC a dormant body that today exists solely on paper. The increased urgency of major global challenges and the realization of the inadequacy of current governance systems indicate it is time to start thinking beyond the paradigm of sovereign nation-states and conventional market mechanisms to broader planetary concerns. Building and expanding on the original idea of the Commission on Global Governance, we thus propose reviving the TC as a trusteeship for the Earth System and the global commons it represents.

A healthy and stable Earth System is the precursor to all the territorial global commons, and a necessity to mitigate all environmental challenges. A revived ‘Trusteeship Council for the Earth System and the Global Commons” would be the chief forum for dealing with the administration of existing environmental treaties and the management of global biogeophysical cycles; it would define priorities, compensations, incentives, and quotas among all users of the Common Heritage.

The key outcomes will be:

  1. An autonomous intangible legal object of governance, differentially complementary to sovereignties: the Intangible Common Heritage of Humankind;
  2. An institutional framework with the mandate to govern the management of the use of the Earth System;
  3. The recognition of the intangible global biogeophysical cycles as part of our heritage, allowing positive and negative global “externalities” to be accounted, internalized, and managed;
  4. A new Earth System Accounting Framework based on the positive and negative contributions of each State for the restoration and maintenance of a well-functioning Earth System/ Stable Climate;
  5. An economic compensation scheme based on the balance between negative and positive “externalities” and incentives to promote an economy that pro-actively maintains the Earth System;

GH – Why give such importance to the distinction between the Common Concern of Humankind and the Common Heritage of Humankind? 

PM – Because the foundation of our civilization is based on this indivisible intangible Global Common, the redefinition of what are the Commons in the Anthropocene must be at the center of our present and future discussions.

As I’ve already mentioned, the possibility of recognizing an intangible Global Common without borders was first introduced by Malta in 12/09/1988, when it proposed the recognition of a Stable Climate as a Common Heritage of Humankind. In 1988, the UN resolution 43/53 considered climate change as a Common Concern of Humankind, later confirmed in Rio in 1992. That decision marks the difference between two very different world views: one where climate change is considered as Common Concern of Humankind (that corresponds to the current world where we don’t have a common good without borders, although it exists in the natural world), and Common Heritage of Humankind (that would correspond to a world with a common good without borders, that is more able to represent the natural functioning of the planet). These two opposite visions give rise to very different cascading effects:

  1. The Concern World View: Concern is a vague political formula that does recognize a stable climate as a legal object, but refuses the recognition of a Global Common without borders; instead, it considers the Global Commons as mere territorial leftovers. In this (current) approach, each State commits to self-contain the damage, creating a burden-sharing system. These mechanisms represent a negative-sum game where the “stable climate resource” constantly decreases, due to the lack of an economic instrument to pay for negative emissions, further preventing the construction of an economy capable of restoring a stable climate. Since the global public good “stable climate” is not legally recognized, all the benefits that contribute to maintaining a stable climate disappear in this global legal gap that makes these benefits invisible to the economy. Therefore in the current way of addressing climate change, none of Ostrom’s conditions are in place. Neither the needed congruence between provision and appropriation nor the definition and recognition of the common good (independently of its existence as such in the natural world).
  2. The Heritage World View:  Only by recognizing the common good, it is possible to manage it as such. Recognizing a ‘stable climate’ as Common Heritage signifies the recognition of a legal object without borders, where the negative impacts are value-losses, and most importantly, the positive impacts are value-gains in the Common Heritage. This means that the intangible work of nature can correspond to wealth creation and therefore can become visible in the GDP of countries. This legal innovation can lead to the economic recognition of the true value of the intangible work of nature for humans, and become the legal basis to apply the knowledge developed by economic sciences to successfully manage the commons. This legal theory around the commons can be the game-changer, where the production of common benefits on the Earth System can correspond to wealth creation, changing the current rule where only through the destruction of nature, economy recognizes the creation of “value”. It is thus possible to build an economy of care and restoration of a well-functioning Earth System, based on the congruent system between the rules of appropriation and provision of the common good.

We can all agree that what is common are not the ecosystems that regulate climate that are under the territorial sovereignty of some States, but rather the intangible work produced by those ecosystems altogether. If the pattern of stable and predictable dynamics that corresponds to a stable climate is legally recognized as a Common Heritage, the economic value of their work will also be recognized. This will further lead to indirect measures that stimulate the protection of those key biomes, prompting the development of a new global governance regime. Because this is a non-territorial Global Common, operating at the functional level of the planet, it will not threaten the territorial sovereignty of states. On the contrary, only with a well-functioning Earth System, it is possible to exercise sovereignty over the territories.

If the existence of natural intangible objects, such as the radio spectrum or the privileged orbits, have already been recognized by Outer-Space Law, why can’t it be possible to recognize the existence of an operating mode of the Earth System– a certain pattern of functioning that is favorable for humankind, as a natural intangible object of law?

The Safe Operating Space for Humanity is a qualitative and non-territorial space that should be the legal object of an institutionalized Global Governance. This is only possible through the establishment of a favorable framework to manage our true global commons without borders, as it exists in the real natural world. Sovereignty is deeply grounded in the concept of physical territorial space, while the Earth System concept is grounded in a quantitative understanding of intangible planetary functioning – it seems entirely possible from a legal approach to harmonize the coexistence of both.

GH – Your initiative is based in Portugal in a city named Gaia. Can you talk about how birthing this effort in Portugal, in Gaia, serves the process of shaping the legal basis for a common home for humanity?

PM – In Greek mythology, Gaia is the second primordial deity, born after Chaos, and one of the first inhabitants of Olympus. Gaia originated Uranus, and both originated countless other deities as well as oceans, mountains, plants, and life. Gaia thus becomes a universal concept which, just as the Earth System itself, crosses all borders. Much more than a collection of living beings and ecosystems, Gaia represents the single system that supports life on this planet and its complex intertwined network, an interaction of beings and phenomena from which emerges a whole incomparably larger than the sum of its parts. For millennia, Gaia meant Planet Earth for humanity. It still has symbolic value and power. It raises consciousness and awareness of human beings towards their cradle, their spaceship, their home, and their life-support system. That whole, the ancestral mother of all life, is Gaia.

This meaning was the basis for the choice of the name Gaia for the first scientific theory, developed by James Lovelock, that proposed Planet Earth as a single functionally interdependent living organism. The hypothesis was presented in 1969 stating that the Earth’s biosphere generates, maintains, and regulates the conditions for its own survival, unlike what traditional theories suggested. With the recent discovery of the climate change phenomenon and of “Planetary Boundaries”, the development and accomplishment of Lovelock’s initial hypothesis have been gaining credibility among scientists.

Gaia is also the name of a city by the mouth of the Douro River, on the other bank across from the city of Porto, which, through a merger of words of Porto and Gaia, originated the name of Portugal. Very appropriately, the port of Gaia has been chosen to host the Common Home of Humanity.

Given that it was from Portugal that many ships set sail on the ocean voyages of the fifteenth and sixteenth centuries, which started the reconnoitering of the global geographical space of our Common Home, it is interesting that the integration of the natural sciences and consequent decoding of Earth System functioning is also linked to Portugal. The then Executive-Director of IGBP (International Geosphere-Biosphere Program) and Editor-in-Chief of the “Global Change and the Earth System” of 2004 (still considered today the most encompassing study on the Earth System), Will Steffen, who is now the co-chair of Common Home of Humanity Scientific Committee, stated:

“In fact, this rapidly emerging knowledge of the Earth as a single, integrated system also has some interesting connections to Portugal. Arguably the most influential international scientific body in the development of the concept of the Earth System has been the IGBP. Interestingly, the most critical meeting of the IGBP Scientific Meeting was held in 1999 in Estoril, Portugal. There the Committee determined the objective, scope, and work plan for the production of the IGBP synthesis project, which resulted in the book ‘Global Change and the Earth System: A Planet Under Pressure’,  still one of the best syntheses of Earth System Science. The Estoril meeting also initiated the planning for the 2001 Amsterdam Conference, which was the world’s largest global change scientific conference up to that time.

The Estoril meeting also featured an explicit link to Ferdinand Magellan (Fernão de Magalhães in Portuguese) and the age of Portuguese exploration. The IGBP Scientific Committee visited the Portuguese Academy of Sciences in Lisbon, where the scientists had the fortune to see the original navigational maps of Ferdinand Magellan, where for the first time the islands of Japan appear on a map in the western world.

Inspired by this link to the great age of global exploration, the IGBP Chairman Berrien Moore III, as he looked out over the Atlantic Ocean from the conference room in Estoril, challenged the IGBP scientific community to go out on their own voyage of scientific exploration to understand our home planet as a single system – our own life support system”. 

So, from not only the perspective of Earth System science, but also from a legal point it would be truly fitting for the Common Home of Humanity to be located in Portugal, and in Porto and Gaia in particular.

GH – What are the next steps for Common Home of Humanity, and how are these steps connected with the ongoing process of the Global Pact of Environment? 

PM – The final consensus recommendations of the Ad Hoc Open-ended Working Group established by United Nations General Assembly (UNGA) resolution No. 72/277 of 10 May 2018, entitled “Towards a Global Pact for the Environment” (GPE), and approved by the UNGA Resolution No. 73/333 of 30 August 2019, paved the way for a wider global conversation on a new global agreement for the Environment to be released during the landmark 50th anniversary of the United Nations Conference on the Human Environment of Stockholm 1972 – Stockholm+50.

The new GPE should become the transformative process that drives a paradigm shift in international environmental law towards a comprehensive system of Earth System law. It should create a new conceptual basis for a constructive approach to restore Earth System functioning, enabling governments to embark on a scientifically informed path to build a successful environmental governance model.

The commemoration of the 50th anniversary of the creation of UNEP should bring a new approach to the GPE, the only UN ongoing process that has in its genetics the impetus for a holistic approach in terms of scope, scale, and substantive contents. It is vital to build into it a critical momentum to introduce the principle of the Integrity and Unity of the Earth System.

This new approach could open the door to future legal innovations like the recognition of the Earth System as the Common Heritage of Humankind, enabling cascading effects on the interconnections between economy, social justice, climate emergency, biosphere degradation, pandemics, and international relations.

Furthermore, we can also define today, with a high degree of scientific accuracy, how the Earth System works as a single, integrated planetary life-support system. Postponing the process of integrating this scientific knowledge into legal instruments could prove to be fatal given the urgency of the climate crisis and the many other pressures the planet is under.

An Earth System approach to GPE can also make this agreement fairer in terms of historic responsibilities while allowing an easier and clearer transformation of the economic system so that it respects the limits of the biogeophysical cycles that define our planetary home. We have in our hands the necessary knowledge about the functioning of the Earth System, law, economics, and the management of the commons, to shift the pathway from a ”Hot House Earth” scenario to a “Stabilized Pathway”. What is missing is one “legal innovation” to make such collective action possible.

One year before this commemoration, we pretend to boost the organization of Stockholm+49 to be a key global event to create the conditions to reopen the discussion around the legal status of the climate and to influence the COP26 and Stockholm+50. This is the moment to facilitate the discussion among jurists, scientists, and States about the paradigm shift that our civilization requires to safeguard a well-functioning Earth System.

Paulo Magalães is a Jurist and researcher at CIJE- University of Porto. He completed a Post-Doc in Law about the legal status of climate and the structural roots of climate emergency. He has a degree in Law from Catholic University of Porto, and  PhD in Human Ecology, Nova University of  Lisbon. In 2007 he published “The Earth Condominium: From Climate Change to a New Juridical Conception of the Planet“. In 2016, he co-edited the “SOS Treaty – The Safe Operating Space Treaty: A New Approach to Managing Our Use of the Earth System“. He is the Founder and President of Common Home of Humanity.

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