Climate as a Concern or a Heritage? Addressing the legal structural roots of climate emergency

Paulo Magalhães

Keywords

Climate Common Concern; Climate Common Heritage; Earth System law; Intangible Natural Heritage; Law in the Anthropocene.

Abstract

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”.
The concern approach has transformed the positive approach of the Maltese initiative on “the heritage” into a negative approach of a damage containment and -sharing system with an undefined obligation to cooperate. This fact makes it technically impossible to build an economy capable of producing positive impacts to recover a well-functioning of the Earth System, and consequently a stable climate. The fact is it fails to build an economic and governance system around the maintenance in a favorable condition of a common good that although intangible exists in natural world and is the very support of life.
This paper briefly explores the legal origin of the climate negotiating deadlock resulting from the common concern approach, and the economic and social consequences of the legal non-existence of climate, i.e. a well-functioning Earth System, and points out to the concept of heritage as a way to overcome the obstacles that have prevented collective action.
 

Table of contents

1. Introduction
1.1. The “concern” as the first attempt for an Earth System approach
1.2. Climate as the challenge to organize global relationships
1.3. The concern as concept without an object
1.4. The cascade effects of a “common concern” approach
2. Approaching the Earth System from a legal point of view: The structural basis for a paradigm shift
2.1. Distinguishing the System from the Territory
2.2. Defining our global common
3. The cascade effects of a “Heritage” approach
3.1. A non-territorial approach to the Common Heritage of humankind
3.2. Why is the earth System intangible from a legal point of view?
3.3. A Heritage for future generations
4. Final remarks
References