YEAR 2022 No 3
Climate Common Concern; Climate Common Heritage; Legal Innovation; Static Sovereignty vs functional Earth System; Intangible Natural Heritage; Portuguese Climate Law.
When, in the last report of the International Law Commission (ILC-UN), was stated: “The atmosphere and airspace are two different concepts, which must be distinguished(...)”, a pathway was open to autonomize the “functional” dimension of the Earth System from the “static” territorial element of sovereignty. This evolution makes it possible to answer: “What is Climate from a legal perspective?”.
The current inability to legally portray the functional dynamics of the planet was in the origin of the non-recognition of the good Stable Climate as a Common Heritage of Humanity, opting to address the problem - climate changes are a Common Concern of Humanity. This option limited the action strategy to avoid/mitigate/neutralize emissions, preventing internalization of benefits that ecosystems perform in the good Stable Climate, because they disappear into a global legal void. Thus, is impossible to build an economy capable to actively care/restore/regenerate the Climate. Today, there is no system that compensates making negative emissions.
Being a “problem”, the good Climate has an undefined ownership. As it belongs to no one, the tragedy of the commons on a global scale happened. Recovering implies recognizing a heritage that belongs to all, congruent rules between appropriation and provision, non-existent in Paris Agreement.