Earth System, law and economics
Creating the structural conditions for building the urgent collective action to meet climate and nature emergencies.
The world has a window of opportunity of 10/15 years to limit the impact of climate change, reverse the loss of biodiversity and decouple economic development from its environmental and social impacts.
Climate and nature emergencies are an undesired consequence of the current social and economic model, thus implying that, without intervening in the structure that generated these consequences, it is highly likely that all efforts will prove to be insufficient. The framework of that model comes from a time where the unity and interdependence of the Earth System was largely unknown and, from a legal point of view, the planet was seen as a territory of 5100 million square km2, divided between states, where the global commons are only the leftovers of this division. This historical conception conflicts with the latest knowledge of science where the most critical scientific principle is that the Earth System functions as a single integrated system at the planetary level.
Until now, the legal non-existence of the intangible functional structure of the Earth System has resulted in a model of social organisation in which planetary biogeophysical processes are ”non-existent” for the law and, as a consequence, “invisible' to the economy; these processes are considered ‘externalities' to our societal organisation, despite being key vital factors for humankind. The Earth System exists in the real world and its favorable state constitutes the basis of contemporary life and of human civilization. This calls upon international law to answer to a fundamental question of regulation and management: “How can a good that belongs to no one be subject to a legal regime?” In comparison to State territories or territorial global commons, the Earth System, along with its biogeophysical processes, can only be considered from a legal point of view as an intangible object, which by the fact of being global and indivisible, should belong to all humanity – the Common Heritage of Humankind.
Fortunately, Earth System science has already defined the science-based limits of the key processes that determine a well-functioning Earth System – the safe operating space for humankind – and thus it is possible to define the object of management. From social sciences, law has a long history of recognizing intangible assets and granting them a legal regime to regulate its use; similarly, economic sciences have already defined the structural conditions needed for successful management of common goods.
One of the most relevant conditions for the management of common goods is the need of coherence between the rules of appropriation and the rules of provision, to ensure the long-term preservation and functionality of the common good. Currently, the positive or negative impacts of human activities on the biogeophysical cycles are poorly acknowledged and mostly not reflected in the economic valuation of those activities, thus creating huge gaps, both on the side of impacts damaging the Earth System (liabilities) and on side of impacts benefiting it (remuneration).
The UN Decade on Ecosystem Restoration Program should be based on a legal framework, where the positive impacts of this program could be accounted and become socially visible. However, it is by now clear that nature-based plus mitigation measures will not be enough to restore balance within the available time frame. Human based regenerative activities will also be necessary.
The recovery of our Global Common good – the Earth System - calls for an international agreement that defines which activities are recognised as beneficial or damaging, how to measure them and their impacts, what mechanisms define their values, and then assigns liability for damage and incentives for positive impacts. Such agreement must also define the entity that ensures the management of this common good, where its legitimacy can be founded, what is its operating mode, and so on…
This new legal regime would be the lever to redirect the economy in such a way that it becomes a factor of repair and maintenance of the Earth System before irreversible changes occur. Changing the trajectory of the Earth System towards its safe operating conditions will only be possible making it the object of global governance, jointly calling upon Earth System science, law and economics.
Because sovereignty is deeply grounded in the concept of the physical territorial space, and the Earth System concept is grounded on a quantitative understanding of planetary functioning, it seems to be legally possible to harmonize the co-existence of both.
The legal recognition of the Earth System as an Intangible Common Heritage of Humankind could produce a domino-effect in all sectors of society, making this topic the natural basis of extended discussion in this conference!
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