The Amazon and the Earth System - The dysfunctional paradox of International Law
Atualizado: 28 de Out de 2019
Paulo Magalhães, Will Steffen and Alessandro Galli - published October 23, 2019
Building on the recent controversy about the Amazon Forest, here we discuss the legal status of this territory and the associated environmental, political and economic implications.
Over the past few weeks, a global debate has gained the attention of the media and civil society about the burning of the Amazon forest and its critical function as the so-called “lungs” of our planet. There has been renewed discussion about the legal status of this good, which has turned into a diplomatic argument between Brazil and France. What is not known – and thus not discussed – is that the crisis in the Amazon is essentially the result of an unsolved paradox in international law, which is placing our planet on a “Hothouse Earth” pathway: the legal and socio-economic invisibility of intangible natural assets.
Such invisibility has stirred a fundamental conflict between the concept of tangible territorial sovereignty - which has clear defined territorial boundaries - and the global functioning of the Earth System, which is global, indivisible – it does not respect territorial boundaries – and intangible from a legal standpoint.
The Amazon, as one of the terrestrial ecosystems that are critical for the maintenance of a well-functioning Earth System, is inevitably at the centre of this paradox. At the root of the controversy about the Amazon lies the contradiction between its true value, and the way in which today’s economies recognize value and wealth creation: the outstanding ecological importance of the Amazon cannot be measured in km2, or tons of timber, soy or meat; rather it should be measured in terms of the total amount of biochemical functions and physical processes that this ecosystem provides. The fundamental role of the Amazon in the stabilization and functioning of the global biogeophysical cycles is incomparably higher than the value of the commodities that can be extracted from it. But unfortunately, this natural “work” is ignored by law and thus invisible to our economies and societies.
Under current international law, those countries that have been historically gifted with a piece of the Amazon territory have been condemned to destroy parts of it to incorporate “wealth” into their GDP, and they still see this destruction as the only economic “value”. For this reason, the Amazon represents a perfect example of the legal dysfunctionality that underlies our economies, which – as Mariana Mazzucato puts it – are focused on extracting value rather than creating it.
The highly complex atmosphere of the Earth was created and is continually regulated by life, with a critical contribution made by the Amazon. How is it therefore possible that the value of a territory like the Amazon only becomes visible in the GDP of Brazil, Guyana, French Guiana, Suriname, Ecuador, Colombia, Venezuela, Bolivia or Peru – and in their GDP-centric political decisions – once it is destroyed and turned into timber or grazing land? Is the value of soy higher than the intangible contribution made by the Amazon in regulating the chemical composition of the atmosphere, oceans and soils? Why are intangible global assets not yet recognized and respected in human legal, political and economic systems?
Effective answers to these questions require critical, interdisciplinary and creative thinking and practical solutions, and the ability to question long-held beliefs developed at a time when no knowledge about the concept of the “Earth System” existed. Fortunately, planetary science has come a long way and it is now possible to define the key processes that underpin the functioning of the Earth System – the planetary boundaries – and quantitatively measure the favourable bio-geophysical state corresponding to a well-functioning Earth System. This is the safe operating space for humankind.
It is now time for our socio-economic models and processes to recognize and embrace such novel scientific knowledge; from a legal point of view, we now have the scientific capacity – as well as the moral obligation – to establish 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. Recognition of a well-functioning state of the Earth System as a natural, intangible Common Heritage of Humankind is a precondition to building a system of accountancy able to capture what the economy today considers as externalities (positive – like the biochemical work of the Amazon - and negative, like pollution), and ensure they are fully recognized in human societies.
A planet with an Earth System outside a favourable state cannot serve as our "Home". But unfortunately, up until now, the legal non-existence of the Earth System has resulted in a global governance structure in which planetary biogeophysical processes are ‘invisible and external’ to legal, political and economic processes; one in which the true value of the Amazon is yet to be seen and recognized by humanity.
Our Common Heritage is the Earth System in its entirety, not the Amazon territory under the sovereignty of nine countries. Only by legally recognizing our ultimate global common good – the Earth System – where the benefits produced by the Amazon could be captured and accounted for, is it possible to recognize the Amazon’s true value and recognize [R11] and protect the intangible life-supporting function it provides, without the need to destroy it.
The Earth System is an “elephant in the room” that, although being “nonexistent” from a legal standpoint, affects everyone's survival, and is discussed by everyone; only by recognizing its existence can we align our legal, political and economic systems with the biogeophysical cycles that support life.
Nature is not only what we can see and touch. If we are to achieve the enormous governance challenge of ensuring a sustainable future for humankind, the intangible work of nature must be recognized and respected in our legal, political and economic cycles, and value must be given to what really matters.
Paulo Magalhães is a jurist and Doctor in Human Ecology, researcher at the Centre for Legal and Economic Research of the University of Porto, and Director-General of the Common Home of Humanity Association. Will Steffen is Senior Fellow at the Stockholm Resilience Centre, Emeritus Professor at the Australian National University of Canberra and Scientific Co-Chair of the Common Home of Humanity. Alessandro Galli is Senior Scientist and Director of the Mediterranean-MENA Program of Global Footprint Network; he is also a Board Member of the Common Home of Humanity.
 See M. Mazzucato, 2017. The Value of Everything. https://marianamazzucato.com/publications/books/value-of-everything/
 See https://www.cambridgescholars.com/the-safe-operating-space-treaty
[R11]Just for consistency