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

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.