By Prof. Bharat H Desai
As the 27th Conference of the Parties (COP27) of the UN Framework Convention on Climate Change (UNFCCC) commenced annual work in Sharm El-Sheikh, Egypt (6 to 18 November 2022), there are warning signs about “shifting weather patterns that threaten food production, to rising sea levels that increase the risk of catastrophic flooding, the impacts of climate change are global in scope and unprecedented in scale”. By 2030, the adverse effects of the climatic crisis in the new geological epoch (Anthropocene Working Group (21 May 2019), are expected to push more than 100 million people back into extreme poverty as well as displace some 200 million people. It portends a planetary scale upheaval.
The inaugural remarks of the UN Secretary-General Antonio Guterres on 2 June 2022 at the Stockholm+50 Conference [based on the UNGA enabling (75/280 of 24 May 2021) and modalities (75/326 of 10 September 2021) resolutions] about “climate emergency” has brought to the fore the planetary crisis:
“We face a triple planetary crisis. A climate emergency that is killing and displacing ever more people each year. Ecosystems degradation that are escalating the loss of biodiversity and compromising the well-being of more than 3 billion people. And a growing tide of pollution and waste that is costing some 9 million lives a year. We need to change course – now – and end our senseless and suicidal war against nature”.
The UNSG’s warning has vindicated this author’s audacious scholarly prognosis (“Threats to the World Eco-system: A Role for the Social Scientists”, Social Science & Medicine, vol.35, no.4, 1992), exactly at the time of adoption of the UNFCCC text at the 1992 Rio Earth Summit that:
“much of the developmental process in the world today does not appear to be sustainable…the human quest to conquer nature through science and technology has brought us on to the present brink. The threats to our eco-system essentially emanate from human activities in almost every sector.”
Thus, the humankind has acquired an ability to transform the earth’s essential ecological processes. As observed in preface to this author’s 2022 curated ideational work (Envisioning Our Environmental Future), we need to “ponder on the rapidly depleting time we have left for remedial action to safeguard our future amid warnings of impending environmental catastrophe”. The root cause of many of the present-day ecological upheavals (Social Science & Medicine, vol.30, no.10, 1990, pp.1065-1072) lay in planetary scale environmental disequilibrium.
From Common Concern to Planetary Concern
With 198 Parties, the UNFCCC has been designed as a framework convention. It was one of the first treaties to designate climate change as a common concern of humankind. With subsequent two treaties, 1997 Kyoto Protocol and 2015 Paris agreement, the regime now comprises three legal instruments to address the global climate problematique. The passage of three decades (1992-2022), provides a unique opportunity to look back to look ahead for attainment of the scientifically desired goal of 1.5 C global warming by 2050. The IPCC Sixth Assessment Report (April 2022) drew a grim scenario thus: “Net anthropogenic GHG emissions have increased since 2010 across all major sectors globally…as have cumulative net CO2 emissions since 1850”. Now UNEP’s Emissions Gap Report on 27 October 2022 has reinforced the global concerns that “the international community is falling far short of the Paris goals, with no credible pathway to 1.5°C in place. Only an urgent system-wide transformation can avoid climate disaster”.
These scenarios and designation by the UNSG of the “triple planetary crisis”, has elevated the UNFCCC’s raison d'être of a common concern to a planetary concern. However, the current regulatory approach has been afflicted by the developed countries reneging from taking an effective lead due to their historical responsibility for GHG emissions. The play of narrow national interests came to the fore in the hold-out flip-flops (2019 withdrawal and 2021 rejoining of the Paris Agreement) by the largest emitter, the United States. It reflects vulnerability of a treaty process even as the climate crisis assumes the form a planetary concern. Now the global regulatory framework appears floundering due to the (i) side-tracking of the UNFCCC’s sacrosanct principle of CBDR&RC (ii) grounding of the Kyoto Protocol applecart of Annex I legal obligations and (iii) the legal trick of pushing the developing countries into the NDC trap through the 2015 Paris Agreement. As argued (26 July 2022) by veteran Indian diplomat, T.S.Tirumurti, the developed countries have been “backtracking on almost every commitment made by them at the various Conference of Parties.”
Making International Law Work
The consistent “backtracking” by the developed countries flies in the face of the UNFCCC’s emphatic declarative criteria of “the developed country Parties should take the lead in combating climate change and the adverse effects thereof” [Article 3 (1)]. It is sine qua non for the “ultimate objective” of the UNFCCC to achieve “stabilization of greenhouse gas concentrations in the atmosphere” (Article 2). This original legal basis requires the criteria and a verifying mechanism that the developed countries “should take the lead”. The full compliance with the commitments by the developed countries under Article 4 (2) (a) and (b) remain sine qua non.
In the absence of a miracle or a trigger event, the words and actions of the leading GHG emitter developed countries leave little prospects for a decisive course correction at COP27 and beyond. As a result, the developing countries may soon realize the futility of undertaking NDCs without the developed countries in effect carrying out their part of the legal commitments - the cornerstone of the climate change regulatory juggernaut.
The UNGA Needs to Take Direct Charge
Since 1988, the UNGA has been the original conductor of the grand climate change orchestra. It is high time the UNGA rises to the occasion to normatively place a common concern on the pedestal of a planetary concern. It needs to adopt an appropriate resolution during the 77th session and beyond to provide future direction to the UNFCCC and the Paris Agreement. It remains to be seen as to how far the COP27 process at Sharm El-Sheikh rises to the occasion. As we look ahead, the future trajectory of the climate change regulatory process remains uncertain. It presents an ideational and normative challenge for the international law scholars, the UN General Assembly and the UNFCCC regulatory process to earnestly make it work by expanding the ambit of climate change regulation as a planetary concern.
Professor Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008) as well as coordinated the Making SIS Visible initiative (2012-2020) and Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020). He is the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).