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Blog Special- II : The Sleepwalking into a Planetary Crisis: Invoking International Law

By Prof. Bharat H. Desai

In order to set in motion a concerted global response to the impending planetary crisis, the UNGA could at the minimum, invoke three ideas, processes and instrumentalities of international law that would be the least-cost, pragmatic and not require any de novo international legal and institutional structures as follows:

(a) Climate Change as a Planetary Concern

Since 1988, the UNGA has been the principal conductor of the grand climate-change orchestra, invoking the normativity of ‘common concern’ (UNGA resolution 43/53 of December 8, 1988) which brought into being the UNEP-WMO joint mechanism of IPCC (resolution 43/53, paragraph 5) and triggered the process for negotiations (1990-1992) of the UNFCCC. Therefore, it is high time for the UNGA to rise to the occasion and elevate that common concern to the higher pedestal of a planetary concern. The IPCC AR6 Synthesis Report (Interlaken; March 13-19, 2023), has unequivocally confirmed widespread and rapid “human-caused climate change” occurred in the “atmosphere, ocean, cryosphere and biosphere…in every region across the globe”. Hence, the UNGA needs to take charge by adopting an appropriate normative resolution during the 77th session and beyond to provide future directions to the 1992 UNFCCC and 2015 Paris Agreement processes. Even though COP27 (2022) adopted the decision on ‘loss and damage’ funding for those vulnerable countries hit hardest by climate disasters, it will take years to flesh out the mechanism and ensure the requisite funding would be provided by the concerned countries. However, the previous experiences of such climate funding commitments do not augur well. As we look ahead, the future trajectory of the climate change regulatory process remains uncertain. The climatic crisis presents an ideational challenge for the international law scholars, the UN General Assembly and the UNFCCC regulatory process. After 30 years, as argued by this author (Environmental Policy and Law 52 (5-6) 2022), it earnestly calls for elevating the normative ambit of climate change regulation from a common concern to a planetary concern (2023; 2022).

(b) Upgrading UNEP into a ‘Specialized Agency’ – UNEPO

A product of the 1972 Stockholm Moment, UNEP has been working as an environmental subsidiary organ of the UNGA. There has been much discussion among the scholars and the decision-makers to elevate the current programmatic format of UNEP. Since the 1998 Klaus Toepfer Task Report on Environment and Human Settlements, several exercises have been undertaken to boost its institutional status within the UN system. This author, in an invited January 15, 1999 talk at Legal Department of the World Bank, called for UNEP’s upgradation as UNEPO: UN Environment Protection Organization (2014; 2012; 2006; 2000). Notwithstanding change in nomenclature as UNEA [Bharat H. Desai, ASIL Insight, 19 (2) 2015] in place of the Governing Council and the universal membership, UNEP remains trapped in the quagmire of a program and its Nairobi location has often posed many practical challenges. Since, UNEP is still not a full-fledged international organization, it is high time to finally confer it with the status of a UN ‘specialized agency’ (vide Articles 57 and 63 of the UN Charter). Instead of the current ‘program’, such a treaty-based international environmental organization (UNEPO), would be an effective instrumentality to address the planetary level environmental challenges of the 21st century, contribute to new forms of regulatory approaches, processes and institutionalized forms of international environment cooperation, avail membership based UN scale of funding assessment as well as bring other institutional actors and stakeholders on board. After full 50 years, the UN system need to have a full-fledged ‘specialized agency’ (UNEPO) for the global environment.

(c) The Repurposed UN Trusteeship Council

Along with the UNEP, there is a need to revive and repurpose (2023; 2022; 2022; 2021; 2018; 2014; 2000) the UNTC to look after the need and actions of the present and future generations for the conservation and protection of the global environment and the global commons. In 2021 Our Common Agenda report, the UNSG Antonio Guterres has now acknowledged that the UNTC needs to be repurposed as a deliberative forum on behalf of succeeding generations. The UNSG report has provided a fresh impetus to this author’s long pending proposal for revival and repurpose (2023; 2022; 2022; 2021; 2018; 2014; 2000) of the UNTC (Articles 86-88, Chapter XIII of the UN Charter). It came at a time when the world was getting ready for the 2022 Stockholm+50 Moment. As explained at length in this author’s above-mentioned proposal, the UNTC could be entrusted with the task of supervising the scattered legal regimes for some of the universal environmental conventions as well as the global commons. In fact, it could share the tasks of the other two overburdened principal UN organs — the UNGA and the ECOSOC. As a corollary, the repurposed UNTC would serve as the UN system’s in-house global supervisory organ for environment, global commons and sustainable development. It will also obviate the need for new funding demands and creation of any de novo institutional structure.

Notwithstanding all the pious declarations, international instruments and institutional maze, the global environmental conditions have reached a perilous state. On June 02, 2022, the UN Secretary-General António Guterres described the triple planetary crisis as “our number one existential threat” that needs “an urgent, all-out effort to turn things around.” Similarly, Inger Andersen, UNEP executive director and the Secretary-General of Stockholm+50, underscored that “If we do not change, the triple planetary crisis of climate change, nature and biodiversity loss, and pollution and waste will only accelerate." The President of the 76th General Assembly, Abdulla Shahid, also reminded at 2022 Stockholm+50 Moment that the policies we implement today “will shape the world we live in tomorrow”.

Towards 2024 Summit of the Future

The 2022 Stockholm+50, as a missed opportunity, still provides vital lessons for the scholars of international law and international relations to think aloud and ahead for our better common environmental future. In order to save the humankind and the planet from an impending planetary crisis, we will need cutting-edge ideational solutions. In the realm of such possibilities, it was a humbling experience for this author to reach out during the most difficult Covid-19 pandemic period (2020-2022) to the outstanding thought leaders from around the world. The harvesting of the creative ideas yielded rich corpus of 55 ideational research papers, all curated by this author and published by the IOS Press (Amsterdam, Berlin, Washington DC) in three books [International Climate Change Law, 2023 (forthcoming); 2022; 2021]. It amply underscores that at a time of such a planetary crisis, it is possible for the conscientious and forward-looking scholars to seed ideational solutions to save the humankind from the brink. There are ‘limits to growth’ but no limits to human ingenuity in times of existential crisis.

On the road to the 2024 Summit of the Future (UNGA resolution 76/307 of September 8, 2022) there would still be room for terrain mapping so as to engage in greater scholarly churning for invoking instrumentalities of international law. The onus remains on the decision-makers of the sovereign States, the UN system, multilateral treaty frameworks and other international institutions to translate some of these cutting-edge scholarly ideas into action to save the humankind from a planetary crisis [Bharat H. Desai, EPL 53 (1) 2023 3-18]. The humankind awaits a world leader to invoke International Law instrumentalities for translating the idea of trusteeship of the planet into action. Who shall seize the initiative? Time is the answer.

Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam) and served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008) as well as coordinated the initiatives for Making SIS Visible (2008-2013) and the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020)


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