By Prof. Bharat H. Desai
In view of the global environmental challenges in the Anthropocene epoch, the revived and repurposed UN Trusteeship Council (UNTC) needs to be entrusted with the task of the overall supervision of global environmental protection (especially universal MEAs such as UNFCCC; UNCCD; CBD) as well as the global commons (the Area under UNCLOS; Atmosphere; Antarctica; Outer Space). In a futuristic scenario, wherein consensus emerges among the states to repurpose the UNTC with a new mandate, it will necessitate an amendment under Article 108 of the UN Charter. Any possibility of amendment of the UN Charter, generally, though difficult, is quite plausible and a necessity. An amendment would require approval by a two-thirds of the UNGA members as well as concurrence of all five permanent members of the UNSC. A review conference (Article 109) can be convened theoretically by a two-thirds vote in the UNGA and a vote of any nine members in the UNSC. However, any alteration of the Charter proposed at a review conference cannot take effect without the consent of all five of the permanent members of the UNSC.
In a repurposed UNTC, the composition (Article 86), could range from 15 members, at the minimum, to 54, at the maximum. The UNGA would elect members for a period of three years, with one-third of the members retiring every three years. The allocation of seats would be on the basis of an equitable geographical distribution. Unlike the earlier incarnation of the UNTC, no trust areas would be assigned to it. No member of the revived TC would be assigned any special role or conferred with any veto or special or privileged voting rights. The function of the TC would be democratic on the basis of the one-state–one-vote principle (same as the UNGA; Article 18).
If retained in its present form, UN Environment (UNEP), or its possible future upgrade into a UN ‘specialized agency’ that may be called UN Environment Protection Organization (UNEPO), would have to work out a special ‘relationship agreement’ with the ECOSOC. If this were to happen, UNEPO, as a specialized agency, would report directly to the UNTC and, through it, to the UNGA. The UNTC would of course be able to avail assistance of the ECOSOC and other UN specialized agencies in regard to matters with which they are respectively concerned (Article 91).
The new mandate for the revived UNTC could be repurposed as follows:
Article 87: The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may:
a. examine progress in reversing global environmental deterioration in consultation with the UN Environment or (its future upgrade into a UN specialized agency) United Nations Environment Protection Organization (UNEPO; or known by any other nomenclature);
b. consider reports submitted by the UN Environment or UNEPO as well as relevant multilateral environmental agreements (preferably climate change, biological diversity, desertification, which have universal membership and were crystallized through the UNGA mandated law-making processes) duly sanctioned by their respective Conferences of Parties on the basis of relationship agreements with the Trusteeship Council;
c. review the status of each of the designated global commons keeping in view the overall interest of all the inhabitants of the planet earth, in consultation with decision-making organs of their respective regulatory regimes through relationship agreements and provide a mandate for further law-making processes as deemed most appropriate;
d. adopt appropriate decisions and other actions, as deemed proper, from time to time, consistent with the respective international agreements, arrangements and mechanisms.
Article 88: The Trusteeship Council shall prepare the form and modalities for submission of periodic reports by each of the regulatory regime of multilateral environment agreement as well as the global commons areas placed under its supervision. The decision-making organs of the respective regimes shall provide an annual report to the Trusteeship Council and, through it, to the General Assembly.
Trusteeship of the Planet
Through the abovementioned mandate, the UNTC, shall reflect a genuine trusteeship, with a responsibility of the planetary trust for the present and the future generations. Its duty will shift from territory to the rights and welfare of the ‘peoples’ (opening line of Preamble to the UN Charter). It will essentially serve as a guardian of the global ‘common concerns’ as well as of the ‘common heritage of mankind.’ Thus, its primary mandate would constitute the global environment and the global commons. Thus, in essence, the UNTC would be entrusted with responsibility as the principal instrumentality for the “trusteeship of the planet”.
The evolution of the idea of a trust in the global domain underscores that there are places, territories, and areas that require special and careful nurturing. Hence, the practice has been to place them under the tutelage of a sovereign state or an international institution that can supervise their well-being. At this juncture, the global supervision for the environmental protection and the global commons assumes significance since they hold special value for the present and future generations on the planet Earth.
In this context the call given by the Indian Prime Minister Narendra Modi (September 2020), in his address at the 75th anniversary virtual meet of the UNGA, became relevant for the comprehensive UN reforms since “we cannot fight today’s challenges with outdated structures”. In a similar vein, an explicit reference made by the Prime Minister Modi for “trusteeship of the planet” in an address to the G-20 Riyadh virtual summit (November 2020) provides the future pathway. As a logical corollary, a repurposed UNTC, with a new mandate for the environment and the global commons, would serve as the principal instrumentality for the said trusteeship of the planet. Who shall get the credit (यश) for donning the mantle for this futuristic change of the UNTC whose time has come? The answer lies in the womb of Time.
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 coordinated the Making SIS Visible initiative (2008-2013) as well as Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and is the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).