Abstract
Reviving the United Nations Trusteeship Council (UNTC) and the evolution of the idea of
Keywords
Introduction
The Trusteeship Council (TC) is one of the main organs of the United Nations (UN). It was established in 1945 under Chapter XIII of the Charter of the United Nations (UN Charter). 1 The International Trusteeship System (ITS) was established under Chapter XII of the UN Charter for the trust territories placed under the supervision of the TC by individual agreements with the administering states. The main objective of the system was to promote political, social, and economic advancement of the respective trust territories. It also sought to ensure the development of the trust territories through the modus vivendi of self-government and self-determination. It encouraged respect for human rights and fundamental freedoms as well as recognition of the independence of the people. 2
The main task of the TC was to supervise the administration of the trust territories to ensure that the administering powers took adequate measures to prepare the territories to be able to stand on their own feet. The TC was authorized to examine and discuss reports received from the administering authorities on political, economic, social, and educational issues of the trust territories. It also played a crucial role in examining all of the petitions and undertaking special missions to the territories. As a result of the work of the TC, within a period of fifty years (1945–1994), all of the trust territories achieved their independence or attained self-government either as a separate state or by merging with the administering states.
Eventually, the TC suspended its operation on 1 November 1994 after the last remaining trust territory of Palau gained independence (on 1 October 1994). In fact, the TC amended its rules of procedure to waive the need to meet annually. Instead, it agreed to meet as and when the occasion required. Now it is a dormant organ of the UN. Although the original function of the TC has been suspended, it remains an integral part of the UN Charter. Thus, if required, the TC may start functioning again by amending its rules and procedures within the same infrastructure. 3
‘Sacred Trust’ under the UNTC
The TC, which was established under Chapter XIII 4 of the UN Charter, is one of the main organs that has been inactive since 1994. It was assigned to supervise the administration of the trust territories placed under the UN trusteeship system. The main aim behind the trusteeship system was to promote the advancement of the inhabitants of the trust territories and their progressive development towards self-government or independence as sovereign states. The TC comprises members that are mentioned in Article 86 of the UN Charter. 5 Articles 87 and 88 of the UN Charter explain the function and powers of the TC. 6 According to the UN Charter, the TC is authorized to examine and discuss the reports received on the political, social, economic, and educational advancement of the people of the trust territories in consultation with the administering authority of the trusteeship system. It was responsible for undertaking periodic and special missions to the trust territories. 7
The TC suspended its operation 8 after the independence of Palau by UNSC Resolution S/RES/956 (1994). 9 It has been argued that, though the title and constitution of the TC are new, its fundamental purpose does not strictly differ from the Permanent Mandate Commission (PMC) of the League of Nations. If we compare the TC with the PMC, it appears that the TC was designed as a principal UN organ and could easily coordinate with the other UN organs, whereas the PMC remained a subordinate body of the Council of the League of Nations.
The tasks of the TC were to supervise the dependent territories in order to ensure their advance and development towards independence by safeguarding the human rights of the inhabitants and the equal treatment of all nations. These tasks show that the concept of ‘sacred trust’ 10 has remained the cardinal principle of the mandate system of the League. 11 The TC under the UN sought to continue in letter and spirit the essence of ‘sacred trust’ for the exercise of hand-holding and care for the chosen territories until they could exercise self-determination.
Revival of the Trusteeship Council
It is in this context that the question arises as to the need and possibility for the revival of the TC with a ‘new mandate’ from its current dormant status. From a scholarly perspective, such a move eminently makes sense since it could bring to life an entity within the UN. It could be entrusted with the task of supervising the different scattered regimes for environmental protection as well as the global commons. In fact, it could share the tasks of the other two overburdened organs of the United Nations—that is, the General Assembly (GA) and the Economic and Social Council (ECOSOC)—without the need for creating de novo an institutional structure with its own legal implications. Therefore, when the issue was referred in 1998 to the Task Force, 12 (Chaired by Klaus Töpfer) by then secretary general Kofi Annan, it did not cause any consternation within the UN system. It almost seemed to be a logical step towards reviving the TC, even as the larger task of other UN reforms has been proceeding at a snail’s pace.
The Töpfer Task Force was expected to examine the suggestion made by the secretary-general on this issue in his report as well as in his note to the UNGA. 13 The idea of trusteeship was put forward by the secretary-general to address the issue of integrity of the global environment and the global commons (such as the oceans, the atmosphere, and outer space). At the basis of the notion of holding these entities in ‘trust’ lies the view that they are a common repository of humankind as a whole. 14 It has been felt that they need to be taken beyond the control of the nation-states. It is somewhat akin to the idea that is inherent in the international trusteeship system under Chapters XII and XIII of the UN Charter, 15 the supervision of which was assigned to the UNGA and, under its authority, to the TC. Since all of the eleven original trust territories attained self-government or independence, the TC—as one of the six principal organs of the UN—was left without any business. 16 Therefore, it makes eminent sense now in the Anthropocene epoch 17 that the TC may now be assigned a new mandate for the global environment and the global commons.
The nature of the mandate for such a revived TC would depend upon the level of ambition of the UN member states. The question of the global supervision of various environmental regimes is at the centre of the current debate concerning international environmental governance (IEG). 18 It also comprises issues of inter-linkages, synergies, and the coordination of the tasks of the principal multilateral environmental agreements (MEAs). 19 Apart from this debate, the issue of having a UN ‘specialized agency’ for the environment through a new entity or by upgrading the existing United Nations Environment Programme (UNEP) has long been debated by scholars and in different processes within the UN system. 20 The revived TC would be the best supervisory organ to put into place different pieces of the jigsaw puzzle in order to ensure an effective architecture for the supervision of the global environment and the global commons. Since it has been amply discussed elsewhere and is not within the limits of this article to examine, 21 this discussion will not attempt to explain and justify the scholarly quest, as well as the need, for placing the protection of the environment under the supervision of the TC.
With respect to the TC’s role in the care of the ‘global commons,’ it was first proposed in the 1994 report entitled Our Global Neighborhood by the UN Commission of Global Governance. This commission was co-chaired by Swedish Prime Minister Ingvar Carlsson and former Secretary General of the Commonwealth Sridath Ramphal of Guyana. 22 The UN adopted the report in 1995 and did suggest that ‘[t]he Trusteeship Council should be given a new mandate over the global commons in the context of concern for the security of the planet.’ 23 As a follow-up, the UN secretary-general Kofi Annan also mooted a proposal for the same in 1997. 24 Unfortunately, the proposal did not get much support. It led to General Assembly Resolution 60/1 on World Summit Outcome, even suggesting the possibility of deleting the chapter on the TC from the UN Charter. 25
Initially, there was too much complexity in understanding the concept of the ‘global commons’ and the issue of the TC dealing with a matter that was beyond national jurisdiction. Still, there has remained a simmering quest to put the ‘global commons’ under the supervision of the TC as part of a larger process of reform for the UN system. 26
Global Commons
The ‘global commons’ refers to those resource domains that are outside the political reach of any state. It is generally accepted that modern international law has anointed four major areas under the rubric of ‘global commons’—that is, the high seas, the atmosphere, Antarctica, and outer space. These areas have been guided by the principle that they are not to be subjected to any sovereign appropriation. 27 However, application of this ‘hands-off’ approach has been observed with varied degrees in all of the four global commons areas due to the hard-headed national interests of the powerful states. Notwithstanding this, the areas of global commons hold great value because of the natural resources they possess. They need to be preserved, and any access to them for the exploitation of natural resources should be permissible only within the limits of the law, as per applicable regulatory regimes.
Ironically, the quest for resources in many of the technogically advanced countries has been trying to erode these regimes. A severe resource crunch and growing human greed to appropriate more natural resources has brought the global commons under immense pressure for exploration and exploitation over the years. For example, Antarctica is facing rapid environmental degradation due to human intervention, human-made pollution, and the effects of global warming, and the dumping of wastes and fishing in the high seas has affected the marine environment. 28
Hence, the main concerns remain environmental protection as well as sustainable use and conservation of resources of the global commons. It has been identified that the governance of the global commons forms a significant part of IEG. 29 A growing sense of exasperation has led to innovative proposals to improve the complex system of IEG by rethinking and revitalizing the existing structures under the UN system. It is now felt that there is an urgent need to strengthen the UN’s environmental institutions and governance framework. 30 Thus, in view of this simmering global environmental challenge, it makes great sense to entrust the TC with the overall supervision of the ‘global commons’ and global environmental protection. 31 What areas would come under the ‘global commons,’ especially since sovereign states have in the recent past tried to make inroads into this cherished domain? The following brief discussion encapsulates this discourse.
(i) The Area
It is generally accepted that the area beyond national jurisdiction (ABNJ), as mentioned in Part VII and XI of the 1982 United Nations Convention on Law of the Sea (UNCLOS), 32 is a core area of the global commons. In recent years, there has been greater awareness of the importance of the marine ecosystem beyond the national jurisdiction of any state. Under UNCLOS, it is addressed as the ‘high seas’ and ‘the area.’ 33 This area does not come under ‘the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.’ 34 Article 1 of UNCLOS has clarified the meaning of the ‘area,’ the ‘authority,’ the activities in the area,’ ‘pollution of the marine environment,’ ‘dumping,’ and so on. 35 These terms are connected with the ABNJ in the sea. The importance of the ‘high sea’ and ‘the area’ has been identified according to socio-economic, environmental, scientific and technological, and legal aspects. 36
Marine ecosystem and biodiversity including ABNJ provide a source of livelihood to millions of people and have critical functions in the natural cycle of the earth. The 2005 Millennium Ecosystem Assessment (MEA), the 2000 Millennium Development Goals (MDGs), the 2015 Sustainable Development Goals (SDGs), and the reports of the secretary-general have all observed that marine areas are affected by human activities. 37 Growing demand for seafood and marine resources, the unregulated use of marine resources (for example, fishing), increasing pollutants from different sources, climate change, and growing commercial and scientific interests are imposing huge pressure on the marine ecosystem and hampering marine biodiversity. 38 As a consequence, such pressure on the ABNJ will affect not only the marine environment but also human beings. 39
UNCLOS provides a legal framework for these activities as well as the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction. UNCLOS is supplemented by two implementing agreements—that is, the 1994 Agreement Relating to the Implementation of Part XI of UN Convention of the Law of the Sea and the 1995 Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. 40 There are some other international instruments, such as the regulations of the International Seabed Authority, the Convention on Biological Diversity, instruments adopted by the Food and Agriculture Organization (FAO), the World Trade Organization (WTO), and the World Intellectual Property Organization (WIPO), and so on. 41 There are also some soft international instruments for the sustainable use and conservation of marine ecosystems and biodiversity—for example, UNGA resolutions, decisions and declarations of environmentmental conferences, the 2030 SDGs, reports of the secretary-general, and so on. 42
(ii) The Atmosphere
The atmosphere seems to be openly accessible and appropriated by all. It functions as a sink for carbon dioxide and other greenhouse gases. 43 The oceans, forests, and other ecosystems are closely connected to the atmospheric sink. It provides services by absorbing carbon dioxide emissions; however, the sink capacity of the atmosphere has been under growing pressure. Some individuals take the opinion that the atmosphere is not clearly governed as a ‘commons.’ It is treated as res nullius or open access for all to deposit carbons or other greenhouse gases. Hence, the atmosphere of the earth can be saved and managed by declaring it to be the common property of humankind. It has already been recognized that climate change is part of issue with respect to environment protection and that it should be treated as a ‘common concern of mankind.’ 44 This led to the adoption of two parallel regimes comprising the 1992 UN Framework Convention on Climate Change (UNFCCC) and its related instruments (the 1997 Kyoto Protocol and the 2015 Paris Agreement) as well as the 1985 Vienna Convention for the Protection of the Ozone Layer and its related instruments (the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer with its amendments and adjustments). 45 As such, there is a strong view that the atmosphere should be regulated as a part of the global commons. 46 The fact that two strong regimes have sought to legally constrain the behaviour of the sovereign states, from causing atmospheric harm and the depletion of the ozone layer that harms the well-being of humans and the natural world, speaks volumes about this quest to regulate the atmosphere as a common concern and repository of humankind.
(iii) Antarctica
It has been generally regarded that ‘international law identifies’ Antarctica as one of the ‘global commons.’ 47 However, there are contestations both by the countries that maintain territorial claims (frozen by the 1959 Antarctic Treaty) as well as by some developing countries that ‘reject the idea that what they regard as the common heritage of mankind should be managed by some countries to the exclusion of others.’ 48 Notwithstanding this debate, the frozen continent is unique and precious for the future of mankind as a whole. Therefore, a concerted process has sought to ensure that sovereignty and sovereign rights cannot be claimed over it. 49 The 1959 Antarctic Treaty system (ATS) is an instrument that regulates state activities in this frozen continent. 50 It comprises the peaceful uses of Antarctica; the prohibition of military activities, weapons testing, nuclear explosion, the disposal of radioactive wastes; the promotion of the freedom of scientific research; and so on. In fact, the early 1980s saw intense debate relating to its future management under the UN. 51 The period also witnessed pitched battles among the sovereign countries to establish a regime for mineral exploitation. 52 Therefore, the challenge before sovereign states is to ensure that Antarctica is governed in the larger interest of humankind as a whole. As a corollary, the regulatory process comprises the protection of the Antarctic environment, the maintenance of its value for scientific research, its demilitarization, and a nuclear-free zone of peace within it. 53
There has been much debate in regard to the nature of participation in the activities of Antarctica, especially in view of concerns about the management system that is dominated by rich and technologically developed countries. Many of the countries outside the ATS have recognized that states parties to the treaty need to play a ‘trusteeship’ role in the protection of the Antarctic environment. The consultative parties and many international non-governmental organizations need to play crucial role in monitoring environmental protection, the conservation of natural resources, and Antarctica’s marine living resources. 54
(iv) Outer Space
Outer space is one of the four main areas of the ‘global commons.’ 55 The regulatory process under the umbrella of the 1967 Outer Space Treaty has sought to create appropriate mechanisms for the sustainable use of space, the protection of the environment, and the preservation of resources. 56 The technological development and dependency on space technology are a threat to space weather and human civilization. Now it is a challenge before the international community to ensure the peaceful use of outer space and its protection from being biologically contaminated. 57
New Mandate for a Revived Trusteeship Council
It is in this context that the UN secretary-general proposed the concept of ‘collective trusteeship’ for further examination and called upon the Toepfer task force in 1998 to elaborate further on the concept of trusteeship as part of its proposals regarding ‘reforming and strengthening United Nations activities in the environmental and human settlement areas.’ 58 The task force, in its wisdom, thought it best not to express any definite opinion on the concept of a trusteeship and a mandate for the TC. Instead, it chose to assign this task to an environmental forum, which was to be held at the time of UNEP’s Governing Council meeting in 1999. 59 As seen earlier, the TC, as one of the main organs of the UN, was assigned responsibility to supervise the administration of the eleven original trust territories and their progress towards self-government or independence. Since all of the eleven trust territories have since then either become independent states or voluntarily associated themselves with a state, the TC is understood to have fulfilled its historical mission. 60 Therefore, time and again, it has been suggested that the TC could be assigned a new responsibility within the framework of the overall goals of the UN. 61
In view of the global environmental challenges in the Anthropocene epoch, the revived TC need to be entrusted with the task of the overall supervision of global environmental protection as well as global commons areas. Since the member states of the UN appear to have decided to retain the TC, the UN secretary-general had proposed in his 1997 report (A/51/950) that:
it be reconstituted as the forum through which Member States exercise their collective trusteeship for the integrity of the global environment and common areas such as the oceans, atmosphere and outer space. At the same time, it needs to serve to link the United Nations and civil society in addressing these areas of global concern, which require the active contribution of public, private and voluntary sectors. 62
In a subsequent note to the UNGA, the secretary-general stated that the reconstituted TC could exercise such a collective trusteeship for the integrity of the global environment and common areas (such as the oceans, atmosphere, and outer space). Elaborating on the rationale, he stated:
While a number of intergovernmental bodies and legal instruments have been put in place, especially following the United Nations Conference on Environment and Development, to address sustainable development and various aspects of the global environment and common areas, there is no high-level deliberative forum that could take a comprehensive, strategic and long-term view of global trends and provide policy guidance in those areas to the world community. A new high-level council with a well-defined mandate, that does not create overlaps or conflicts with existing intergovernmental bodies, could serve this purpose (emphasis added). 63
The secretary-general’s suggestion was construed to be part of the mandate assigned to the 1998 Töpfer task force. It was expected that the task force would examine the concept of trusteeship in detail and come out with proposals relating to the role, if any, that the TC could assume in the future. Ironically, the task force skirted the issue, 64 resorting to another note of the secretary-general, which proposed convening the Millennium Assembly to consider institutional arrangements within the UN system for dealing with environmental challenges of the next century. 65
The original idea of trusteeship comprised entrusting the administration of some territories until the time they attain self-government or independence. The concept now being mooted, however, has a different connotation in the new context and new challenge of the global commons and the environment, which places them in trust and assigns the task of high-level deliberations to the TC. The areas that might qualify for this purpose include the oceans (ABNJ), the atmosphere, and outer space.
These areas could be placed under the tutelage of the revived TC as a supervisory organ of the UN, which, in turn, would have to be consonant with the different international regulatory frameworks already in place for that purpose. This arrangement need not necessarily be in conflict with the need to holistically nurture these global commons in trust in the twenty-first century. Another potential candidate could be Antarctica, which is subject to the 1959 Antarctica Treaty, under which all claims of sovereignty by claimant states have been frozen. 66 Each area of the global commons has its special characteristics and problems that could be looked after by the TC as a high-level supervisory body within the UN system. Any such arrangement shall have to be done through an appropriate ‘relationship agreement’ with the TC, which will need to work in tandem with the State parties to the respective regulatory frameworks for each of the global commons areas that might be placed under the supervision of the TC.
In a futuristic scenario, wherein consensus emerges among the states to resurrect the TC with a new mandate, it will necessitate an amendment of the UN Charter as per Article 108. Any possibility of amendment of the UN Charter generally has been thought to be a difficult task since it has been rarely done since the UN came into being. 67 This is especially so in view of the requirement for the adoption by two-thirds of the members of the UNGA and concurrence of all five of the permanent members of the UNSC for any amendment to the UN Charter. 68 However, despite much effort in the past, no General Conference of the UN members has materialized for the purpose of reviewing Article 109 of the UN Charter. A review conference can be convened—at least theoretically—by a two-thirds vote of the UNGA and a vote of any nine members of 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 the light of the experience since the advent of the UN, any proposal for amendment of the UN Charter will generally be treated cautiously. There has been much effort to push for the expansion of the UNSC’s membership or even to review the veto power itself. That has not yet materialized. It is feared, especially by the veto-wielding powers, that it would open up a Pandora’s box. Many member states do feel strongly that the UN Charter does not reflect the realities of the twenty-first century world. Hence, they favour making it more democratic, representative, accountable, and reflective of the aspirations of the teeming millions on the earth. However, the odds are heavily in favour of a status quo. If there is a consensus on the utility of the TC in this new context, an appropriate mandate could be worked out to provide it with a meaningful role within the UN. Can the TC be revived like the proverbial Sphinx?
In view of this possibility, the package for revival of the TC needs to comprise an amendment of Chapter XIII of the UN Charter, especially its composition (Article 86) and its function and powers (Articles 87 and 88). In terms of composition, the TC could be a small body whose membership may be limited (ranging from fifteen members, at the minimum, to fifty-four, 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 TC, there would not be any trust areas assigned to it. As such, no distinction would be drawn between members administering trust territories and those not administering trust territories. 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 (which is the same as the UNGA).
If retained in its present form, UNEP (which is now called UN Environment), or its possible future upgrade into a UN ‘specialized agency’ that may be called UN Environment Protection Organization (UNEPO), 69 would have to work out a special ‘relationship agreement’ with ECOSOC. If this were to happen, UNEPO, as a ‘specialized agency,’ would report directly to the TC and, through it, to the UNGA. The TC would of course be able to avail assistance of ECOSOC and the specialized agencies in regard to matters with which they are respectively concerned (Article 91).
The new mandate for the TC could be formulated as follows:
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); 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; 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; adopt appropriate decisions and other actions, as deemed proper, from time to time, consistent with the respective international agreements, arrangements and mechanisms.
70
Thus, the TC, with a new mandate based on genuine trusteeship, will have a different kind of responsibility towards this planetary ‘trust’ as well as towards present and future generations. Its duty will shift from territory to the rights and welfare of the people. It will essentially serve as a guardian of the global ‘common concerns’ as well as of the ‘common heritage of mankind.’ Its primary mandate would remain the environment and the global commons. 71 It would be entrusted with the global supervisory responsibility for the earth’s natural resources and life support systems and would have a new mandate. Its duty would be as a trustee for the present as well as future generations of humankind. However, the real beneficiaries would be future generations since the actions of the revived TC, based upon a genuine trust for the twenty-first century, would be determinant of how and what they will inherit on the planet earth. 72
Road Ahead
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. It assumes significance for those areas that hold special value for the present and future well-being of humankind. An edifice for the global supervision of environmental protection and the global commons can be now regarded as being the need of the hour.
As discussed earlier, individual regulatory regimes of MEAs, placed under the supervision of the TC, would benefit from the concerted supervisory role played by the TC as the current architecture of IEG does require such a global body. Similarly, notwithstanding the tailor-made regulatory regimes that have been designed for the governance of areas that are generally regarded as part of the global commons, these agreements could be placed under the revived TC as a global supervisory body with a new mandate in this digital and cyber age in the Anthropocene epoch of the twenty first century.
Interestingly, the contentions for territorial claims (for example, in Antarctica), the assertion of sovereign atmospheric rights (for example, climate change), the regulation of areas beyond the limits of national jurisdiction (in spite of futuristic blueprints laid down in Part XI of UNCLOS), or the renewed race for control of outer space (in spite of the existence of the Outer Space Treaty) do underscore the need for appropriate regulatory processes that will avoid the potential chaos and vandalizing of pristine areas that hold a beacon of hope for the future of humankind.
Thus, individual regulatory processes such as the current UNGA mandate for the development of an international legal instrument for marine biological diversity of areas beyond national jurisdiction need not come in the way of, or conflict with, a new mandate for the revived TC. 73 On the contrary, it will strengthen the need for reviving the TC to undertake the role of a robust global supervisory organ within the UN system. It could be made possible by working out appropriate ‘relationship agreements’ between the TC and the respective regimes for each of the MEAs that are brought under it as well as the global commons area, in a similar way to the ‘relationship agreements’ that exist between ECOSOC and the sixteen ‘specialized agencies’ of the UN. 74
On our road to Stockholm + 50 (2022), an evaluation of the existing international environmental institutions indicates the engagement of sovereign states in a bold and innovative institutional overhauling as part of the larger simmering quest for the UN restructuring. 75 The global environmental challenges warrant institutional responses that are timely, pragmatic, and adequate to ensure the protection of the global ecological heritage and the survival of the human race in the Anthropocene age. These states—members of the UN—will need to rise above their narrow partisan considerations and muster enough political courage to appropriately carve out a new mandate for the TC as a supervisory authority for the environment and the global commons.
The possibility of endowing the TC with a new mandate must constitute an integral part of the ongoing exercise of restructuring the UN. It would provide an appropriate opportunity for the principal organ of the UN to address some of the contemporary challenges and, in turn, confer new authority and legitimacy to the UN itself. In addition, the TC, as a supervisory organ for some of the MEAs and for the global commons, could help to stop the perceived trend of ‘fragmentation’ in law-making as well as in the institution-building processes in these fields.
Conclusion
In spite of the scholarly audacity to seek the revival of the TC at this critical juncture of human history, one is alive to the need for crucial political support from the UN member states that could be wary of such an ambitious exercise. In the past, states have been generally unwilling to establish powerful institutions and have sought to stifle institutions that fail to meet their self-designated policy goals or do not fit into their own national interests. The UN itself has witnessed motivated ‘bashing’, the squeezing of annual contributions and pressures for ‘restructuring’ to suit the interests of some countries over the years. Notwithstanding this, sovereign states, as primary subjects of international law, continue to be the final arbiters of the strength and authority of international environmental institutions and the global commons areas.
After the 75th anniversary year (2020), the UN needs to reinvent itself to be in tune with present day challenges. In this context the Indian Prime Minister gave a call, in September 2020 address at the virtual meet of the UN General Assembly, for comprehensive UN reforms since “we cannot fight today’s challenges with outdated structures”. In a similar vein, the Indian Prime Minister’s explicit reference to “trusteeship of the planet” 76 in G-20 Virtual Summit address on 21 November 2020 provides the future pathway. As a logical corollary, it paves the way for revival of the UN Trusteeship Council with a new mandate for the environment and the global commons, as a principal instrumentality for trusteeship of the planet.
As the process for a political declaration at Stockholm + 50 gets underway, we need to be alive to the historic opportunity the UN member states have to realize late Swedish Prime Minister Olof Palme’s vision: “Our future is common. We must share it together. We must shape it together”. 77 Hence they cannot fail the institutions that that have already been established. Hence, as a logical corollary, a revived TC with a new mandate for the environment and the global commons could strengthen the UN and vindicate one of the core purposes for which the ‘United Nations’ came together in 1945 with a solemn resolve ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.’ 78
Footnotes
See UN, n. 1.
Statute of the International Court of Justice, 1945, 1 UNTS 993; see also UN Charter, art 86, which provides: ‘1. The Trusteeship Council shall consist of the following Members of the United Nations: a. those Members administering trust territories; b. such of those Members mentioned by name in Article 23 as are not administering trust territories; and c. as many other Members elected for three-year terms by the General Assembly as may be necessary to ensure that the total number of members of the Trusteeship Council is equally divided between those Members of the United Nations which administer trust territories and those which do not. 2. Each member of the Trusteeship Council shall designate one specially qualified person to represent it therein.’
UN Charter, Article 87 provides: ‘The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may a. consider reports submitted by the administering authority; b. accept petitions and examine them in consultation with the administering authority; c. provide for periodic visits to the respective trust territories at times agreed upon with the administering authority; and d. take these and other actions in conformity with the terms of the trusteeship agreements. Article 88 provides: ‘The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement of the inhabitants of each trust territory, and the administering authority for each trust territory within the competence of the General Assembly shall make an annual report to the General Assembly upon the basis of such questionnaire.’
UN Security Council Resolution S/RES/956 (10 November 1994); available at: 
(accessed on 21 February 2021): ‘Satisfied that the people of Palau have freely exercised their right to self-determination in approving the new status agreement in a plebiscite observed by a visiting mission of the Trusteeship Council and that, in addition to this plebiscite, the duly constituted legislature of Palau has adopted a resolution approving the new status agreement, 2/ thereby freely expressing their wish to terminate the status of Palau as a Trust Territory; Taking note of resolution 2199 (LXI) of the Trusteeship Council of 25 May 1994; Determines, in the light of the entry into force on 1 October 1994 of the new status agreement for Palau, that the objectives of the Trusteeship Agreement have been fully attained, and that the applicability of the Trusteeship Agreement has terminated with respect to Palau.’
Hayden, Sherman S., ‘The Trusteeship Council: Its First Three Years’ (1951) 66(2) Pol Sc Q 226.
Ibid.
The Task Force chaired by Klaus Töpfer, executive director of the United Nations Environment Programme (UNEP), came to be constituted on 9 February 1998; see ‘Secretary-General Announces Members of Environmental and Human Settlements Task Force,’ Press Release SG/A/677 (26 March 1998); available at: https://www.un.org/press/en/1998/19980326.SGA677.html (accessed on 20 February 2021). For a full report of the task force as an annex to the Report of the Secretary-General Environment and Human Settlements, UNGA Doc A/53/463 (6 October 1998) at 11; available at: (accessed on 21 February 2021). A detailed analysis of the Task Force report in these works of the author: Desai, Bharat H. (2000), ‘Revitalizing International Environmental Institutions: The UN Task Force Report and Beyond’ (2000) 40(3) Indian J Intl L 455; Desai, Bharat H. (2006), “UNEP: A Global Environmental Authority? Environmental Policy & Law, vol.36, no.4-5, pp.137-157; Desai, Bharat H. (2012), The Quest for a United Nations Specialised Agency for the Environment, The Round Table: The Commonwealth Journal of International Affairs, 101 : 2, 167-179; Desai, Bharat H. (2014), International Environment Governance: Towards UNEPO, Boston: Brill Nijhoff.
The secretary-general observed in his report that ‘Member States appear to have decided to retain the Trusteeship Council. The Secretary-General proposes, therefore, that it be reconstituted as the forum through which Member states exercise their collective trusteeship for the integrity of the global environment and common areas such as the oceans, atmosphere and outer space. At the same time, it should serve to link the United Nations and civil society in addressing these areas of global concern, which require the active contribution of public, private and voluntary sectors’; see ‘Renewing the United Nations: A Programme for Reform,’ UN Doc A/51/950 (14 July 1997), para 84–5; available at: (accessed on 21 February 2021). He made a further reference to it in his note ‘A New Concept of Trusteeship,’ UN Doc A/52/849 (31 March 1998), paras 1–3: ‘The Task Force (set up in line with Action 12 of above report) will have an opportunity to elaborate further on the Secretary-General’s proposals for a new concept of trusteeship, as its terms of reference include, inter alia, the preparation of proposals, for consideration by the Secretary-General and subsequent submission to the General Assembly, on reforming and strengthening United Nations activities in the environmental and human settlement areas. Based on the work of the Task Force, it is envisaged that the proposal will be reviewed by the General Assembly at a later date.’
Scholars like Edith Brown Weiss have articulated the concept of intergenerational equity, which argues that, as members of the present generation, we hold the earth in ‘trust’ for future generations. For details, see generally Edith Brown Weiss (1990), ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) 84 AJIL 198; see also In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (Tokyo: UN University and Transnational, 1989). Also see the chapter by Weiss, Edith B. in this EPL Special Issue.
UN Charter, Article 75 committed the UN to the establishment ‘under its authority of an international trusteeship system for the administration and supervision of such territories as may be placed hereunder by subsequent individual agreements.’
In 1994, the UN Security Council terminated the UN Trusteeship Agreement for the last trust territory of the Pacific Islands (Palau), which was administered by the United States. Palau became 185th member of the UN on 15 December 1994 after attaining self-government in 1993, followed by full independence in 1994; see UN, Basic Facts about the United Nations (2004) at 13.
For detailed discussion on international environmental governance, see Desai, Bharat H. (2014), International Environmental Governance: Towards UNEPO, Boston: Brill Nijhoff.
Desai, Bharat H. (2010 & 2013), Multilateral Environment Agreements: Legal Status of the Secretariats, New York: Cambridge University Press. Also see, Desai, Bharat H. (2006), Multilateral Environmental Agreements & Human Security (InterSecTions No.4/2006), Bonn: UNU & IHDP.
Desai, Bharat H. (2006), “UNEP: A Global Environment Authority?” (2006) 34(3–4), Environment Policy and Law; Also see, Desai, Bharat H (2012), ‘The Quest for a UN ‘Specialized Agency’ for the Environment” (2012) 101(60) The Round Table 167.
See, generally, n.19 and n.20.
Magalhães, Paula, Steffen, Will and Bosselmann, Klaus (2016), The Safe Operating Space Treaty : A New Approach to Managing Our Use of the Earth System (2016) at 263.
The UN Secretary General (Kofi A Annan) opined in the report of the UN Secretary-General (1997), A New Concept of Trusteeship, UN Doc A/51/950 (14 July 1997), paras 84–5; available at: : ‘Although the United Nations was established primarily to serve Member States, it also expresses the highest aspirations of men, women, and children around the world. Indeed, the Charter begins by declaring the determination of ‘We the peoples of the United Nations’ to achieve a peaceful and just world order. Relations between the United Nations and agencies of civil society are growing in silence in every major sector of the United Nations agenda. The global commons are the policy domain in which this intermingling of sectors and institutions is most advanced . . . Member States appears to have decided to retain the Trusteeship Council. The Secretary General proposes, therefore, that it be reconstituted as the forum through which Member States exercise their collective trusteeship for the integrity of the global environment and common areas such as oceans, atmospheres and outer space. At the same time, it should be served to link the United Nations and civil society in addressing these areas of global concern which require the active contribution of public, private and voluntary sectors.’
UN Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc A/59/2005 (21 March 2005); available at: (accessed on 21 February 2021); see also UN General Assembly (UNGA), Resolution 60/1, 16 September 2005; see UN Doc A/RES/60/1 (24 October 2005) 38, para 176: ‘Considering that the Trusteeship Council no longer meets and has no remaining functions, we should delete Chapter XIII of the UN Charter and references to the Council in Chapter XII.’
Frank Biermann (2014), Earth System Governance : World Politics in the Anthropocene, p.105.
The idea of the ‘commons,’ in essence, reflects what has been prevalent in different civilizations and cultures for a long time. For instance, Elinor Ostrom has sought to address ‘one of the most enduring and contentious questions of positive political economy, whether and how the exploration of common-pool resources can be organized in a way that avoids both excessive consumption and administrative cost.’ For a detailed exposition of the idea, see Ostrom, Elinor (1990), Governing the Commons: The Evolution of Institutions for Common Action, Cambridge University Press.
Desai (2012), n.19, p.171.
Desai (2000), n.12.
United Nations Convention on the Law of the Sea, 1982, 21 ILM 1261 (1982).
Ibid, Part VII, arts 86–120; Part XI, arts 133–91.
Ibid, art 86 provides: ‘Article 86 Application of the provisions of this Part: The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.’
Ibid, Part I, art 1 states: ‘(1) “Area” means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction; (2) “Authority” means the International Seabed Authority; (3) “activities in the Area” means all activities of exploration for, and exploitation of, the resources of the Area;(4) “pollution of the marine environment” means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities; (5) (a) “dumping” means: (i) any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea; (ii) any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea.’
For marine biological diversity beyond areas of national jurisdiction and environmental, scientific and technological aspects, see Reports of the Secretary General, Docs A/60/63/Add.1, A/62/66/Add.2, A/64/66/Add.2 and A/66/70, A/60/63/Add.1, A/62/66/Add.2, A/64/66/Add.2 and A/66/70; available at: http://www.un.org/depts/los/biodiversityworkinggroup/webapge_environmental,% 20scientific,% 20technological.pdf (accessed on 21 February 2021); see also ‘Marine Biological Diversity beyond Areas of National Jurisdiction Economic and Socio-Economic Aspects,’ Reports of the Secretary General; available at: (accessed on 21 February 2021).
Ibid.
Ibid.
Agreement Relating to the Implementation of Part XI of UN Convention of the Law of the Sea, 1994, 1836 UNTS 3; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995, 2167 UNTS 88.
Convention on Biological Diversity, 1992, 1760 UNTS 79.
United Nations Framework Convention on Climate Change, 1992, 1771 UNTS 107; Kyoto Protocol to the United Nations Framework Convention on Climate Change, 1998, 37 ILM 32 (1998); Paris Agreement, Decision 1/CP.21, Annex, UN Doc FCCC/CP/2015/10/Add.1 (29 January 2016); Vienna Convention for the Protection of the Ozone Layer, 1985, 1513 UNTS 323; Montreal Protocol on Substances That Deplete the Ozone Layer, 1987, 1522 UNTS 3.
Sprankling, John G. (2014), The International Law of Property (2014) at 5–18.
Antarctic Treaty, 1959, 402 UNTS 71.
The question of Antarctica was presented to the UNGA on 29 September 1982 by the Prime Minister of Malaysia. During the thirty-eighth UNGA, two lines of opinion emerged. Malaysia and Antigua and Barbuda, supported by Singapore, the Philippines, Thailand, Pakistan, Algeria, Sierra Leone, and Guyana, among others, stressed the need for the UNGA to take up the question of Antarctica. However, the consultative parties of the Antarctic Treaty opposed discussion of the question in the UNGA, pointing out in particular the validity and merits of the Treaty system. For details, see Hayashi, Moritaka (1986), ‘The Antarctica Question in the United Nations’ (1986) 19(2) Cornell Intl LJ 275.
The 1991 Protocol on Environmental Protection to the Antarctic Treaty, 1991, 30 ILM 1455 (1991) (Madrid Protocol) was negotiated following the failure to agree on an international regulatory instrument governing mining in Antarctica (the Convention on the Regulation of Antarctic Mineral Resource Activities, 1988, https://www.ats.aq/documents/recatt/Att311_e.pdf. Art 7 of the Madrid Protocol explicitly prohibits ‘[a]ny activity relating to mineral resources, other than scientific research, shall be prohibited.’ See also UNGA Resolution 47/57 on Question of Antarctica’ (9 December 1992), para 9; available at: (accessed on 21 February 2021).
Murase (2017), n.43, p.147.
Ibid.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 610 UNTS 205.
See UN Secretary-General, Note on a New Concept of Trusteeship, Doc A/52/849 (31 March 1998).
Ibid, paras 61–4, Recommendation 24.
The eleven original trust territories and their administering states were: Britain (Togoland, Cameroons, and Tanganyika), Italy (Somaliland), France (Togoland and Cameroons), Belgium (Ruanda-Urundi), New Zealand (Western Samoa), Australia (Nauru and New Guinea), and United States (Pacific Islands –Federated States of Micronesia, Republic of the Marshall Islands, Commonwealth of the Northern Mariana Islands, and Palau). In 1994, the UN Security Council terminated the last Trusteeship Agreement for the Trust Territory of the Pacific Islands (Palau), which was administered by the United States. Palau chose self-government in 1993 through plebiscite, became independent in 1994 as well as 185th member state of the UN; see UN, n. at 276, 299–300.
There have been different kinds of proposals concerning the future of the UN Trusteeship Council, including the conferment of a ‘new mandate.’ See ‘Trusteeship Council Proposals Range from Disbandment to New Mandate, as General Assembly Debates Council’s Future, Press Release GA/9008 (21 November 1995); available at: http://www.un.org/press/en/1995/19951121.ga9008.html (accessed on 21 February 2021). See also Review of the Role of the Trusteeship Council, Report of the Sixth Committee, UN Doc A/50/646 (1 December 1995): “Recalling the recommendation of the President of the General Assembly at its forty-fifth session that the role of the Trusteeship Council should be further enhanced through the additional role of holding in trust for humanity its common heritage and common concerns in the interest of future generations . . . Noting the report of the Commission on Global Governance, ‘Our Global Neighbourhood,’ in which it was recommended that the Trusteeship Council be given a new mandate over the global commons in the context of concern for the security of the planet.”. Also see, Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN Doc A/60/33 (2005); available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/60/33(supp)&referer=http://research.un.org/en/docs/tc/reform&Lang=E (accessed on 21 February 2021): “Proposals concerning the Trusteeship Council at para 61. During the general exchange of views held at the 247th meeting of the Special Committee, on 14 March 2005, a view was expressed that the Trusteeship Council should be abolished since its mandate had been fulfilled and that a proposal to this end should be addressed to the General Assembly and considered by the Special Committee in connection with the ongoing reform of the Organization. According to another view, the Council should be assigned new functions in the context of future amendments to the Charter of the United Nations. Some delegations reiterated their view that it would be premature to abolish the Trusteeship Council or to change its status. It was pointed out that the abolition of the Council or changing its status should be considered in the overall context of the reform of the Organization and the amendments to the Charter. It was suggested that States whose territories or neighbouring territories were placed under trusteeship in the past be invited to present their views on this issue at subsequent sessions of the Special Committee.”
UN Secretary-General, Renewing the United Nations: A Program for Reform, UN Doc A/51/950 (14 July 1997) at 27, para 85 (emphasis added).
UN Secretary-General (1998), A New Concept of Trusteeship,’ UN Doc A/52/849 (31 March 1998).
The Töpfer Task Force, instead of coming out with its own view in the matter, recommended that UNEP’s Executive director (i.e., chair of the Task Force) would undertake consultations with government representatives, non-governmental organizations, and so on. The burden was shifted to the two-day Environment Forum, which was to be held in conjunction with twentieth session of the UNEP Governing Council, for ‘forward-looking proposals for the protection of the global environment, including the possible future role of the Trusteeship Council’; see Report of the Secretary-General Environment and Human Settlements, n.12 at 24–5, Annex, para 64 and Recommendation 24.
UN Secretary-General, A Millennium Assembly, the United Nations system (Special Commission) and a Millennium Forum, UN Doc A/52/850 (31 March 1998) at 1–3.
Antarctica Treaty, see n.50 at 71.
The UN Charter has been amended five times: (1) ‘1965: a. Articles 23 was amended to enlarge the Security Council from 11 to 15 members; 1965, b. Article 27 was amended to increase the required number of Security Council votes from 7 to 9; c. Article 61 was amended to enlarge the Economic and Social Council from 18 to 27 members’; (2) ‘1968: Article 109 was amended to change the requirements for a General Conference of Member States for reviewing the Charter’; and (3) ‘1973: Article 61 was amended again to further enlarge the Economic and Social Council from 27 to 54 members’; see Introductory Note to the UN Charter; available at: (accessed on 21 February 2021).
UN Charter, Article 108 is applicable for normal amendment procedure. Though, in a very rare consensus among veto powers, both memberships of the Security Council (non-permanent) as well as of the Economic and Social Council (from 18 to 27 to 54) have come to be expanded. The voting procedure (Article 27) in the Security Council has also been amended to provide for an affirmative vote of any nine members on procedural matters and on all other matters (non-procedural or substantive) an affirmative vote of nine members including the concurrent votes of five permanent members. Only on three occasions were respective amendments to the Charter adopted by the UNGA and were ratified, as required by Article 108; this covered the expansion of the Security Council and the Economic and Social Council and the review of the UN Charter. These amendments took place as Articles 23, 27, and 61 on 17 December 1963 (which came into force on 31 August 1965), Article 61 on 20 December 1971 (which came into force on 24 September 1973), and Article 109(1) on 20 December 1965 (which came into force on 12 June 1968).
For details of UNEPO proposal, see Desai (2000), n. 12; Desai (2006), n.12; Desai (2012), n.12 and Desai (2014), n.12.
Desai (2000), n.12; Desai (2012), n.12.
Marco de Guido and Michael Bartolo (2013) at 3.
Peter H Sand (2004), ‘Sovereignty Bounded: Public Trusteeship for Common Pool Resources?’ 4(1) Global Envtl Pol 47 at 70.
For this, see Preparatory Committee established by UNGA Resolution 69/292: Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction; available at: (accessed on 20 February 2021).
For comparative picture and details of sixteen UN ‘specialized agencies,’ see Desai (2010 & 2013), n.19 at 143–50.
Swedish Delegation (1972), Statement by Prime Minister Olof Palme in the Plenary Meeting of the United Nations Conference on the Human Environment, Stockholm, 06 June 1972, pp.3-4; available at: (accessed on 27 February 2021). Also see Anna Sundström chapter “Looking Through Palme’s Vision’ in this EPL Special Issue.