Regulating Global Climate Change: From Common Concern to Planetary Concern

1 Introduction

The inaugural remarks of the UN Secretary-General Antonio Guterres on 2 June 2022 at the historic Stockholm+50 Conference about “climate emergency” 1 as one of the “triple planetary crisis” has brought to the fore the spectre of existential planetary scale threat to the humankind. This author’s observations 30 years ago, exactly at the time when the 1992 Rio Earth Summit 2 set the stage for signature on the finally adopted text of the UN Framework Convention on Climate Change (UNFCCC), 3 hold relevance as it has vindicated that:

It has been feared for long that armed with the prowess of science and technology, the humankind has assumed considerable ability to transform the earth’s fragile essential ecological processes. There are strong indications of a simmering global environmental crisis at work. The root cause of many of the present-day ecological upheavals 5 lay in this environmental disequilibrium that prevails in the world.

2 Advent of Climate Change

Though it is difficult to define climate change, Article 1(2) of the UNFCCC states:

In April 2022, the curated sixth assessment report of the Intergovernmental Panel on Climate Change (IPCC) explicitly observed: “Net anthropogenic GHG emissions have increased since 2010 across all major sectors globally” and in fact pegged at “54% (21 GtCO2-eq) higher than in 1990.” 7 This increase in emissions has been attributed to urban areas and the rising global activity levels in areas such as industry, energy supply, transport, agriculture and buildings. The cumulative effect of anthropogenic GHG emission-driven gradual warming of the atmosphere seems to exacerbate the threat of melting the polar ice caps and trigger major climatic changes around the world. 8

Since the effects of climate change transcend across territorial boundaries and the “climate emergency” 9 is now felt on a planetary scale, it has been regarded as one of the ‘common concerns’ of the humankind. The issue of climate change is linked with development as well as ethics and equity. It has become part of the present and future predicament of the humankind. According to Article 1 (1) of the UNFCCC:

The first opening line of preamble to the UNFCCC has placed climate change on a high pedestal by acknowledging that “change in the Earth’s climate and its adverse effects are a common concern of humankind”.

It is in this background that the study 11 seeks to present some reflections on international law-making process underneath the existing global regulatory regime on climate change. The scheme of discussion comprises the following: 1. Introduction; 2. Advent of climate change; 3. From common heritage to common concern; 4. Sui Generis Law-making Process; 5. ‘Differentiation’ for Common Concern; 6. Equity as a basis for Common Concern; 7. 2015 Paris Agreement: Dilution of ‘Differentiation’? 8. From Common Concern to Planetary Concern; 9. Conclusion.

3 From Common Heritage to Common Concern

The mosaic of international law has witnessed law-making process for the regulation of certain areas going through usage of loaded concepts such as common interest, common heritage and common concern. It underscores the working of pragmatism, convenience and co-operation amongst the states to address some special global problematique. It is the General Assembly (GA), as plenary organ of the 193-member United Nations (UN) that has played a crucial role in the evolution of normative engineering needs of the time, prevailing cooperative spirit among the sovereign states and invocation of the regulatory technique warranted by the issues at stake.

The UNGA’s potential to influence the international law-making processes remained largely unrealized and untapped for almost a decade since inception of the UN. It began to provide a forum for the international law-making process with emergence of the newly independent states. These former colonies used the plenary organ of the UN to rectify legacy of immanent inequalities in the spheres of economic and social development, gain collective legitimization of their common needs and aspirations, as well as sought to bring about changes in some of the rules of traditional international law. In fact, they were able to swiftly crystallise the principles such as permanent sovereignty over natural resources, non-intervention and self-determination, among others, as the fundamental norms of international law. 12

In the international law-making process, the UNGA has acted as ‘conductor of a grand orchestra’ that provides political guidance to the States, notwithstanding the inbuilt Charter limitation that it can only make ‘recommendations’ 13 through its resolutions. The UNGA has adopted a familiar modus operandi in this process. Through resolutions, it recognizes and takes cognizance of a given issue of global significance (such as environment, population, women, and social issues) and sets the stage for the convening of a global conference of the member states. The technique of ‘global conferencing’ does help in focusing attention and galvanizing international public opinion and, thereby, goading the states to cooperate to collectively take a specific course of action. In order to sustain this momentum, the UNGA has sought to put into place required institutional structures as a follow-up instrumentality. For example, in the area of environment, it has established United Nations Environment Programme (now called UN Environment) and Commission on Sustainable Development (now disbanded and replaced with the High-Level Political Forum on Sustainable Development). 14

In the specific case of the climate change issue, the UNGA has played a catalytic role to launch the global regulatory process and adopted a resolution 43/53 (1988): Protection of Global Climate for Present and Future Generations of Mankind. It declared that climate change is a common concern of mankind and that “necessary and timely action should be taken to deal with climate change within a global framework.” 15 It welcomed and appreciated the initiative of Malta to consider “conservation of climate as a ‘common heritage of mankind”. The UNGA was concerned that “certain human activities could change global climate patterns that are threat to present and future generations with potentially severe economic and social consequences.” However, unlike the 1982 UNCLOS, the efforts by Malta did not succeed to have the UNGA declare conservation of climate as a “common heritage of mankind”. 16 In fact, in the Explanatory Memorandum annexed with its request to the UNGA, Malta contended that climate was “a natural resource” and, therefore, there was need for “a global strategy to conserve climate in order to ensure that life on Earth can be sustained.” 17 Malta further reasoned that the problem of climate change was of such magnitude that there must be some means of ensuring that the available limited resources were effectively utilized in the interest of all mankind. 18 In the end, the General Assembly recognized the issue of climate change as a “common concern of mankind.” 19

The echo of this salutary declaratory statement came to be reflected in two global conventions on climate change (UNFCCC) 20 and biological diversity (CBD) 21 that opened for signature at Rio de Janeiro during the 1992 United Nations Conference on Environment and Development (UNCED). The notion of ‘common concern’ catered to the requirements of international community interest in a common resource. It laid down a prima facie basis for common action through an appropriate regulatory framework. Since such issues cannot be addressed, in a bilateral context or by a limited number of states, it was contended that:

In principle, the proclamation that safeguarding the global environment or one of its components is a matter of common concern for the whole of mankind would mean that it can no longer be considered as solely within the domestic jurisdiction of States, due to its global importance and consequences for all...the States, under the jurisdiction of which environmental components are to be found and the conservation of which constitutes a common concern of mankind, should be considered as trustees charged with their conservation. 22

Thus, the negotiations consciously avoided the use of the term common heritage that was applied earlier with reference to the exploitation of resources of the deep-sea bed. The idea of regarding a resource as a common heritage implies a duty of care to preserve it for future generations. In turn, ‘common concern’ can be regarded as forming part of ‘common heritage.’ An explicit reference to the term ‘common heritage’ appears to have been avoided as it ran into problems subsequently in the case of the 1982 UN Convention on the Law of the Sea Convention (UNCLOS). Moreover, after the 1994 Agreement Relating to Implementation of Part XI 23 of the UNCLOS (common heritage of mankind), it has been stonewalled.

Interestingly, the subtle change in emphasis from common ‘heritage’ to common ‘interest’ to common ‘concern’ at various stages appears to have been made to accommodate conflicting interests of the negotiating states. As such the draft resolution sponsored by Malta was titled as Conservation of climate as a part of the common heritage of mankind. However, after informal consultations, the title was finally revised as Protection of global climate for present and future generations of mankind. 24 It does underscore the nature of the issues sought to be dealt with, need for approaches beyond the confines of national or bilateral domains as well as the conflicting demands it places on various international actors. In the end, the common concern for climate change came to be addressed within a multilateral framework. In the 1992 UNFCCC, it took the form of common but differentiated responsibilities and respective capabilities. 25

The advent and usage of this new phrase in the international legal parlance has wide ramifications both in terms of centralized legalization of international environmental law-making as well as multilateral environmental negotiations. As a corollary to it, issues of ethics and equity hold the key to some of the common concerns being grappled with at the global level. In 1988, when the UN general Assembly adopted the resolution 43/53 (06 December 1988) and adoption of the UNFCCC (09 May 1992), subtle change took place in the phrase from mankind to more gender-neutral word humankind. According to the rules of treaty interpretation under 1969 Vienna Convention, 26 the invocation of common concern of humankind (preamble to the UNFCCC and the CBD) provides the contextual background for the purpose of the interpretation of the substantive provisions of these two global conventions.

4 Sui Generis Law-making Process

Article 38(1) of the Statute of the International Court of Justice, which is “based upon the Statute of the Permanent Court of International Justice”, 27 describes not only the sources of international law but also reflects upon the underlying international law-making process. A combination of factors such as establishment of the post-Second World War international legal order, the dynamics of global geopolitical changes, surging institutionalization, intensification of globalization, burgeoning inter-dependence, upswings in scientific and technological developments, the process of making of international law has evolved over the years, became intense in various spheres of international life and become inclusive. 28

As noted earlier, in the context of this larger international law-making process, the General Assembly plays a pivotal role. 29 Under the scheme of the UN Charter, it has a wider mandate to “discuss any questions or any matters” (Article 10) including the questions of international law and “establish such subsidiary organs as it deems necessary for the performance of its functions.” (Article 22). It is specifically empowered to “initiate studies and make recommendations for the purpose of...encouraging the progressive development of international law and its codification.” 30 Being conscious of its role in the international law-making process, the General Assembly established in 1947 International Law Commission (ILC) as its subsidiary organ to undertake the “preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States.” 31 The General Assembly’s Sixth Committee (or Legal Committee) is also at centre of the process of creation of international law and has “organic relationship” with the ILC. 32 As the plenary organ, the General Assembly based on the principle of sovereign equality, has gained reputation of being the “legitimate forum” for kick-starting the process of regularization and international norm-setting in the areas or issues of global concern such as climate change. 33

4.3 (iii) UNFCCC Main Pillars

The main pillars (see Fig. 1) on which UNFCCC rests are: (i) equity [Article 3(1)]; (ii) common but differentiated responsibility with developed countries taking the lead [preambular paragraph 6 and Articles 3(1), 4 and 4(2)(a)]; (iii) full consideration for the specific needs and special circumstances of developing country parties [Articles 3(2) and 4(8) & (9)]; (iv) precautionary measures [Article 3(3)]; (v) economic development essential for addressing climate change –emissions in developing countries to grow to meet social and developmental needs [preambular para. 3 and Article 3(4)]; (vi) pursuit of own environmental and developmental policies [preambular para. 8]; (vii) access to resources for developing countries [preambular para. 22 and Article 4(5)]; and (viii) prohibition on the use of measures to combat climate change as barriers to trade [Article 3(5)].

OPEN IN VIEWER

Fig. 1

Main Pillars of the UN Framework Convention on Climate Change.

The inclusion of these pillars has played a vital role in ensuring participation of the developing countries in the climate change regime. They provide a unique framework to accommodate the developmental priorities of developing countries that are expected to be vulnerable to the adverse effects of climate change. The norm-setting process is premised upon scientific evidence. Hence, notwithstanding uncertainty about ‘cause and effect’, the UNFCCC has embarked upon a unique regulatory enterprise. It is prima facie based on precautionary approach.

The central thrust of the climate change regulatory approach is ‘precaution’ (rather than ‘prevention’). It is premised upon the bedrock of threat of potential irreversible damage resulting from climate change. As such the threshold for the states’ environmental behavior has been earmarked for taking anticipatory action that may cover placing restrictions upon activities and/or even prohibitions due to the threat of such damage. ‘Precaution’ as a regulatory tool has now come to the center stage with the advent of the 1992 Rio Earth Summit. The Rio Declaration (Principle 15) sought to endorse this emerging regulatory tool as:

Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation 54 (emphasis added).

An invocation of precaution has crystallized into regulatory activities that are science-driven and where science does not provide crystal clear evidence at the time of negotiating an instrument about the damage that may ensue in the absence of measures falling under the rubric of ‘precaution’. The level of threat can act as a trigger event as well as the content of precaution also remain uncertain as they will be determined by the exigencies of the situation and the political will of the UNFCCC contracting parties.

The precaution forming the basis of UNFCCC requires that in cases of threat of serious environmental harm, scientific uncertainty will not be used as a reason for postponing measures to prevent such harm. Existing multilateral environmental agreements and declarations contain various formulations of the precautionary approach. This principle, however, envisages policies and measures taken to deal with climate change as being “cost-effective so as to ensure global benefits at the lowest possible cost”. 55 To achieve this, such policies and measures could take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. The principle also endorses joint implementation.

5 ‘Differentiation’ for Common Concern

The principle of “equity” and “common but differentiated responsibilities and respective capabilities” (CBDR&RC) remain the cornerstones of the UNFCCC. It was explicitly formulated in the context of the 1992 Rio Earth Summit. It finds its origins in equity considerations and principle of equity in international law. Principle 7 of the Rio Declaration 76 endorsed the notion of common but differentiated responsibilities. In fact, the early indications of the emergence of the principle started coming from the resolutions of the General Assembly itself. Through its maiden resolution on environment in 1968, the General Assembly, having recognized the global effects of the problem of degrading human environment and the need for solving them through international co-operation and agreement, launched the preparation for the 1972 United Nations Conference on the Human Environment (UNCHE). 77

In 1971, just a year before the Stockholm Conference, the General Assembly had accepted the proposition that the world-wide pollution is being caused “primarily by some highly developed countries . . . therefore, the main responsibility for the financing of corrective measures falls upon those countries.” Moreover, it recognized that “the burden of the environmental policies of the developed countries cannot be transferred, directly or indirectly, to the developing countries.” 78 At the penultimate stage, the General Assembly firmly put on record that “the largest part of the current mission of pollutants into the environment . . . originates in developed countries, therefore have the main responsibility for combating such pollution”. 79 It further affirmed that:

[T]he responsibility for containing, reducing and eliminating global environmental damage must be borne by the countries causing such damage, must be in relation to the damage caused and must be in accordance with their respective capabilities and responsibilities. 80

Therefore, the CBDR&RC principle is anchored in the principle of equity. It sought to link responsibility of the developed countries with “pressures their societies place on the global environment” as well as “the technologies and financial resources they command”. The underlying rationale was explained thus:

Such a crystal differentiation in responsibility of the sovereign states includes the setting of differential standards, permitting grace periods in implementation, requiring flexibility in approach, and the provision of international assistance comprising funding and technology transfer. It has been based upon the bedrock of ‘historicity’ of different contributions of the countries in their developmental path to the global environmental harm. This novelty was a negotiating masterstroke that stood apart even in the euphoria of the 1992 Rio Earth Summit.

The explicit incorporation of CBDR&RC in the Preamble (para 3) as well as Article 3 of the UNFCCC established a legal linkage between the past economic exploitation of global commons and the responsibility to carry out actions that remedy or mitigate the consequences of such exploitation. It seeks to establish legal responsibility of the developed countries for past environmental harm or culpability. This aspect and the inequality of economic, social and institutional development conditions lead to different priorities and agendas across countries. They needed to be reconciled in the global forum where sovereign states embarked upon addressing an unprecedented challenge of climate change as one of their common concerns. In view of this, it can also be surmised that the principle entails a duty to participate in global efforts to address a global environmental problem. The principle is now widely recognized as one of the cardinal principles of international environmental law, duly supported by growing evidence of State practice as a legal obligation (opinio juris).

A close analysis of the principle shows that the differentiated responsibilities must be in consonance with the respective capabilities of various countries. The parties are to strive for the “ultimate objective” of the UNFCCC (stabilization of GHG concentrations in the atmosphere). The developed countries are to reduce their GHG emissions for the attainment of the stabilization targets. This goal was not to be applicable, in the foreseeable future, to the developing countries, especially since the UNFCCC obligated them to “address” (rather than stabilize) GHG emissions. 82 It was recognised that their net emissions must grow to accommodate their developmental needs. 83 The UNFCCC made a developed country to oblige by protecting and enhancing the carbon sinks while the developing countries needed only to address removal by sinks as well as to “promote and cooperate in the conservation and enhancement, as appropriate, of sinks”. 84

The most obvious reason for the existence of differentiated obligations has been the different contributions (GHG concentrations in the atmosphere) states have made to the present state of environmental degradation. Therefore, in view of contribution to the global environmental harm being unequal, responsibility was also to be unequal. It was to be commensurate with the differentiated contribution of respective countries. The state practice suggests that differentiation on the basis of a contribution to environmental harm has largely been used as a way of requiring the developed countries to ‘lead’ the way to mitigate the harm and as a means of treating them as a single category to meet certain treaty obligations. Article 3.1 does stipulate that “developed country Parties should take the lead in combating climate change and adverse effects thereof”. Thus, Annex I countries needed to effectively demonstrate that they would “(should) take the lead” (Article 3.1) to modify long-term trends in anthropogenic GHG emissions. Article 2 explicitly lays down the ‘declarative’ criteria to this effect.

By focusing on stabilization of GHGs as the threshold of the regulatory tool, the UNFCCC has institutionalized a long and arduous process. It entails the process of engaging the sovereign states guided by the availability of scientific evidence as well as balancing of crucial economic and political interests of key actors on the global climate chessboard. The 1997 Kyoto Protocol aimed at rolling back 5.2% GHG emissions from industrialized countries to the levels that prevailed in 1990. It required only the industrialized developed country parties had a legally binding obligation to reduce GHG emissions on the basis of their primary responsibility for historically accumulated GHG emissions.

The developing country parties’ commitments were restricted to voluntary participation in the Clean Development Mechanism (CDM) and to the general commitments under of the Protocol. With the developed countries reneging on their Kyoto commitments and in some cases GHG emissions of developed countries grew (instead of reduction). As the regulatory process faced a roadblock, it made inroads into the central pillar of ‘differentiation’. Even as Doha Amendment 85 (2012) brought about the second commitment period (2013-2020) of the Kyoto Protocol, it set the stage to push the developing countries for sharing the burden of GHG reduction. The 2015 Paris Agreement is the outcome of that process that has sought to gradually blunt the edges of principle of ‘differentiation’ around which the entire edifice of UNFCCC revolves.

6 Equity as a basis for Common Concern

In view of the principle of equity as well as their specific needs and special circumstances, enshrined in the UNFCCC, it explicitly provided that the “share of global emissions originating in developing countries will grow to meet their social and development needs”. 86 The rise in their emissions was especially factored into the framework convention and the climate change negotiations.

In view of this, an insistence by the industrialised countries for the inclusion of major developing countries (such as China and India) into the Annex I of the Convention was summarily turned down on the basis of per capita entitlement of emission rights. Similarly, the flexibility (on the basis of economic and social conditions) principle brought forward by the industrialised countries, did help them to distract from the deliberations concerning GHG reduction commitments. China, India and other developing countries had argued for compliance with the primary obligation of the developed country parties on the basis of ‘differentiation’ as a condition precedent for any discussion about their joining any future GHG reduction targets. They claim as not being irresponsible about the threat of global climate change. In fact, countries like India have been serious about using domestic energy saving techniques as well as initiatives that have far reaching implications in reducing the curve of GHG emissions. In due course, these measures could control and even cut down India’s GHG emissions (akin to the reduction obligation of an industrialized country). G-77 and China perceived the mischievous references to meaningful participation of the key developing countries as contrary to letter and spirit of the leadership role enshrined in the UNFCCC for developed country parties.

The full realization of the principle of CBDR&RC remained the key to attain stabilization goals in the foreseeable future since three-fourths of the emissions are contributed by the developed countries. In view of this, there appeared need for a formal UNFCCC assessment process as regards the criteria of judging the ‘lead’ to be taken by the developed countries. That has never been carried out during the last 30 years. It could have provided a vital key to the road map for the stabilization of GHG concentrations. The major problems with the UNFCCC are perceived to be unwillingness and lack of sincerity of the developed countries in fulfilling their part of the commitments to reduce GHGs emissions as well as providing financial and technological assistance in meaningful manner to the developing countries.

7 2015 Paris Agreement: Dilution of Differentiation?

The reduction limits of the GHGs emissions, specified in the Kyoto Protocol for the developed countries before 2012, was effectively grounded. Even the second commitment period of the Kyoto Protocol (2013-2020) did not augur well as some of the key countries such as Canada, Japan and Russia did not join the quantitative emission limitation and reduction commitment (QELAR) for the second commitment period. The US had already withdrawn from the Kyoto Protocol. Hence a sense of exasperation set the stage for bargain that went into the making of the 2015 Paris Agreement. 87

The Paris Agreement, often hailed as a “historic deal” 88 or “new hope” 89 was adopted on 12 December 2015 at the COP21 in Paris. It was registered with the UN Treaty Section and entered into force on 04 November 2016. 90 In legal parlance, it is an international treaty and, therefore, has a hard shell. Despite being one of the UNFCCC’s “related legal instruments” 91 or a “legal instrument or an agreed outcome with legal force”, 92 it has put into place a new international regulatory framework to address the challenge of global climate change. It is unusual treaty that creates both mandatory and non-mandatory provisions. 93 As compared to the 1997 Kyoto Protocol, 94 this new agreement is ‘global’ in nature. It applies not only to developed countries but also to developing countries. In a way, it specifies the same core obligations for all the countries. In doing so, it abandons the ‘segregation’ and ‘annex-based’ approach originally incorporated into the architecture of the UNFCCC and the Kyoto Protocol. As discussed earlier, the principle of ‘differentiation’ (CBDR&RC), principle of equity in international law, has been one of the cornerstones of the UNFCCC. It draws upon the cause-and-effect syndrome as laid down in the Trail Smelter arbitration. 95

It is in this context that the 2015 Paris Agreement can be said to have institutionalized a new paradigm shift in climate change regime by introducing a flexible ‘bottom-up pledge and review’ approach to reduce GHG emissions. The Agreement has inscribed this approach by setting forth a new operational tool called ‘Nationally Determined Contributions’ (NDCs). The NDC approach to reduce GHGs, is a built-in flexible system, which entirely relies on the self-determination of the State Parties to take adequate mitigation efforts. It could be subject to persuasive impact of peer-pressure, consultation and the global stock take.

The Paris Agreement seems to have indirectly set in motion back-door commitments of the developing country parties. As such it pushes them towards undertaking GHG mitigation that they were not required to undertake under the original UNFCCC legal framework. In effect, it could be seen as abandonment of ‘condition precedent’ approach, as laid down in Article 4 (7) of UNFCCC, requiring implementation of commitments of the developing countries to be conditional upon effective implementation of commitments of the developed countries. Thus, in view of contribution to global degradation being unequal, responsibility also had to be unequal and commensurate with the differential contribution to such degradation.

The State practice seems to suggest that differentiation on the basis of contribution to the environmental damage has largely been used as a way of requiring leadership from developed states as well as a means of treating them as a single category as regards certain treaty obligations. Article 4 (1) of Paris Agreement still stipulates that “[d]eveloped country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets”. However, the so-called ‘lead’ remains shrouded in uncertainty. Ironically, the UNFCCC process has over past 30 years, never sought to specify characteristics of the illusory ‘lead’ that was to be taken by the developed country parties. Did it serve as proverbial Trojan horse to penetrate the formidable shield of ‘differentiation’ that hitherto guarded the developing countries?

8 From Common Concern to Planetary Concern

As per the practice, IPCC reports are prepared in a cycle that facilitates the UNFCCC Conference of Parties to take due cognizance of such a scientific view for its own decision-making process. The release of the IPCC Fourth Assessment Report (AR4) unleashed the debate and brought to the fore “threat of human-induced climate change” 96 and the need for “formulating and implementing appropriate responses”. systems.” The IPCC AR6 (2022), released in April 2022, has ominously taken a view that “Total net anthropogenic GHG emissions have continued to rise during the period 2010–2019, as have cumulative net CO2 emissions since 1850”. 97 On 27 October 2022, UNEP’s Emissions Gap Report has reinforced the global concerns and finds 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”. 98 It set the stage for an appropriate consideration in time by the UNFCCC COP27 at Sharm el-Sheikh in Egypt (06-18 November 2022). 99

Thus, the three decades (1992-2022) of intergovernmental climate change regulatory has witnessed evolution of the basic raison d’être from a common concern to a planetary concern. As mentioned at the outset of this study, the opening address by the UN Secretary-General Antonio Guterres at the Stockholm+50 Conference, 100 brought a new dimension to the global climate change discourse by designating climate change as one of the “triple planetary crisis” 101 and observed:

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. 102

Notwithstanding the placement of climate change on higher level of a common concern, as already seen, the regulatory approach hitherto followed susceptible to vagaries of ‘probabilistic’ climate science scenarios. It has been afflicted by dragging of feet by the developed countries reneging from taking an effective lead in addressing their historical responsibility for GHG emissions and narrow national interests of States parties. The hold-out flip-flops (withdrawal from the Paris Agreement in 2019 and rejoining it in 2021) by the world’s largest emitter, the United States, caused skepticism and dampened the global action. The Trump Administration decided to withdraw from the Paris Agreement on the ground of “unfair economic burden imposed on American workers, businesses, and taxpayers by U.S. pledges made under the Agreement”. 103 However, the new Biden Administration realized the folly and quickly reversed it on the ground that the “Paris Agreement is an unprecedented framework for global action . . . to help us all avoid catastrophic planetary warming and to build resilience around the world to the impacts from climate change we already see”. 104 This speaks volumes about the lack of seriousness and narrow national considerations holding the common concern to ransom even as the climate change has now assumed dimensions of planetary concern. Cumulatively, the global regulation of climate change faces the risk of floundering especially due to the side-tracking of the UNFCCC’s sacrosanct principle of CBDR&RC, grounding of the Kyoto Protocol applecart of Annex I legal obligations and the final legal trick of pushing the developing countries into the trap of NDCs through the 2015 Paris Agreement. It has generated the widely perceived impression that the developed countries have been “backtracking on almost every commitment made by them at the various Conference of Parties.” 105

9 Conclusion

The unfolding scenario of 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 was construed at sine qua non for the “ultimate objective” of the UNFCCC to achieve “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system to modify long-term trends in anthropogenic GHG emissions” (Article 2). This originally envisaged robust legal framework requires to work towards laying down the criteria and an appropriate verifying mechanism on the obligation of the developed country parties “should take the lead”. This has now assumed urgency in view of evolution of climate change from a common concern into a planetary concern. The onus is on the developed countries to show that the actions they claim to have taken amount to taking the lead i.e., full compliance with the commitments under Article 4 (2) (a) and (b), the UNFCCC process shall have to ensure that the developed countries do sincerely carry out their part of promised funding as well as funding and state-of-art technology transfer to the developing countries.

The developed countries’ failure to comply with a first commitment period of the 1997 Kyoto Protocol, followed by the bleak prospects for the second commitment period (2013-2020) have queered the pitch as regards sincerity of the new commitments including promised funding under the 2015 Paris Agreement. In the absence of a miracle and/or major trigger event, the words and actions of the leading GHG emitter developed country parties leave little prospects for decisive course correction in the 30^th year of the UNFCCC and beyond. It will be the biggest irony and denial of the principle of ‘equity’ if the developing countries would soon realize that it was futile to undertake NDCs without the developed countries in effect carrying out their part of the legal ordained commitments hitherto undertaken at the COPs. The evolution of the global regulation of climate change, premised on a common concern of humankind, cannot be expected to shift into the higher trajectory of a planetary concern unless the developed country parties walk-the-talk by taking an effective leadership. It remains the cornerstone of the entire climate change regulatory juggernaut that has been institutionalized 106 during the last three decades 1992-2022.

Having been the original conductor of the climate change grand orchestra, it is high time the UN General Assembly rises to the occasion to exercise effective supervision by raising the bar to place the climate change into the realm of a planetary concern. It calls for an appropriate resolution on climate change as a planetary concern during the 77^th session and beyond to provide future direction to the UNFCCC and the Paris Agreement. The 2022 UNEP study, The Closing Window 107 has vindicated the UNSG’s warnings at the Stockholm+50 (2022). As we look ahead, the future trajectory of the climate change regulatory process remains uncertain in the face of planetary level climate emergency. It presents an ideational and normative challenge for the international law scholars, the UN General Assembly and the UNFCCC regulatory process to earnestly work for expanding the ambit of climate change regulation as a planetary concern. The forthcoming Summit of the Future (UNGA resolution 76/307 of 8 September 2022) to be convened by the UNGA in New York during 22 and 23 September 2024, may provide an appropriate forum to decide on the future of the climate change regulation on the basis of a planetary concern.