Q.

After graduating from South Asian University, you have been recruited as special advisor to
the Ministry of the Environment of your respective country. The negotiations leading to the
Climate Change and its implementation are progressing. You are required to identify the major
climatic concerns facing your country, identify the legal principles on which climate change can
be addressed from the perspective of your jurisdiction. You are also required to identify the key
legal provisions, its focus and its challenges of implementation, which are of vital concern to
your country. Further prepare a case identifying the climate Change legal provisions, which are
of problematic in nature for your jurisdiction.
<India>
Ans. Climate change means a change of climate which is attributed directly or indirectly to
human activity that alters the composition of the global atmosphere and which is in addition to
natural climate variability observed over comparable time periods. (Art 1, UNFCCC). Though it
is a global problem requiring global cooperation, negotiations on International Environment Law
relating to climate change have been marred with disagreements for varied reasons. For e.g. there
exists an asymmetry in contribution and effects of climate change. Though developed world
because of its historical emissions is primarily responsible for present anthropogenic changes in
the climate, the developing, least-developed and small island countries remain most vulnerable to
the effects of climate change. Hence, the global community needs to give adequate regard to the
peculiar circumstances of each country while formulating climate change frameworks.
Climatic concerns of India
India was the fifth most climate-affected country in 2018. (Global Climate Risk Index 2020,
Germanwatch). Effects of climate change in India include rising surface temperature, changing
precipitation patterns and extreme weather events like heat waves, droughts, cyclones and floods.
While Bay of Bengal usually experiences more cyclones than Arabian Sea, in 2019 trends
reversed due to climate change. (US National Oceanic and Atmospheric Administration).
Arabian Sea hasn’t seen cyclones this frequent and intense in more than 100 years. Tauktae in
2021 was the fourth cyclone in consecutive years to have developed in the Arabian Sea, that too
in the pre-monsoon period. All the cyclones in the Arabian Sea since 2018 have been categorized
as either ‘Severe’ or above.
Similarly, devastating floods in Indian cities is the new normal; Kerala, Assam, Hyderabad,
Chennai, Mumbai to name a few. Though, India received more than 100% rainfall (with respect
to Long Period Average) for past few years, precipitation is unevenly distributed in time and
space. (IMD) This endangers communities in multiple ways: physical safety (disasters), food
security, livelihoods.
Further, there has been an increase in Himalayan glacial melting leading to rise in sea level. Two
third of Himalayan Glaciers, the world’s Third Pole, could melt by 2030 if global emissions are
not reduced. (The ‘Hindukush Himalayan Assessment’ report, International Centre for Integrated
Mountain Development). This directly endangers communities dependent on Himalayan
resources and exposes them to disasters like Glacial Lakes Outburst, landslides etc. Additionally,
the entire floodplains of North Indian rivers would be adversely affected.
India also has a long coastline of 7500 kilometers, and a sizeable population dependent upon
marine resources. Ocean acidification is one of the primary adverse effects of climate change
that hamper marine biodiversity. Scholars have pointed out that UNFCCC is largely concerned
with atmospheric warming and is not sufficient to tackle issues relating to ocean warming.
Principles to address climate change
UNFCCC is the fundamental global legal instrument on the control and management of
greenhouse gases. (Adopted in 1992, entered into force in 1994). It contained 2 annexes: Annex
1 countries had obligations to take measures to mitigate the effects of climate change, Annex 2
countries had obligations to provide financing to developing countries for their obligations under
UNFCCC. It had no such commitment for developing nations like India. Thus, UNFCCC set the
stage for the most important principles of IEL such as: Inter-generational Equity, Special needs
of Developing nations, Precautionary Approach, Common but Differentiated Responsibility and
Respective Capabilities, Sustainable Development and International Cooperation.
Thus, UNFCCC provides that parties should protect the climate system for the benefit of present
and future generations of humankind, on the basis of equity and in accordance with their
CBDRRC (Article 4). Accordingly, the developed country Parties should take the lead in
combating climate change and the adverse effects thereof. UNFCCC reflected the view that
developed countries bear greater responsibility for GHG emissions and a greater capacity to take
action.
At the same time, Article 4 also provided that all parties, including developing ones, shall
develop national inventories of emissions, national and regional programs to mitigate climate
change, promote Sustainable Development and conservation of sinks, adaptation, education etc.
Participation in Subsidiary Body for Scientific and Technical Advice established under the
UNFCCC to assess the state of scientific knowledge with regard to climate change, was also
open to all parties, including developing countries.
1997 Kyoto Protocol strengthened the commitments and CBDR principle of the 1992
Convention by setting out a firm schedule for reductions of six greenhouse gases (Annex A) by
developed countries (Annex I) and firm targets to be met within an agreed commitment period
(2008–2012).
But dilution of CBDR began with BALI COP. Later, COP 17 Durban Plan’s decision on a
second commitment period under the Kyoto Protocol (2013- 2017 or 2020) did not refer to or
distinguish between developed or developing countries. Rather, it simply refers to ‘all Parties’
needing to address climate change. The DPEA decision also lacked references to the CBDR
between Parties or the historic emissions of developed counties. However, Paris Agreement’s
preamble does mention sustainable development, food production, quality jobs, human rights,
Mother Earth, climate justice, public participation etc., and, equity and CBDRRC as its guiding
principles (Art. 2). It also requires developed countries to continue taking the lead through
economy-wide absolute emission reduction targets and support developing countries, but this is
not a precondition of action (Art. 4).

Vital provisions and challenges of implementation

Paris agreement sets the global goal to keep global temperatures to well below 2 °C above pre-
industrial levels and pursue efforts to limit the temperature increase to 1.5 °C (Art. 2). But the
latest data reveals that world is heading for a temperature rise in excess of 3°C this century.
Global GHG emissions continued to grow for the third consecutive year in 2019, reaching a
record high of ~60 GtCO2e when including LUC. Unconditional NDCs are consistent with
limiting warming to 3.2°C by the end of the century (66 per cent probability). The new and
updated NDCs need to become consistent with the net-zero emissions goals. (Emissions Gap
Report 2020, UNEP)
Paris Agreement to an extent treats climate change as a fait accompli and shifts focus from
prevention to mitigation and adaptation. Under it, the main vehicle for climate action is the
Intended Nationally determined contributions (Art.3). INDC are non-binding national plans
highlighting climate measures governments aims to implement in response to climate change and
as a contribution to achieve the global targets set out in the Paris Agreement. Parties to UNFCCC
were asked to publish their INDC at the 2013 COP Warsaw in 2013. Art 4 requires parties shall
submit increasingly ambitious NDCs every 5 years and pursue domestic mitigation measures,
with the aim of achieving the objectives of such contributions. All Parties are also encouraged to
formulate long term low GHG emission development strategies. Further, Parties shall also
provide national inventory reports and information to track progress (Art. 13).
For adaptation, the Paris agreement establishes a global goal of enhancing adaptive capacity,
strengthening resilience and reducing vulnerability to climate change. It requires all parties, as
appropriate, to plan and implement adaptation efforts; Committing enhanced adaptation support
for developing countries; including a review of adaptation progress, and of the adequacy and
effectiveness of adaptation support, in the global stocktake to be undertaken every five years.
Hence, Paris agreement gives sufficient room to all countries, including developing ones like
India, to shape their climate change mitigation and adaptation plans according to the peculiarities
of their domestic circumstances.
India has proposed the following targets under Intended Nationally Determined Contributions
(INDC):
1. Reduce emissions intensity of its GDP by 33 to 35% by 2030 from 2005 level.
2. Achieve about 40% electric power installed capacity from non-fossil fuel-based energy
resources by 2030.
3. Create an additional carbon sink of 2.5 to 3 billion Tonnes of CO2 equivalent through
additional forest and tree cover by 2030.
To promote transparency, Paris agreement requires all countries to submit emissions inventories
and the information necessary to track progress made in implementing and achieving their
NDCs. The COP decision says that, with the exception of least developed and small island
countries, these reports are to be submitted at least every two years. In addition, developed
countries shall report on support provided; developing countries should report on support
received; and all should report on their adaptation efforts.
Hence, countries had agreed in Paris in 2015 to revisit their climate pledges by 2020. At COP25,
many countries were pushing this year for a clear call for all countries to submit more ambitious
climate pledges next year. But countries such as China and Brazil opposed placing any
obligation on countries to submit enhanced pledges next year, arguing it should be each
country’s own decision. They instead argued the focus should be on pre-2020 action by
developing countries to meet their previous pledges. India also argued that unless a stocktaking
exercise of the fulfilment of various pre-2020 commitments by developed countries, it would not
raise its climate ambition for its next round of Paris Agreement targets due in 2020. Thus, India
for aforesaid reason has not announced new INDCs officially. But unofficially, it is all set to
produce 450GW of renewable energy by 2030, draft & existing forest policy aim to take our
forest cover to 33% of Indian landmass, etc.
DOHA COP18 Plan also considered loss and damage mechanism, such as institutional
mechanism to address loss and damage in developing countries that are particularly vulnerable to
the adverse effects of climate change. COP19 Warsaw revisited the Loss and Damage
Mechanism. While some members of the Alliance of Small Island States pushed for a
compensation mechanism, the United States and other developed countries were adamantly
opposed, and the idea faded early in the COP. Paris agreement provides that further steps will be
taken to address loss and damage due to climate impacts (Art. 8). Disaster response, risk
assessment and management, insurance are few features of such mechanism. Insurance has been
suggested as a mechanism to decrease the risk related to disasters by many leaders, including
Indian Prime Minister Narendra Modi, former UN Secretary General Ban Ki Moon and former
US President Barack Obama.
COP21 also mandated the Executive Committee of the Warsaw International Mechanism for
Loss and Damage to establish a Task Force on Displacement to develop recommendations for
integrated approaches to avert, minimize and address displacement related to climate change. But
COP21 acknowledged that Article 8 did not involve or provide a basis for any liability or
compensation. Yet, it is to be noted that COP decision did not exclude application of general
rules of public international law. Eg. Principle of prevention/no harm recognizes the existence of
the general obligation of states to ensure that activities within their jurisdiction and control
respect the environment of other states or of areas beyond national control is now part of the
corpus of international law relating to the environment. (ICJ, 1996) This opens up several legal
questions: Can UNFCCC and Paris Agreement be considered lex specialis? Do rules of
transboundary pollution apply to climate change? It is imperative that a framework is developed
to answer these questions in favor of an equitable loss and damage mechanism.
This is particularly important for India since it faced the highest number of climate-related
fatalities in 2018 (Global Climate Risk Index 2020). Losses in India from climate change are
around 1.8% of its GDP. Most important aspect in this regard is resilience of agriculture to
climate change given ~45% of Indian population is engaged in agriculture (Periodic Labor Force
Survey). Hence, at COP21 negotiations, crop loss estimation came up as a big bone of
contention. Although India has some of the best satellite technologies in the world, there are still
no accurate and reliable methodologies for damage estimation at the micro level.
Clean Development Mechanism devised under Kyoto Protocol also helped the developing
countries like India to achieve sustainable development. It allowed Annex I Parties to implement
projects that reduce emissions in territories of non-Annex I Parties (developing nations) to help
meet their emissions targets. Hence, it also contributed to the fulfillment of the ultimate objective
of UNFCCC. Sustainable Development Mechanism under Paris Deal is considered to be the
successor to the CDM. But law relating to Investment Treaties and dispute resolution mechanism
plays an important part in attracting CDM projects from developed nations. Some experts argue
that India’s decision to cancel most Bilateral Investment Treaties, in a bid to claim sovereignty
over dispute resolution, may hamper its chances of attracting such projects.
Emissions trading was another flexible mechanism under Kyoto Protocol that allowed countries
that had emission units to spare - emissions permitted them but not "used" - to sell this excess
capacity to countries that were over their targets. In order to facilitate cooperative efforts, Paris
agreement also provides a framework to govern the international transfer of mitigation outcomes
(ITMOs). The Agreement recognizes the rights of Parties to use emissions reductions outside of
their own jurisdiction toward their NDC, in a system of carbon accounting and trading. But
emissions trading has a ‘loophole’ known as ‘hot air’ problem. Since some countries could have
large quantities of unused emissions available for trading, this could provide for cheap supply of
emission credits for the industrialized countries, allowing some countries to bypass
implementation of any serious domestic action. These flexible mechanisms indeed have
advantages for developing countries like India. Eg. Transfer of technology and financial support,
emission reductions, income, capacity building, sustainable development etc. But these loopholes
must be plugged under the rules being negotiated under Paris agreement.
REDD+ is also an attractive mechanism for biodiversity rich developing nations like India. At
COP-16, REDD became part of the Cancun Agreements. The idea is to make payments to
discourage deforestation and forest degradation. It encourages developing country Parties to
contribute to mitigation actions in the forest sector by undertaking the following activities, as
deemed appropriate by each Party and in accordance with their respective capabilities and
national circumstances:
(a) Reducing emissions from deforestation;
(b) Reducing emissions from forest degradation;
(c) Conservation of forest carbon stocks;
(d) Sustainable management of forest;
(e) Enhancement of forest carbon stocks
But measuring, reporting and verifying (MRV) process has several technical issues. Further,
Green Climate Fund, that is responsible for REDD+ finance, is already running low on funds and
is yet to finalize mechanism for all REDD+ projects. GCF is also the financial mechanism for
Paris Agreement and is central to the goal of raising 100 bn $ per year for developing nations.
But several issues surround GCF itself like lack of clarity on how funds will be raised, the role of
the private sector, the level of "country ownership" of resources, and the transparency of the
Board itself and the need for yet another new international climate institution which may further
fragment public funds that are put toward mitigation and adaptation annually. Eg. Global
Environment Facility, Climate Investment Funds, UN Adaptation Fund, etc. Also, Clean
Technology Fund (CTF) with second largest pledges after GCF, had a sunset clause and there is
ambiguity about the role of the CTF in the climate finance architecture post-2020.
Finally, the Paris Rulebook that was due at COP23 is still incomplete. COP24 was only
successful in drawing out a basic rulebook to serve as a foundation for more detailed rules and
structures that were finally expected to come out at COP25. But even COP25 failed. The failure
of the talks underlined starkly the massive gap between what scientists say the world’s nations
need to do on climate change, and what the most powerful political leaders on the planet are
prepared to even discuss. Talks focused on rules for implementing Paris agreement, but the
overriding issue of how fast the world needs to cut greenhouse gas emissions has received little
official attention. There was a recognition that tougher carbon targets are needed globally, but
few countries came up with any and the resolve to come back next year with more ambitious
plans was worded too weakly to satisfy most campaigners. We had similar experience of empty
‘green finance’ rhetoric at recent G7 summit.
Problematic aspects
In March, 2021, United Nations Secretary-General Antonio Guterres called for the cancellation
of all coal-fired power projects around the world. At COP23 itself, Powering Past Coal Alliance
was launched, led by UK and Canada. The Alliance is aimed at accelerating clean growth and
achieving rapid phaseout of traditional coal power. Notably, most developed countries are
moving away from coal and developing nations like China and India are the major economies
relying upon coal. Former Economic Advisor Arvind Subramaniam to Indian Government has
pointed out that we can’t substitute all coal with renewable energy. Rather, our coal reserves are
our comparative advantage. Further, as crude oil prices kept falling in the global market, other
nations kept passing on the benefits to final consumers, but India kept hiking the excise duty,
thereby keeping a check on excessive consumption of petrol and diesel. He noted the hypocrisy
in the attitude of developed world whose economies were built on coal use and now target India,
and termed it as coal imperialism. (Economic survey 2016-17) Moreover, India continues to
invest in clean coal technology, water-efficient cooling mechanisms for its thermal power plants.
Developed countries are quick to criticize the rising emissions from developing world. It is true
that India accounts for 7% of global emissions. (Emissions Gap Report, 2020) But to just
consider total emissions of a country like India (7th largest by area, 2nd highest population; set to
be most populous by 2027– UN Population Fund). Even today, India's per capita GHG
emissions are less than one-third of the world’s per capita emissions and far below many
developing and developed countries. Also, about 12% of the emissions were offset by carbon
sink of forestland, cropland and settlements. (2nd India’s Biennial Update Report to UNFCCC)
This is to further improve as 25% of India land is covered by forests now. (State of India’s
Forests report 2019). It is also to be noted rich countries have higher consumption-based
emissions (emissions allocated to the country where goods are purchased and consumed, rather
than where they are produced) than territorial-based emissions (emissions allocated to the
country where goods are produced), as they typically have cleaner production, relatively more
services and more imports of primary and secondary products. (Emissions Gap Report, 2020)
Such nuances shall guide the IEL rule making, not populist hyperboles of leaders like Trump.
At COP 25, on the question of markets, India emphasized the transition of the CDM credits
earned under the Kyoto Protocol to the Paris Agreement’s SDM. It pointed out that the
excessively cheap emissions reductions enabled by the CDM as well as the possibility of double
counting could corrupt the process. India played a strong role in critiquing the developed world’s
continuing poor record on climate action. India also took a lead in calling for more finance for
developing countries for climate action, (“not even 2 per cent” of the promised “$1 trillion in the
last 10 years” had been delivered). PM Modi reiterated this essential aspect of climate change
framework at G7 summit recently, now that United States has returned to the Paris regime.
India has been at the forefront of climate change mitigation and adaptation. It has launched
important international initiative such as International Solar Alliance and Coalition for Disaster
Relief. ISA is now open to all UN members and is envisioning a One World One Grid for
efficient renewable energy markets. PM Modi noted at G20 summit India is exceeding its Paris
INDC targets. It is the only G20 nation that is on track to achieve its INDCs (independent
climate-watch site Climate Tracker). In light of the aforesaid, it is imperative that when world
leaders and diplomats gather in Glasgow for the COP26, they give due regard to the legitimate
interests of world’s largest democracy.