India’s approach to international law in the climate change regime

Abstract

In the last decade of the multilateral climate negotiations, particularly in the negotiations leading up to the 2015 Paris Agreement, India questioned the need to negotiate a new legally binding instrument. Although other developing countries were also initially reluctant to negotiate a new legally binding instrument, over time their opposition fell away, and in the end, India alone remained opposed to the negotiation of a new legally binding instrument to fortify the climate change regime. Instead, India endorsed and privileged other softer forms of law, thus both triggering innovation and experimentation in law-making as well as blurring the boundaries between law, soft law, and non-law. This article examines India’s position in the last decade of the climate negotiations in relation to “legal bindingness”, exploring in particular possible reasons for India’s wariness on issues relating to “legal bindingness”.

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Notes

  1. 1.

    United Nations Framework Convention on Climate Change, 1771 UNTS (9 May 1992) 107.

  2. 2.

    Kyoto Protocol to the United Nations Framework Convention on Climate Change, 2303 UNTS (11 December 1997) 148.

  3. 3.

    Chandrashekhar Dasgupta, Negotiating the Framework Convention on Climate Change: A Memoir, in, Krishna V Rajan (ed) The Ambassadors’ Club: The Indian Diplomat at Large (Harper Collins, New Delhi, 2012) 61, 66–67.

  4. 4.

    See, e.g., FCCC, Report of the Conference of the Parties on its First Session, held at Berlin from 28 March to 7 April 1995, Decision 1/CP.1, The Berlin Mandate: Review of the Adequacy of Article 4, paragraph 2(a) and (b), of the Convention, including proposals related to a protocol and decisions on follow-up, FCCC/CP/1995/7/Add.1 (6 June 1995) 4.

  5. 5.

    Jutta Brunnée, COPing with Consent: Law-Making under Multilateral Environmental Agreements, 15(1) Leiden J Intl L (2002) 1, 32.

  6. 6.

    Legally binding instruments apply only to those states that have expressed their consent to be bound by means of ratification, acceptance, approval or accession. See Vienna Convention on the Law of Treaties, 1155 UNTS (23 May 1969) 331, Art 11.

  7. 7.

    See Lavanya Rajamani, The 2015 Paris Agreement: Interplay between Hard, Soft and Non-Obligations, 28(2) J Envtl L (2016) 337, 342; see also Jake Werksman, Legal Symmetry and Legal Differentiation under a Future Deal on Climate, 10(6) Climate Policy (2010) 672; Jake Werksman, The Legal Character of International Environmental Obligations in the Wake of the Paris Climate Change Agreement (Brodies Environmental Law Lecture Series 2016); Daniel Bodansky, The Legal Character of the Paris Agreement, 25(2) R Eur Comp Intl L (2016) 142; and Kenneth W Abbott, Robert O Keohane, Andrew Moravcsik, Anne-Marie Slaughter and Duncan Snidal, The Concept of Legalization, 54(3) Intl Org (2000) 401.

  8. 8.

    FCCC, supra note 1, Art 4.5.

  9. 9.

    See FCCC, Decision 27/CMP.1, Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.3 (30 March 2006) 92.

  10. 10.

    Kyoto Protocol, supra note 2, Arts 3.1 and 3.2.

  11. 11.

    Soft law is used in reference to “international prescriptions that are deemed to lack requisite characteristics of international normativity”, but which, nevertheless, “are capable of producing certain legal effects”. See Remarks by Gunther Handl, in, W Michael Reisman et al, A Hard Look at Soft Law, 82 Am Soc Intl L Proc (1988) 371.

  12. 12.

    See for a further discussion, Lavanya Rajamani, The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations, 78(5) Modern L Rev (2015) 826.

  13. 13.

    FCCC, supra note 1, Art 4.1.

  14. 14.

    See for a full discussion, Lavanya Rajamani, Differential Treatment in International Environmental Law (OUP, Oxford, 2006).

  15. 15.

    Kenneth Abbott and Duncan Snidal, Hard and Soft Law in International Governance, 54 Intl Org (2000) 421, 426.

  16. 16.

    Dinah Shelton, Introduction, in, Dinah Shelton (ed) Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (OUP, Oxford, 2000) 8.

  17. 17.

    Ibid, 10–13. See also Jake Werksman, The Legal Character of International Environmental Obligations in the Wake of the Paris Climate Change Agreement (Brodies Environmental Law Lecture Series 2016); and Abbott and Snidal, supra note 15, 426.

  18. 18.

    See for a representative sample, Govt of India, Ministry of Environment and Forests, Climate Change Negotiations: India’s Submissions to the UNFCCC (August 2009); the genesis of this position is presented in Dasgupta, supra note 3, 61.

  19. 19.

    Ibid.

  20. 20.

    Ibid.

  21. 21.

    Jos GJ Olivier et al, Trends in Global CO 2  Emissions: 2016 Report (PBL Netherlands Environmental Assessment Agency, The Hague, 2016) 45 <http://edgar.jrc.ec.europa.eu/news_docs/jrc-2016-trends-in-global-co2-emissions-2016-report-103425.pdf>, Table 2.8. The global average is 4.9 tons CO2 per person. India’s per capita rate of 1.9 tons CO2 per person is low compared to most industrialized countries and less than a third of China’s 7.7 metric tons rate. The US has a per capita emissions rate of 16.1, Australia of 18.6 and Canada of 19.

  22. 22.

    Ibid, 5.

  23. 23.

    United Nations Development Programme, Human Development Report 2015: Work for Human Development (UNDP, New York, 2015) 210, which ranks countries by 2014 HDI values.

  24. 24.

    FCCC, India’s Intended Nationally Determined Contribution: Working towards Climate Justice (2 October 2016) 5.

  25. 25.

    Govt of India, Ministry of External Affairs, PM’s Intervention on Climate Change at the Heiligendamm Meeting (8 June 2007) <http://www.mea.gov.in/in-focus-article.htm?18822/>.

  26. 26.

    PM’s address at the 95th Indian Science Congress (Vishakhapatnam, 3 January 2008) <http://archivepmo.nic.in/drmanmohansingh/speech-details.php?nodeid=617>. It is worth noting that the OECD average per capita emissions is 9.7 metric tons of CO2. Carbon Dioxide Information Analysis Center, Environmental Sciences Division, Oak Ridge National Laboratory, Tennessee, United States. <http://data.worldbank.org/indicator/EN.ATM.CO2E.PC>.

  27. 27.

    Dealing with the Threat of Climate Change, India Country Paper, the Gleneagles Summit, 2005.

  28. 28.

    Ibid.

  29. 29.

    FCCC, Report of the Conference of the Parties on Its Fifteenth Session, held in Copenhagen from 7 to 19 December 2009, Decision 2/CP.15, Copenhagen Accord, FCCC/CP/2009/11/Add.1 (30 March 2010) 4.

  30. 30.

    India: Letter to the Executive Secretary (30 January 2010) <http://unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pdf/indiacphaccord_app2.pdf>.

  31. 31.

    See FCCC, Compilation of Information on Nationally Appropriate Mitigation Actions to Be Implemented by Parties Not Included in Annex I to the Convention, Note by the Secretariat, FCCC/AWGLCA/2011/INF.1 (18 March 2011) 26.

  32. 32.

    FCCC, Report of the Conference of the Parties on Its Sixteenth Session, held in Cancun from 29 November to 10 December 2010, Decision 1/CP.16, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, FCCC/CP/2010/7/Add.1 (15 March 2011) 10 [49].

  33. 33.

    India’s INDC, supra note 25.

  34. 34.

    Ibid, 29.

  35. 35.

    FCCC, Report of the Conference of the Parties on Its Twenty-First Session, held in Paris from 30 November to 13 December 2015, Decision 1/CP.21, Adoption of the Paris Agreement, FCCC/CP/2015/10/Add.1, 2 (29 January 2016) Annex: Paris Agreement, Art 4.2, and see Lavanya Rajamani, Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics, 65(2) Intl & Comp L Q (2016) 493, 6–7.

  36. 36.

    Paris Agreement, ibid, Art 13.7(b).

  37. 37.

    FCCC, Report of the Conference of the Parties on Its Seventh Session, held at Marrakesh from 29 October to 10 November 2001, Decisions 2-24/ CP.7, Marrakesh Accords, FCCC/CP/2001/13 (21 January 2002) Add.1-4.

  38. 38.

    Igor Shishlov, Romain Morel, and Valentin Bellassen, Compliance of the Parties to the Kyoto Protocol in the First Commitment Period, 16(6) Climate Policy (2016) 768, 769.

  39. 39.

    The White House, President George W. Bush, Office of the Press Secretary, Text of a Letter from the President to Senators Hagel, Helms, Craig, and Roberts (13 March 2011) <https://georgewbush-whitehouse.archives.gov/news/releases/2001/03/20010314.html>.

  40. 40.

    See World Resource Institute’s Climate Analysis Indicator Tool (CAIT), which compiles figures on global and national emissions. World Resource Institute (WRI), “CAIT Climate Data Explorer” <http://cait.wri.org/>.

  41. 41.

    FCCC, Report of the Conference of the Parties on Its Seventeenth Session, held in Durban from 28 November to 11 December 2011, Decision 1/CP.17, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, FCCC/CP/2011/9/Add.1 (15 March 2012) 2–3.

  42. 42.

    FCCC, Report of the Conference of the Parties on Its Thirteenth Session, held in Bali from 3 to 15 December 2007, Decision 1/CP.13, Bali Action Plan, FCCC/CP/2007/6/Add.1 (14 March 2008) 3.

  43. 43.

    By June 2009, in compliance with the six-month rule under FCCC Art 17, five agreements—Protocols from Japan, Australia, Tuvalu and Costa Rica and an Implementing Agreement from the United States—were submitted for communication to Parties. See FCCC, Draft Protocol to the Convention Prepared by the Government of Japan for Adoption at the Fifteenth Session of the Conference of Parties, FCCC/CP/2009/3 (13 May 2009); FCCC, Draft Protocol to the Convention Presented by the Government of Tuvalu under Art 17 of the Convention, FCCC/CP/2009/4 (5 June 2009); FCCC, Draft Protocol to the Convention Prepared by the Government of Australia for Adoption at the Fifteenth Session of the Conference of the Parties, FCCC/CP/2009/5 (6 June 2009); FCCC, Draft Protocol to the Convention Prepared by the Government of Costa Rica to Be Adopted at the Fifteenth Session of the Conference of the Parties, FCCC/CP/2009/6 (8 June 2009); and FCCC, Draft Implementing Agreement under the Convention prepared by the Government of the United States of America for Adoption at the Fifteenth Session of the Conference of the Parties, FCCC/CP/2009/7 (6 June 2009).

  44. 44.

    FCCC, Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, in Its Sixth Session, held in Bonn from 1 to 12 June 2009, Ideas and Proposals on the Elements contained in paragraph 1 of the Bali Action Plan 22 (19 May 2009) <http://unfccc.int/resource/docs/2009/awglca6/eng/misc04p01.pdf>.

  45. 45.

    Daniel Bodansky, The Copenhagen Climate Change Conference: A Postmortem, 104(2) American J Intl L (2010) 230; Lavanya Rajamani, The Making and Unmaking of the Copenhagen Accord, 59(3) Intl & Comp L Q (2010) 824.

  46. 46.

    Tobias Rapp, Christian Schwägerl and Gerald Traufetter, The Copenhagen Protocol: How China and India sabotaged the UN Climate Summit, Spiegel Online (5 May 2010) <http://www.spiegel.de/international/world/the-copenhagen-protocol-how-china-and-india-sabotaged-the-un-climate-summit-a-692861.html>.

  47. 47.

    Copenhagen Accord, supra note 30, 4: ‘The Conference of the Parties, Takes note of the Copenhagen Accord of 18 December 2009’.

  48. 48.

    Indeed, South Africa had thrown its weight behind a legally binding outcome to the Bali process early in the process. See AWGLCA, supra note 45, 99. China and Brazil followed suit in the course of the negotiations in Durban.

  49. 49.

    Berlin Mandate, supra note 4.

  50. 50.

    See Ministry of Environment and Forests, Govt of India, Suo Moto Statement in Lok Sabha by Minister of State for Environment and Forests (I/C) on Durban Agreements (Press Information Bureau, New Delhi, 16 December 2011) <http://pib.nic.in/newsite/PrintRelease.aspx?relid=78811>.

  51. 51.

    Durban Platform, supra note 42, 2 [2]; Lavanya Rajamani, The Durban Platform for Enhanced Action and the Future of the Climate Regime, 61(2) Intl & Comp L Q (2012) 501.

  52. 52.

    See John Vidal and Fiona Harvey, Durban Climate Deal Struck after Tense All-Night Session, The Guardian (11 December 2011) <https://www.theguardian.com/environment/2011/dec/11/durban-climate-deal-struck>; Michael McCarthy, 11th-hour Agreement in Durban Sees Big Three Legally Bound to Reduce Carbon Emissions, The Independent (12 December 2011) <http://www.independent.co.uk/environment/climate-change/11th-hour-agreement-in-durban-sees-big-three-legally-bound-to-reduce-carbon-emissions-6275762.html>.

  53. 53.

    Images of the “huddle” and its participants are available at IISD Reporting Services, Durban Climate Change Conference, Photo page <http://www.iisd.ca/climate/cop17/photoindex.html>.

  54. 54.

    FCCC, Ad Hoc Working Group on the Durban Platform for Enhanced Action in Its First Session, held in Bonn from 17 to 24 May 2012, Views on a Work-Plan for the Ad Hoc Working Group on the Durban Platform for Enhanced Action: Submission from India FCCC/ADP/2012/MISC.3 (30 April 2012) 33.

  55. 55.

    See Lok Sabha Statement, supra note 51.

  56. 56.

    FCCC, Report of the Conference of the Parties on its Nineteenth Session, held in Warsaw from 11 to 23 November 2013, Decision 1/CP.19, Further Advancing the Durban Platform, FCCC/CP/2013/10/Add.1 (31 January 2014) 3 [2(b)-(c)].

  57. 57.

    FCCC, Report of the Conference of the Parties on Its Twentieth Session, held in Lima from 1 to 14 December 2014, Decision 1/CP.20, Lima Call for Climate Action, FCCC/CP/2014/10/Add.1 (2 February 2015) 2, 6, Annex: Elements for a Draft Negotiating Text.

  58. 58.

    FCCC, Ad Hoc Working Group on the Durban Platform for Enhanced Action in Its Second Session, held in Geneva from 8 to 13 February 2015, Agenda Item 3: Implementation of all the Elements of Decision 1/CP.17 Negotiating text, FCCC/ADP/2015/1 (25 February 2015).

  59. 59.

    Ambition and Differentiation in Paris Agreement, supra note 36.

  60. 60.

    See, e.g., Submission from India, supra note 55, 33.

  61. 61.

    Ibid.

  62. 62.

    See COPing with Consent, supra note 5.

  63. 63.

    FCCC, supra note 1, Art 7.

  64. 64.

    Kyoto Protocol, supra note 2, Arts 6.2, 12.7 and 17; FCCC, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on Its First Session, held at Montreal from 28 November to 10 December 2005, Decision 2/CMP.1, Principles, Nature and Scope of the Mechanisms pursuant to Articles 6, 12 and 17 of the Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.1 (30 March 2006) 4.

  65. 65.

    Pursuant to FCCC, supra note 1, Art 4.2(d).

  66. 66.

    Berlin Mandate, supra note 4; Bali Action Plan, supra note 43; the Durban Platform, supra note 42.

  67. 67.

    For example, the Clean Development Mechanism Executive Board, the Joint Implementation Supervisory Committee and the Compliance Committee, each of the bodies with influence and of consequence to states and non-state actors, were constituted by COP decisions. See Marrakesh Accords, supra note 38.

  68. 68.

    FCCC, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on Its First Session, held at Montreal from 28 November to 10 December 2005, Decision 11/CMP.1, Modalities, Rules and Guidelines for Emissions Trading under Article 17 of the Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.2 (30 March 2006) 17.

  69. 69.

    FCCC, supra note 1, Art 3.

  70. 70.

    US Draft Implementing Agreement, supra note 44.

  71. 71.

    Submission from India, supra note 55, 34.

  72. 72.

    Protection of Global Climate for Present and Future Generations of Mankind, Adopted by the UNGA on 21 December 1990 at Its Seventy-First Plenary Meeting, UN Doc. A/RES/45/212 (charging parties with drafting ‘an effective framework convention on climate change’).

  73. 73.

    See, e.g., Berlin Mandate, supra note 4.

  74. 74.

    See Dasgupta, supra note 3.

  75. 75.

    Berlin Mandate, supra note 4, [2(b)].

  76. 76.

    Makau Matua, What Is TWAIL, 94 American Society Intl L Proceedings (2000) 31. Also Balakrishnan Rajagopal, Counter-Hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy, 27(5) Third World Q (2006) 767.

  77. 77.

    BS Chimni, Third World Approaches to International Law: A Manifesto, in, Antony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Okafor (eds) The Third World and International Order: Law, Politics and Globalization (Brill Academic Publishers, Martinus Nijhoff, Leiden, 2003) 47, 72.

  78. 78.

    The Copenhagen Accord was reached among 28 Parties to the FCCC. This group included the BASIC countries—Brazil, South Africa, India and China—as well as Algeria, Australia, Bahamas, Canada, Colombia, Denmark, Ethiopia, the European Community, the European Commission, Gabon, Grenada, Indonesia, Japan, Korea, Lesotho, Maldives, Mexico, Papa New Guinea, Poland, Norway, Russia, Saudi Arabia Sudan, Sweden and the US; See Rajamani: Copenhagen Accord, supra note 46, 825.

  79. 79.

    ALBA stands for Bolivarian Alliance for the Peoples of Our America and includes Venezuela, Cuba, Bolivia, Nicaragua, Dominica, Ecuador, Antigua and Barbuda, Saint Vincent and the Grenadines, Saint Lucia, Grenada and the Federation of Saint Kitts and Nevis <http://alba-tcp.org/en/albatcp>.

  80. 80.

    See generally Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP, Cambridge, 2004).

  81. 81.

    FCCC, supra note 1, Art 4.2(a) and (b); Kyoto Protocol, supra note 2, Art 3.

  82. 82.

    FCCC, supra note 1, Art 3.

  83. 83.

    FCCC, supra note 1, Art 4.7.

  84. 84.

    Paris Agreement, supra note 36, Art 2. See generally Ambition and Differentiation in Paris Agreement, supra note 36.

  85. 85.

    The Legal and Treaties division is the ‘nodal point to deal with all aspects of International law advise to the Government of India’. See Govt of India, Ministry of External Affairs, Indian Treaties Database <https://www.mea.gov.in/treaty.htm>.

  86. 86.

    For the full range of legal issues before Parties, see Rajamani: Devilish Details, supra note 12.

  87. 87.

    The US State Department lawyer, Susan Biniaz, provided exceptional legal advice to the US at every stage of the negotiations, including in informal meetings with other states. She was in the Durban huddle, and fundamentally shaped the Paris Agreement with her expert drafting and legal skills. See Susan Biniaz, Comma but Differentiated Responsibilities: Punctuation and 30 Other Ways Negotiators Have Resolved Issues in the International Climate Change Regime https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/Publications/biniaz_2016_june_comma_diff_responsibilities.pdf.

  88. 88.

    See Law Student’s Plea against Justice Dalveer Bhandari as ICJ Judge, India Today (New Delhi) (26 April 2012) <http://indiatoday.intoday.in/story/law-students-plea-against-justice-bhandari-as-icj-judge/1/186135.html>; Rahul Srivastava, Indian Practice of Selection and Nomination of Judges to the International Courts and Tribunals: The Culture of Judicial Independence on the Anvil, Dissertation submitted to South Asian University in partial fulfilment of the requirement for the award of the degree of Master of Laws (2014).

  89. 89.

    Devirupa Mitra, PMO Foists Junior Lawyer with RSS Links as Indian Nominee to Top World Legal Body, The Wire (New Delhi) (14 October 2016) <https://thewire.in/72814/pmo-foists-junior-lawyer-rss-links-indian-nominee-top-world-legal-body/>.

  90. 90.

    Navroz K Dubash, Climate Politics in India: Three Narratives, in, Navroz K. Dubash (ed), Handbook of Climate Change in India (OUP, Delhi, 2012) 197, 202 (characterizing this strain of opinion as “growth-first realists”).

  91. 91.

    Anu Jogesh, A Change in Climate: Trends in Climate Change Reportage in the Indian Print media, in, Navroz K Dubash (ed), Handbook of Climate Change in India (OUP, Delhi, 2012) 266, 276–279.

  92. 92.

    Navroz K Dubash, Radhika Khosla, Narasimha D Rao and K Rahul Sharma, India’s Energy and Climate Policy: Lessons from Modelling Studies. Policy Brief. Center for Policy Research, New Delhi (2015) <http://cprindia.org/research/reports/india%E2%80%99s-energy-and-climate-policy-lessons-modelling-studies>.

  93. 93.

    Ibid.

  94. 94.

    See Significance of India’s Ratification of the Paris Agreement, In conversation with Lavanya Rajamani (3 October 2016) <http://www.cprindia.org/news/5539>.

  95. 95.

    Melting Asia, The Economist (5 June 2008) <http://www.economist.com/node/11488548> (characterizing India as “obdurate”).

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Correspondence to Lavanya Rajamani.

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Professor, Centre for Policy Research, New Delhi. I am grateful to Ambassador Chandrasekhar Dasgupta, Mr A. Gopinath, Mr. J. M. Mauskar, Dr Luther Rangreji, Ambassador Shyam Saran and Mr Surya Sethi, among others, who have provided me invaluable insights, either through structured interviews or through conversations over the years, on India’s approach to international law in the climate change negotiations.

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Rajamani, L. India’s approach to international law in the climate change regime. Indian Journal of International Law 57, 1–23 (2017). https://doi.org/10.1007/s40901-018-0072-0

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Keywords

  • Legal bindingness
  • Legal character
  • Legal form
  • Paris Agreement
  • UN climate negotiations
  • Indian foreign policy on climate change