LM: Legalities of climate change: August 05, 2009

Legalities of climate change

A recent climate change declaration poses significant challenges–and opportunities–for India……Anuradha R.V.

The Declaration of the Major Economies Forum on Energy and Climate (MEF) signed on 9 July, marks a significant event in the run-up to the United Nations (UN) climate change conference in Copenhagen in December. Launched in March this year, MEF comprises 17 developed and developing economiesAustralia, Brazil, Canada, China, the European Union, France, Germany, India, Indonesia, Italy, Japan, Korea, Mexico, Russia, South Africa, the UK and the US. The crux of the MEF declaration is a clear acknowledgement that the increase in global average temperatures above pre-industrial levels should not exceed 2 degrees Celsius and that both developed and developing countries need to work towards this goal. This article seeks to examine the broad contours of the MEF declaration and the legal niceties that a developing country such as India would need to bear in mind during the forthcoming negotiations for a climate deal that would follow the Kyoto Protocol in 2012.

The declaration begins by reiterating the principle of common but differentiated responsibility between developed and developing countries. Its point of departure from existing instruments is its statement that, while developed countries will take the lead by promptly undertaking robust aggregate and individual reductions, developing countries also commit to promptly undertake actions whose projected effects on emissions represent a meaningful deviation from business as usual in the mid-term. This articulation of a developing country responsibility with regard to emissions is a unique aspect of the declaration. (The current framework under the UN Framework Convention on Climate Change, or UNFCCC, and the Kyoto Protocol mandates emission reductions only from developed countries). The MEF declaration proceeds to contextualize a developing countrys responsibility with an emphasis on sustainable development, supported by financing, technology and capacity building. Where it falls short, however, is in drawing a clear link between the obligation of developed countries to ensure adherence to these critical factors and commensurate responsibilities on developing countries.

In fact, it is in this aspect that most international law instruments have faltered. Financial and technical assistance, capacity building and technology transfer are mostly expressed as loosely worded, non-binding obligations. Actual implementation of these provisions and assessment of their effectiveness, therefore, remains one of the neglected spheres of international law. UNFCCC and the Kyoto Protocol also mention these requirements. In fact UNFCCC also provides the framework for linking adherence by developing countries to their obligations under the convention to the effective implementation by developed countries of their commitments to provide financial resources and transfer of technology. However, as is widely acknowledged, implementation of these requirements remains one of the weak links under these instruments.

The core issue before India is the nature of obligations that it can really afford to undertake at the international level in a post-Kyoto scenario, given its own developmental priorities. The draft of a new World Bank report on this subject, as has been reported in this newspaper, has reaffirmed the government of Indias stand that current and future emission trends for India do not support lifestyle or consumption patterns displayed in developed countries, but they are aimed at providing basic energy services and supporting a growing economy.

Any negotiations would, therefore, need to start with the premise that it is neither practical nor feasible for India to undertake emission reduction commitments, unless this is backed by commitments on finances and technology that can facilitate economic growth with emission reductions. Several proposals for a new financial mechanism for climate change have been made in the past year. In its submission to UNFCCC last year, India set out fundamental conceptual issues, that climate change finance has to be interpreted in terms of entitlements (based on rights of developing countries), and not donations (aid). Mexicos proposal for a Green Fund seeks to articulate the basis on which countries would be required to make differential contributions to the fund to tackle climate change. The Group of 77 and China have proposed that funding should come from a contribution ranging from 0.5% to 1% of the gross national product of industrialized countries, to finance technology transfer to developing countries.

What is missing, however, is an articulation of a legal architecture addressing the following crucial issues: (i) The framework for assessing economic costs of undertaking emission reductions, while at the same time investing in economic growth and development priorities; (ii) predicating emission reductions by developing countries on the full adherence by developed countries to binding legal obligations for financial and technical assistance and technology transfer; (iii) a mechanism for periodic assessment at the national level of programmes and activities necessary for technical and financial assistance, capacity building and technology transfer and its cost implications; (iv) evolving clear benchmarks and criteria for monitoring and evaluating whether implementation of obligations relating to capacity building, technical and financial assistance and technology transfer has been effective; and (v) articulating any emission reduction targets as being conditional on all of the foregoing.

Developing a comprehensive international legal instrument that effectively addresses the challenges of emission reductions is uncharted territory. These imperatives would need to be addressed for achieving any genuine adherence to the requirements for equity and economics under a climate change treaty. The basic challenge, as well as an opportunity for India, is to take the initiative and proactively evolve the contours of such an instrument.

Anuradha R.V. is a partner at Clarus Law Associates, New Delhi. Comment at theirview@livemint.com

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