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Abstract<\/span><\/strong><\/span><\/p>\n In 2022, India experienced one of the worst heatwaves it had ever faced, following which the<\/span>World Meteorological Organization<\/a> stated that \u201cclimate change made heatwaves in India 30 times more likely.<\/em>\u201d A<\/span>World Bank Report<\/a> stated that, by 2030, around 34 million people in India might experience a productivity decline due to heat stress and lose jobs. At the same time, India is still on the road to development in several aspects, including infrastructure, energy, and economy. The importance and need for Sustainable Development are at their peak. While India is making progress through its policies relating to Climate Change and Sustainable Development, the absence of a dedicated and comprehensive legislative framework on Climate Change, resonating with India\u2019s international obligations and important principles, seems to have caused policy paradoxes. This ultimately delays the achievement of the larger purpose.<\/span><\/span><\/p>\n Through this Blog Post, the Author will first provide a brief insight into the international framework of Climate Change law, including important principles and how the world is divided on the issues relating to Climate Change. Secondly, while analyzing the dynamics of climate justice and Sustainable Development in India through the lens of policy measures and judicial pronouncements, the Author will attempt to highlight the reasons in favor of the imperative need for bringing a comprehensive legislative framework to combat Climate Change in India.<\/span><\/p>\n \n 1. Introduction<\/strong><\/span>\u00a0<\/span><\/span><\/p>\n Climate Change is not a recent phenomenon. It is the byproduct of decades of trade, development, and globalization, among other contributing factors, that have<\/span>adversely impacted<\/a> the entire ecosystem across oceans and continents. Anthropogenic greenhouse emissions, arguably the most significant contributor to Climate Change, have accelerated the pace toward catastrophic and irreversible environmental damage. The issue of climate change is multifaceted and complex as it poses not only environmental challenges for countries but also policy issues and economic challenges. Moreover, as borders do not restrict the impact of Climate Change, developing countries, especially small island nations, are<\/span>severely impacted and often find themselves<\/a> paying the cost for another country\u2019s development. The transboundary implications of Climate Change indicate that mitigation measures need to be taken at a large scale, not by a country or group of countries alone, but by the entire international community.\u00a0<\/span><\/span><\/p>\n However, the history of negotiations in the international Climate Change law and policy regime<\/span>clearly reflects<\/a> the difficulty in securing international participation and consensus. One of the<\/span>primary reasons<\/a> for this is that the issue of Climate Change implicates almost every major aspect of a State\u2019s domestic policy, such as energy, agriculture, infrastructure development, transportation, urban planning, and other similar aspects.\u00a0<\/span><\/span><\/p>\n Varying political priorities, perspectives, development issues, and differing capacities of countries make it tougher to reach an agreement. Despite this, countries need to bear in mind that delay in undertaking mitigation action to 2030 \u201c<\/span>will substantially increase the challenges<\/em><\/a>\u201d associated with meeting the target of limiting temperature increase to well<\/span>below 2\u00b0C<\/a> relative to pre-industrial levels, as adopted in the<\/span>Paris Agreement<\/a>. Without a considerable increase in the mitigation ambition in the<\/span>2020 to 2030 period<\/a>, the prospect of achieving the target of keeping the temperature increase under<\/span>1.5\u00b0C<\/a> appears to be an utopian goal. Thus, mitigation measures will have to be taken at a large scale by all the major greenhouse gas emitters including fast-developing economies like India.<\/span><\/span><\/p>\n 2. International Framework on Climate Change Law<\/strong><\/span>\u00a0<\/span><\/p>\n Though the adverse effects of anthropogenic greenhouse emissions and the issue of Climate Change were<\/span>first studied and brought<\/a> to light by the scientific community, a focused international regime to<\/span>analyze and address<\/a> the issue of climate change began to develop in the late 1980s.\u00a0<\/span><\/span><\/p>\n From what began as a mere task force established by the World Meteorological Organization and the United Nations Environment Programme, i.e., the \u201cAdvisory Group on Greenhouse Gases<\/em>\u201d in 1986, to the<\/span>establishment<\/a> of specialized institutions such as the<\/span>Intergovernmental Panel on Climate Change<\/a> (\u201cIPCC\u201d<\/strong>), the<\/span>United Nations Framework Convention on Climate Change<\/a> (\u201cUNFCCC\u201d<\/strong>), international treaties including the<\/span>Kyoto Protocol, 1997<\/a> and the Paris Agreement, 2015, the jurisprudence on international Climate Change law has considerably evolved. International Climate Change Law broadly<\/span>focuses<\/a> on the \u201cmitigation\u201d of Climate Change, \u201cadaptation\u201d to Climate Change, \u201cfinancial means to support mitigation and adaptation,\u201d and \u201cinternational oversight\u201d to promote implementation, \u201ccompliance,\u201d and \u201ceffectiveness.\u201d\u00a0<\/span><\/span><\/p>\n The International Climate Change Law regime comprises hard and soft law elements incorporated through Conventions, Agreements, Accords, and multilateral Treaties. The major principles include the principle of \u201cInter-generational Equity\u201d and \u201cIntra-generational Equity,\u201d \u201cCommon but Differentiated Responsibilities and Respective Capabilities\u201d (\u201cCBDRRC\u201d<\/strong>), \u201cSustainable Development,\u201d the \u201cPrecautionary Principle,\u201d and the \u201cPolluter Pays Principle\u201d, among others. However, these principles are no exception to the inherent limitations of international law so far as effective adoption, implementation, and enforcement are concerned. On the one hand, while the non-binding nature of these international instruments induces voluntary participation, the lack of sanctions on the other hand results in countries failing to ratify the concerned provisions, thereby also failing to effectively implement mitigation and adaptation measures.\u00a0<\/span><\/p>\n From the point of view of developing countries like India, the most significant principles are the principle of CBDRRC and Sustainable Development.\u00a0<\/span><\/p>\n Sustainable Development is ensuring that developmental activities fulfill the need of the<\/span>present generation without compromising the ability of future generations<\/a> to meet their own needs. Itis<\/a> \u201cthe process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are made consistent with future as well as present needs<\/em>.\u201d The concept of Sustainable Development acknowledges the fact that globalization and development carry with it the ancillary risk of damage to the environment.\u00a0<\/span><\/span><\/p>\n Considering the same, it requires policymakers to ensure that the growing economies remain committed to their environmental causes, thereby facilitating Sustainable Development in the long run. Thus, it can be said that Sustainable Development demands integration of economic and ecological considerations in the decision-making process, where ecological considerations are at least given equal weightage, if not primacy. Further, efforts are made to ensure that, instead of reacting to issues of Climate Change and environmental degradation and taking remedial measures when the damage is done, a proactive approach is inculcated at all levels of governance, i.e., to say that potential adverse effects of development are anticipated, and requisite precautions are put in place in advance so as to avoid irreversible harm to the environment. The<\/span>Brundtland Commission Report<\/a> had predicted that such \u201c\u2026reorientation is one of the chief institutional challenges of the 1990s and beyond.<\/em>\u201d Addressing the same would require institutional reform, and poor or small developing countries with limited capacity will need assistance and training (financial and technological) from the developed countries.\u00a0<\/span><\/span><\/p>\n While the issue of varying capacities of countries in undertaking mitigating measures to combat Climate Change was addressed as a part of the principle of Sustainable Development, owing to the gravity of the said issue, a new principle was coined in the UNFCCC, namely, the principle of CBDRRC, which though appears to have its roots in the principles of equity, it was first formally incorporated in the UNFCCC. Although, the<\/span>Stockholm Declaration of 1972<\/a> emphasized the need to consider \u201cthe applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries<\/em>,\u201d it was<\/span>Article 3.1 of the UNFCCC<\/a> which expressly states that:\u00a0<\/span><\/span><\/p>\n \u201cThe 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 common but differentiated responsibilities and respective capabilities<\/strong>. Accordingly, the developed country parties should take the lead in combating climate change and the adverse effects thereof.<\/em>\u201d\u00a0<\/span><\/p>\n<\/blockquote>\n Further,<\/span>Principle 7 of the Rio Declaration<\/a> (only focusing on Common but Differentiated Responsibility) provides that:\u00a0<\/span><\/span><\/p>\n \u201cStates shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth\u2019s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities<\/strong>. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.<\/em>\u201d\u00a0<\/span><\/p>\n<\/blockquote>\n The CBDRRC principle comprises two elements. Firstly, it recognizes the common responsibility of all countries to participate in the international response measures aimed at adapting to and mitigating the impact of Climate Change. Secondly, it recognizes the differing commitments based on historical contribution, present circumstances and capacity (not addressed in the Rio Declaration, only in the UNFCCC), future development needs, and other similar factors. Prof. Oran R Young has aptly<\/span>summarized<\/a> the central thrust of the CBDR principle: it is \u201cto couple an acknowledgement that everyone bears some responsibility for coping with large-scale environmental problems with a recognition of the fact that some members of international community are much better situated than others to provide the resources needed to address these problems<\/em>.\u201d\u00a0<\/span><\/span><\/p>\n However, these distinguishing factors forming the basis of the CBDRRC principle have a flipside as well, which is often criticized for creating a firewall between the industrial\/developed and developing countries. This firewall is often criticized because the \u201cdistinguishing factors\u201d are often used as a defense mechanism (by both developed and developing countries) to justify non-compliance with the duty to adapt, mitigate, and sustainably develop, instead of making conscious efforts to contribute as per their respective capacities.\u00a0<\/span><\/p>\n The<\/span>Glasgow Climate Pact (COP26)<\/a> inter-alia<\/em> recognized the need to transition away from fossil fuels, particularly coal-based power. Yet, India (owing to its heavy dependency on coal)<\/span>introduced<\/a> a last-minute amendment to replace the term \u201cphase out<\/em>\u201d coal, as contemplated in the original draft agreement, with \u201cphase down<\/em>\u201d coal. Interestingly, this amendment was proposed by India when it was on the verge of a power crisis due to a shortage of coal.\u00a0<\/span><\/span><\/p>\n While this amendment was heavily criticized by developed and several developing countries, it cannot be ignored that for a large developing country like India, the process of phasing out coal in the energy production sector will be a herculean task.<\/span>Reportedly<\/a>, India was not the only country to blame for this amendment; countries like China, the United States of America (\u201cUSA\u201d<\/strong>), and the United Kingdom (\u201cUK\u201d<\/strong>) were also consulted before proposing the aforesaid amendment. Other<\/span>key commitments<\/a> made by India included the assurance to meet 50% of its energy needs from renewable sources by 2030; and the undertaking to be a net zero carbon economy by 2070.\u00a0<\/span><\/span><\/p>\n There was a positive difference in the Indian approach at the<\/span>COP 27 summit<\/a>, where India highlighted that it had updated its<\/span>Nationally Determined Contributions<\/a> (\u201cNDCs\u201d<\/strong>) in August 2022, ratifying two pledges under the Paris Agreement, i.e., a<\/span>45% reduction<\/a> in emissions intensity by 2030, and the<\/span>undertaking to source 50%<\/a> of its electric power needs from renewable sources by 2030. Although these commitments seem promising, critics have expressed doubts about them being realized.<\/span><\/span><\/p>\n \n 3. The Divided World on Climate Justice \u2013 Developed and Developing Countries<\/strong>\u00a0<\/strong><\/span><\/p>\n While there is an increase in participation from countries in taking significant mitigating measures, the global community is largely divided based on their intention and ability to take initiative to combat the looming Climate Change crisis. For instance, under<\/span>Article 4.2(a) of UNFCCC, the principle of CBDRRC<\/a> intends to balance the responsibilities and commitments of the parties in accordance with their quantum of historical contribution, economic structures and resources, available technology, capacity to take mitigating measures, and other similar factors. Accordingly, it requires the parties to carry out development in a sustainable manner. This obligation to adapt to the climate crisis and develop sustainably largely falls on the shoulders of developing countries which leads to a very legitimate question: \u201ccan developed countries ask the developing countries to carry the additional weight of sustainability<\/strong> on top of development<\/strong> in their critical transitioning period when there were no such restrictions on the development of the industrial\/developed countries?<\/em>\u201d\u00a0<\/span><\/span><\/p>\n Further, as the cost of adaptation and Sustainable Development is high, it is imperative that developed countries assist developing countries in the process of adaptation and Sustainable Development in terms of financial resources and technological transfer. Rajamani aptly<\/span>notes<\/a> that \u201cthe delay in addressing this divide between developed and developing countries, in an equitable manner, has resulted in a loss of momentum that could risk the two critical determinants of an effective climate regime: universal participation and timeliness in achieving the necessary international co-operation.<\/em>\u201d\u00a0<\/span><\/span><\/p>\n Certain provisions that evolved with an aim to assist developing countries in combating Climate Change are:<\/span><\/p>\n i.<\/span>Article 4.5 of the UNFCCC<\/strong><\/a> \u2013 Technology Transfer:<\/strong> As per Article 4.5, developed countries are required \u201cto take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to environmentally sound technologies and know-how to other parties\u201d<\/em> and to support the \u201cdevelopment and enhancement of endogenous capacities and technologies of developing country parties<\/em>.\u201d Countries have co-operated and developed a system through the decision of the parties (Conference of Parties) rather than incorporating express details in the UNFCCC directly.\u00a0<\/span><\/span><\/p>\n However, during the negotiation stage, the developing countries sought binding assurance that technology would be transferred to them on \u201cconcessional and preferential terms.<\/em>\u201d On the other hand, developed countries opposed this and emphasized technology cooperation instead of technology transfer on the ground of protecting their intellectual property rights. Even the developed countries that were agreeable to technology transfer were willing only on \u201cfair and most reasonable terms.<\/em>\u201d<\/span><\/p>\n ii.<\/span>Article 4.3 and 4.4 of the UNFCCC<\/strong><\/a> \u2013 Financial Support: <\/strong>The provisions require Annex II parties to provide basic financial resources to developing countries to prepare emissions inventories and national reports, implement measures for reduction of emissions, and meet the costs of adaptation to the adverse effects of Climate Change. The core financial principles of the UNFCCC have been enhanced by the decisions of the parties by establishing new climate-related funds and devising goals and guidelines regarding such funding. Through the<\/span>Copenhagen Accord<\/a>, developed countries pledged to mobilize $100 billion per year in climate finance by 2020 with an aim to assist developing countries in undertaking mitigation and adaptation measures. However, the target was never fully realized. The funds mobilized in<\/span>2013<\/a> were $52.4 billion, $61.8 billion in<\/span>2014<\/a>, $44.6 billion in<\/span>2015<\/a>, $58.5 billion in<\/span>2016<\/a>, $71.6 billion in<\/span>2017<\/a>, $79.9 billion in<\/span>2018<\/a>, $80.4 billion in<\/span>2019<\/a>, and $83.3 billion in<\/span>2020<\/a>. While there has been a gradual increase in the funds mobilized, the target has never been fully realized. This implies that there is a gnawing gap between the financial needs and available financial resources for adaptation and mitigation of Climate Change.<\/span><\/span><\/p>\n iii.<\/span>Article 17 of the Kyoto Protocol Emissions Trading<\/strong><\/a>: The Kyoto Protocol provides for an international emissions trading system with the intent to control overall greenhouse emissions. The Protocol established caps on the maximum quantum of permitted greenhouse emissions for Annex 1 developed and developing countries. These countries set internal quotas on emissions from installations run by local businesses and other organizations, generally termed as \u201c\u201d Countries oversee this responsibility through their own national \u201cregistries<\/em>,\u201d which are required to be validated and monitored for compliance by the UNFCCC.<\/span>\u00a0<\/span><\/span><\/p>\n Each operator is allocated an allowance of credits. Operators that have not reached their maximum quota limits can sell their unused allowances as carbon credits. In effect, the mechanism has failed to have any reduction in carbon emission levels. One of the primary reasons for the same was that major developing countries (including India) excluded themselves from abiding by the established commitments under the Kyoto Protocol and that the agreed period was too short to expect any fruitful results. Emissions trading was revamped as \u201cinternationally transferred mitigation outcomes<\/em>\u201d under<\/span>Article 6.2 of the Paris Agreement, 2015<\/a>. Further,<\/span>Article 6.4<\/a> of the Paris Agreement provides for a new mechanism to \u201cpromote the mitigation of GHG emissions while fostering sustainable development.<\/em>\u201d<\/span><\/span><\/p>\n iv.<\/span>Article 6 and 12 of the Kyoto Protocol<\/strong><\/a> \u2013 Joint Implementation and Clean Development Mechanism<\/strong>: Under Joint Implementation, a developed country with relatively high costs of domestic emission reduction can fund carbon projects in another developed country. Whereas under<\/span>Clean Development Mechanism<\/a> (\u201cCDM\u201d<\/strong>), a developed country can sponsor a greenhouse gas reduction project in a developing country where the cost of greenhouse gas reduction project activities is usually much lower, but the atmospheric effect is globally equivalent. The<\/span>developed country is given credits toward meeting its emission reduction targets<\/a>, while the developing country receives the benefits of Sustainable Development and investment. The<\/span>extent of its contribution towards Sustainable Development<\/a> (the underlying purpose of CDM) is tough to evaluate; however, it is<\/span>suggested<\/a> that there are limited benefits.<\/span><\/span><\/p>\n 4. Climate Justice Law and Policy \u2013 Is India Shouldering its (Differentiated) Responsibility?<\/strong>\u00a0<\/span><\/p>\n Although India presently does not have a dedicated framework for legislation regarding Climate Change, there exists a strong environmental law jurisprudence. There are several laws on environmental protection, such as the<\/span>Water (Prevention and Control of Pollution) Act, 1974<\/a>,<\/span>Air (Prevention and Control of Pollution) Act, 1981<\/a>\n
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