Advertisement

Indian Journal of International Law

, Volume 57, Issue 1–2, pp 1–23 | Cite as

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

  • Lavanya Rajamani
Article

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”.

Keywords

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

1 Introduction

India has played a central role in shaping the international climate change regime, particularly in the formulation of the bedrock principle of common but differentiated responsibility, and ensuring stark differentiation between developed and developing countries in the United Nations Framework Convention on Climate Change (FCCC)1 and its Kyoto Protocol.2 India helped draft the key legally binding instruments in the climate regime, in particular the FCCC and its Kyoto Protocol. India even presented a first full draft of the FCCC for Parties to negotiate and adopt.3 India supported the negotiation of these legally binding instruments while ensuring that they did not contain legally binding greenhouse gases (GHG) mitigation commitments for developing countries.4 India’s embrace of legally binding instruments, however, came to an end when the international climate negotiations began to consider ways to extend GHG mitigation commitments to developing countries. In the last decade of the 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”. The term “legally binding” is typically applied to negotiated legal instruments that render a particular state conduct mandatory as well as, at least in principle, judicially enforceable.5 This article seeks first to provide a context for India’s engagement with the international climate change regime – the positions it has put forward and the commitments it has undertaken. It will next outline India’s approach to “legal bindingness”, in particular its reluctance to embrace legally binding instruments, and its endorsement of other softer forms of law. Finally, this article will seek to explore possible reasons for India’s wariness on issues relating to “legal bindingness”. This final section of the article draws on several years of participation in and observation of India’s negotiating strategies and positions at the multilateral climate change negotiations. It is also based on interviews and conversations with former and current Indian negotiators and bureaucrats at the Ministry of External Affairs and Ministry of Environment, Forests and Climate Change.

2 Setting the context

2.1 Legal form and character

At the outset, it is worth stressing the distinction between the legal form of an instrument and the legal character of provisions within it. Treaties – albeit legally binding instruments requiring state consent6 – typically contain a range of provisions varying in legal character, some with greater legal force and authority than others, and thus some that lend themselves to compliance and others that do not. The legal character of a provision depends on a range of factors including location (where the provision occurs), subjects (who the provision addresses), normative content (what requirements, obligations or standards the provision contains), language (whether the provision uses mandatory or recommendatory language), precision (whether the provision uses contextual, qualifying or discretionary clauses) and oversight (what institutional mechanisms exist for transparency, accountability and compliance).7

Both the FCCC and the Kyoto Protocol, albeit legally binding instruments, contain a range of provisions of varying legal character. The FCCC, for instance, has numerous provisions that are couched in discretionary and contextual language. The commitments of industrial countries relating to financial resources and technology transfer are peppered with phrases such as “as appropriate”, “if necessary”, “in so far as possible”, and “all practicable steps”.8 Although the discretion provided is with regard to the manner or timeframe of performance of a particular obligation, rather than as to performance or non-performance, it nevertheless renders the setting of a standard, a finding of compliance or non-compliance, and the resulting visitation of consequences, a problem-ridden task. This in turn affects compliance with and effectiveness of such provisions. The Kyoto Protocol, given its targets and timetables approach, lends itself more readily to standard setting, and it has its own compliance system.9 However, even the Protocol contains provisions and terms which defer to the judgment of Parties on what is or is not appropriate in the circumstances, which in turn renders the setting of standards and finding of compliance or non-compliance problematic. For instance, the Kyoto Protocol requires developed country Parties to make “demonstrable progress” by 2005 in achieving their identified mitigation commitments.10 While non-compliance with mitigation commitments is subject to enforcement through the compliance system, non-compliance with the requirement to demonstrate progress, given the inherent subjectivity of the term, may not lend itself to such action. These examples suggest that although a treaty may, as it is a legally binding instrument, offer the comfort of presumed rigour, whether in practice its provisions create mandatory obligations, and lend themselves to compliance is less certain. Thus, it is clear that provisions, even within legally binding instruments, have differing legal character. In multilateral settings, given domestic political and capacity constraints, Parties choose a finely balanced set of soft11 and hard obligations (between which there is dynamic interplay) to demonstrate their commitment to addressing a global environmental problem.12

Both the FCCC and its Kyoto Protocol, legally binding instruments, have a range of provisions of differing legal character. Although they require all states – developed and developing – to undertake policies and measures to address climate change,13 they do not contain legally binding mitigation commitments for developing countries. On the contrary, developing countries are offered the full gamut of flexibility and differentiation in their favour.14 It is evident then that developing countries have nothing to fear from legally binding instruments per se. On the contrary, a legally binding instrument signals the highest expression of political will, and has several attractive attributes. Legally binding instruments crystallize international commitments into domestic legislative action, thereby co-opting domestic enforcement mechanisms and generating predictability and certainty in implementation as well as accountability at the domestic and international levels. As many scholars have noted, legally binding instruments generate credible commitments.15 A legally binding instrument “communicates expectations”, “produces reliance” and “generates a compliance pull”.16 And, its violation entails higher reputational costs. Such instruments also typically survive domestic political changes.17 India could safely, as the FCCC and Kyoto Protocol demonstrate, negotiate and adopt legally binding instruments to strengthen the climate change regime, without assuming legally binding mitigation commitments for itself. Yet, in the last decade, and in the negotiations for the Paris Agreement, India remained reluctant to negotiate a legally binding instrument. This is despite the fact that India has over the same time period rapidly scaled up its efforts to address climate change.

2.2 India and the multilateral climate negotiations18

India, a party to the FCCC and its Kyoto Protocol, has consistently rejected legally binding quantitative GHG mitigation targets for itself.19 In India’s view, given its limited role in contributing to the problem thus far, its overriding development needs and the historical responsibility of developed countries, India cannot be expected to take on binding mitigation targets.20 India has also argued for developed countries to take a leadership role, and for the provision of finance and technology support to developing countries.21 It is worth noting in this context that India’s energy use is currently at a low per capita emissions rate of 1.9 tons CO2 per person annually,22 and a cumulative share of 7%.23 It is ranked 130th on the Human Development Index,24 363 million Indians live in poverty, and an estimated 304 million Indians do not have access to electricity.25

Nevertheless, in 2007 India promised that its per capita emissions would not exceed the levels of developed countries.26 India believed that this would incentivize developed countries to achieve timely reductions in their per capita emissions.27 India also offered to embark on a path of decarbonisation. Decarbonisation, according to India, refers to an economy with lower carbon intensity over time.28 Decarbonisation includes enhanced energy efficiency, a shift in primary energy use from fossil fuels to renewable energies (including hydropower) and nuclear energy, and changes in production and consumption patterns.29 In 2010, India crystallised its offer to decarbonise into a voluntary undertaking under the non-binding Copenhagen Accord30 to “endeavour to reduce the emissions intensity of its GDP by 20–25% by 2020 in comparison to the 2005 level”.31 This undertaking was mainstreamed into the FCCC process through an information document taken note of32 by the Cancun Agreements, 2010.33

In 2015, in the context of the negotiations towards the 2015 Paris Agreement, India put forward its intended nationally determined contribution (INDC).34 In it India promised by 2030 to reduce the emissions intensity of its GDP by 33–35% from 2005 levels, increase the share of non-fossil fuel-based electricity to 40% cumulative electric power installed capacity and significantly increase its forest and tree cover.35 India’s commitments thus far, in keeping with its position, have been voluntary rather than binding. India’s INDC, however, is a serious commitment. Although countries are not obliged to achieve their NDCs under the Paris Agreement, there is a good faith expectation that they will.36 India is required, for instance, to provide information necessary to demonstrate progress in implementing and achieving its NDC.37

India’s consistent rejection of legally binding mitigation commitments is in keeping with its significant development, energy and poverty challenges. However, given legally binding instruments do not, as we have seen, need to contain legally binding mitigation commitments, India’s deep-seated antipathy in the decade leading up to the 2015 Paris Agreement to negotiate a new legally binding instrument bears close examination.

3 India’s wariness of legal binding instruments

The FCCC, as a framework instrument, contains principles, guidance and broad burden sharing arrangements governing climate change responses. It only contained a GHG stabilization target for Annex I Parties, and even this target, couched as it is in aspirational language, is better characterized as a soft obligation rather than a legally binding provision. Thus, it rapidly became evident that a new legally binding instrument with more precise targets and timetables would be necessary to build on and complement the FCCC. The Kyoto Protocol was thus negotiated and adopted in 1997, and the rules for its operationalization were negotiated and captured in the Marrakesh Accords in 2001.38 The Kyoto Protocol, although a significant achievement at the time, had two fundamental limitations. First, it set targets for only a five-year commitment period running from 2008 through 2012, and did not limit emissions thereafter. Second, its emissions targets encompassed less than 24% of global GHG emissions,39 both because the US had rejected it in 200140 and because it did not establish any emissions limitation commitments for China (which in 2005 surpassed the US as the world’s biggest current emitter)41 and other developing countries. Once the Kyoto Protocol entered into force in 2005, parties turned their attention to addressing these limitations in the climate regime.

In the next decade from 2005 to the adoption of the Paris Agreement in 2015, two central and inter-connected themes underpinned the negotiations: the nature and extent of differentiation in the proposed agreement and the legal form of the proposed outcome and legal character of provisions in it. India played a central role in framing the discussion on both these issues; this article focuses on the latter. There were several milestones in the multilateral climate negotiations from 2005 to 2015: Bali in 2007, when a framework for negotiations towards an “agreed outcome” was introduced – the Bali Action Plan; Copenhagen in 2009, when the effort to reach an “agreed outcome” floundered, but was rescued by a Head of State level negotiated Copenhagen Accord; Durban in 2011, when a new negotiating mandate, the Durban Platform,42 was agreed upon; and, Paris in 2015, when the Paris Agreement was adopted.

The Bali Action Plan 2007 launched a two-year negotiating process towards an “agreed outcome”43 – a term that masked differences among parties on the legal form that the outcome should take. The options for “legal form” ranged from protocols and amendments that are legally binding and can potentially deliver the benefits of consistent application, certainty, predictability and accountability, through to soft law options such as decisions taken by the Conference of Parties (COP), which are not, save in the exception, legally binding.

The Alliance of Small Island States and other vulnerable countries on the frontlines of climate impact had long argued that anything short of a legally binding instrument would be an affront to the grave crisis threatening their nations. To those likely to lose their nations to rapidly increasing sea levels, soft law, with all the conceptual fuzziness and state autonomy in implementation that accompanies it, is an unsettling international response. Many developed countries too had favoured a global and comprehensive legally binding instrument under the FCCC. As a result, several Parties submitted draft protocols as their proposed “agreed outcome” to the Bali negotiating process.44 Australia, for instance, submitted a proposal for an instrument with national schedules containing binding obligations.45 The BASIC (Brazil, South Africa, India and China) countries, concerned about constraints on their development prospects, were at this point in the negotiations reluctant to endorse a legally binding instrument. The 2009 Copenhagen negotiations, the scheduled deadline for the Bali Action Plan process, notoriously failed to reach an “agreed outcome”. The negotiations floundered for many reasons – substantive and procedural46 – but the legal form of the “agreed outcome” was a key sticking point. Although the negotiations were in camera, a Spiegel report, based on secret recordings of the proceedings, reported a stand-off between Angela Merkel, German Chancellor, and the Indian negotiator on the issue of “legal form” of the Copenhagen Accord.47 Heads of state and government rescued the process by arriving at a political accord at the last minute, but this Accord was taken note of (rather than adopted) by the Conference of Parties, leaving its legal status unclear.48

Two years later in Durban, after Parties had accepted the key political compromises reflected in the Copenhagen Accord into the official FCCC process through the Cancun Agreements, Parties again sought to launch negotiations towards an instrument to strengthen the climate change regime. By this point in the negotiations, most developing countries had come around to the idea of negotiating a new legally binding instrument.49 This can be sourced, in part, to increasing pressure from the small island and other vulnerable nations, all of whom were part of the large developing country coalition, the G-77/China, as well as a gathering recognition that even a legally binding instrument could contain soft differentiated obligations for developing countries. Thus, in the final hours of the Durban climate negotiations India alone remained firm in its opposition to such an instrument. India, well after the scheduled end of the Durban conference, continued to insist that agreeing to a legally binding instrument was a red line that it could not cross. Early drafts of the decision to be taken by Parties to launch a new round of negotiations characterized the outcome of these negotiations as a “protocol” and “another legal instrument”. As these terms, also used to launch the negotiations towards the Kyoto Protocol,50 are interpreted by most as referring to legally binding instruments under the FCCC, a more ambiguous third option was necessary to accommodate India. India argued that it could agree to launch a process towards a “legal outcome” – which would leave the precise legal form of the instrument open. This formulation – “legal outcome” – lacked the clarity and ambition that the EU, the Alliance of Small Island States, the Least Developed Countries, many Latin American countries, and even India’s BASIC allies, Brazil and South Africa, were seeking. Critically, this was not sufficient for the EU to endorse a Kyoto second commitment period (beyond 2012). India agreed in the end to substitute the term “legal outcome” with the term “agreed outcome with legal force”.51 And thus, the Durban Platform launched a new phase of negotiations towards a “protocol, another legal instrument or agreed outcome with legal force,”52 triggering the acceptance of a Kyoto second commitment period by the EU and its allies.

The term “agreed outcome with legal force” was the result of a high profile “huddle” with the EU and India at its centre, thirty odd hours after the scheduled end of the Conference.53 The US, the UK, and the South African hosts also played a role in brokering the final deal.54 The term “agreed outcome with legal force” is only marginally less ambiguous than “legal outcome”, which India had sought in the Durban negotiations, and “agreed outcome” that the Bali process worked towards. It was clear, however, that India had sought this formulation to retain the option, yet again, of negotiating an instrument that was not internationally legally binding. In its submission shortly after Durban, India noted that in its view the Durban “agreed outcome with legal force” may include decisions and bodies of “differing degrees of bindingness” under domestic and international laws. 55 In her statement to the Indian Parliament, Jayanthi Natarajan, then Environment Minister, concluded that the Durban decision “allows India the necessary flexibility over the choice of appropriate legal form to be decided in future”.56

For most of the four year negotiating process that followed Durban and culminated in the Paris Agreement in 2015, issues of “legal form” of the outcome continued to haunt the negotiations. At this point, India alone was resistant to agreeing on the legal form of the outcome, so Parties, by implicit agreement, decided to leave this contentious issue to be resolved at the end. Thus the 2013 Warsaw conference invited Parties to submit ‘intended nationally determined contributions’ in the context of the 2015 agreement, but left unresolved the legal form of the 2015 agreement and, explicitly, the legal character of nationally determined contributions.57 The 2014 Lima conference that arrived at an “Elements text”58 for the 2015 agreement, and the 2015 “Geneva Negotiating Text”59 that emerged a few months later also contained footnoted disclaimers in relation to legal form and character. In the lead up to Paris, therefore, Parties had yet to determine what legal form the 2015 agreement would take, as well as resolve the legal character of its various provisions, in particular the nationally determined contributions that were expected to form part of the Paris package.

By this time, however, India had softened its stance. This softening of positions in relation to legal form can be traced to at least three developments. First, a powerful political momentum had built up over time, due to the efforts of the EU and many vulnerable countries, toward adoption of a legally binding instrument. Second, the reluctance of many countries across the developed–developing country divide to take on internationally negotiated commitments had led to the emergence and gathering traction of the notion of “nationally determined contributions” (NDCs)—an approach that, by privileging sovereign autonomy, respecting national circumstances and permitting self-differentiation, significantly reduced the sovereignty costs of a legally binding instrument. Third, due to the efforts of the US and others, there was increasing recognition and acceptance by states of the distinction between the legal form of the instrument (i.e., could be binding) and the legal character of national determined contributions (i.e., could be non-binding). The Paris Agreement thus is a treaty, albeit one with a range of provisions of differing legal character. And, the nationally determined contributions from parties are subject to legally binding obligations of conduct (rather than result). Parties are obliged, in other words, to prepare, communicate and maintain their nationally determined contributions, as well as to take domestic measures to implement them, but they are not obliged to achieve them.60

4 Exploring India’s wariness of legally binding instruments

Although the fact that India exhibited remarkable antipathy to legally binding instruments in the decade leading up to the Paris Agreement is clear to most observers of the multilateral climate negotiations, the full gamut of reasons for India’s antipathy are less clear. There are likely several overlapping reasons for India’s approach to legally binding instruments in this phase of the negotiations.

4.1 Proactive fashioning of international climate change law: Organic mix of soft and hard laws?

A beneficial construction of India’s reluctance to negotiate a new legally binding instrument is that India had an alternative, more deliberate and thoughtful vision of international climate change law – one that envisions an organic inter-mixing of soft and hard laws, of formal and informal norms. International environmental law has, from its inception, utilized soft law as a precursor or catalyst for hard law, and even in place of hard law when hard law proved politically unpalatable to some states. As international environmental law has grown and matured, in particular in the climate change regime, with deeply entrenched positions and frequent disruptive shifts in national positions, states have experimented with instruments of varying degrees of legal bindingness. Such instruments tailor bindingness to issue areas and parties rather than take a uniform approach, and thus are more likely to attract participation than hard law instruments with stringent obligations, backed by compliance consequences. The softer approach inherent in such instruments is more suitable for India, given its many constraints, differing priorities, policy uncertainties and governance challenges it faces. India noted in its submission after Durban that the outcome “may include aspirational CoP decisions, binding CoP decisions, setting up of institutions and bodies covering various aspects of Bali Action Plan and Cancun Agreements with differing degrees of binding-ness under the provisions of domestic and international law under the UNFCCC”. 61

The constituent elements of this intriguing statement bear close examination: first, the legal status of decisions taken by the Conference of Parties; second, the possibility of norms of “differing degrees of bindingness” in the climate regime and third, the reference to bindingness in domestic as well as international law.

India has long argued that the decisions taken by Conferences of Parties can be “binding”.62 From a formal legal perspective, however, COP decisions are not, absent explicit authorization, legally binding. 63 It is possible that those who drafted India’s submission did not seek international legal expertise, which is discussed in detail below. It is also possible that India was referring not to the legal status of COP decisions, but to the fact that COP decisions have come to acquire tremendous operational significance in the climate change regime. The FCCC and the Kyoto Protocol authorize the COP to engage in the progressive normative and institutional development of the regime.64 COP decisions have enriched and expanded the normative core of the regime by fleshing out treaty obligations,65 reviewing the adequacy of existing obligations,66 and launching negotiations to adopt further obligations.67 COP decisions have also created an elaborate institutional architecture to supervise compliance with obligations.68 Indeed, these decisions, titled the Marrakech Accords, by setting in place both the rules of the game and the institutional structure to oversee rule compliance, were responsible for the Kyoto Protocol’s entry into force.

India argued for an outcome at Paris capturing instruments and norms of “differing degrees of bindingness”. This reflects a more general understanding that lines between hard, soft and non-law are blurred. For instance, COP decisions often contain many of the characteristics that make norms binding. Most states take COP decisions seriously and comply with them most of the time. And, although COP decisions may be an informal rather than a formal source of law, they can be precise, as for instance, decisions relating to the eligibility requirements to participate in emissions trading,69 while formal law may be imprecise, as for instance, the principles provision of the FCCC.70 And, as such COP decisions may influence and condition state behaviour, indeed even exert a compliance pull while imprecise yet formal law may have no such effect. Provisions, even within legally binding instruments, as discussed at the outset, have differing levels of rigour and precision, and different degrees, therefore, of “teeth”. The FCCC, formally a legally binding instrument, has numerous provisions that are couched in discretionary and contextual language. In this sense, it is clear that no bright line exists between law and non-law, and it is this that India may be alluding to in referring to “differing degrees of bindingness”.

Finally, on an arguably prescient note, India sought to include domestic and international law benchmarks for “bindingness” in the evolving international climate change regime. One interpretation of the compromise phrase India inserted into the Durban Platform decision – “agreed outcome with legal force” – is that it is an outcome that derives legal force from domestic rather than international law. This is reminiscent of the US proposal before Copenhagen for an “implementing agreement” that allows for “legally binding approaches” based on targets and actions embodied in municipal law.71 It is also an element of the core mitigation provision in the Paris Agreement, Art 4.2, which obliges Parties to “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve” as well as ‘pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions’. As the language of this provision makes clear, these are legally binding obligations of conduct, not of result. However, arguably, there is an expectation that the domestic mitigation measures that Parties are obliged to undertake will contain obligations of result in relation to contributions, i.e., an obligation to implement and achieve NDCs. This would then spread “bindingness” across levels – a binding obligation of conduct at the international level, and a binding obligation of result at the domestic level.

4.2 Substance before form?

India often argued in the decade leading up to the Paris Agreement that it was open to considering all legal options once the “substantive content of the arrangements” had been agreed.72 This is a reasonable position and one which eventually prevailed since the form of the 2015 Paris Agreement was determined near the end. However, the form of both the FCCC73 and its Kyoto Protocol were determined right in the beginning,74 much before the substantive pillars of these agreements had been determined. And India was amenable to the form in these instances being determined before the substance. India even presented the first full draft of the FCCC to its negotiating partners.75 Thus, it would appear that it is not the sequencing of substance before form that India was wedded to, but the nature of the negotiations under discussion in the last decade that made it problematic for India to agree to negotiate a legally binding instrument. It was clear in relation to both the FCCC and its Kyoto Protocol that these instruments would contain differentiated commitments for developed and developing countries. In relation to the Kyoto Protocol, in particular, the Berlin Mandate explicitly noted that it would contain “no new commitments” for developing countries.76 In contrast, the climate negotiations in the last decade have been focused on extending GHG mitigation commitments to developing countries (and the US). While this, no doubt, is part of the explanation for India’s reluctance in relation to legal form, it does also demonstrate first a conflation of legal form of the outcome with the legal character of commitments within it, as discussed before, and second a lack of confidence among Indian negotiators that they could negotiate a robust legally binding instrument that would suit them – an agreement, for instance, that contained an equitable burden sharing arrangement, one that they shaped, and enhanced scrutiny over provision of support from developed countries to developing countries. There was a demonstrable lack of confidence, in other words, that they could play a determinative role in shaping the legally binding instrument that would emerge from the process. This lack of confidence could stem from an institutionalized wariness of the international legal system or from significant capacity constraints. Each will be explored in turn.

4.3 International law as a hegemonic tool?

In the tradition of Third World Approaches to International Law (TWAIL),77 Indian wariness of legally binding instruments in the lead up to the 2015 Paris Agreement could be sourced to a concern that the fundamental premises and practices of international law are hegemonic, and thus the ability of countries like India to influence international instruments is limited. This is a concern that cuts across all areas of international law and governance, and is not exclusive to the field of climate change. Indeed, it could be argued that TWAIL consciousness emerged in the field of international economic law, and is of relatively recent vintage in the international climate change realm.

The practice in the climate change regime is mixed. While certain practices and occurrences support the theory that international law functions in a hegemonic manner, it is equally evident that international climate change law has at times offered a “protective shield”78 to less powerful states.

The Copenhagen Accord, for instance, was negotiated among a representative selection of heads of states and not the entire membership of the FCCC.79 While this could be (and was, by some) perceived as an exercise of hegemonic power, when this Accord was brought back to the full membership of the conference, it was rejected by the Bolivarian Alliance (ALBA) countries,80 both for the substantive inadequacies they perceived in it and as it represented to them a fruit of an illegitimate process. These developing countries used international law, in particular the requirement for decision making by consensus, to reject the Accord. International law in this instance was arguably used as a counter-hegemonic tool of resistance.

More generally, the extent of differentiation in favour of developing countries in the international climate change regime testifies to the considerable agency developing countries have had in this regime. As TWAIL scholars have demonstrated, international law has historically overlooked diversity through narratives of neutrality, order, homogeneity, reciprocity and formal equality.81 In a marked departure from such narratives, the climate change regime recognizes differences and special needs of developing countries and has fashioned norms of differentiation in response. Both the FCCC and its Kyoto Protocol contain differentiation in favour of developing countries in relation to central obligations such that developed countries have mitigation obligations that developing countries do not.82 The FCCC also contains the principle of common but differentiated responsibility and respective capabilities, a steadfast friend to the developing world,83 and Article 4.7 which conditions the extent of developing country fulfilment of its commitments to the extent of support provided by developed countries.84 Admittedly, differentiation in favour of developing countries has waned over the years, and the Paris Agreement contains a less stark, more tailored approach to differentiation than that in evidence in the FCCC and its Kyoto Protocol. However, the Paris Agreement too recognizes the central and enduring importance of implementing climate change response measures in the context of sustainable development and poverty eradication as well as the principle of common but differentiated responsibilities and respective capabilities.85

4.4 Legal capacity constraints?86

India’s lack of confidence in its ability to shape the Paris outcome, and thus its reluctance to negotiate a legally binding instrument, could also be traced to serious capacity concerns, including international legal capacity. This could also explain, in part, India’s curious position on the legal status of COP decisions.

There are at least three linked issues that need to be considered: first, the systematic integration (or lack thereof) of legal expertise into our negotiating positions and teams; second, the quantum and quality of legal advice available; and third, the challenges in securing and integrating high-quality international legal advice in our foreign policy on climate change.

First, there is no systemic integration of legal advice into the process of drafting submissions or developing international legal text. International lawyers are seldom consulted inter-sessionally, and are rarely part of India’s negotiating team at the negotiations. International legal expertise, available from the Legal and Treaties division of the Ministry of External Affairs,87 is only sought on a sporadic, case-by-case basis. In the last decade of the climate negotiations, anecdotal evidence suggests, that international lawyers from the Legal and Treaties division were only part of the delegation at three conferences of Parties – at Bali, 2007, Copenhagen, 2009 and Paris, 2015. In each of these instances, the inclusion of a lawyer on the team can be traced to the personal conviction of the relevant Minister or Environment Secretary that legal expertise was key, not to the demands of the negotiating process. Thus, the Indian delegation neither had international legal expertise on site during the famous Durban “huddle” while negotiating the legal form that the outcome of the Durban process should take, nor did it seek international legal advice from experts in India in that moment. It is worth noting that the US, Brazil and the EU that were also part of the huddle had international lawyers present, as did the South African Presidency.

There are several possible reasons why international lawyers are only sporadically consulted and taken to the climate negotiations. Indian delegations are typically small, so hard choices need to be made while constituting negotiating teams. International lawyers rarely make the cut as they are considered “dispensable”, both because the negotiators believe the real issues are political rather than legal, and that they can perform any necessary legal functions themselves. This in turn could be either because they undervalue the importance of international law in these negotiations, an issue that will be discussed at the end, or because they do not receive high-quality international legal advice.

Second, the quantum and quality of legal advice available is not optimum. The Legal and Treaties division is currently composed of 13 lawyers, three of whom are stationed in New York, The Hague and Geneva, respectively. Only two of these 13 lawyers have doctorates in international law, the rest only have graduate degrees. These 10 lawyers cover the entire gamut of international law, and advise all Ministries and Departments of the Government of India on matters related to international law. Roughly 5% of their work is in the field of environmental law, and only 2%–3% of that 5% is work on climate change law. Needless to say, these lawyers are stretched thin, and their ability to deliver high-quality specialized advice on complicated international legal issues relating to the climate negotiations is compromised. This is particularly so because, even if they have general domain knowledge, they are taken so sporadically to the negotiations that they lack institutional memory. Their ability to provide effective legal advice at key moments in the negotiations thus is limited, and this bolsters the perception negotiators have that international lawyers are “dispensable”.

The Legal and Treaties division is not the only port of call for international legal advice. The relevant Ministries participating in these negotiations have the discretion and funds to hire legal consultants. In the lead up to Paris, the Ministry of Environment, Forests and Climate Change commissioned a report from the National Law School of India, on the key legal issues in the Paris negotiations. This Report, which was never made public, was reportedly submitted only shortly before Paris, and appeared to have had no discernible influence on India’s negotiating strategy, which remained consistent through this time. It is worth noting that the climate negotiations in the process leading up to Paris had acquired a high degree of complexity and technical legal nuance.88 It would have taken domain knowledge, institutional memory and on-going familiarity with the negotiations to provide influential legal advice capable of shaping the Paris outcome,89 something the sources India drew on, likely did not have.

More generally, it is worth noting that the Indian government does not appear to value international legal expertise, thus systematically undercutting the development of such expertise in India. India’s recent nominations both to the International Court of Justice90 and to the International Law Commission91 of candidates with comparatively limited international legal expertise bear testimony to this systematic undervaluing of international legal expertise, as well as to the politicization of nominations to international legal bodies.

4.5 Other factors

Neither the reasons India offered for its position on legal form, nor the alternative reasons explored in this article offer a complete rationale for India’s position. It is likely that in addition to India’s stated reasons, as well as the underlying reasons explored thus far, several other factors played a role. India may quite simply have taken the principled position that developed countries, as the architects of the climate change problem, had to continue to take the lead beyond their tepid efforts under Kyoto. And, that accepting a new legally binding agreement which would extend mitigation commitments, even soft ones, to developing countries would detract from the principle of developed country leadership, and curb developing countries’ growth aspirations. This is in keeping with a popular strain of opinion in India on the global climate negotiations, i.e., it is India’s turn to grow, and the climate change negotiations are an industrialized country strategy to contain new and emerging powers.92 Media reportage in India bolsters this view on the global climate negotiations by overwhelmingly attributing historical responsibility for climate change to developed countries, and requiring them to take the primary action to address it.93 Needless to say, legitimate though this position may be, given the direction the negotiations had taken, holding on to such a position, which was not ultimately likely to succeed, may not have been advisable.

Domestic constraints likely also played a role in the position India took on legal form. According to available modelling studies India’s coal use may increase by 2.5–3 times current levels by 2030, electricity supply by 3–4 times, and greenhouse gases by 2–3 times.94 But the results of these studies vary widely, and have a range of assumptions; so much so that they do not offer a sufficient basis for policy-making.95 In any case, policy-making in relation to energy and environment in India is fraught with difficulties, and there is no assurance that policy objectives will be achieved. Thus the prospect of setting its aspirational goals within a legal framework, however much the framework allows for national sovereignty and discretion, likely proved intimidating. India entered a declaration with its ratification of the Paris Agreement which in essence hinges India’s fulfilment of its NDC on the availability of resources, and the pursuit of competing priorities such as poverty eradication.96 This is likely an attempt to stem the anxiety that adoption of a legal instrument unleashed. Compelling though the domestic policy and governance constraints are, a suitably designed international instrument could provide adequate safeguards against any perceived rail-roading of India’s interests and priorities, and a recognition of its constraints. At issue, thus, is confidence and expertise in designing suitably tailored international legal instruments.

5 Conclusion

India, as one of the most vulnerable countries in the world to climate change, has considerable interest in a strong effective multilateral climate change regime. India has also, notwithstanding its reported reluctance to address climate change in the past,97 taken several steps to do so. Its reluctance to negotiate a new legally binding instrument in the decade leading up to the Paris Agreement thus appears counter-intuitive. This article sought to explore the reasons for India’s wariness to do so, and found a host of overlapping reasons, including most importantly, capacity issues, in particular in relation to international legal expertise. Although, in the end, India did agree to a new legally binding instrument – the 2015 Paris Agreement – had it done so at an earlier stage it would likely have demonstrated good faith, fostered goodwill and been in a better position to frame the agenda. The extent to which India will seek to address its relative lack of respect for international legal expertise and thus create an environment to promote development and deployment of international legal expertise so as to assist us in negotiating treaties that are both progressive and tailored to our needs remains to be seen.

Footnotes

  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 generally Navroz K Dubash and Lavanya Rajamani, Multilateral Diplomacy on Climate Change, in, David M Malone, C Raja Mohan and Srinath Raghavan (eds) Oxford Handbook of Indian Foreign Policy (OUP, Oxford, 2015).

  19. 19.

    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.

  20. 20.

    Ibid.

  21. 21.

    Ibid.

  22. 22.

    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.

  23. 23.

    Ibid, 5.

  24. 24.

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

  25. 25.

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

  26. 26.

    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/>.

  27. 27.

    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>.

  28. 28.

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

  29. 29.

    Ibid.

  30. 30.

    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.

  31. 31.
  32. 32.

    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.

  33. 33.

    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].

  34. 34.

    India’s INDC, supra note 25.

  35. 35.

    Ibid, 29.

  36. 36.

    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.

  37. 37.

    Paris Agreement, ibid, Art 13.7(b).

  38. 38.

    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.

  39. 39.

    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.

  40. 40.

    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>.

  41. 41.

    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/>.

  42. 42.

    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.

  43. 43.

    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.

  44. 44.

    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).

  45. 45.

    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>.

  46. 46.

    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.

  47. 47.

    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>.

  48. 48.

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

  49. 49.

    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.

  50. 50.

    Berlin Mandate, supra note 4.

  51. 51.

    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>.

  52. 52.

    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.

  53. 53.

    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>.

  54. 54.

    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>.

  55. 55.

    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.

  56. 56.

    See Lok Sabha Statement, supra note 51.

  57. 57.

    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)].

  58. 58.

    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.

  59. 59.

    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).

  60. 60.

    Ambition and Differentiation in Paris Agreement, supra note 36.

  61. 61.

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

  62. 62.

    Ibid.

  63. 63.

    See COPing with Consent, supra note 5.

  64. 64.

    FCCC, supra note 1, Art 7.

  65. 65.

    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.

  66. 66.

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

  67. 67.

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

  68. 68.

    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.

  69. 69.

    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.

  70. 70.

    FCCC, supra note 1, Art 3.

  71. 71.

    US Draft Implementing Agreement, supra note 44.

  72. 72.

    Submission from India, supra note 55, 34.

  73. 73.

    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’).

  74. 74.

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

  75. 75.

    See Dasgupta, supra note 3.

  76. 76.

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

  77. 77.

    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.

  78. 78.

    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.

  79. 79.

    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.

  80. 80.

    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>.

  81. 81.

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

  82. 82.

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

  83. 83.

    FCCC, supra note 1, Art 3.

  84. 84.

    FCCC, supra note 1, Art 4.7.

  85. 85.

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

  86. 86.

    This section draws on interviews conducted with current and former officers of the Legal and Treaties division, who preferred not to be identified.

  87. 87.

    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>.

  88. 88.

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

  89. 89.

    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.

  90. 90.

    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).

  91. 91.

    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/>.

  92. 92.

    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”).

  93. 93.

    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.

  94. 94.

    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>.

  95. 95.

    Ibid.

  96. 96.

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

  97. 97.

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

Copyright information

© The Indian Society of International Law 2018

Authors and Affiliations

  1. 1.Centre for Policy ResearchNew DelhiIndia

Personalised recommendations