20
March
2015

EVOLVING MULTILATERAL REGIMES AND ROLE OF INDIAN PARLIAMENT

 

 

 

1.0 Introduction

One of the important attributes of sovereignty for a state is its unfettered power to enter into any treaty, convention, protocol, accord or international agreement. It would be pertinent to understand as to who really exercises the power in the name of the sovereign to enter into and implement the treaties concluded by sovereign states. Presently, the exercise is to understand the role of Indian Parliament qua the treaty making powers and to explore the space for its proactive involvement given the backdrop of an impending Climate Change Agreement to be negotiated in Paris in 2015.

 

https://drive.google.com/file/d/0B3OoAFL5NdczbGRVYTJBTVlISnM/view?usp=sharing

 

 

 

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20
March
2015

EQUITY AND CBDR UNDER THE UNFCCC AND CLIMATE NEGOTIATIONS

1. Context and Background:

The UN Framework Convention on Climate Change (FCCC), 1992 is established on two key principles – One, that the world community needs to make greater efforts for stabilizing greenhouse gas concentrations in the atmosphere; Other that the goal of stabilizing greenhouse gases in the atmosphere with the objective to protect the climate system has to be achieved on the basis of 'equity' and in accordance with 'common but differentiated responsibilities and respective capabilities' commonly known as CBDR-RC. The Convention acknowledges that while climate change is a global issue of common concern to all the countries in the world, rich nations have historically contributed more greenhouse gases to the atmosphere than the developing and least developed countries. This understanding got reflected in the form of Annex-I of the FCCC comprising a list of wealthy nations that we recalled upon to take concrete action.. Subsequently, in the first CoP of the FCCC, the Parties agreed to what is known as the Berlin Mandate, which meant that the Annex-I countries alone would take on emission reduction responsibilities. The Berlin Mandate was further codified with numerical national targets and timetables in the 1997 Kyoto Protocol wherein the Annex-I countries were required to undertake quantified targets.

https://drive.google.com/file/d/0B3OoAFL5NdczNk5DUTNrbDF1bDA/view?usp=sharing

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20
March
2015

Multilateral Environmental Treaties – What do they tell us about equity and CBDR?

Brief Summary: The survey of literature reveals that there is a long history of differential treatment under international environmental law regime. These treaties provide useful lessons for crafting a future climate agreement based on equity and CBDR.


https://drive.google.com/file/d/0B3OoAFL5NdczNVU0ejU3Z0lUT1E/view?usp=sharing

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20
March
2015

KEY ISSUES FOR 2015 CLIMATE AGREEMENT

The year 2015 is likely to be the new turning point in the history of international climate change negotiations. It is the year by which the international community has to reach an agreement to combat the adverse impacts of climate change on environment and consequently all of us, human beings, which shall govern us beyond 2020.

https://drive.google.com/a/globelegislators.org/file/d/0B3OoAFL5Ndczcy0zcjZlWGlDVGc/view?usp=sharing

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20
March
2015

Legal Form of 2015 Climate Agreement

Three options created by decisions taken at Durban by the COP for the possible legal form of the post 2020 climate regime, are:

1. a protocol,
2. another legal instrument or
3. an agreed outcome with legal force

 

https://drive.google.com/file/d/0B3OoAFL5NdczR2pHdkM3RHFBSHc/view?usp=sharing

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10
December
2014

Legal Form of 2015 Agreement

Three options created by decisions taken at Durban by the COP for the possible legal form of the post 2020 climate regime, are

  • a protocol,
  • another legal instrument or 
  • an agreed outcome with legal force

 

Durban therefore put a seal that the 2015 agreement will either be protocol, another legal instrument or an agreed outcome with legal force. The form that post 2020 climate agreement takes depends upon the constituents that it will be formed of. It shall have the benefit of hindsight in view of the performance of Kyoto Protocol and Cancun Agreements.

Experience from Kyoto to Cancun

Kyoto exemplified differentiation in its full glory provided a top down, quantified economy wide target which was to be achieved with in a fixed time frame with reference to a common base year. It provided certainty, rigour and clarity but didn’t inspire compliance. When Canada was facing non-compliance it exited Kyoto protocol. 

Cancun Agreements retained the concept of differentiation though in a diluted form, as it included pledges proposed by the countries themselves but did not give opportunity to look in to the adequacy or equity of these pledges.

For the post 2015 agreement however by incorporating words like clarity, transparency, and understanding, a window has been created for making nationally determined contributions (INDC) adequate, both in terms of quantum and equity.

Durban does not mandate renegotiation of UNFCCC

It is pertinent to point out, as has also been reiterated by several commentators, that Durban has not created a mandate to renegotiate UNFCCC but has merely agreed upon a new process for enhancement of the implementation of the objectives of UNFCCC.  It therefore impliedly acknowledges that the efforts being made by the world community as of now are not adequate and need to be enhanced if objectives of this convention are to be met.

The choices of options laid out in the decision reflect a compromise that made it possible for parties with differing views to come to a consensus in Durban. ADP is to complete its work as early as possible but no later than 2015, in order to adopt this protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, at the twenty-first session of the Conference of the Parties at Paris and for it to come into effect and be implemented from 2020.

 Legal Symmetry vis a vis UNFCCC principles

Legal symmetry means applicability with the same standard of legal character, which would mean that the rigour of the legal applicability of all components of the agreement would be the same. We know the likely components would be mitigation, adaptation, finance, technology transfer, transparency in action and support etc., so legal symmetry would mean application of the same level of stringency of legality across all these components to all parties to the agreement. Since Durban had decided that 2015 agreement will have to be applicable to all parties and the proposed agreement has to be negotiated with in UNFCCC, it can ordinarily have as much legal symmetry as the convention principles would make it possible to have.

Before delving in to the comparative legal analysis of the three options lets first understand protocols vis a vis treaty and convention

 

Protocol

Treaty

Convention

The term "protocol" is generally used in international law for agreements less formal than those titled "treaty" or "convention".

Treaty is a generic term encompassing with in its ambit all instruments binding under international law, concluded between two or more international juridical persons, regardless of their formal designation.

 

 Convention is an agreement between states concerning finance, trade, or other matters considered less significant than those usually governed by a treaty.

Protocols could be used to cover the following kinds of instruments:

1. A Protocol of SignatureExmp: for European Agreement concerning the International Carriage of Dangerous Goods by Road,

Protocol of signature is drawn. There is an Optional Protocol of Signature concerning the

Compulsory Settlement of Disputes 1958

2. An Optional Protocol to a Treaty is an instrument that establishes additional rights and obligations to a treaty.

3. A Protocol based on a Framework Treaty is an instrument with specific substantive obligations that implements the general objectives of a previous framework or umbrella convention.( Exp; NFCCC, Montreal Protocol)

4. A Protocol to amend is an instrument that contains provisions that amend one or various former treaties.

5. A Protocol as a supplementary treaty is an instrument which contains supplementary provisions to a previous treaty, e.g. the 1967 Protocol relating to the Status of Refugees to the 1951 Convention relating to the Status of Refugees. The Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety

6. A Proces-Verbal is an instrument that contains a record of certain understandings arrived at by the contracting parties.
   

There doesn’t seem to exist any rule under international law that determines when an international instrument should be entitled to be called a treaty. However, usually the term treaty is employed for instruments of some gravity and solemnity.

Their signatures are usually sealed and they normally require ratification. Typical examples of international instruments designated as "treaties" are Peace Treaties, Border Treaties, Delimitation Treaties, Extradition Treaties, Treaties of Friendship, Commerce and Cooperation. The use of the term "treaty" for international instruments has considerably declined in the last decades in favour of other terms.
   

Convention too resembles a treaty and is ordinarily applied to agreements prior to an execution of an official treaty or which serve as its foundation, or to international agreements for the regulation of international affairs of common interest not within the ambit of commercial transactions or politics, such as international postage.

No such specific law
   
  Treaty law

1. Vienna Convention on the law of treaties between statesdefines a treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’ (article 2(1)(a)). Accordingly, conventions, agreements, protocols, and exchange of letters or notes may all constitute treaties. 

2. Vienna Convention on the Law of Treaties between States and International Organizations or between

International Organizations 1986,As per this convention treaty is an international agreement governed by international law and concluded in writtenform:(i) between one or more States and one or more international organizations; or(ii) between international organizations,whether that agreement is embodied in a single instrument or in two or more related instruments andwhatever its particular designation;

 

The term "convention" now is generally used for formal multilateral treaties with a broad number of parties. Usually the instruments negotiated under the auspices of an international organization are called conventions (e.g. Convention on Biological Diversity of 1992, United Nations Convention on the Law of the Sea of 1982, Vienna Convention on the Law of Treaties of 1969, UNFCCC). The same holds true for instruments adopted by an organ of an international organization (e.g. the 1951 ILO Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, adopted by the International Labour Conference or the 1989 Convention on the Rights of the Child, adopted by the General Assembly of the UN).

 

Comparative legal analysis of three possible options 

Opinions of the parties to UNFCCC are split in terms of what form the 2015 agreement shouldtake. Following are some important legal attributes of these three options:

Substantive issues

Protocol

Another legal instrument

Agreed Outcome with legal force

Source of Mandate

 

Article 17 of the UNFCCC mandated the COP to adopt protocols at any ordinary session.

“Another legal instrument” is an option that seems to have been inspired from the objectives of the UNFCCC. Article 2 of the UNFCCC states;

“the ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt, is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

Article 7 mandates Conference of Parties (as the supreme body of this Convention), shall keep under

regular review the implementation of the Convention and any related legal instruments that the

Conference of the Parties may adopt, and shall make, within its mandate, the decisions necessary

to promote the effective implementation of the Convention.

This option can very well be exercised by the COP if is considered most suitable and practical to achieve the objectives of this convention.

Legal form

Most well defined

Recognised and fairly well defined.

Could be an instrument created under Article 15 and 16 of UNFCCC which relates to amendment in the convention and adoption and amendment to the annexures to the convention respectively.

Another legal instrument could also be an “implementing agreement”.

.Not well defined, could be anything. It could be unilateral declarations by parties or COP decisions. It could be an outcome that derives legal force from municipal or international law’. In a recent submission, India also suggests that ‘an agreed outcome of ADP may include aspirational COP decisions, binding COP decisions, setting up of institutions and bodies covering various aspects of the Bali Action Plan and Cancun Agreements with differing degrees of binding-ness under the provisions of domestic and international law under the UNFCCC’

Consequences of legal form

Since most well defined can bring in the required certainty, would be indisputably legally binding and also provide a better possibility of putting in a robust compliance mechanism in place.

Can take care of most of the issues 

 

Uncertain since could take any form that is acceptable to parties and is recognised by international law.

Benefit of accrued experience

 Maximum as would be an extension of the existing legal framework, it would also be able to build upon the accrued experience on implementation of UNFCCC.  Parties to the framework convention on climate change have already had an experience with a protocol.

None 

None

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10
December
2014

Key issues for 2015 agreement

2015 is likely to be the new turning point in the history of international climate change negotiations. It is the year by which the international community has to reach an agreement to combat the adverse impacts of climate change on environment and consequently all of us, human beings, which shall govern us beyond 2020.

Durban and Warsaw have put some prerequisites on the table on which the world community has to build the edifice of the new agreement. Following are the key issues that 2015 agreement has to address and the world community has to have an agreement on;

1. Universal application

This necessarily means that the 2015 agreement will be applicable to all parties to the UNFCCC. What we however still do not know is whether the proposed 2015 agreement shall be applicable in toto, uniformly to all, partially to some and in toto to some, or selectively to all the countries. The principles of UNFCCC are ordinarily understood to be the bedrock on which this agreement would be based upon. In view of the pivotal position the UNFCCC principles are likely to play, uniform applicability of this proposed agreement in totality to all parties, which are at different stages of development,have had extremely varied historical responsibility for GHG emission and which have extremely diverse financial and technological capacities, looks like a very complex proposition.

2. Legal Form

2015 agreement will have one of the three forms which the world community has decided in Durban i.e. a protocol (likeKyoto protocol), a legal instrument or an agreed outcome with legal force.

Whatever form it might take, the 2015 agreement will have legal force. Whether this legal force would be in domestic law or international law is again something that needs to be sorted out and agreed upon among the parties.

3. Elements of 2015 agreement

Mitigation,adaptation, finance, technology development and transfer, capacity-building andtransparency of action and support; are elements that the proposed 2015 agreement has to address. Decision in this regard has already been taken at Durban;however the details regarding scope and ambit of each of these componentsare in the process of being fleshed out.

4. Operationalization of Equity, CBDR&RC

First principle of UNFCCC, i.e. equity and CBDR&RC and its articulation in 2015 agreement, to everyone’s satisfaction would be the most contentious, complex and contested issue before the negotiating international community.

India along with like-minded developing countries has been insisting upon retaining the clear distinction between developed (Annex 1 and Annex 2) and developing countries (Non Annex 1).

Increasing number of practitioners, academicians and international lawyers are of the opinion that this principle has been diluted over the years and the text of Durban and Warsaw are testimony to that. They support their argument by saying that the words “Equity and CBDR and RC” have been specifically omitted in the decisions taken at Durban.Another school of thought is that since the proposed agreement has to be negotiated with in UNFCCC, the applicability of its principles is not in question. However it could be a comprehensive, well defined process this time, which could decide the differentiation between the countries andthis process would have to be an ongoing one with periodic reviews(of the criteria determining such differentiation and the differentiation per se) as against the straight jacket formula adopted in Kyoto where countries were categorised once and for all.

5. Scope and legality of Intended Nationally Determined Contributions

Collective Intended nationally determined contributions (INDCs) will decide the quantum of action taken by the world community in post 2020 world for which the agreement has to be arrived at by 2015. Two most important announcements in this regard have been from the US and China. After 2020, the United States will reduce its net greenhouse gas emissions to 26-28% below 2005 levels by 2025 whereas China for the first time announced its intention to peak CO2 emissions around 2030, and further committed to make best efforts to peak early. China also announced a target of expanding the share of zero-emission sources in primary energy, namely renewables and nuclear, to 20% by 2030.

In order for the quantum of this collective action to be what it takes, to keep the average rise of the atmospheric temperature within 2 degree, it must add up to meet the requisite numbers. This is where the most critical impediment of the climate negotiations exists. The world community has to agree upon categorical, specific, unambiguous parameters or information that is required to be given along with INDCs so that they are transparent, clear and understandable in letter and spirit as per decision taken in this regard in Warsaw. International rules for addressing transparency and accountability shall do the needful in this regard.Whether INDCs would be an integral part of the 2015 agreement thus to be implemented under international law or would be implemented under domestic law of the respective party countries is another issue that needs to be agreed upon.  The world community also has to agree to a formula which could be called an equity reference framework or any other suitable nomenclature, according to which the INDCs can be ratcheted up in case the numbers don’t add up.

6. Finances, Technology& Capacity Building

Financial assistance and technology transfer by the developed world to the developing world, capacity building of the developing world are other aspects which have to be sorted out before Paris. GCF has so far received pledges worth US$7.5 billion out of which US has pledged 3 billion, Japan 1.5 billionand Netherlands US$125 million.Other contributors so far have been France, $1bn and almost $1bn by Germany. Canada and Australia have stated that they will not contribute towards the fund.GCF seems to be headed in the right direction as its initial capitalization, requires a minimum of US$10 billion.

7. Pre 2020 Ambition

Pre 2020 ambition and the performance of the developed world so far in meeting their mitigation targets would also play an important role. The Durban conference in 2011 acknowledged the urgent need to step up global action to cut greenhouse gas emissions before 2020 to address the gap between current emission pledges and the reductions needed to keep global warming below 2°C. Durban Platform for Enhanced Action includes a work stream on raising the ambition of pre-2020 emission reductions.

In connection with the Copenhagen, Cancún, Durban and Doha conferences, more than 100 developed and developing countries have made voluntary emission reduction or limitation pledges for 2020. Though these pledges cover over 80% of global emissions, they are not ambitious enough to put global emissions on a path that will hold global warming below 2°C. The Emissions Gap report 2013 of the UN Environment Programme (UNEP) concludes that the world is currently on track for warming of 3-4°C.

8. Transparency of action and support

Internationalcommon accounting rules, their applicability and effective compliance can play an important role in achieving transparency of both action and support. Cancun agreements, elaborated upon in Durban have enhanced existing provisions for reportingon implementation of the Convention by ensuring submission of regular reports on the GHG emissions and actions by both developed and developing country parties. In Warsaw thereafter, parties have also agreed to conduct "international assessment and review" (IAR) applicable to information submitted by developed country Parties; and international consultation and analysis (ICA) for information submitted by developing country Parties.

The agreement can only achieve what it has set out to, only if the outcomes of negotiations yield a result which is able to strike a fine balance between ambition, participation, stringency and compliance.

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10
December
2014

Equity and CBDR under the UNFCCC and Climate Negotiations

1. Context and Background: The UN Framework Convention on Climate Change (FCCC), 1992 is established on two key principles – One, that the world community needs to make greater efforts for stabilizing greenhouse gas concentrations in the atmosphere; Other that the goal of stabilizing greenhouse gases in the atmosphere with the objective to protect the climate system has to be achieved on the basis of ‘equity’ and in accordance with ‘common but differentiated responsibilities and respective capabilities’ commonly known as CBDR-RC.  The Convention acknowledges that while climate change is a global issue of common concern to all the countries in the world, rich nations have historically contributed more greenhouse gases to the atmosphere than the developing and least developed countries. This understanding got reflected in the form of Annex-I of the FCCCcomprising a list of wealthy nations that werecalled upon to take concrete action.. Subsequently, in the first CoP of the FCCC, the Parties agreed to what is known as the Berlin Mandate, which meant that the Annex-I countries alone would take on emission reduction responsibilities.  The Berlin Mandate was further codified with numerical national targets and timetables in the 1997 Kyoto Protocol wherein the Annex-I countries were required to undertake quantified targets.

 

2. What does the Convention say on equity? UNFCCC provides that the operationalization of international climate regime shall be guided by the Principles under the Convention. Thus, the Article 3 (Principles) of the Convention stipulates that In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided by the Principle that they should protect the climate system for the benefit of present and future generations of human kind on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Thus ‘equity’ by design, not only serves as the fundamental conceptual framework but is the fundamental operational principle for the achievement of objectives under the FCCC.

 

3. Is there more to it? – Equity not only in sharing global carbon space but intra and inter-generational equity: Under the UNFCCC, equity principle has two key elements- equity per se and CBDRRC-while equity is a larger principle, CBDRC came to be known as the operational principle reflected in the  differentiation created between Annex and non Annex countries. . It is wellknown that the preamble of a legal instrument reflects the intention and spirit behind the law being enacted by that instrument. A conjunctive reading of the equity principle along with the Preamble of the FCCC shows that equity within the framework of the Convention is not limited to sharing of global carbon space among different countries but encompasses intra-generational and intergenerational equity as the Preamble of the Convention recalls decisions of the UN General Assembly on protecting global climate commons for present and future generations. 

 

4. Kyoto to Durban- Emerging views on ‘different and contemporary realities’: By the year 2005, when Kyoto Protocol entered into force, it is argued that the carbon emissions of many non-Annex-I countries had increased substantially. This according to some countries reflected a ‘different reality’ based on which even non-Annex 1 countries and economies in transition are required to undertake similar measures for GHG reductions under the FCCC. Developing countries and economies in transition argue that given the historical responsibility of developed nations, acknowledged and articulated in the Convention at various places including under the Principles of equity and CBDR, developed countries alone should undertake binding obligations. It is further argued by the developed countries that the annual negotiations resulting in Copenhagen Accord, 2009, the Cancun Agreements, 2010 and the Durban Mandate 2011 put together blurred the distinction between Annex-I and non-Annex-I countries and the stage is set for negotiations on a new climate agreement based on ‘contemporary realities’. This according to some leads to the “recasting of differentiation” wherein the contemporary realities and the current level of emissions by developing countries have to be borne in mind while crafting a new climate agreement.

 

5. ‘Equity’ as the nucleus of burden sharing architecture in Climate Negotiations: Climate negotiations have shown divergent position of Parties on numerous issues, with ‘differentiation’ based on the principles of equity and CBDR-RC being the nucleus. Constrained by the international legal framework consisting of a universally binding instrument in the form of UNFCCC, the Kyoto Protocol and numerous COP decisions that contain explicit clauses on equity and CBDR-RC, the central negotiating premise for negotiations has been the basis on which the emission-reduction burden can be shared across countries (burden sharing architecture). Historical responsibility has been yet another premise, drawn upon equity argument that the countries have brought into negotiations arguing vociferously that grounds for differentiation between developed and developing countries in terms of sharing emission-reduction burden shall be based on the historical contributions to the degradation of global environment. Elements of differentiation, it is argued, comprise many aspects such as level of economic development, special and differing vulnerabilities, for example, of small island states and the historical contribution of countries to the climate problem. The differentiation debate, however, has been more focussed on mitigation targets which then lead to differentiation in legal obligations and legal form of the future climate regime.

Developed countries and major economies argue that all major emitters, including China and India, should take binding commitments and mitigation targets. Their arguments are based on the premise that the Convention and its Principles are dynamic in nature and have to be interpreted in the light of contemporary economic and changing geopolitical realities.

 

6. What happened at Durban?: The Seventeenth session of the Conference of the Parties (COP) to the FCCC held at Durban from 28 November to 9 December 2011, resulted in three key decisions: i) decisions to implement the 2010 Cancun Agreements, ii) extend the Kyoto Protocol, for a second commitment period; iii) launch a new process to negotiate a post-2020 climate regime. These decisions to be taken forward by the Ad-Hoc Working Group on the Durban Platform for Enhanced Action are intended to craft the agreement that will govern, regulate and incentivize the next generation of climate actions.  It is argued by scholars that the text of the Durban Platform indicates leanings towards creating symmetry in climate obligations as against the differentiation as per the equity principle.

The Durban Platform decision launched ‘a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, through the Ad Hoc Working Group on the Durban Platform for Enhanced Action. In the view of the developed countries, the economic and political realities have evolved since the FCCC was negotiated in 1992, and common but differentiated responsibilities must be interpreted as a dynamic concept that evolves in tandem with changing economic and other realities.

 

Remarkably, the EU, quite different from its earlier stand in climate negotiations insisted upon that any future climate agreement must contain a broader spectrum of differentiation in the obligations among Parties. India on the other hand argued that including a spectrum of differentiation applicable to countries such as India would violate the equity principle under the Convention and this may be possible only after an amendment of the Convention is carried out. Consequently, a text was drafted such that it was rooted in the Convention, yet would take care of the growing displeasure of the EU and other developed countries over the historical position over differentiation and equity. This, it was believed, would hold efforts to reinterpret and qualify the equity principle at bay, or at least leave the issue of ‘differentiation’ to be resolved in the future. Nevertheless, divisions on the application of this principle signals a recasting of differentiation in the future climate regime

 

7. The Follow ups: Doha, Warsaw and Lima: Doha conference, 2012, is considered to erect milestones along the way up till the Paris Agreement to be agreed by the Parties in 2015. Parties agreed to consider ‘elements for a draft negotiating text’ no later than the Lima conference, 2014, ‘with a view to making available a negotiating text before May 2015. The Doha Conference, considered as the gateway to necessary greater ambition and action on all levels is considered to have strengthened the resolve and set out a timetable to adopt a universal climate agreement by 2015, which will come into effect in 2020. The Doha Conference also marked the completion of the work under the Bali Action Plan. Importantly, it launched a new commitment period under the Kyoto Protocol, thereby ensuring that this treaty's important legal and accounting models remain in place and underlining the principle that developed countries lead mandated action to cut greenhouse gas emissions.

The Warsaw Conference aimed at creating conditions necessary to reach agreement in 2015, marked the halfway point from Durban Conference (2011) that launched a process to negotiate a Protocol, another legal instrument or an agreed outcome with legal force and the Paris Conference to be held in 2015. In other words it meant to continue negotiations that marked the halfway between the work of the ADP and its scheduled end.  At Warsaw parties were invited to initiate/intensify domestic preparations for ‘intended nationally determined contributions’ and thereby enabling an assessment of the work of ADP to be completed by 2015. The trends, however on the architecture and approaches for the 2015 Climate Agreement emerged during Warsaw as the submission by various parties reflected varied thinking on the top-down, bottom up and hybrid approaches. It is argued since Warsaw that the hybrid approach is the most likely approach to be adopted for arriving at a consensus on a legally binding Climate Agreement.  The ongoing COP 20 in Lima, Peru, based on the submissions and negotiating stands taken by governments of 200 countries, is expected to yield the first draft of the slated 2015 Climate Agreement.

 

 Article 3, UNFCCC, 1992

 Article 3 (1), UNFCCC, 1992

 It is also pertinent to note that CBDR under the UNFCCC is not altogether a new principle or result of a creative imagination of conservationist states. The CBDR principle was adopted as Principle 7 of Rio Declaration wherein states were attributed the differential responsibility in view of their different contributions to global environmental degradation. Since then, the Principle had evolved progressively and consistently since 1980’s leading to the adoption of UN General Assembly Resolution 44/228 that explicitly attributed historical responsibility for certain global environmental problems to developed countries.

 Para 8, UNFCCC, 1992: Recalling the provisions of General Assembly resolution 44/228 of 22 December 1989 on the United Nations Conference on Environment and Development, and resolutions 43/53 of 6 December 1988, 44/207 of 22 December 1989, 45/212 of 21 December 1990 and 46/169 of 19 December 1991 on protection of global climate for present and future generations of mankind,

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10
December
2014

Evolving Multilateral Regimes and Role of Indian Parliament

1.0 Introduction

One of the important attributes of sovereignty for a state is its unfettered power to enter into any treaty, convention, protocol, accord or international agreement. It would be pertinent to understand as to who really exercises the power in the name of the sovereign to enter into and implement the treaties concluded by sovereign states. Presently, the exercise is to understand the role of Indian Parliament qua the treaty making powers and to explore the space for its proactive involvement given the backdrop of an impending Climate Change Agreement to be negotiated in Paris in 2015.

2.0 What does the Constitution say qua the treaty making power?

The Constitution of India does not specifically endow upon either the Parliament or the executive the power of treaty making or implementation. Under Article 246 of the Constitution (read with Entry 14, 15 of List I of the Seventh Schedule), Parliament has power to enact a law regulating treaty-making power including the manner of implementation of the treaty which it has not exercised so far.

 However, as per Article 73 of the Constitution, the Executive power of the Union extends, in the absence of parliamentary legislation, to the matters with respect to which the Parliament has power to make laws. In view of the absence of a law regulating treaty making power, the executive has the power to not only enter into treaties and agreements but also to decide the manner, in which they should be implemented, except where such implementation requires making of a law by Parliament.

 Under normal course Parliament cannot make a law with respect to a matter in the State List except as provided for in certain circumstances. Article 253 of the Constitution however confers wide ranging powers upon the Parliament to enact a law with respect to matters in the State List if required to implement “any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

So the treaty making power as it stands today is an executive power. The treaties entered into internationally by the executive do not ipso facto become part of the domestic/municipal law in India; an$enabling legislation is required for its incorporation. (See Box-1).Role of Parliament is thus confined to legislating when the international treaties, conventions, agreements are to be implemented domestically which results in a fait accompli situation leaving Parliament with no option but to implement the treaty having far reaching effects upon centre-state relations, federalism and rights of the citizens.

Box-A: Status on implementation of Treaty/Convention/protocol/Agreement

 

 

Convention/Protocol/Agreement 

Year of ratification/Adoption by India 

Implementation-Act/Rules 

Convention of Biological Diversity 

1994

Biological Diversity Act, 2002

Ramsar Convention 

1981

The Wetlands(Conservation and Management) Rules, 2010

Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention)

1992

 

Hazardous Wastes (Management, Handling and Transboundary movement) Rules, 2008

 The United Nations Conference on the Human Environment (Stockholm Conference)

1972

Environment Protection Act, 1986 

Montreal Protocol 

1987

The Ozone Depleting Substances (Regulation and Control) Rules, 2000 

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

1994

Protection of Plant Varieties and Farmers Rights Act, 2001 (Article 27 para 3 sub-para (b)) 

 

 

3.0 Judicial Determination: Implementation of Multilateral Regimes

The Judiciary on the other hand has been applying various principles from international environmental law by virtue of India being a signatory to various multilateral regimes and has helped in evolving thriving environmental law jurisprudence. The role of judiciary in implementation of treaty obligation raises a fundamental question of whether the treaties are automatically binding on India or an enabling legislation is required for the said purpose. This was answered by the Hon’ble Supreme Court in matter of Jolly George Verghese and others vs. Bank of Cochin where it was held as “the positive commitment of state parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India.’ In Maganbhai Ishwarbhai Patel Vs. Union Of India (1970) 3 SCC 400, Constitution bench stated that “The power to legislate in respect of treaties lies with the Parliament and making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State.”

 Over a period of time it is seen that the judiciary has used international treaties to as tool of interpretation and as source of law to implement international convention not in conflict with existing national laws to further human rights of the citizens. In Vellore Citizen’s Welfare Forum V. Union of India where the Supreme Court upheld the validity of principles of sustainable development, polluter pays and precautionary rules by asserting “It is almost an accepted preposition of law that the rules of customary international law, which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the court of law.”

Further, the Supreme Court in Vishaka & ors vs. State of Rajasthan & Ors, (1997) formulated guidelines on sexual harassment of women at workplece by relying upon the contents of Convention on the Elimination of All Forms of Discrimination against Women in the absence of an enabling domestic law. It signalled judicial incorporation of treaty law into the “corpus juris” of the country even though; the Parliament enacted a law to implement the convention only in 2013. The judiciary has relied upon the principles incorporated in the Vienna Convention, even though India is not a signatory to the convention to interpret international law in so far as it is not in conflict with Constitutional set up or domestic law.

So it is observed that there is a subtle paradigm shift in the view of the judiciary from relying upon international treaty obligation only on its transformation into domestic law to an incorporation doctrine, though it is not a uniform process.

4.0 International Practices in Treaty Making

A comparative analysis of practice followed by other countries significant from climate change negotiations standpoint would provide an insight into exercise of treaty making powers by other countries. (Box-2)


 

Box-2

 

 

Country

Practice qua treaty making

Source of Power

Australia

The power to enter into treaties is an Executive power. Although, the Constitution does not confer on the Parliament any formal role in treaty making, practice has developed whereby texts of the treaties signed for Australia, whether or not ratifications is required, as well the texts of those treaties to which the Government is contemplating accession are tabled in both houses of Parliament for a period of 15 days.

Australian Constitution Act, 1900: Section 61

Bangladesh

International treaties are submitted to President, who shall have it tabled before the Parliament.

Constitution of Bangladesh: Art75, 145A  

Brazil

The president has the authority to conclude international treaties, conventions and acts and referendum of the National Congress. The National Congress has the power to decide conclusively on international treaties, agreements or acts which result in charges or commitments that goes against the national property.

Constitution of Brazil, 1988: Title IV, Chp. 1, Sec. 1, Art. 49; Sec. 2, Art. 60, 61, 66. President: Title IV, Chp. II, Sec. II, Art. 84(viii) of the

China

The State Council, the executive body concludes treaties and agreements with foreign states. The Standing Committee of the National People's Congress. (legislature) (NPC) has the power to take decisions on the ratification and abrogation of treaties and important agreements. The President has the power to ratify treaties and important agreements concluded with foreign states pursuant to the decisions of the Standing Committee of the National People's Congress. Constitution Of The People's Republic Of China, 1982: Article 67 (1Constitution of the Fifth Republic, 1958: Article 52, 53, 54 the 4), 81,  85, 89

France

The power to conclude treaties is vested in the President of the Republic. Parliament ratifies treaties dealing with peace, commercial obligations, State finances, and the status of persons, cession or addition or territory (with the approval of the affected people).  If the Constitutional Council, consulted by the President of the Republic, the Prime Minister or the President of either assembly, has declared that an international obligation includes a clause contrary to the Constitution, authorization to ratify or approve it may be accorded only after revision of the Constitution.

 

 

South Africa

The national executive negotiates and signs all international agreements. An international agreement is binding in the country after it is approved by passing of a resolution by National Assembly and National council of provinces. Though, international agreements of technical, administrative or executive in nature, and not requiring ratification or accession executed by the national executive bind the country without the approval of National Assembly and National Council of Provinces, though they have to be tabled before the Assembly and the Council within reasonable time. An international agreement becomes law on enactment of an enabling national legislation, though in case of incorporation of self-executing provision in an agreement comes into effect automatically on its approval by the Parliament if it is not against the Constitution or an Act of Parliament.

Constitution_of_the_Republic_of_South_Africa,_1996: Section 231

Spain

The Crown signs treaties after they've been approved by the Parliament. Parliament, both houses, passes bills by majority vote of a majority of members. International treaties need the consent of the Senate on political, military, territorial, finance issues or changes in domestic law. The Congress and the Senate is required to be informed of the conclusion of any other treaties or agreements. The conclusion of an international treaty containing stipulations contrary to the Constitution requires prior constitutional amendment.

Section 94,95 of the Spanish Constitution, 1978

United States of America

 The President is empowered to make Treaties, on the advice and consent of the Senate, provided two thirds of the Senators present concur.

Article II, Section 2 of the U.S. Constitution

 

 The treaty has been used for the purpose of this brief interchangeably to convention, multi-lateral regime

 Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule

 14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.

 Union List- Parliament has power to enact laws qua subjects in this list

 

 

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10
December
2014

Multilateral Environmental Treaties – What do they tell us about equity and CBDR?

Brief Summary:

 The survey of literature reveals that there is a long history of differential treatment under international environmental law regime.  These treaties provide useful lessons for crafting a future climate agreement based on equity and CBDR

Key Messages: 

lessons on equity and differentiation from multilateral regimes are  instructive for evolving a just and equitable post 2015 climate regime and  can be divided mainly into two sets: 1) burden sharing arrangements that differentiate between the developed and developing countries with respect to implementation, for example, delayed compliance schedules (e.g. Montreal Protocol); 2) Provisions that differentiate between the developed and developing countries with respect to their technical and financial capability and ensure financial and technical assistance of various types (e.g.Basel Convention, 1989/Montreal Protocol and others)

Equity lessons from multilateral treaties:

Convention/Treaty 

Main Objective

Provision on Equity and CBDRC

Lesson for the Future Climate Regime

The Ozone Convention, 1985

Provides a general framework for efforts to be made by the world community to undertake measures to protect the ozone layer.

 

The objectives of the Convention are to be achieved by the Parties in accordance with the means at their disposal and their capabilities, thereby creating a regime of differentiation in undertaking general obligations.
- Does not envisage concrete measures. - Promotes cooperation by means of systematic observations, research and information exchange encourages legislative or administrative measures (domestic) against activities likely to have adverse effects on the ozone layer

The Montreal Protocol, 1987

 

 

 

Protection of Ozone layer by controlling emission of ozone depleting gases and substances
- premised on precautionary principle

- emissions are to be controlled equitably

- differentiation in implementation regime in conformity with the means and capability clause on general obligations under the Convention

- Special developmental needs of developing countries to be respected.

- does not include the definition of ‘developing county’.

- Robust burden sharing mechanism, equity and differentiation in time period of compliance, technical and financial assistance

- Developing countries granted 10-15 years “grace period” for the compliance with the control mechanisms under the protocol that were applicable to developed countries

- An innovative “Adjustment Provision” that enables the Parties to respond to evolving science and accelerate the phase-out of agreed ozone depleting substances without going through the lengthy formal process of national ratification

- Establishment of a Multilateral Fund with the goal of enabling developing countries’ compliance with specific time bound reduction targets for the chemicals controlled by the Protocol.
 
   

The Basel Convention, 1989 

Reduction of hazardous waste generation and promotion of environmentally sound management of hazardous waste, at the place of disposal.

- Acknowledgement of limited technical capacity of developing countries to manage hazardous waste.

 

 

Provisions on technical support to developing countries and technology transfer keeping in mind their special needs

 

 The (Geneva) Convention on Long Range Trans-boundary Air Pollution, 1979 (LRTAP)

A UNECE Convention, extended through eight Protocols, sets the targets to reduce the presence of air pollutants that emanate from long-range and cause serious pollution of trans-national nature. The equity element is provided by the specific Gothenburg Protocol under the LRTAP. The Gothenburg Protocol provides for differentiation in reduction targets depending on the emission share of those countries.

 

 Countries with the largest share of emission are responsible for making the greatest reductions in their emissions, while countries with lower emission levels have very little burden to reduce emissions.

The Stockholm Convention on Persistent Organic Pollutants, 2001

Aims to protect human health and the environment from chemicals that remain intact in the environment for long term and may be carried to different geographic regions by natural or human agents.
   

Explicit differentiation on the assistance to be provided to developing countries. The Convention categorically underlines the respective capabilities of developed and developing countries, as well as the common but differentiated responsibilities of States as set forth in Principle 7 of the Rio Declaration on Environment and Development.
   

The Convention has a unique opt-in procedure whereby the countries were allowed to choose if certain amendments with respect to addition of chemicals in the Annexes would apply to them if they expressly decided to opt-in. This apparently created a kind of self –differentiation at the wish of the parties who were willing to go for gradual stricter norms. On the other hand countries with limited resources could stay away from opting-in resulting in their limited participation.

Minamata Convention on Mercury, 2013
   
 

To protect human health and the environment from anthropogenic emissions and releases of mercury.

The Provision for financial and technical support to developing countries and countries with economies in transition, and a financial mechanism for the provision of adequate, predictable and timely financial resources is defined.

Parties “within their respective capabilities” are required to provide financial and technical assistance to developing countries, especially least developed countries, small island developing states, and economies in transition

 

Conclusion: 

 

Robust Burden sharing arrangements as per technical and financial capability as well as historical responsibility; Delayed compliance scheduled “grace period” for developing countries and economies in transition, coupled with financial and technical assistance so as to build their capacity to ‘catch up’, results in meeting the legal obligations by all (Montreal Protocol); Financial Institutions (Multilateral Funds) work if there is fair and equitable representation from all geographic regions. (Basel Convention/Montreal Protocol); Emission reduction obligations as per the share of historical and current emissions and financial capacity (LRTAP; Voluntary compliance mechanisms may or may not work (Stockholm POP Convention/ Minamata Convention); Differentiation based on financial and technical capacity of developed and developed countries ensures compliance by ensuring provisions of assistance and not by excluding or protecting the countries from meeting their commitments (All)

 Preamble, the Basel Convention, 1992

http://www.unece.org/fileadmin/DAM/env/documents/2012/air/Guidance_document_on_control_techniques_for_emissions_of_sulphur__NOx....pdf 

 (Wettestad 2001) As quoted in CKDN/WRI

 http://chm.pops.int/TheConvention/Overview/tabid/3351/Default.aspx

 Para 13, Preamble of the Convention

 Article 25

 Ibid 

 Article 13 and Article 14

 Article 14 (1)

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