Law and policy

On
Climate change

Submitted to:

Submitted by:

Mr. Rana Navneet Roy

Vivek Rai
Roll No.147
Semester IX

Table of Contents

Introduction.....................................................................................................................4
Aims..................................................................................................................................5
Key Legislation Guidance...............................................................................................6
Indian Environmental Law and Climate Change........................................................11
Conclusion........................................................................................................................14
Reference..........................................................................................................................15

2|Page

ACKNOWLEDGEMENTS
I feel highly elated to work on the topic "Law on Policy and Climate Change" because it has
significant importance in the present Social, Political and Legal scenario. I express my deepest
regard and gratitude for our Faculty of Environmental Law. His consistent supervision, constant
inspiration and invaluable guidance have been of immense help in understanding and carrying out
the importance of the project report.
I would like to thank My Best Friend Pooja Singh without whose support and encouragement, this
project would not have been a reality.
I take this opportunity to also thank the University and the Vice Chancellor for providing extensive
database resources in the Library and through Internet.
Vivek Rai
Section C (Sociology Major)
Semester IX
B.A. L.L.B (Hons.)

3|Page

INTRODUCTION

Climate change is already being observed through rising temperatures, melting glaciers, shifting
rain patterns, increased storm intensity and rising sea levels. Greenhouse gas (GHG) emissions from
human activities mainly fossil fuel use, deforestation and agriculture cause climate change. If

GHG emissions are not reduced to significantly below current levels within the next few decades,
there will be further warming and sea-level rise for centuries to come. This will result in adverse
impacts on human health, natural ecosystems, and the economy.

The risk of serious climate change impacts suggests that urgent action is needed to significantly
reduce GHG emissions in the coming decades. There is increasing evidence that the overall benefits
of strong and early action to reduce GHG emissions outweigh the costs. But we need to reduce
emissions at the lowest possible cost if we are to have a realistic chance of limiting further climate
change.

The International Panel on Climate Change (IPCC) has set a target to reduce global greenhouse gas
emissions so that the global mean average temperature 1 does not increase by more than 2C above
pre-industrial levels. Vulnerable areas such as parts of Africa, Asia, and the Pacific and Caribbean
small island states are already facing the impacts of climate change, and so adaptation and
mitigation measures are important.

This guide provides an overview of international climate change initiatives, and provides a
framework for those seeking to assist and encourage developing countries to reduce carbon
emissions and adapt to the impacts of climate change.

4|Page

AIMS

The trans-boundary implications of environmental issues makes climate change a global problem
requiring a global solution. International legal solutions have therefore been developing to address
the impacts of climate change with the long- term aim of establishing a legally binding international
agreement.
Many principles on climate change mitigation and adaptation are set out in non- binding
declarations, some of which are reflected in treaties primarily through the United Nations
Framework Convention of Climate Change and further developed over the years in Conference of
the Parties (COP) meetings. While many of the principles are not legally binding, they are
internationally recognised principles and to a certain extent, place a moral obligation for states to
adhere to. Further these principles create a legal framework within which the issues of climate
change (including of adaptation and mitigation) is analysed and developed. In the process of
developing this legal framework, issues that would need to be considered as part of creating binding
agreements are being assessed and a knowledge base of addressing such issues, as well as a process
for implementing changes, is being formulated.
Some of the legal principles and opportunities that developing countries (and agencies working
alongside them) can draw on to mitigate and adapt to climate change are outlined below. This
includes the fiscal support measures, including those under the Kyoto Protocol, which aim to
incentivise the development of new technologies and mitigation measures to reduce the effects of
climate change.

5|Page

KEY LEGISLATION / GUIDANCE

United Nations Framework Convention of Climate Change (Convention) 1

Article 2
Objective
The ultimate objective of this Convention and any related legal instruments that theConference 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 thatwould 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 3
Principles
In their actions to achieve the objective of the Convention and to implement its provisions, the
Parties shall be guided, inter alia, by the following:
1. The Parties should protect the climate system for the benefit of present and
futuregenerations of humankind, on the basis of equity and in accordance with their
common but differentiated responsibilities and respective capabilities.
2. The Parties should take precautionary measures to anticipate, prevent or minimize the
causes of climate change and mitigate its adverse effects. Where there are threats of serious
or irreversible damage, lack of full scientific certainty should not be used as a reason for
postponing such measures, taking into account that policies and measures to deal with
climate change should be cost-effective so as to ensure global benefits at the lowest possible
cost.
3. The Parties have a right to, and should, promote sustainable development.
4. The Parties should cooperate to promote a supportive and open international economic
system that would lead to sustainable economic growth and development in all Parties,
particularly developing country Parties, thus enabling them better to address the problems of
climate change.

Article 42
Commitments
1. All Parties, taking into account their common but differentiated responsibilities and their
specific national and regional development priorities, objectives and circumstances, shall:
1
2

Shantakumar. S, Introduction to Environmental Law, Page no. 402, Edition 2 nd reprint 2010.
Shantakumar. S, Introduction to Environmental Law, Page no. 403, Edition 2 nd reprint 2010

6|Page

(a) Develop, periodically update, publish and make available to the Conference of the
Parties, in accordance with Article 12, national inventories of anthropogenic emissions
by sources and removals by sinks of all greenhouse gases not controlled by the
Montreal Protocol, using comparable methodologies to be agreed upon by the
Conference of the Parties;
(b) Formulate, implement, publish and regularly update national and, where appropriate,
regional programmes containing measures to mitigate climate change by addressing
anthropogenic emissions by sources and removals by sinks of all greenhouse gases not
controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to
climate change;
(c) Promote and cooperate in the development, application and diffusion, including
transfer, of technologies, practices and processes that control, reduce or prevent
anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol
in all relevant sectors, including the energy, transport, industry, agriculture, forestry and
waste management sectors;
(d) Promote sustainable management, and promote and cooperate in the conservation and
enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases;
(e) Cooperate in preparing for adaptation to the impacts of climate change; develop and
elaborate appropriate and integrated plans for coastal zone management, water
resources and agriculture, and for the protection and rehabilitation of areas, particularly
in Africa, affected by drought and desertification, as well as floods;
(f) Take climate change considerations in to account, to the extent feasible, in their
relevant social, economic and environmental policies and actions, and employ
appropriate methods, for example impact assessments, formulated and determined
nationally, with a view to minimizing adverse effects on the economy, on public health
and on the quality of the environment,
(g) Promote and cooperate in scientific, technological,technical, socio-economic and other
research, systematic observation and development of data archives related to the
climate system and intended to further the understanding and to reduce or eliminate the
remaining uncertainties regarding the causes, effects, magnitude and timing of climate
change and the economic and social consequences of various response strategies;
(h) Promote and cooperate in the full, open and prompt exchange of relevant
scientific,technological, technical, socio-economic and legal information related to the
climate system and climate change, and to the economic and social consequences of
various response strategies;
(i) Promote and cooperate in education, training and public awareness related to climate
change and encourage the widest participation in this process, including that of nongovernmental organizations;

2. The developed country Parties and other Parties included in Annex I commit themselves

7|Page

specifically as provided for in the following3:

(a) Each of these Parties shall adopt national1 policies and take corresponding measures on
the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse
gases and protecting and enhancing its greenhouse gas sinks and reservoirs.
(b) The developed country Parties and other developed Parties included in Annex II shall
provide new and additional financial resources to meet the agreed full costs incurred by
developing country Parties in complying with their obligations under Article 12.
(c) They shall also provide such financial resources, including for the transfer of
technology, needed by the developing country Parties to meet the agreed full
incremental costs of implementing measures that are covered under article 4(1).
(d) The developed country Parties and other developed Parties included in Annex II shall
also assist the developing country Parties that are particularly vulnerable to the adverse
effects of climate change in meeting costs of adaptation to those adverse effects.
(e) The developed country Parties and other developed Parties included in Annex II shall
take all practicable steps to promote, facilitate and finance, as appropriate, the transfer
of, or access to, environmentally sound technologies and know-how to other Parties,
particularly developing country Parties, to enable them to implement the provisions of
the Convention.

Article 54
Research and systematic observation
In carrying out their commitments under Article 4, paragraph 1 (g), the Parties shall:
a. Support and further develop, as appropriate, international and intergovernmental
programmes and networks or organizations aimed at defining, conducting, assessing and
financing research, data collection and systematic observation, taking into account the
need to minimize duplication of effort;
b. Support international and intergovernmental efforts to strengthen systematic observation
and national scientific and technical research capacities and capabilities, particularly in
developing countries, and to promote access to, and the exchange of, data and analyses
thereof obtained from areas beyond national jurisdiction;

Article 6
Education, training and public awareness
In carrying out their commitments under Article 4, paragraph 1 (i), the Parties shall:
a. Promote and facilitate at the national and, as appropriate, subregional and regional levels,
and in accordance with national laws and regulations, and within their respective
3
4

Shantakumar. S, Introduction to Environmental Law, Page no. 404, Edition 2 nd reprint 2010
Shantakumar. S, Introduction to Environmental Law, Page no. 405, Edition 2 nd reprint 2010

8|Page

capacities:
i.

the development and implementation of educational and public awareness programmes

on climate change and its effects;

ii.

public access to information on climate change and its effects;

iii.

public participation in addressing climate change and its effects and developing
adequate responses; and

iv.

training of scientific, technical and managerial personnel;

Article 9
Subsidiary body for scientific and technological advice

1. A subsidiary body for scientific and technological advice is hereby established to provide the
Conference of the Parties and, as appropriate, its other subsidiary bodies with timely
information and advice on scientific and technological matters relating to the Convention.
This body shall be open to participation by all Parties and shall be multidisciplinary. It shall
comprise government representatives competent in the relevant field of expertise. It shall
report regularly to the Conference of the Parties on all aspects of its work.
2. Under the guidance of the Conference of the Parties, and drawing upon existing competent
international bodies, this body shall:
(a) Provide assessments of the state of scientific knowledge relating to climate change
and its effects;
(b) Prepare scientific assessments on the effects of measures taken in the
implementation of the Convention;
(c) Identify innovative, efficient and state-of-the-art technologies and know-how and
advise on the ways and means of promoting development and/or transferring such
technologies;
(d) Provide advice on scientific programmes, international cooperation in research and
development related to climate change, as well as on ways and means of supporting
endogenous capacity-building in developing countries; and
(e) Respond to scientific, technological and methodological questions that the
Conference of the Parties and its subsidiary bodies may put to the body.

Article 10 5
Subsidiary body for implementation
1. A subsidiary body for implementation is hereby established to assist the Conference of the
Parties in the assessment and review of the effective implementation of the Convention. This
5

Shantakumar. S, Introduction to Environmental Law, Page no. 405, Edition 2 nd reprint 2010

9|Page

body shall be open to participation by all Parties and comprise government representatives
who are experts on matters related to climate change. It shall report regularly to the
Conference of the Parties on all aspects of its work.
2. Under the guidance of the Conference of the Parties, this body shall:
(a) Consider the information communicated in accordance with Article 12, paragraph 1,
to assess the overall aggregated effect of the steps taken by the Parties in the light of
the latest scientific assessments concerning climate change;
(b) Consider the information communicated in accordance with Article 12, paragraph 2,
in order to assist the Conference of the Parties in carrying out the reviews required
by Article 4, paragraph 2 (d); and
(c) Assist the Conference of the Parties, as appropriate, in the preparation and
implementation of its decisions.

The Kyoto Protocol to the United Nations Framework Convention on Climate Change6
The Kyoto Protocol 5 was adopted in 1997 pursuant to the Berlin mandate 6 . It entered into force
in 2005 and was heralded as the worlds first legally binding agreement on climate change.
The Kyoto Protocol introduced is a complex regime addressing both mitigation and adaptation, and
gave effect to the principle in the Convention that developed countries, who are the source of most
past and current greenhouse gas emissions, should lead the reduction in emissions. This is
articulated through the common but differentiated responsibility principle (CBDR) that stems
from the Rio Earth Summit of 1992. Accordingly, the Kyoto Protocol places different obligations
for developed countries (known as Annex 1 countries) and developing countries (known as NonAnnex countries). The emission reduction targets apply only to the 37 industrialized countries and
the European community, in the first commitment period. Overall, these targets add up to an
average five per cent emissions reduction compared to 1990 levels over the five-year period 2008 to
2012.
The first commitment period ends in 2012. At the COP in Durban 2011 it was decided that a second
commitment period shall begin on 1 January 2013 with the end date yet to be agreed.
The Kyoto Protocol also introduced three flexible market mechanisms, based on the trade of
emissions permits: international emissions trading (Article 17), joint implementation (Article 6) and
the most successful of the three, the Clean Development Mechanism (CDM) (Article 12).
The CDM has two main goals:
To assist developing countries in developing sustainably; and
To help developed countries to comply with their emission reduction targets.
These trading mechanisms allow the Annex I countries to meet their greenhouse gas emission
limitations by buying Certified Emission Reductions (CERs) credits through financial exchanges or
through developing CDM-accredited projects.

Shantakumar. S, Introduction to Environmental Law, Page no. 407, Edition 2 nd reprint 2010

10 | P a g e

The Adaptation Fund 7

The Adaptation Fund was set up under the Kyoto Protocol and officially launched in 2007. It aims
to address the unequal positions between the developed and the developing countries by supporting
adaptation projects and programmes in developing countries that are Parties to the Kyoto Protocol.
Most of the financing for the Adaptation Fund comes from the sales of CERs to developed
countries. The other sources of financing are primarily through donations from Annex 1 countries.
Projects can be small-sized (grants up to $1 million) or regular (more than $1 million). The
Adaptation Fund is therefore a key instrument in tackling the fiscal problems of climate change
adaptation and mitigation in developing countries.
Access to funds by developing countries can be made through accredited National Implementing
Entities which includes multinationals such as the African Development Bank, the World Bank and
the United Nations Development Programme

The Copenhagen Accord 8

The Copenhagen Accord is the first U.N. document to explicitly state the goal of limiting global
temperature rise to 2 degrees Celsius (3.6 degrees Fahrenheit) compared to pre-industrial levels. It
establishes a process that allows each Annex I party to define its own GHG emissions target level.
However, delivery of these reductions is subject to measurement, reporting, and verification in
accordance with set guidelines. It asks non-Annex I parties wishing to associate with the
Copenhagen Accord to identify and commit to undertaking nationally appropriate GHG
mitigation actions (NAPAs). All NAPAs, regardless of whether their receipt of international
support, are subject to provisions for international consultations and analysis and domestic
measurement, reporting, and verification. Those NAPAs for which international support is
provided, however, are also subject to international measurement, reporting, and verification
requirements. The Accord calls for $30 billion in funding between 2010-2012 to help poorer
countries adapt to the impacts of climate change.
The Accord could not be adopted under the UNFCCC because it failed to garner sufficient support
to meet the UNFCCCs consensus rules. Consequently, the Conference of the Parties only took
note of the text. Willing countries are invited to join the Copenhagen Accord, but the Accord is not
subject to signature.

7
8

http://www.iisd.ca/process/climate_atm-fcccintro.html
http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf

11 | P a g e

INDIAN ENVIRONMENTAL LAW AND CLIMATE CHANGE

Climate change presents many challenges at the legal level. At present, India does not have a
separate statute on climate change. It is also not necessary at this stage to enact a law imposing
restrictions on developmental activities to tackle climate change. The principle of equity and
common but differential responsibilities enshrined in the United Nations Framework Convention on
Climate Change and embedded in international environmental law recognize the need for a
developing country like India to ensure right to development to its billions of impoverished citizens.
The per capita argument is also in Indias favor, as the per capita emission of India was 5.7 tonnes
as compared to 128.7 tonnes of the United States during the period 1994-2007. But all these do not
obliterate the fact that India is one among the five major emitters of Green House Gases. The fact
that the poor and underprivileged classes, on whose number strength the low per capita argument
rests, do not contribute to climate change in any significant way but are most vulnerable to its
negative impacts raises serious equity issues at the national level. A legal system which tries to
ensure the dignity of the individual has to address this issue in a serious manner.

There are certain legal, regulatory and policy frameworks which can be used in the mitigation
efforts of climate change. The Energy Conservation Act, 2001, enacted to promote the efficient use
of energy and the National Tariff Policy, 2006, mandating compulsory purchase of certain
percentage of renewable energy are important tools in the mitigation efforts. National Action Plan
on Climate Change is a major policy document that gives direction to mitigation and adaptation
efforts in India.

In addition to these, many concepts in Indian environmental jurisprudence can be used to address
the concerns raised by climate change. Precautionary Principle/Approach is the bedrock on which
the UNFCC and Kyoto Protocol rests. Precautionary principle mandates that when there are threats
of serious and irreversible damage, lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation. A plethora of Indian judgments has
categorically stated that precautionary principle is a part of Indian law. In the specific Indian
context, precautionary principle imposes additional responsibilities on the governments. The
environmental measures carried out must anticipate, prevent and attack the causes of environmental
degradation. Precautionary principle also shifts the burden of proof. Under the principle, the onus of
proof is on the actor or the developer or the industrialist to show that his actions are
environmentally benign. (Vellore Citizens Welfare Forum v. Union of India,) 9Polluter pays
principle is another major rule which can play a central role in an emerging climate change
jurisprudence in India. Polluter pays principle means that once an activity carried on is hazardous
or inherently dangerous, the person carrying on such activity is liable to make good the loss caused
to any other person by his activity irrespective of the fact that he took reasonable care. (Indian
Council for Enviro- Legal Action v. Union of India,)10. The fact that Article 21 of the Indian
Constitution which guarantees right to life has been used as the legal foundation of these principles
9. AIR 1996 SC 2715
10. AIR 1996 SC 1446

12 | P a g e

means that any legal or executive measure cannot circumvent them.

The recent advances in the climate change jurisprudence at the global level poses greater challenges
at the national level. Recent years witnessed the emergence of a body of literature and authoritative
statements analyzing climate change from a human rights perspective. This was a welcome shift,
changing the focus from states to individuals. Climate change negotiations, according to this
perspective, can no longer be a forum for state trade-offs and climate change is no longer a mere
issue squarely belonging to science and politics but an essentially human process with demonstrable
human cause and effect. The filing of a petition by an alliance of Inuit in the US and Canada in
2005 at the Inter American Commission on Human Rights, arguing that the green house gas
emissions from the US is violating the human rights of the Inuit, was the first major attempt in
linking climate change with human rights. Though this petition was rejected by the Commission, it
gave a different dimension to the whole issue of climate change. Mainly because of the initiatives of
Maldives, the Human Rights Council by resolution 7/23 requested the Office of the United Nations
High Commissioner for Human Rights (OHCHR) to conduct a detailed study of the relationship
between climate change and human rights, taking into account the views of States and other
stakeholders. OHCHR published its report in January 2009 (A/HRC/10/61) It found that climate
change will potentially have implications for the full range of human rights. In particular, right to
life, right to adequate food, right to water, right to health, right to adequate housing, and right to self
determination will be affected. Interestingly, the report also found that certain mitigation efforts like
agro-fuel production may have adverse secondary effects on human rights, especially right to food.
The report also focused on the impact of climate change on the rights of specific groups like
women, children and indigenous peoples. But the report notes that these effects cannot be qualified
as human rights violations in a strict legal sense. The hesitation to hold it a violation stems from
practical difficulties like the issue of causation and the fact that climate change effects are future
projections. It is impossible to disentangle the causal relationship linking historical green house gas
emissions of a particular country with a specific climate change related effect. Similarly, human
rights violations are normally established after the harm has already occurred or is imminent. But
when it comes to climate change, the adverse effects are projections about future impacts.

Nevertheless, the report argues that addressing these impacts on human rights remains a critical
concern and an obligation under international law. The finding of this intrinsic link between human
rights and climate change is of special relevance to a country like India. The adverse impact of
climate change on a range of fundamental rights recognized under the Constitution is already
observed. This places a constitutional obligation on the Indian state to address climate change
impacts from a human rights perspective.

13 | P a g e

CONCLUSION

This chapter has sought to provide an introduction to the UNFCCC system and the key institutions
as well as to the processes leading up to, and from, the adoption of the Kyoto Protocol. It has aimed
to introduce some of the key concepts that will be further developed in later chapters. With the
release of the IPCC Fourth Assessment Report it is clear that radical action needs to be taken to
avoid dangerous climate change. The Stern Review forcefully reminds us that early, radical action
in reducing emissions of GHGs is also the most economically sensible approach. At the
Copenhagen summit UNFCCC parties will be negotiating the sorts of major commitments that need
to be made to address seriously the challenge of climate change. Stern suggests that action within
the next 1015 years to keep carbon concentrations under that critical level could cost 1% of global
productie some US$3.5 trillion a year. Although discussion of the new Global Climate Fund is
ongoing, it is unfortunately clear from the experience of the GEF that public sector financing
through government donorsis unlikely by itself to generate the level of resources that are
necessary. Among the alternative or additional approaches, by contrast, carbon trading worth more
than US$120 billion in 2008can, if well managed, provide access to huge resources from the
private sector that will be necessary to meet this challenge. The objective of the rest of this volume
is explain the way that these markets can be put to work in the global effort to lower GHG
emissions, decarbonize our economies, and to achieve truly sustainable development.

14 | P a g e

REFERENCES

Books Referred
1. Shantakumar. S, Introduction to Environmental Law, Edition 2nd reprint 2010, Lexis Nexis
Butterworths Wadhwa, Nagpur.

Websites Referred

1. www.iisd.ca
2. www.unfccc.int
3. www.google.com
4. www.slideshare.com
5. www.academia.edu
6. www.scribd.com
7. www.wikipedia.com

15 | P a g e