At Durban, the second commitment period for developed country parties under the Kyoto Protocol was established. Several institutional mechanisms including the Green Climate Fund, Technology mechanism, and the Adaptation Committee which had been agreed at Cancun were operationalised at Durban. The Durban conference also adopted the guidelines for transparency arrangements which will result in the first biennial reports/updates of mitigation actions of developed and developing countries to be furnished in 2014 and the IAR and ICA of such actions to take place in 2015. The Durban Conference also agreed to launch a process under the Durban Platform to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention by 2015 and implement it from 2020.
Durban decisions are significant because they have restored faith in the multilateral process. The decisions have also preserved the Kyoto protocol even while discussions on the future arrangements beyond 2020 are underway.
India's position on the negotiating issues is guided by the principles of the Convention. Even while advancing its voluntary efforts in order to demonstrate its adherence to the objectives of the Convention, India's position remains firmly rooted in these principles.
At Copenhagen, India had agreed to indicate the domestic mitigation goals and also to the transparency arrangements. At Cancun, this was formalized and India went along-with the relevant decisions. At Durban, this was further advanced through an agreement on guidelines for ICA and ICR and India agreed to it.
The new development at Durban consists of launching a process for post 2020 arrangements. While agreeing to this process, India made it clear that the principles of equity and CBDR remained the guiding principles. Last hours of the Durban Conference and the final language on options for the legal form agreed in Durban are clearly indicative of the fact that India's views on the question of legal form of the outcomes prevailed.
India was never in favour of an outcome that would mandate legally binding emission cuts for developing countries without clarifying the stance of developed countries on their mandatory obligations under a legally binding regime. It was precisely for this reason that India introduced the option of 'legal outcome', which EU supported by SIDS wanted to be dropped.
India stuck to its stand and made a counter proposal for inserting an option of 'agreed outcome with legal force' which found acceptance by all. This ensured that vital elements of India's position including the stand on equity and legally binding agreement were not compromised. The legal effect of "legal outcome" and "agreed outcome with legal force" is same.
At the Durban Conference, the world recognised India for its spirited defense of the interests of developing countries. India insisted that the global regime for climate change must be based on the principles of equity and common but differentiated responsibility. India ensured that developing countries are not bound by any commitments to reduce their emissions and that the objectives of social and economic development and poverty eradication are not compromised in any way, whether upto 2020 or in the post 2020 arrangements that are to be negotiated and finalized by 2015.
The legal shape of post 2020 arrangements cannot be pre-judged. The arrangement may include a variety of options including 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 bindingness under the provisions of domestic and international law under the UNFCCC.
For the timeframe till 2020, our domestic goal has already been announced under the Copenhagen Accord and Cancun agreements. The goal is 20-25% reduction of emission intensity of GDP in comparison with 2005 level. This is a voluntary goal and does not need any further revision till 2020. The goal is to be achieved through a sustainable development strategy including promotion of energy efficiency in several sectors of industry, and solar and other forms of renewable energy. This is to be achieved depending on the financial outlays and technology support available from domestic and international sources. There is, therefore, no immediate impact on economy and industry because of Durban decisions.
The Durban decisions deal basically with the nature of arrangements after 2020. As the outcomes of Durban Platform have to be reached under the Convention and the legal form of such outcomes are yet to be negotiated and agreed, there are no legally mandated emissions reduction obligations for Indian industry. India's goals for post 2020 period will be decided in due course by the Central Government after consulting various stakeholders, including the civil society and the industry.
India expects a legally binding agreement to deliver on all four aspects of the Bali Action Plan in an equally binding manner - mitigation, adaptation, finance and technology. The agreement should ensure ambitious outcomes on all these issues and not only on mitigation.
Mitigation is, no doubt, a key concern because the obligation of both Kyoto and Non- Kyoto Parties has to be captured in the Agreement. But, a balanced outcome must be anchored in the principles of the Convention, particularly the principles of equity and CBDR, and should ensure that the developed country Parties provide finance and technology to enable ambitious mitigation and adaptation actions to be taken by developing countries.
A legally binding agreement can include a mix of CoP decisions as well as protocols. Some of the decisions could be aspirational, while some of them could be binding. There could be protocols or other implementing agreements that would facilitate creation of bodies and institutions that would be needed to implement the decisions with differing degrees of binding-ness.
The biggest gain at Durban was the establishment of the second commitment period of developed country parties under the Kyoto Protocol. Besides, several institutional mechanisms including the Green Climate Fund, Technology Mechanism, and Adaptation Committee which had been agreed at Cancun were operationalised at Durban. The Durban conference also adopted the guidelines for transparency arrangements which will result in the first biennial reports/updates of mitigation actions of developed and developing countries to be furnished in 2014 and the IAR and ICA of such actions to take place in 2015.
India was able to ensure that emissions and economic growth of developing countries is not inhibited by any legal constraint or limits until 2020 or thereafter. While there was no loss as such at Durban, the challenge in future is to ensure that the principle of equity and CBDR provided under the Convention remain the bedrock of the post 2020 arrangements.
The Durban platform decision states that the negotiations on post 2020 arrangements should result in a protocol or legal instrument or agreed outcome with legal force. A protocol or legal instrument refers to an instrument or agreement that has to be ratified by the Parties. Kyoto Protocol is one such agreement. However, agreed outcomes with legal force need not have the legal form of a protocol or a legal instrument. "Agreed outcome with legal force" gives flexibility to the developing countries to choose an appropriate form of outcomes that protects their interests.
For the legal form to be determined there has to be, first, an agreement on substance. Second, the agreements can have legal force even without the legal form of a protocol or instrument. The arrangements following the negotiations can be implemented either under the international law/agreement or under domestic and national legal provisions.
Moreover, a Legally Binding Agreement may include a mix of CoP decisions as well as protocols. Some of the decisions could be aspirational, while some of them could be binding. There could be protocols or other implementing agreements that would facilitate creation of bodies and institutions that would be needed to implement the decisions with differing degrees of binding-ness. A final decision on this will depend on the nature of the agreements reached following the negotiations. Hence the form cannot be prejudged at the start of the negotiations, the decision on this should come towards the end of the process.
There is no reference anywhere in the decision on Durban Platform to symmetry of obligations by the Parties, even if the post 2020 arrangements have to apply to all Parties. This may have been the intention of some of the parties. But, the formulation as agreed does not disclose that a single outcome will be based on symmetry of obligations or commitments.
Since the post 2020 arrangements have to be evolved under the Convention, they will need to respect the principles of the Convention and there will be space for differential obligations. Even the Kyoto Protocol which is an existing legally binding agreement recognizes the difference in obligations.
As the Durban platform decision clearly says that the outcomes will be under the convention, both in the last para of the preamble and para 2 of the text; the principles of equity and CBDR will continue to apply. The Convention is built on the principles of equity and common but differentiated responsibility. Negotiation on the post 2020 arrangements will have to respect these principles even if there is no explicit reference or repetition of these principles in the text of the decision.
The principle of equity will become increasingly important because the arrangements will apply to all parties. Details will be finalized during negotiations.
The agreed phrase under the Convention is the strongest possible legal language which not only encompasses principles of 'equity' and 'CBDR' but covers also commitments of AI under Article 4.2 & 4.3 and the first priority of NAI being social and economic development and poverty eradication under Article 4.7.
Agreement on Durban Platform is part of the mutual assurances exchanged between the Kyoto parties and the developing countries. Some Kyoto Protocol parties, particularly the EU, wanted consent of developing countries to a post 2020 roadmap in return for their agreeing to the second commitment period. Developing countries including India have kept their part of the bargain in Durban. India agreed to negotiate on the post 2020 arrangements in exchange for EU agreeing to the second commitment period under the KP. India also agreed to the transparency guidelines that were agreed in Cancun. India, thus, walked the extra mile.
Kyoto protocol parties should now fulfill their part of the bargain. They should bolster confidence in the promises made by them in order to strengthen the multilateral process. EU must ensure that all its members ratify the amendments to KP within the time frame agreed at Durban. The EU members must finalize their own country-wise and ambitious targets and convert them into actual emission limits through legal amendments to KP in Qatar in 2012. Further, they should not seek parallelism between the Durban Platform and the second commitment period, as an after thought.
Even as the parties reached home from Durban, Canada announced its decision to renounce its commitments to Kyoto targets. India is disappointed by Canada's announcement on opting out of Kyoto Protocol. Such actions by parties damage the confidence in the effectiveness of the legally binding agreements and may even have an adverse impact on the process of the proposed post 2020 arrangements under the Durban Platform.
Post 2020 arrangements must, inter alia, address the issues of equity, unilateral trade and technology related IPRs sufficiently and adequately.
India would like the post 2020 arrangements to resemble Kyoto type arrangements. Under the Kyoto Protocol, developed countries have binding emission cuts in absolute terms which have to be fulfilled at economy wide level and there is a compliance regime for verifying and enforcing the achievement of targets. These are matters which will be negotiated multilaterally and a suitable system will need to be agreed.
However, for developing countries, the responsibilities/obligations in a post 2020 arrangement will clearly need to be built on the principle of equity and CBDR. Irrespective of the legal form of the final arrangements, the developing country targets under such arrangements cannot be binding until the principle of differentiation based on equity is defined and the conditions implicit in such definition of equity are met. The principle of equity will need to be elaborated through negotiations.
Till 2020 and beyond, the developing country targets under these arrangements will be determined on the basis of voluntary choice and with a guarantee that there will be no punitive consequences of shortfall in these domestic targets even if they are inscribed in an international document. There will be mutually agreed arrangements for verification (international consultation and analysis) of the domestic goals but the objective of such arrangements will be only to increase transparency and build confidence in mutuall actions.
It is for this reason that the post 2020 arrangements must include not only binding emission reduction commitments for developed countries but also assurance that there will be no unilateral measures taken by any country in the name of climate change. Besides, the post 2020 arrangements must include commitments of developed countries in quantified and specific terms to provide financing and technology support to developing countries. Further, the arrangements should provide for a facilitative regime that ensures access to IPRs and transfer of climate friendly technologies. The arrangements may take the shape of a protocol or legal instrument, provided above conditions are met.
The decision on Durban Platform clearly mentions in last para of its preamble and decides in Para 2 of its text paper that a process will be launched to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention. This is the strongest possible indication that the principles of equity and CBDR will be applied while designing the appropriate legal form of outcomes.
Moreover, the preamble to the decision on Durban Platform notes the decisions of CoP 17 and CMP 7 on various issues. The CoP 17 decisions regarding the LCA matters recognize the principles of equity and CBDR in various sections, particularly, in the sections relating to the 'shared vision' (Para 4 of LCA outcome) and 'review' (Para 160 of LCA outcome).
Moreover, the ToRs for the post 2020 arrangements are yet to be finalized. These principles will be articulated while finalizing the arrangements, as the arrangements have to be created in accordance with the mandate of the Convention.
India's three issues were a matter of intense discussion and negotiation. These issues have been brought back to the table after having fallen off in Cancun. CoP President in her statement recognized the importance of the issues. LCA decision on shared vision includes a decision to have a workshop on the issue of equitable access to sustainable development in June 2012 for a report to CoP 18. Besides, SBSTA was requested by the CoP President in her statement to the plenary to consider the matter as part of work on SBSTA agenda items and report to CoP. Most significantly all three issues raised by India are still a part of the negotiating text (CRP 39) of the LCA that will be negotiated till Qatar. Decisions on the issues will be taken after discussion at COP 18 in Doha, Qatar.
Equity is a matter of principle that is recognized in the Convention. Its actual significance lies in the fact that the human beings have certain inalienable rights, particularly in regards to the global commons like atmosphere. The definitions of equity can differ but the principle cannot be ignored.
Since the line of differentiation as established under the Convention may be sought to be blurred in any post 2020 arrangement that may also apply to all with varying degree of bindingness, it is important to recognize equity appropriately in formulating this post 2020 dispensation.
The Convention already recognizes the vulnerability of specific group of countries under its Article 8. The vulnerabilities are recognized for the purposes of adaptation. Beyond CBDR, there is no such distinction amongst countries in terms of mitigation actions. Moreover, several SIDS countries have much larger per capita emission and higher per capita incomes than most of the vulnerable communities in India. India has large coastal communities, islands that are equally if not more vulnerable to climate change than the SIDS. India has a large populace of poor whose poverty can and needs to be eradicated in the next two decades as the foremost priority.
While there was a common approach on many issues like Technology in G77 & China, there was a basic concordance among the BASIC countries, as evidenced by their Beijing communiqué of November 2011 and the conduct of negotiations at Durban. A large number of developing countries e.g. China, Indonesia, Pakistan, Egypt, Malaysia, Nigeria, and Saudi Arabia clearly voiced their opposition to a single instrument and supported India's stand. While SIDS and some of the LDCs spoke in favour of legally binding option, most of the LDCs and middle income countries supported India's stand on equity. The wide support which India enjoyed for its three Agenda items, including equity from 27th November, day preceding the CoP, till 9th December, 2011 when CoP Agenda was adopted, is another indication.
BASIC countries have a coordinated approach to climate change. Naturally, BASIC countries have different national circumstances and development levels; yet their vision on how to address climate change and the question of differentiation and responsibility is convergent.
Durban was notable because the BASIC countries made their first joint statement in the plenary of the Durban conference. This made a great impact and led to positive conclusions. It was because of the BASIC unity that all three options on the legal outcomes could be retained in the decisions on Durban Platform. BASIC countries have held their first meeting after Durban in Delhi in February, 2012 and have reiterated their coordinated stand on Durban decisions.
The appropriate nature of a binding agreement should be decided after the content of the arrangements are agreed. While there is no objection to a legally binding agreement that applies to Parties in accordance with the principles of the Convention, the matter need not be pre-judged. A prior decision on the legal form does not help because it cannot guarantee that major developed country parties will ratify the agreement just because it is legally binding and applies to all Parties. A compliance procedure is necessary for meeting the commitments by developed country Parties. Experience with the existing procedures under the KP is not quite encouraging. Article 18 of the KP providing for compliance has never been effectively put into practice. Post 2020 arrangements will need to be designed keeping this reality in view.
Although KP has provisions for "compliance and consequence", in practice the implementation has been rather unsatisfactory. The post 2020 arrangements may have similar provisions for "consequence and compliance" but all the developed country parties need first to be willing to take comparable and binding commitments under the new rules as currently applicable to KP Parties. Developing countries need not have a compliance regime even though the new treaty or Arrangement could apply to all Parties. This is because the targets of developing countries will need to continue to be voluntary and be subject to the some mechanisms like ICA which is non-intrusive and non-punitive.
By agreeing to a legally binding agreement without knowing its scope, nature and content, India and developing countries are likely to lose much more than gain. A legally binding agreement must not only ensure ambitious mitigation by developed countries but also have specific and realizable gains in terms of finance and technology, assurances against unilateral actions and facilitate access to technology-related intellectual property rights (IPRs). There are no indications available that this is going to happen in the near future.
A legally binding agreement without these assurances will lead into a trap of binding commitments where no corresponding benefits occur either to the developing country concerned or for the global community as a whole. This will leave the possibility open to the developed countries to renounce their commitments, when a suitable opportunity arises, on the ground of lack of ratification of the instrument by their political authorities or lack of ambition. The conduct of some of the developed country parties under the Convention and its Kyoto Protocol provides a strong evidence of this possibility.
It is presumptuous to believe that India's willingness to get into a legally binding agreement will automatically ensure an agreement on equitable arrangements for the post 2020 period. India fought hard at Durban to get the option of 'agreed outcome with legal force' inserted in the Durban Platform document precisely in order to secure an agreement on the principles and the substance before an agreement is reached on the form of outcomes. An essential pre-condition for a successful legally binding agreement is for the principle of equity and CBDR to be clearly spelt out in its structure.
India's stand on climate change is guided by the consideration of the equity and CBDR which cannot be neglected in any arrangement. The issue is that of burden sharing. There can be no shifting of the burden of mitigation actions in the name of climate change. India's position is that all climate actions should be taken on the basis of equity along with CBDR.
Global warming is caused by the stock of carbon dioxide accumulated since last 100-150 years. Annual emissions of carbon dioxide add to this stock. Hence major emitters are those nations and groups of nations which have contributed to the stock. India's share of stock is small about 5%. A few Developed countries or groups still have major share of the stock.
India is a large country with a small carbon foot print. Its per capita emissions are 1.5 tonns compared to over 12 tonnes per capita average in developed countries. It is not a major emitter but rather a major economy. Other developed countries that have much smaller population, higher levels of income and living standards still continue to increase their emissions when they should actually be reducing it. India's emissions are bound to grow because it is a developing country and it has large unmet energy needs.
Some further facts and details about emissions of India and the impact of climate change on India may be seen at:-
India's GHG emissions Profile,
Economic Survey of India 2011-12,
Climate Change and India: A 4x4 Assessment
India has announced a domestic mitigation target of 20-25% emission intensity reduction by 2020 in comparison with 2005 level. Considering the low energy intensity of our GDP, further potential for reduction is limited. Planning Commission of India has been conducting a study of various sectors and their potential as part of the study on “low carbon” or sustainable growth strategy. Under aggressive mitigation scenario, the costs of mitigation can be quite high and there may not be financial resources available to reach these aggressive targets. This aspect would also need be considered in any post 2020 arrangement.
The strategy for this purpose will be a part of the Terms of Reference (ToRs) for the post 2020 arrangements. The question of absolute versus relative cuts and the peaking of emissions are linked to the national policy of sustainable development.
Developing countries already suffer from hugely adverse effects of adaptation to climate change. India in addition already has a sizable climate variability due to monsoons. This compels them to devote substantial part of their GDP to meeting this challenge. All mitigation of GHG emissions, unless resulting as co-benefit from sustainable development processes, will cast net additional economic burden on developing countries. Most mitigation of GHG emissions in developing countries leads to diversion of resources, earmarked for development, to meeting a global environmental problem for which such countries are not responsible.
Notably, mitigation actions taken by India will not lead to reduction in impact of climate change on India, as climate change is caused by accumulated emissions since 1850. India has contributed very little to these emissions, and even now emits just 4% of the global emissions with 17% of the world's population. Emissions from any point in the world has equal effect on the global climate, and even if India were to completely reduce its emissions to zero by going back to the stone age, it would hardly make any difference to the impacts of climate change on India (or anywhere else).
Amongst many of the likely implications of the committed and uncompensated mitigation actions are the following :
Withdrawal from use of coal for power generation: At present, coal accounts for c. 70% of India's power generation. Since coal is the most intensive source of GHG emissions, and also India's major energy resource, expansion of India's power generation will be seriously affected, because other energy sources, e.g. hydel, wind and natural gas are much smaller than coal resources, and expansion of nuclear power significantly will take many decades. In addition, coal miners will become unemployed. Price of power will increase and output will fall: Shifts from coal to other energy sources will result in increase in power tariffs to all users, including the small and marginal farmers for irrigation, and rural households.
Expansion of the railways network will be affected: Indian railways are mostly run by diesel and electricity. Since power generation from coal will be affected, and because diesel use also gives rise to GHG emissions, expansion, and even continuing operations of Indian railways will be affected.
Production of fertilizers will decrease: Fertilizers are largely produced using petroleum, natural gas, and electricity. Since all three sources involve emissions of GHGs, and accordingly, their use would have to be reduced, there would be fall in fertilizer output and consequent increase in price.
Prices of all goods, especially of food, will increase: Since the production of almost all goods involves use of energy, shortage of energy will lead to increase in costs of manufacture. I particular, food costs will increase because of reduced power and diesel for irrigation, and more costly fertilizer.
Increase in unemployment: Reduced energy use will lead to fall in industrial and agricultural output, and consequently, reduced employment.
India played an important role in securing an agreement on the establishment of GCF. The Transitional Committee which designed the GCF had Dr. Y.V. Reddy, Ex - Governor, RBI, as India's nominee. India is happy that the Fund will now become operational. However, the challenge now is to secure initial capital for its operations from the developed countries, in a timely manner and in sufficient quantum.
India is opposed to inclusion of mitigation actions in the agriculture sector without applying the principle of differentiation. This will affect the livelihoods of farmers. India has excluded agriculture sector from its emission intensity goals through voluntary and supported efforts. India will ensure that the decisions on agriculture sector at COP 18 in Doha, Qatar are aimed at improving adaptation efforts in this sector.