Hon’ble President of India
Republic of India
Date: September 26, 2016
Subject- Why India must ratify Doha Amendment to Kyoto Protocol for pre-2020 period before ratifying Paris Agreement for post-2020 period
This is to draw your attention towards Hon’ble Prime Minister’s announcement on September 25, 2016 that India will ratify the climate treaty on October 2, 2016 on the birth day of Mahatma Gandhi. Hon’ble Prime Minister made a reference to deliberations in Paris. The twenty-first session of the Conference of the Parties (COP) and the eleventh session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP) took place from 30 November to 11 December 2015, in Paris, France. While media appears to have erred in interpreting his statement as reference to Paris climate Agreement for post 2020 period, the correct interpretation which is chronologically apposite is that he referred to ratification of Doha Amendment to Kyoto Protocol, which has been ratified by China and some 70 countries. Indian climate negotiators have consistently and rightly been taking this position.
I submit that the Kyoto Protocol which is the only international treaty on climate till 2020 attempts to implement the objective of the UNFCCC to fight global warming by reducing greenhouse gas concentrations in the atmosphere to "a level that would prevent dangerous anthropogenic interference with the climate system" (Art. 2). The Protocol is based on the principle of common but differentiated responsibilities: it puts the obligation to reduce current emissions on developed countries on the basis that they are historically responsible for the current levels of greenhouse gases in the atmosphere. The Protocol’s first commitment period started in 2008 and ended in 2012. A second commitment period was agreed on in 2012, known as the Doha Amendment to the protocol, in which 37 countries have binding targets. It is noteworthy that submit that USA has neither ratified the first commitment period nor the second commitment period of the Protocol.
As of September 2016, some 70 states have accepted the Doha Amendment, while entry into force requires the acceptances of 144 states. Of the 37 countries with binding commitments, only 7 have ratified. This reveals the true nature of the commitment of development countries towards climate crisis.
I submit that the issues before CoP 22, which will be held in Marrakesh, Morocco in November, 2016 entry into force of Doha Amendment besides include the implementation of the Paris Agreement and the CoP 21 Decision text. Some of the issues are precautionary principle and common but differentiated responsibilities, status of pre 2020 actions by countries, particularly those committed to the second period of the Kyoto Protocol and progress on climate finance and technology transfer discussions ahead of CoP 22. Neither Doha Amendment to the Kyoto Protocol or Paris Agreement guarantee the safety of the world's most vulnerable but former is better than the latter for it makes provision for binding commitments and unlike the latter.
I submit that Kyoto Protocol succeeded in adopting precautionary approach but the Paris Agreement fails because it does not satisfy the provisions of Article 3.3 of UNFCCC. It reads: “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. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties.”
I submit that India and civil society groups failed to support a small country like Nicaragua in the Paris Climate Conference which raised its flag questioning the autocratic change introduced in the final draft at the last moment (from ‘shall’ to ‘should’) while adopting the 12 page long Paris Agreement dated 12th December, 2015. The Agreement being a legal text required application of basic legal knowledge by negotiators from India. In law schools across the globe students are taught that “shall” is “mandatory”. The drafters of legal documents are trained into the use of “shall” as it conveys “a duty to” be performed. It conveys obligation.
Had “shall” been not important 76 pages of Words and Phrases, a multi volume work of legal definitions would not have been devoted to case laws around it. The word “should” does not express a legal obligation, the word “shall” expresses a legal requirement.
Initially, Article 4.4 of the Draft Agreement read: “Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts…” This formulation aptly captured the historic responsibilities of rich countries and differentiated responsibilities of poorer countries. But disregarding the voice of a Central American country like Nicaragua which is a member of Group of 77, succumbing to the USA’s demand shall was substituted with should. India’s decision to maintain a deafening silence when the voice of a fellow member from G77 was disregarded is contrary to its stature. India should revise its position at CoP-22.
There was a total failure in comprehending that States have a fundamental responsibility to preserve resources like the land, water, and air, which belongs to the future generations. Its responsibility “predates statutory law”. So far most civil society groups have failed to highlight it.
What Indian environment minister, Shri Prakash Javadekar did not disclose to the Parliament was admitted by Shri Nozipho Joyce Mxakato-Diseko, chairperson of the Group of 134 developing countries (G77 and China Group). India is a member of this Group. Diseko has revealed that Intended Nationally Determined Contribution (INDC) for mitigating climate change is “a perversion of the principle of common but differentiated responsibilities” because it undermines the “legal obligation in accordance with historical responsibilities for finance” accepted under the bullying influence of USA and its allies.
It is quite outrageous that INDCs are not legally enforceable. The paragraph 52 of the Decision of CoP 21 makes a categorical declaration that Article 8 of the Paris Agreement which deals with the issue of addressing loss and damage associated with the adverse effects of climate change “does not involve or provide a basis for any liability or compensation.”
Although such announcement sets a regressive precedent in international negotiations, given the fact Paris Agreement is not legally binding by implication, this attempt to escape liability for loss and damage appears unsuccessful. The 12 page long Paris Agreement dated 12th December, 2015 adopted by the countries that are Parties to United Nations Framework Convention on Climate Change (UNFCCC) which was adopted on 9th May, 1992, is an articulation of how ‘climate-inequality’ shapes the text of an international treaty supposedly aimed at climate justice and for the protection of Mother Earth.
It may be recalled that the false solution of carbon trade and off setting was introduced in the Kyoto Protocol at the behest of USA which had made it a pre-condition to sign the Protocol. Notably, after diluting the Protocol USA unsigned the Protocol. Unmindful of the fraud and corruption ridden carbon trade projects, instead of discarding this fake remedy the Paris Agreement makes way for global carbon market through Article 6 of the Agreement. It makes space for “voluntary contribution” among countries in the implementation of their emission reduction targets and “to allow for higher ambition in their mitigation and adaptation actions”.
It creates a new class of carbon assets namely, “internationally transferred mitigation outcomes” (ITMOs) for trading and “support for results- based payments to implement policy approaches”. This new mechanism of UNFCCC has been incarnated as Sustainable Development Mechanism (SDM) as main mitigation tool in place of pre-existing Clean Development Mechanism (CDM) and Joint Implementation post-2020.
I submit that what is charitably referred to as “dangerous anthropogenic interference with the climate system” in the text of the UNFCCC is in reality an act of industrial warfare against climate and its allied ecosystem whose impact has become glaring. It is quite surprising that green house gas emissions from the war industry which is reaping unprecedented profits amidst conflicts around natural resources has not been included as one of the key sources of climate crisis.
It is apparent that world governments have adopted Ostrich policy with regard to climate crisis under the influence of undemocratic economic organizations. Richer countries became prosperous and dominant due to carbon emission since 1750. Between 1850 and 2011, USA, European Union, Russian Federation, Japan and others contributed over 2/3rd of total global emissions. Notably, developed countries have been outsourcing their carbon-intensive industries to developing countries like India.
Admittedly, the estimated aggregate greenhouse gas emission levels in 2025 and 2030 resulting from INDCs do not fall within least –cost 2 degree C but rather lead to a projected level of 55 gigatons in 2030. The Decision underlines that in order to hold the increase in global average temperature to below 2 degree C above pre-industrial levels there is a need for reduction of emissions to 40 gigatons.
It is quite bizarre that while almost all the countries have stated their commitments to reduce emissions from 1990 levels, USA has decided to count its reduction in emission using 2005 as the base year. Thus, its commitment of reduction is only 14% instead of 28% as has been claimed quite deceptively.
It has been estimated that India’s current per capita income is close US’s per capita income in the 1890s. Like most developed countries where coal remains unavoidable, India continues to argue that it will continue to use coal as its primary source in its energy mix. Meanwhile, in a remarkable move, the share of renewables in India has increased over 6 times between 2002 and 2015. India has also announced that it will add 175 GW of renewable energy capacity (almost equal to the total installed power generation of Germany) by 2022. This will lead to avoidance of burning over 300 million tonnes of coal.
I submit that India cannot afford to be complacent citing emissions by top polluters given the fact emissions of top 10 % of urban Indians is about 27 times the emissions of the bottom 10 % of rural India that the carbon footprint of 1 % of the India’s wealthy class is being veiled by 823 million poor class of the country. Saving climate from poisonous market interference
I submit that Paris Agreement panders to the whims and fancies of commercial czars who are obstinately commodifying and monetizing nature and interfering with climate and allied ecosystems. The natural resource dependent communities are facing unprecedented deprivation. This has created an episteme that blindly bulldozes technical and market solutions as “real” solutions. Meanwhile, World Bank Group feigned surprise on 17th December “to see the extent and detail on carbon markets” included in the Paris Agreement that paves the way for “Carbon Markets 2.0”.
I submit that a new, non-market, climate finance mechanism is needed to support the formalization and expansion of mitigation and technology transfer as a genuine solution to combat the propensity of promoting free trade in carbon at the cost of climate system. Climate talks remain relevant because fate of the communities and global order is linked to the decision by the richest countries to undergo mandatory fossil fuel de-addiction. But the Agreement fails to make top polluters liable for “dangerous anthropogenic interference” and for endangering human ecosystem which is the substratum for the existence of living beings.
In effect, despite the brave effort of a G77 country, Paris conference failed to save climate and intra-generational and inter-generational equity from the banks and markets that threaten our planet by integrating carbon pricing policies in all sectors of economy. It failed to make ratification of Doha amendment 2012 to Kyoto Protocol, 1997 developed under the UNFCCC’s charter covering 2012-2020 time span a priority.
In such a scenario, even at this late stage India should take ethical leadership by declaring carbon trading as a fake solution and by choosing not “to pursue the reckless and environmentally harmful path to development” that the developed countries have taken so far. It should have sought early ratification of the Doha Amendment to the Protocol which is the international law till 2020. But this law has not entered into force as yet. This exposes the hollowness of the claims about leading “nearly 200 nations to the most ambitious agreement in history to fight climate change” made by President Barack Obama in his last State of the Union address in front of the US Congress. The failure to apply “public trust doctrine” for safeguarding climate system is quite evident.
Ahead of 22nd Conference of Parties to United Nations Framework Convention on Climate Change (UNFCCC)-CoP 22, which will be held in Marrakesh, Morocco from 7-18 November 2016, at a Round Table on “From Kyoto, Doha to Paris: Issues before Marrakesh Climate Conference”, in September academicians, researchers, journalists and activists dwelt on issues like Doha amendment to the Kyoto Protocol, Paris Agreement and role of state and non-state actors in dealing implications of climate crisis. It dwelt on the compliance with a second commitment period which has commenced from 1st January 2013 in the 11th year of the Protocol. The Round Table was organised by ToxicsWatch Alliance (TWA).
It must be noted that UNFCC’s website was altered in an effort to bury the reference to Doha Amendment. Its reference was removed from the homepage of UNFCCC during September 12-17, 2016, when it became apparent to the Presidencies of CoP-21 and CoP-22 that Indian climate negotiators will continue to insist on ratification of Doha Amendment especially because chronologically it comes first. It has reliably been learnt from the sources in the Ministry of External Affairs and Ministry of Environment, Forests & Climate Change that developed countries have written the obituary of Doha Amendment. They have decided to engineer the global agenda in such a way as to ensure that the entire focus is on Paris Agreement, which is a post dated cheque of questionable efficacy. India must combat the propaganda of developed countries which have unleashed an information war to submerge the primacy of Doha Amendment, the only existing international climate treaty at least till 2020.
I submit that there is a logical compulsion to undertake climate action to prevent irreversible global changes in the pre-2020 and post-2020 period. India must explore the remedial nature of the proposed solutions for combating climate crisis instead of falling into the tarp of false solutions in the 22nd year of UNFCCC’s entry into force.
Ahead of the next conference which is planned in November 2016 in Marrakech, Morocco, India should take recourse to “long memories” to mobilize G-77 countries to put limits on ungovernable national and transnational business enterprises by adopting principles that account for the imminent danger to the very substratum of human existence.
It is evident that the dominant economic and political ideology has constrained the actions needed to strengthen the provisions on mitigation and in dealing with the impacts of climate crisis. Most donor driven civil society groups appear complicit with this ideology. As a consequence almost all visible activities end up being hand in glove with status quo.
In view of the above mentioned facts your intervention is required to ensure that India ratifies mandatory Doha Amendment before ratifying voluntary Paris Agreement for the post 2020 period.
ToxicsWatch Alliance (TWA)
Mb: 9818089660, 08227816731
Smt Sushma Swaraj, Union Minister of External Affairs
Shri Anil Madhav Dave, Union Minister of State (Independent Charge) Environment, Forest and Climate Change
Dr. S. Jaishankar, Foreign Secretary, Union Ministry of External Affairs
Shri Pradeep Kumar Sinha, Cabinet Secretary, Government of India
Shri Ajay Narayan Jha, Secretary, Union Ministry of Environment, Forest and Climate Change
Shri Rajani Ranjan Rashmi, Special Secretary, Union Ministry of Environment, Forest and Climate Change
P.S.: Word version of TWA's letter is attached.