climate change and its legal implications

Dr. Ram Manohar Lohiya National Law University.

“Mitigating Climate Change with Special Reference to Developing Countries”

Dr. Ram Manohar Lohiya National Law University

International Conference

On

“Mitigating Climate Change with

Special Reference to Developing Countries” (28-30 March 2014)

Theme: National Climate Change Law and Policy-

making in India.

Sub theme: Climate change and disaster management law.

Submitted by:

Kartik Kachhawah (B.A, L.L.B (hons.)2nd year)

Indian Implication Regarding Climatic

& Disaster-management Laws.



Table of Contents

Abstract

1. Introduction.

1.1 Key concept and definitions.

1.2 Impacts and adversities.

1.3 Genesis of climate change: not an act of God.

1.4 Disaster management and climate change law; a forming link.

2. Present stand of climatic laws in India

2.1 Liability of state towards citizens under doctrine of parens patriae.

2.2 Rights of indigenous people.

2.3 Disaster risk adaptation in context of India.

2.4 India’s response to climatic volatility.

2.5 Judicial interpretation.

3. Indian perspective on climatic and disaster management law.

3.1 International climatic law and India.

3.2 Need of climatic legislation.

3.3 Reinforcing disaster management law with applicable modification to suffice

present trend.

4. Conclusion



Abstract

The present erratic climate pattern is one of the most debatable issues. The adversities

of the unpredictable phenomena of climate change united the entire world to discuss

on the metrics to mitigate climate change. The problem of climate change raises

multi-dimensional complex issues of science, economics, justice and disaster-

management. Meanwhile, question of climate justice and disaster-management merely

received a trivial attention.

At Copenhagen summit India abandoned its old approach of “Common but

differentiated responsibilities” and made commitment to reduce carbon emission

voluntarily; obliging itself to international climatic jurisdiction. Meanwhile, at the

national sphere the rights of indigenous people must be given main priority. India is

one of the most susceptible to climatic catastrophes but still India doesn’t have any

specific legislation regarding climate change justice. Further the current stand of

disaster-management law was under interrogation after the tragic event of Uttrakhand.

This paper seeks to confer on the point of climatic justice and disaster-management

law in four parts. The 1st part explains the key concepts; Genesis of problem, Impact,

forming link between climatic volatility and disaster management. The 2nd part

includes present stand of India in terms of climate change laws, state liabilities

under doctrine of Parens Patriae, rights of indigenous people and judicial

implications. The 3rd part confers on Indian perspective on climate change and

disaster-management including International climatic laws and there judicial

interpretations, need of stringent climate change legislation and amendments in

Disaster-management act to suffice present trend of climate change. The 4th part

concludes the paper.

Key words: climate change, mitigation, justice, law, disaster-management,

indigenous.



1. Introduction

limatic volatility is one among the major issues that our planet is facing in present era.

Climate change and variability have become the primary environmental concern of the

twenty-first century; the potential impacts and mitigation of climate change need to be

analyzed within the context of sustainable development. Before couple of decades climate

change was considered as an “Act of God” but this notion was removed with the first report

of IPCC. Since climatic problems are interpreted in multiple contexts it is necessary to define

certain basic terminologies associated with the climate change. This introductory fragment of

the paper also discusses impacts of climate change and link between climatic irregularity and

disaster management.

1.1 Key concept and definitions.

Climate change, an alteration in the state of the climate that can be identified by changes in

the mean and/or the variability of its properties, and that persists for an extended period.

Climate change means a change in the state of the climate that can be identified (e.g., by

using statistical tests) by changes in the mean and/or the variability of its properties and that

persists for an extended period, typically decades or longer. Climate change may be due to

natural internal processes or external forcing, or to persistent anthropogenic changes in the

composition of the atmosphere or in land use1. UNFCCC defines climate change “a change

which is attributed directly or indirectly to human activity that alters the composition of the

global atmosphere and which is in addition to natural climate variability observed over

comparable time periods”2. The term climate change and global warming are closely

associated; Global Warming is a specific example of the broader term “Climate Change”

and refers to the observed increase in the average temperature of the air near earth’s surface

and oceans in recent decades3. Further climate and weather must not be considered as

synonyms. The World Meteorological Organization (WMO) differentiates the terms in the

following way: “At the simplest level the weather is what is happening to the atmosphere at

any given time. Climate in a narrow sense is usually defined as the ‘average weather,’ or

1 IPCC, 2007a: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the

Fourth Assessment Report of the Intergovernmental Panel on Climate Change. 2 Article 1, United Nations Framework Convention on Climate Change. 3 India, Ministry of Environment and Forest, Annual Report, 2012-13, p. 349

C



more rigorously, as the statistical description in terms of the mean and variability of relevant

quantities over a period of time4”.

Disasters are defined as severe alterations in the normal functioning of a community or a

society due to hazardous physical events interacting with vulnerable social conditions,

leading to widespread adverse human, material, economic, or environmental effects that

require immediate emergency response to satisfy critical human needs and that may require

external support for recovery5. The given definition focuses on term ‘hazardous physical

events’ which connotes catastrophic event which m may be of natural, socio-natural

(originating in the human degradation or transformation of the physical environment), or

purely anthropogenic origins6. Disaster management refers to social processes for

designing, implementing, and evaluating strategies, policies, and measures that promote and

improve disaster preparedness, response, and recovery practices at different organizational

and societal levels7. Disaster management processes are enacted once the immediacy of the

disaster event has become evident and resources and capacities are put in place with which to

respond prior to and following impact. These include the activation of early warning systems,

contingency planning, emergency response (immediate post-impact support to satisfy critical

human needs under conditions of severe stress), and, eventually, recovery. Disaster

management is required due to the existence of ‘residual’ disaster risk that ongoing disaster

risk reduction processes have not mitigated or reduced sufficiently or eliminated or prevented

completely8.

Mitigation refers to the reduction of the rate of climate change via the management of its

causal factors (the emission of greenhouse gases from fossil fuel combustion, agriculture,

land use changes, cement production, etc.)9. Mitigation under the context of disaster

4 WMO, 2010: Understanding Climate. World Meteorological Organization, Geneva, Switzerland,

www.wmo.int/pages/themes/climate/understanding_climate.php. 5 Tobin, G.A. and B.E. Montz, 1997: Natural Hazards: Explanation and Integration. The Guildford Press,

London, UK. 6 Wisner, B., P. Blaikie, T. Cannon, and I. Davis, 2004: At Risk: Natural Hazards, People’s Vulnerability, and

Disasters, 2nd edition. Routledge , London, UK. 7 Alexander, D., 2000: Confronting Catastrophe. Oxford University Press, New York. 8 IDB, 2007: Disaster Risk Management Policy. GN-2354-5, Inter-American Development Bank, Washington,

DC. 9 IPCC, 2007c: Appendix I: Glossary. In: Climate Change 2007: Impacts, Adaptation and Vulnerability.

Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate



management signifies the actions to limit further adverse conditions once disaster has

materialized. This refers to the avoidance of what has sometimes been called the ‘second

disaster’ following the initial physical impacts10

. The ‘second disaster’ may be characterized,

among other things, by adverse effects on health 11

and livelihoods due to inadequate disaster

response and rehabilitation plans, inadequate enactment of existing plans, or unforeseen or

unforeseeable circumstances. Such definition refers to Disaster Risk Mitigation. The

defined terms are frequently employed with climate change.

1.2 Impact and Adversities.

Climate change is most serious threat that world is facing today12

. Climate change is not only

threat to global economy1314

but to entire human existence15

. The magnitude of climatic

problem is undoubtedly high to the extent of mass destruction. The resent climatic studies of

IPCC show following results:

Warming of the climate system is unequivocal, as is now evident from observations

of increases in global average air and ocean temperatures, widespread melting of

snow and ice, and rising global average sea level. Eleven of the last twelve years

(1995–2006) rank among the 12 warmest years in the instrumental record of global

surface temperature (since 1850). The updated 100-year linear trend (1906 to 2005)

Change [Parry, M.L., O.F. Canziani, J.P. Palutikof, P.J. van der Linden, and C.E. Hanson (eds.)]. Cambridge

University Press, Cambridge, UK, and New York, NY. 10 Wisner, B., J.C. Gaillard, and I. Kellman (eds.), 2011: Handbook of Hazards and Disaster Risk Reduction.

Routledge, London, UK. 11 Noji, E., 1997: The Public Health Impacts of Disasters. Oxford University Press, New York. 12 Cubasch, U., D. Wuebbles, D. Chen, M.C. Facchini, D. Frame, N. Mahowald, and J.-G. Winther, 2013:

Introduction. In: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Stocker, T.F., D. Qin, G.-K.

Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. Cambridge

University Press, Cambridge, United Kingdom and New York, NY, USA. 13 Nakicenovic, N. and R. Swart, Eds., 2000: Special Report on Emissions Scenarios. A Special Report of

Working Group III of the Intergovernmental Panel on Climate Change. Cambridge University Press,

Cambridge. 14

WRI (World Resources Institute), 2000: World Resources 2000-2001: People and Ecosystems: The Fraying

Web of Life. World Resources Institute, Washington, District of Columbia. 15

IPCC , 2012b: Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation.

Special Report of the Intergovernmental Panel on Climate Change by [ Field, C. B., V. Barros, T. F. Stocker, D. Qin, D. J. Dokken, K. L. Ebi, M. D. Mastrandrea, K. J. Mach, G.-K. Plattner, S. K. Allen, M. Tignor, and P. M.

Midgley (Eds.)]. Cambridge University Press, Cambridge, United Kingdom.



of 0.74°C [0.56°C to 0.92°C] is therefore larger than the corresponding trend for

1901 to 2000 given in the TAR of 0.6°C [0.4°C to 0.8°C].

Global average sea level rose at an average rate of 1.8 [1.3 to 2.3] mm per year over

1961 to 2003. The rate was faster over 1993 to 2003: about 3.1 [2.4 to 3.8] mm per

year. The total 20th century rise is estimated to be 0.17 [0.12 to 0.22] m.

The effect of climate change is more serious in the developing countries as compared to

developed countries. While climate change results from activities all over the globe (with

rather unevenly spread contributions to it), it may lead to very different impacts in different

countries, depending on local/regional environmental conditions and on differences in

vulnerability to climate change—independent of the contributions to climate change of these

countries16

. It is likely to undermine the sustainability of livelihoods as well as development.

The worst impacts will fall on developing countries, in part because of their geographical

location, in part because of weak coping capacities, and in part because of more vulnerable

social, institutional, and physical infrastructures17

. Vulnerability is defined generically in

this report as the propensity or predisposition to be adversely affected. Such predisposition

constitutes an internal characteristic of the affected element. In the field of disaster risk, this

includes the characteristics of a person or group and their situation that influences their

capacity to anticipate, cope with, resist, and recover from the adverse effects of physical

events18

. Climate change is also considered as one of the major barriers of sustainable

development19

and Millennium Development Goals.

India is one of the most vulnerable nations in context of climate change. It is recently found

that climate change can adversely affect India’s natural ecosystem which would certainly

impair India’s agriculture20

, directly affecting 58% of population. Climate change can also

16 For regional differences in vulnerability to climate change, see e.g. UNEP/Earthscan Global Environmental

Outlook 2002. 17 Bierbaum and others (2007). Confronting Climate Change: Avoiding the Unmanageable and Managing the

Unavoidable, a new report prepared by the Scientific Expert Group Report on Climate Change and Sustainable

Development for the United Nations Department of Economic and Social Affairs 18 Gaillard, J.C., 2010: Vulnerability, capacity, and resilience: Perspectives for climate and development policy.

Journal of International Development. 19 IPCC, 2001a: Climate Change 2001: The Scientific Basis. Contribution of Working Group I to the Third

Assessment Report of the Intergovernmental Panel on Climate Change, J.T. Houghton, Y. Ding, D.J. Griggs, M.

Noguer, P.J. van der Linden,X.Dai,K.Maskell and C.A. Johnson, Eds., CambridgeUniversity Press,Cambridge 20 World Bank, 2009: World Development Report 2010: Development and Climate Change. World Bank,

Washington, DC.



have threatening effect on India’s food security, water security, fundamental rights, trade and

business21

.

1.3 Genesis of Climate change: Not an Act of God.

Change in climate is a natural phenomenon22

, conditioned to some certainty or predictability.

Meanwhile, the present erratic climatic pattern is resulted due to human activities. The

definition provided by UNFCCC leaves no uncertainty regarding the inception of the

corresponding issue. Climate change is a serious and urgent issue. The Earth’s climate is

changing, and the scientific consensus is not only that human activities have contributed to it

significantly, but that the change is far more rapid and dangerous than thought earlier23

.

Global atmospheric concentrations of carbon dioxide, methane and nitrous oxide have

increased markedly as a result of human activities since 1750 and now far exceed pre-

industrial values determined from ice cores spanning many thousands of years. The global

increases in carbon dioxide concentration are due primarily to fossil fuel use and land use

change, while those of methane and nitrous oxide are primarily due to agriculture24

. There is

new and stronger evidence that most of the warming observed over the last 50 years is

attributable to human activities. There is a longer and more scrutinized temperature record

and new model estimates of variability. Reconstructions of climate data for the past 1,000

years indicate this warming was unusual and is unlikely to be entirely natural in origin25

. The

recent literatures on relevant issue make the fact that present erratic changes in climate are

due to human activities. Thus, climate change and outcome of such must not be considered as

an “Act of God”.

21 India, Ministry of Finance, Economic Survey, 2012-13, pp. 256-57. 22

IPCC, 1990: Climate Change: The IPCC Scientific Assessment [J. T. Houghton, G. J. Jenkins and J. J.

Ephraums (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. 23Stern, N., and others (2006). The Economics of Climate Change. http://www.hm

treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm 24 IPCC , 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the

Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) [Solomon, S., D. Qin, M.

Manning, Z. Chen, M. Marquis, K. B. Averyt, M. Tignor and H. L. Miller (eds.)]. Cambridge University Press. 25

IPCC , 2001: Climate Change 2001: The Scientific Basis. Contribution of Working Group I to the Third

Assessment Report of the Intergovernmental Panel on Climate Change [J. T. Houghton, Y. Ding, D. J. Griggs, M. Noquer, P. J. van der Linden, X. Dai, K. Maskell and C. A. Johnson (eds.)]. Cambridge University Press,

Cambridge, United Kingdom and New York, NY, USA.



1.4 Forming link between climatic law and Disaster Management.

The problem of climate change is multi-dimensional. Climate change is not the subject that

can be addressed in isolation by one department; it requires active inter-departmental

cooperation26

. The climatic change is mainly responsible for most disasters. Further the

geography of India is most susceptible to climate prone disasters. Floods, droughts, cyclones,

earthquakes and landslides have been recurrent phenomena. Over 40 million hectares is prone

to floods; about 8% of the total area is prone to cyclones and 68% of the area is susceptible to

drought. In the decade 1990-2000, an average of about 4344 people lost their lives and about

30 million people were affected by disasters every year. The loss in terms of private,

community and public assets has been astronomical. Thus, climate change and disaster

management should be dealt in a single box.

2. Present stand of Climatic Laws in India.

Climate change had received an unprecedented attention in recent times. The fundamental

reason behind such transit can be series of climatic disasters that India had faced in recent

couple of decades or International pressure to reduce carbon emission as a part of sustainable

development. This part confers on India’s present position regarding to climatic law.

2.1 State liability under the doctrine of Parens Patriae.

The concept of parens patriae is explained as “the right of the sovereign and imposes a duty

on the sovereign, in public interest, to protect persons under disability who have no rightful

protector.27

” The doctrine of parens patriae is the inherent power and authority of a

legislature to provide protection to the person and property of persons and property non sui

juris, such as minor, insane and incompetent persons. The doctrine of parens patriae meaning

‘father of the country’ was applied originally to the king and is used to designate the state

26 Boer J D, Wardekkar J A, and Sluijs J P V. 2010. Frame-based guide to situated decision making on climate

change. Global Environment Change 20:502–510. 27

West’s Encyclopedia of American Law, edition 2.



referring to the sovereign power of guardianship over persons under disability. The courts in

India have applied this doctrine in several cases. Therefore it is submitted that, under the

doctrine of parens patriae also, the state is obliged to provide adequate relief and

rehabilitation to the victims of climatic disaster28

.

2.2 Rights of Indigenous People.

It is the prime duty of the state to protect fundamental rights of citizens. Meanwhile, after

Uttrakhand tragedy the main question raised by general public was “How far India can

protect rights of people during disasters?29

” The findings were miserable as the indigenous

population of affected area which included men and women from small villages who were

surviving from the earnings of pilgrimage were not given any priority. Under Indian

constitution India is declared as “welfare state” and therefore it is mandatory for India to

interpret legislations in context of welfare of citizens. After the Maneka Gandhi Case (1978),

courts have expanded the scope of ‘life’ and ‘personal liberty’ under Article 21. The Supreme

Court has also interpreted the words ‘procedure established by law’ to include both the

procedural and substantive legal requirements of fairness, justness and reasonableness.

Article 21, which guarantees the protection of life and personal liberty, is the repository of all

important human rights. From this, the Supreme Court has deduced an affirmative obligation

on the part of the state to preserve and protect human life.

2.3 Disaster risk adaptation in context of India.

Disaster risk adaption is one of the main climate mitigating factors30

. These definitions

modify the IPCC (2007c) definition that generically speaks of the “adjustment in natural and

human systems in response to actual and expected climatic stimuli, such as to moderate harm

28 Jacob P. Alex. Disaster Management towards a legal framework (2006). 29

The Hindu, a Himalayan Tragedy. Updated on Jan 2, 2014. 30 IPCC, 2001b: Climate Change 2001: Impacts, Adaptation and Vulnerability. Contribution of Working Group

II to the Third Assessment Report of the Intergovernmental Panel on Climate Change, J.J. McCarthy, O.F.

Canziani, N.A. Leary, D.J.Dokken andK.S.White, Eds., CambridgeUniversity Press, Cambridge.



or exploit beneficial opportunities”. Adaptations vary according to the system in which they

occur, who undertakes them, the climatic stimuli that prompts them, and their timing,

functions, forms, and effects. In unmanaged natural systems, adaptation is autonomous and

reactive; it is the process by which species and ecosystems respond to changed conditions.

This chapter focuses on adaptations consciously undertaken by humans, including those in

economic sectors, managed ecosystems, resource use systems, settlements, communities, and

regions. In human systems, adaptation is undertaken by private decision makers and by

public agencies or governments. Meanwhile, developing nations face technology major

problems regarding adaptation due to scarcity of resources and technology. Individual

cultivator response to climate risk in India has long relied on a diverse mix of strategies, from

land use to outside employment (sometimes requiring temporary migration) to reciprocal

obligations for support; many of these strategies have been undermined by changes such as

population pressure and government policy, without being fully replaced by others—

illustrating the oft-remarked vulnerability of regions and populations in transition31

.

2.4 India’s response to climatic.

India’s carbon emission is very less in comparison to developed nations. India’s carbon

dioxide emission is about 4% of earth’s total CO2 emission. Meanwhile the growing

awareness regarding climatic change in India can be viewed from recent national activities32

.

At international level India was prepared to voluntarily “reduce the emissions intensity of

[its] growth by 20 to 25 per cent in 2020 as compared to 2005”33

. Commentators within

India deplored India’s leaving the camp of developing countries and making concessions

without asking for reciprocity34

. At national level various governmental bodies were formed

to deal with climatic problems. National Environment Policy, 2006 outlines essential

elements of India’s response to Climate Change35

. The Prime Minister, Dr. Manmohan Singh,

has set up a High Level advisory group on climate change issues which include: Government

31

Gadgil, S., A.K.S. Huda, N.S. Johda, R.P. Singh, and S.M. Virmani, 1988: The effects of climatic variations

on agriculture in dry tropical regions of India. In: The Impact of Climatic Variations on Agriculture:

Assessments in Semi-Arid Regions [Parry, M.L., T.R. Carter, and N.T. Konjin (eds.)]. J. Kluwer Academic Publishers, Dordrecht, The Netherlands. 32

op.cit, Annual Report, p. 349. 33

Ministry of External Affairs (2009b), Prime Minister’s Statement Prior to his Departure for

Copenhagen, online: <www.meaindia.nic.in/speech/2009/12/17ss01.htm 34 Jayaraman, T. (2009), Will It Be a US Endgame at Copenhagen?, in: Economic and Political Weekly, 44, 50,

13–15. 35 Government of India (2007), National Action Plan on Climate Change, New Delhi.



Representatives and Non- Government Members. The Council coordinates National Action

Plans for assessment, adaptation and mitigation of Climate Change36

. The National Action

Plan on Climate Change (NAPCC) coordinated by the Ministry of Environment and Forests

is being implemented through the nodal Ministries in specific sectors/areas. The plan

“identifies measures that promote our development objectives while also yielding co-benefits

for addressing Climate Change effectively”. Climate Change Action Programme (CCAP)

includes National Carbonaceous Aerosols Programme (NCAP), Long Term Ecological

Observatories (LTEO), and Coordinated Studies on Climate Change for North East region

(CSCCNE). The NCAP is a major activity involving multi-institutional and multi-agency

study. Further many scientific and economical policies were also made in respective context.

2.5 Judicial interpretations.

Climatic justice is the question of fundamental rights. Climatic law is not codified by Indian

legislative system but the corresponding problem can ne interpreted in terms of Article 21 of

Indian constitution and Disaster Management Act. In the B.J. Diwan case, the Gujarat High

Court rejected the government’s argument that the court doesn’t have jurisdiction to

adjudicate upon a case, which claims the enforcement of relief and rehabilitation. The court

went on to hold that the right to relief and rehabilitation is a guaranteed right under Article 21

of the Constitution and the state is duty bound to ensure the same37

. Indian judiciary followed

the same application in various climatic calamities to ensure justice. Supreme Court had

intervened in a matter related to the allegation of death due to drought, famine and starvation

in Orissa. The intervention of Bombay High Court in the aftermath of the Latur earthquake

provided minimal relief. The Bombay High Court passed directions about temporary shelter,

drinking water, sanitation facilities, health services, public distribution systems and

compensation for the handicapped and the dependents of the deceased in the Latur

earthquake.

3. Indian perspective on climatic and disaster management

law. 36 Government of India (2006b), Integrated Energy Policy, Report of the Expert Committee, New Delhi. 37 Diwan vs. State of Gujarat (2001).



The contemporary activities of various international organizations in terms of climate change

brought a great transit in Indian approach towards corresponding issue. Thus, it is necessary

to understand the roles of international bodies in enhancing India’s view towards climatic

law. This section of paper critically analyses International bodies on climatic jurisprudence

and their impact on Indian policy making. Further this section evaluates loopholes in Indian

laws regarding climate change and Disaster-management. This section suggests various

modifications in present laws to suffice present trend and future needs.

3.1 International climatic law and India.

International climatic obligations are primarily defined under two binding international

instruments:

1. UN Framework Convention on Climate Change (UNFCCC) adopted at Rio

conference on Environment and Development, 1992.

2. Kyoto Protocol, 1997.

The objective of the Convention was to achieve stabilization of Green House Gasses

concentration in the atmosphere at a level that would prevent dangerous anthropogenic

interference with the climate system. Such a level is to be achieved within a time frame

sufficient to allow eco-systems 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. The UNFCCC recognizes the legitimate need of developing countries for sustained

economic growth and poverty alleviation. Article 3.1 of the UNFCCC mentions that Parties

to the Convention should protect the climate change 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. It is noted in the

Preamble of the UNFCCC that the largest share of historical and current global emissions of

greenhouse gases has originated in developed countries, that per capita emissions in

developing countries are still relatively low and that the share of global emissions originating

in developing countries will grow to meet their social and development needs. The UNFCCC

promotes and reviews the implementation of the Convention through decisions taken at

annually held meetings of the Conference of Parties (CoP). It also gave a “soft target” for



industrialized countries (Annex I Parties) to return to 1990 levels of GHG emissions by 2000.

All major countries, including US, EU, India, China, have ratified the Convention38

.

Kyoto protocol was adopted by the parties to the UNFCCC and is the most significant legally

binding protocol. The Protocol provides for quantified emission limitation and reduction

commitments for the developed countries, mechanisms to facilitate review of and compliance

with these targets. The Kyoto Protocol also provides for three mechanisms that enable the

developed countries with quantified emission limitation and reduction commitments to

acquire greenhouse gas reduction credits from activities outside their own boundaries at

relatively lesser costs. These are Joint Implementation, Clean Development Mechanism

(CDM) and Emission Trading. Developing Countries can participate only in CDM

operational since 200039

.

The 15th session of the Conference of the Parties to the UNFCCC and the 5th session of the

Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol took

place in Copenhagen, Denmark in 2009. The Copenhagen Accord contained several key

elements on which there was strong convergence of the views of the Governments. This

included the long-term goal of limiting the maximum global average temperature increase to

no more than 2 degrees Celsius above pre-industrial levels, subject to a review in 2015.

Developed countries promised to provide US$30 billion for the period 2010- 2012, and to

mobilize long-term finance of a further US$100 billion a year by 2020 from a variety of

sources.

At the 2012 UN Climate Change Conference in Doha, Qatar Governments consolidated

the gains of the last three years of international Climate Change negotiations and opened a

gateway to necessary greater ambition and action on all levels. This post Durban convention

worked on following agendas:

Strengthened their resolve and set out a timetable to adopt a universal climate

agreement by 2015, which will come into effect in 2020.

38

UNFCCC(1992):unfccc.int/resource/docs/convkp/conveng.pdf. 39 Kyoto Protocol(1997): unfccc.int/resource/docs/convkp/kpeng.html



Streamlined the negotiations, completing the work under the Bali Action Plan to

concentrate on the new work towards a 2015 agreement under a single negotiating

stream in the Ad hoc Working Group on the Durban Platform for Enhanced Action

(ADP).

Emphasized the need to increase their ambition to cut Green House Gases (GHGs)

and to help vulnerable countries to adapt.

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 Green House Gas

emissions.

Made further progress towards establishing the financial and technology support and

new institutions to enable clean energy investments and sustainable growth in

developing countries40

.

It is strongly argued that India is perceived as one of the most obdurate opponents of an

effective global climate regime41

that would also impose responsibilities for early mitigation

efforts on emerging economies. The government has untiringly repeated the concept of

“common, but differentiated responsibilities” (for reductions of greenhouse gas emissions)

and it has also talked of the necessary transfer of new and additional financial resources and

technology on concessionary terms if cooperation on emission abatement was to be expected

from it and from other developing countries. In terms of legal obligation the United Nations

Framework Convention on Climate Change and the related Kyoto Protocol do not require

developing countries to commit to reducing GHG. Being a developing nation it is mandatory

for India to focus on sustainable development. As “efforts to address climate change […]

should not take away resources from the core development needs and growth objectives of

the developing countries42

”. Meanwhile, India in2009 approved the Copenhagen Accord,

which required all the major developing countries to implement nationally appropriate

40 CLIMATE CHANGE - INDIA’S PERSPECTIVE, No. 25 / RN / Ref. / August/ 2013. PARLIAMENT

LIBRARY AND REFERENCE, RESEARCH, DOCUMENTATION

AND INFORMATION SERVICE. 41 Dubash, Navroz K. (2009a), Toward a Progressive Indian and Global Climate Politics, Working Paper, 1,

New Delhi: Centre for Policy Research. 42 Prsad, H. A. C., and J. S. Kochher (2009), Climate Change and India – Some Major Issues and Policy

Implications, New Delhi: Government of India, Ministry of Finance.



mitigation actions. India later even implicitly accepted “binding reduction commitments in

appropriate form” monitored by joint bodies. The said commitment was made in accordance

to various reasons such as the growing international isolation of India in climate negotiations

coupled with its desire to be regarded as a responsible power that deserves to have more

influence over global governance matters, and the realization that its traditional stance not

only found fewer adherents than before but would also present an alibi for other major

emitters to do nothing and thereby render India even more vulnerable to climate change.

3.2 Need of Climatic Legislations

Climatic obligation on national and sub-national governing bodies requires following a

specific modus operandi to for implementation. Unfortunately, there is no certain legislative

instrument which exclusively deals with climate change and related issues. Mitigation of

climate change provides reinforcement to sustainable development43

. In such context legal or

regulatory requirements may have an effect. Many governments have adopted legislation

aimed at encouraging the sustainable use of the natural environment, and some explicitly

include reference to climate change. For example, Canada and some EU member states have

begun to incorporate climate change in their environmental policies, particularly in the

structures of required environmental impact assessments44

. Meanwhile, it is mandatory for

India to enact climatic law to regulate Carbon Emission Trade. The proximate drivers of

environmental degradation are population growth, inappropriate technology and consumption

choices, and poverty […] leading to development activities such as intensive agriculture

pollution industry, and unplanned urbanization. However, these factors give rise to

environmental degradation only through deeper causal linkages, in particular, institutional

failures, resulting in lack of clarity or enforcement of rights of access and use of

environmental resources, policies which provide disincentives for environmental

conservation, market failures and governance constraints45

. Thus considering above point it is

highly recommended to have climatic law. Environmental regulations were not enforced

strictly in India; of all the companies regulated by pollution boards, 50 percent did not

43 Clark, M.J., 2002: Dealing with uncertainty: adaptive approaches to sustainable river management. Aquat.

Conserv. 44 EEA (European Environment Agency), 2006: Vulnerability and adaptation to climate change in Europe. Technical Report No. 7, European Environment Agency. 45 Government of India (2006a), National Environment Policy 2006, New Delhi.



comply with regulations46

. In addition, only larger factories were monitored, even though

medium and smaller units are responsible for 70 percent of industrial emissions. Sanctioning

for flouting rules could has taken only two forms in India – the units are either put on trial

(pollution boards cannot prosecute violations on their own), or closed. Closure is a rather

blunt instrument in a country with few attractive jobs and poor networks for social protection;

charge sheeting these units also makes no sense, as Indian courts are notoriously

overburdened and therefore extremely slow to settle cases. Therefore, regulating bodies often

preferred to do nothing. Further, bodies for monitoring environmental regulations are

inadequately staffed and financed, their employees insufficiently trained and legally not well

versed47

. Therefore, it is submitted that India must enact Climatic legislation for strong

administration and better policy implementation.

3.3 Reinforcing disaster management law with applicable

modification to suffice present trend.

The present disaster management litigation must be well equipped with all possible climatic

issues and there affirmative solutions. Present disaster management must include the concept

of Disaster risk management is defined as the processes for designing, implementing, and

evaluating strategies, policies, and measures to improve the understanding of disaster risk,

foster disaster risk reduction and transfer, and promote continuous improvement in disaster

preparedness, response, and recovery practices, with the explicit purpose of increasing human

security, well-being, quality of life, and sustainable development. Disaster risk management

is concerned with both disaster and disaster risk of differing levels and intensities. In other

words, it is not restricted to a ‘manual’ for the management of the risk or disasters associated

with extreme events, but rather includes the conceptual framework that describes and

anticipates intervention in the overall and diverse patterns, scales, and levels of interaction of

exposure, hazard, and vulnerability that can lead to disaster48

. This is principally attributed to

increases in exposure and associated vulnerability. Further, it must also abide various

46 World Bank (2008), India. Strengthening Institutions for Sustainable Growth. Country Environmental nalysis,

South Asia Environment and Social Development Unit, Washington, D.C.: World Bank. 47 World Bank (2010), World Development Report 2010. Development and Climate Change, Washington,

D.C.: World Bank. 48 UNISDR, 2009c: After Action Review: Second Session Global Platform for Disaster Risk Reduction. United

Nations International Strategy for Disaster Reduction, Geneva, Switzerland.



institutes to spread real time data to citizens regarding climatic problems and awareness

programs to facilitate Environmental Impact Assessment (EIA) forming a better path way

for adaptation and effective response to climatic catastrophes. Such legislation must come

with a certain penal clause rendering non-compliances punishable.

4. Conclusion.

Climate change is no more a trivial issue. IPCC in their 3rd

report specifically mentions that

“Climate change will impede nations’ abilities to achieve sustainable development

pathways as measured, for example, by long-term progress towards the Millennium

Development Goals”. Over the next half-century, it is very likely that climate change will

make it more difficult for nations to achieve the Millennium Development Goals for the

middle of the century. It is very likely that climate change attributed with high confidence to

anthropogenic sources, per se, will not be a significant extra impediment to nations reaching

their 2015 Millennium Development Targets since many other obstacles with more

immediate impacts stand in the way Climatic problem will not only damage our generation

but it can render devastating effects on our future generation.

Although, our commitments are clear regarding the reduction of carbon emission, we cannot

implement our policies until we have a certain framework regarding climatic problems. Such

loophole would certainly create a rift which would impair our sustainable development and

Disaster management. This would render worst effect on the weaker section of population

leaving them helpless and broken. It is no where hidden that Uttrakhand tragedy was due to

climate change. Uttrakhand incident not only showed that India don’t have effective disaster

risk management but also cleared the fact that international climatic laws is helpless without

national efforts. In efforts to save our “Big Blue Marble” we must not forget to protect our

main interest. The present disaster management law must protect human rights from every

possible climatic disaster. Nation must enact climatic legislation which can provide edge to

policy implementation, resource management, sustainable development, public health,

insurance and many other corresponding subjects.



To conclude with I would mention that “Mother nature can only suffice our needs, not our

greed”. So it is our humble duty to make amendments for what we mangled up. Enacting

climatic law and spreading awareness can do a great job to nature and likewise to humanity.

climate change and its legal implications

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