Op EdsOP. ED.


According to the Human Development Report 2007/08 climate change is defining the human development challenge of the 21st century.[1] The effects of climate change are non-linear and difficult to forecast. The issue of climate change was first discussed in a series of highly publicised climatic and environmental events in the 1960s and 1970s particularly when the World Meteorological Organisation (WMO) convened the First World Climate Conference.[2] The purpose of this conference was to develop fundamental scientific knowledge on the issue of climate change. Eventually a scientific intergovernmental body commonly known as Intergovernmental Panel on Climate Change (IPCC) was established which thereafter published its first report that served as a basis of the United Nations Framework Convention on Climate Change. It observed that emissions resulting from human activities (majorly carbon dioxide) are increasing the atmospheric concentrations of greenhouse gases resulting in the average warming of the earth’s surface.[3]

Legal framework

The United Nations Framework Convention on Climate Change has been the principal legal instrument adopted by all the states to address the climate change issue, the ultimate objective of the treaty is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.[4] The preamble of the said legal instrument provides that “the largest share of historical and current global emissions of greenhouse gases has originated from the developed countries and in comparison, the per capita emissions in developing countries are still relatively low and furthermore it renders that the share of global emissions in developing countries will eventually increase in order to meet their social development needs”.[5] Moreover, this instrument puts the onus on the developed countries to limit their emissions and lead the fight against climate change. The convention also intends to bind the developed countries to transfer financial and technological help to the developing countries in order to reduce the global emissions.

In the year 1995 world countries strengthened the global response on climate change after realising that the provisions of the convention were inadequate and non-binding on member states which eventually led to lack of enforcement mechanisms of climate change provisions. Hence a new legal instrument was developed known as the Kyoto Protocol which essentially operationalised the convention as it committed the industrial countries to stabilise greenhouse gas emissions based on the principles of the convention.[6] Article 17[7] of the Convention of the said Protocol envisages trading of the Greenhouse gas (GHG) emissions by sparring units to countries who have exceeded their limits or get offset credits by financing projects in the developing countries that reduce emissions. This instrument was an ultimate neo liberal market concession to climate change process, it was adopted as a result of negotiations to get United States (the world’s largest emitter) on Board with the agreement. Further it will not be out place to specify that a similar kind of instrument was already functional in the European Union trading system and it failed miserably to achieve the objective of reducing emissions.[8] The radical environmentalists argued that this instrument set the climate politics back by nearly two decades. It is pertinent to specify that the sole objective behind all of these legal discussions and negotiations between countries was to reduce GHG emissions in order to safeguard the present as well the future generations of man. By trading of carbon, the underlying purpose of safeguarding the climate was forfeited as the treaty commercialised a serious human development challenge.

After the Kyoto Protocol a number of agreements and negotiations took place between the world countries which included the Bali Agreement, Copenhagen Agreement, Cancun Agreement and Doha Agreement, etc.[9] All of these instruments intended to stabilise the GHG global emission level by employing a number of mechanisms including establishing a climate change fund to finance the poor countries to reduce their emission level. However, none of the agreements were providing any substantial solution to the core issue of climate change.

Thus, in the year 2015 Paris Agreement, a successor (as claimed by many States) to the Kyoto Protocol was agreed and ratified to by majorly all the world countries. It established a framework for global climate change action. In this agreement all the world countries agreed on to reduce their carbon emission by submitting their respective intended nationally determined contributions (INDC’s) which specify their targets of becoming carbon neutral.[10] The INDC’s are interpreted differently by each member States to determine national emissions, setting baselines and defining future objectives thereby making them difficult to compare. For instance, China’s pledge lacks specificity as it does not indicate at which level their respective emissions will peak, nor does it render a base year against which its target to reduce carbon emission would be measured. [11]

Reality of Paris Agreement

This agreement can be argued to be one of most basic steps taken by world countries in the fight against climate change as for the first time majorly all the world countries agreed on to do something about the issue of climate change. However, there are many drawbacks to the accord which include no legally binding emission targets, lack of financial support and voluntary setting up of targets. Further the Paris Agreement also lacks in the principle of fair and equitable burden sharing of tasks which fundamentally sidelines the considerations of environmental justice. This agreement rather than pressuring the developed countries, who are accountable for greenhouse gases that have accumulated in the earth’s atmosphere, is seeking to pressurise the developing countries to reduce their emission which essentially abandons the idea of legally binding emissions reduction commitments. Furthermore, it also lacks the specifics in rendering financial support to the developing countries for the cost they will have to incur for substituting fossil fuel sources of energy. It will not be out of place to specify that this agreement contradicts with other pledges of the developed countries particularly the pledge at the Copenhagen conference in the year 2009 wherein they committed to provide $100 billion as financial support to the developing countries.

Albeit as per a Report of Organisation for Economic Cooperation and Development (OECD) the developed countries have committed to $62 billion by climate finance[12] however it is observed by many developing countries that the report published as deeply flawed and inconsistent with the actual numbers.[13] Additionally, a working paper by World Resources Institute also highlights the lack of transparency in climate financing, it further opined the need to step up efforts on the issue of accountability and transparency in the coming years.[14]

This flexibility in achieving the targets and lack of accountably has essentially brought back the countries to square one. This can be substantiated by looking at the commitments the world countries have made and their current status. The United Nations Report on the commitments by the world countries in accordance with the Paris Agreement showed an extremely bleak picture as majorly all the countries were far away from their committed levels of reduction in emissions.[15] Moreover according to the Fifth IPCC Assessment Report, the world countries have an allowance to emit of 1000 billion tons of CO2 till 2100 if it wants to stay below the agreed level of temperature stated in the Paris Accord, however in the recent years the carbon emissions have increased at an extremely substantial pace and therefore if any global coordinated considerable action is not taken the allowance would be used up by even before the year 2030.[16]

All these instances are conclusive of the fact that Paris Agreement is clearly not the correct way forward and the world countries are not doing enough for securing the future generations of humankind. In theory the Paris Accord aims to reduce global greenhouse gases and thus lessen the expected warming of the climate however, in fact it does not even attempt to achieve this goal, except nominally. As per the agreement the world countries can pledge as much or as little as they want, and no enforcement mechanism ensures that they will deliver on their commitments, a country unhappy with its pledge can simply change it. Due to this flexibility or freedom none of the major global emitters as stated before are on track to meet their obligations. Whereas on the other hand developing countries are failing to even start action on their pledges.

The Paris Agreement objectives from the starting were lacking in ambition as it placed the idea of legally binding emission targets for negotiations, this was not the case in the Copenhagen Agreement between the countries where the core objective was legal binding emission targets and hence it can be said that the Paris Agreement is merely an agreement to do what was not intended in the previous agreements.

Way forward

In my view, the basic step of reducing the inconsistencies between international climate and international trade objectives of liberalisation was missing in all the agreements, so immediate effort shall be made to make both of them complementary in practice. Additionally, an instrument such as carbon tax on global emitters shall be adopted which would essentially discourage the major emitters to use carbon as a source of energy. Furthermore, a liability shall also be imposed on the failure of the member countries to meet their global targets. Some of these inclusive suggestions in my opinion if considered and implemented seriously can help in securing a safe environment for future generations.

4th year Law student BBA, LLB (Hons.) at Jindal Global Law School.

[1] Human Development Report 2007/08, Fighting Climate Change: Human Solidarity in a Divided World, United Nations Development Programme (10-10-2020, 10.00 a.m.) <http://hdr.undp.org/sites/default/files/reports/268/hdr_20072008_en_complete.pdf>

[2] John W. Zillman, A History of Climate Activities, World Meteorological Organisation (10-10-2020, 10.00 a.m.) <https://public.wmo.int/en/bulletin/history-climate-activities>.

[3] J.T. Houghton et al., The Supplementary Report to the IPCC Scientific Assessment, Intergovernmental Panel on Climate Change (10-10-2020, 12.30 p.m.) <https://www.ipcc.ch/site/assets/uploads/2020/02/ipcc_wg_I_1992_suppl_report_full_report.pdf>

[4] United Nations Framework Convention on Climate Change (UNFCCC) <http://www.scconline.com/DocumentLink/s8I81n7E> (12-10-2020, 12.35 p.m.) <https://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf>

[5] Ibid.

[6] What is Kyoto Protocol? United Nations Climate Change (10-10-2020, 5.00 p.m.) <https://unfccc.int/kyoto_protocol>.

[7] Art. 17, Kyoto Protocol to the United Nations Framework Convention on Climate Change <http://www.scconline.com/DocumentLink/T95si561> (11-10-2020, 4.00 p.m.) <https://unfccc.int/resource/docs/convkp/kpeng.pdf>.

[8] Laing, T. et al., Assessing the effectiveness of the EU Emissions Trading Scheme, London School of Economics, Centre for Climate Change Economics and Policy <http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2014/02/WP106-effectiveness-eu-emissionstrading-system.pdf>.

[9] Timeline of Major UN Climate Negotiations, Environmental and Energy Study Institute (11-10-2020, 4.30 p.m.)<https://www.eesi.org/policy/international>.

[10] Intended nationally determined contributions, Country Submissions, United Nations Framework Convention on Climate Change (12-10-2020, 4.30 p.m.) <https://www4.unfccc.int/sites/submissions/INDC/Submission%20Pages/submissions.aspx>.

[11] Nan Zhou et al., China’ Energy and Carbon Emissions Outlook to 2050, Ernest Orlando Lawrence Berkeley National Laboratory (14-10-2020, 5.00 p.m.) <https://china.lbl.gov/sites/all/files/lbl-4472e-energy-2050april-2011.pdf>.

[12] Climate Finance from Developed to Developing Countries Report, Organisation for Economic Cooperation and Development (12-10-2020, 5.00 p.m.) <https://www.oecd.org/environment/cc/Climate-finance-from-developed-to-developing-countries-Public-flows-in-2013-17.pdf>.

[13] Climate Change Finance, Analysis of OECD Report, Ministry of Finance, Climate Change Finance Unit, Government of India (12-10-2020, 5.30 p.m.) <https://dea.gov.in/sites/default/files/Climate ChangeOEFDReport_0.pdf>.

[14] Thomas Damassa et al., Interpreting INDC’s: Assessing Transparency of Post-2020 Greenhouse Gas Emissions Targets for 8 top-Emitting Economies, World Resources Institute (13-10-2020, 6.00) (please check time zone) <https://www.wri.org/publication/interpreting-indcs>.

[15] UNEP, Emission Gap Report 2019, United Nations Environment Programme (12-10-2020, 12.30 p.m.) <https://www.unenvironment.org/interactive/emissions-gap-report/2019/>.

[16] Fifth Assessment Report, Intergovernmental Panel on Climate Change (12-10-2020, 12.35 p.m.) <https://www.ipcc.ch/assessment-report/ar5/>.

Case BriefsForeign Courts

Supreme Court of United Kingdom: While deciding the instant case concerning the framework which will govern an application for the grant of development consent for the construction of a third runway at Heathrow Airport, the Bench of Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Sales and Lord Leggat reversed the decision of the Court of Appeal which held that the Government policy on airport expansion at Heathrow was unlawful on environmental grounds thereby clearing the way for the construction of the new runway (which is a part of the developmental scheme promoted by Heathrow Airport Ltd. The observations of the Bench were largely focused on clarifying the “minimum must haves” in a Government Policy

Facts and Trajectory of the case:

The instant appeal deals with the lawfulness of the Airports National Policy Statement (ANPS) and its accompanying environmental report. In 2016 the UK signed and ratified the Paris Agreement under the United Nations Framework Convention on Climate Change. The agreement sets out various targets for the reduction of greenhouse gas emissions, particularly carbon dioxide, and the reduction of temperature increases resulting from global warming (Paris Agreement Targets). Two ministers –Andrea Leadsom MP and Amber Rudd MP, made statements about the Government’s approach to the Paris Agreement in March 2016, after which Secretary of State designated the ANPS as national policy in 2018. The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Friends of the Earth Ltd. and Plan B Earth challenged the lawfulness of the Secretary of State’s designation. The Court of Appeal held that Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS, therefore the ANPS has no legal effect. Aggrieved by CoA’s decision, the Heathrow Airport Ltd. (HAL) preferred an appeal to the Supreme Court contending that it has already invested a large sum of money in promoting the North West Runway scheme and wishes to make an application for development consent to carry the project through.


Friends of the Earth Ltd. and Plan B Earth contended before the Court that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8) of Planning Act, 2008. It was further contended that the Secretary of State breached his duty under Section 10(2) and (3) of the Planning Act, 2008, which requires him to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. He has to take into account the environmental (especially climate change), economic and social objectives that make up sustainable development.

Perusing the facts and contentions of the instant appeal, the Court unanimously rejected the arguments made by Friends of the Earth Ltd. and Plan B Earth. The Bench noted that Sections 5(1) and 5(7) of the Planning Act, 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted. Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing “Government policy” relating to the mitigation of and adaptation to climate change. The Court observed that, “The meaning of Government policy is a matter of interpretation of the statutory provision. The phrase needs to be construed relatively narrowly in context to allow Section 5(8) to operate sensibly. Otherwise it would create a ‘bear trap’ for civil servants and ministers, who would have to consider all ministerial statements given in any context which might be characterised as ‘policy’ in a broad sense. The Court further explained that “Government policy” in the context of Section 5(8) refers to carefully formulated written statements of policy which have been cleared by the relevant departments on a Government- wide basis. The epitome of “Government policy” is a formal written statement of established policy. The absolute minimum standard is a statement which is clear, unambiguous, and devoid of relevant qualification. Based on this rationale, the Court refused to consider that the statements made by Andrea Leadsom MP and Amber Rudd MP met the minimum standards which define a ‘Government Policy’ as, “They were not clear, did not refer to the Paris Temperature Targets at all, and did not explain how the Paris Agreement goal of net zero emissions would be incorporated into UK”.

The Court also rejected the argument that the Secretary of State breached his duty Section 10(2) and (3) of the Planning Act, 2008. It was observed that there is sufficient evidence to show that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the Climate Change Act, 2008, ensured that these were incorporated into the ANPS framework. The Court further observed that, “The ANPS was carefully structured to ensure that when HAL applied for development consent to construct the runway, it would have to show at that stage that the development would be compatible with the up-to-date requirements under the Paris Agreement and the CCA 2008 measures”. [R v. Heathrow Airport Ltd. [2020] UKSC 52, decided on 16-12-2020]

Sucheta Sarkar, Editorial Assistant ahs put this story together