Thursday, 16 June 2016


Business Standard, 10 June 2016

Nitin Sethi, New Delhi
Neither the US nor India has committed to a formal ratification of the Paris agreement by the end of 2016 in the much-hyped joint statement on climate change. The political imperatives before outgoing US President Barack Obama, domestic legal requirements in India and the procedural complications of the Paris agreement collectively ensured that the two didn't.

The statement, issued during Prime Minister Narendra Modi’s visit to Washington, reads: “The United States reaffirms its commitment to join the Agreement as soon as possible this year.” The US has shied from using the word ‘ratification’, as it would require approval from the US senate, which President Obama is unlikely to secure from the Republican citadel.

During the negotiations between the two countries, preceding Modi’s tour, the US had insisted that India should commit to a joining the Paris agreement as well by 2016-end, India, however, stopped short of such a commitment in the bilateral statement.

Consequently, the joint statement reads, “India similarly has begun its processes to work toward this shared objective.” Indian negotiators insisted upon this insertion to replace the single and asymmetric sentence that the US had offered, binding only India to ratification by the end of this year, sources told Business Standard.

The Paris agreement provides four options for the countries to adopt the global deal. Article 21(1) of the pact permits countries to ratify, accept, approve or accede. Each term has different implications in different countries’ domestic, constitutional and legal framework. For the US, a ratification of a non-trade agreement necessarily requires approval from the Senate, which President Obama is keen to avoid. But other terms, which provide options for the US President to adopt the agreement through an executive order, also leave the door open for the future US Presidents to walk out.

The option available to the US, to easily walk out of the deal, worries many developing countries, including India. The fact that the US had kept out of the Kyoto Protocol after negotiating till the last moment, as well as the current election rhetoric by the Republican candidate Donald Trump, who has threatened to pull out of the Paris agreement, have impacted the negotiations between key developing countries and the US.

“President Obama is pushing hard to get the Paris agreement going as his legacy. But he can only join the agreement. He can’t ratify it. What if developing countries ratify it, helping the Paris agreement come into force by 2016-end, but the next US President walks out of it with a simple executive order? We have to be mindful of the possibilities,” said one of the negotiators.

The Paris agreement would come into force only when at least 55 countries — accounting for at least 55 per cent of the total greenhouse gas emissions — ratify, approve, accept or accede to the agreement. India accounts for only 4.01 per cent of total global emissions.

Domestically, India needs to undertake inter-ministerial consultations for ratifying any international agreement that has economy-wide implications. But the Modi government is not required to secure a Parliamentary approval before ratifying an international treaty.

“Broadly speaking, India would have to undertake inter-ministerial consultations, consult with states, and ensure that legislative requirements are in place for implementing the pact before the Union Cabinet ratifies the Paris agreement,” said J M Mauskar, member of the Prime Minister’s council on climate change and a former senior negotiator for India.

“I think it was a mature decision between the two allies, based on acknowledgement, appreciation and understanding of each other’s domestic and constitutional imperatives,” Mauskar said, referring to the India-US statement on climate change.

The process has already begun in India, Foreign Secretary S Jaishankar explained during his briefing in Washington. It will require the Union government to ensure that laws pertaining to environment, forests and energy are equipped with provisions to implement the various provisions of the Paris agreement.

A current Indian negotiator also noted the complexity that lies ahead in operationalising the Paris agreement. The crucial rules for transparency, reporting and verification under the Paris agreement and many other issues are yet to be negotiated in detail. These negotiations are to now take place between all 196 member countries of the over-arching UN climate convention. If the Paris agreement comes into force before these rules are finalised, then only those countries which join the pact would have the right to negotiate the rules. The others would be only observers — a clear disadvantage to developing countries with disparate capacities to come on board in time.

An option has been floated to bring the Paris agreement into force, permitting Obama to claim it as his legacy, and then allow all the 196 countries to negotiate the rules by putting the agreement in a technical suspension. But many developing countries, including India, are unsure of the consequence and worth of such an exercise, only to allow Obama his legacy gift.

“Do we want to sign an agreement we don’t know the full contours of? Do we want to be stuck in a situation where allied developing countries are not sitting on the table to negotiate these rules? These are questions we must address before we decide to ratify the agreement,” the Indian negotiator said.

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