Climate Change as an Emerging Issue

Article 4 of the Agreement contains the operative architecture. Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks in the second half of this century, on the basis of equity and in the context of sustainable development and efforts to eradicate poverty. Each party prepares and communicates a nationally determined contribution, which is a pledge it sets for itself.

The structural difference to state. The Convention imposed differentiated obligations on a fixed list of countries. The Paris Agreement applies to all parties and lets each set its own contribution, with an obligation of process rather than of outcome. That is why it succeeded politically and why its adequacy is contested.

India's position

In the negotiations. India has argued since Stockholm that the countries which industrialised first bear the greater responsibility, that per capita emissions rather than total emissions are the equitable measure, and that developing countries need the space to grow. Common but differentiated responsibilities is the treaty expression of that argument.

Domestically. There is no Indian Climate Change Act. What exists is policy: the National Action Plan on Climate Change of 2008 with its missions, State action plans, the energy conservation legislation, renewable energy targets, and the nationally determined contributions communicated under the Paris Agreement. That absence of a statute is a legitimate criticism to make when the University asks what the policy ought to be.

The constitutional right

M.K. Ranjitsinh v. Union of India, 2024 INSC 280, decided on 21 March 2024, is the case to know.

Facts. M.K. Ranjitsinh v. Union of India arose from a petition to protect the Great Indian Bustard and the Lesser Florican, both close to extinction, whose habitat in Rajasthan and Gujarat is crossed by overhead power lines that the birds collide with. In April 2021 the Court had ordered the lines in that habitat to be laid underground. The Union applied for modification, pointing to the effect of that order on India's solar and wind capacity and so on its climate commitments.

Held. The Court modified the earlier order and constituted an expert committee to identify where undergrounding was feasible. In doing so it held that the people of India have a right against the adverse effects of climate change. Articles 48A and 51A(g), although not justiciable in themselves, show that the Constitution recognises the importance of the natural world, and that importance becomes a right in Articles 21 and 14, which the Court described as important sources both of the right to a clean environment and of the right against the adverse effects of climate change. Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised, because the right to health is affected by air pollution, shifts in vector-borne diseases, rising temperatures, droughts, crop failure, storms and flooding. The inability of underserved communities to adapt to climate change or to cope with its effects violates the right to equality as well, because in an acute shortage the poorer communities suffer more than the richer.

Why it matters here. It is the newest development on this syllabus and the one that separates a current answer from a stale one. It is also a rare case in which two environmental goods conflicted with each other rather than with development: protecting an endangered bird and decarbonising the electricity supply pulled in opposite directions, and the Court had to choose a process rather than a winner.

Worked example

MU's 2024 short note reads "Climate change - An emerging issue". Three hundred words.

The shape: one sentence of mechanism; the four features that make it legally hard, in a clause each; the two treaties named with the substance of their objectives; India's equity position and the absence of a domestic statute; and the constitutional right recognised in 2024, with the case named and the reasoning in one sentence. Close on why it is called emerging: because every feature of it defeats the model the Indian pollution statutes assume.

What this topic does NOT ask

It is not a science question. No marks turn on the radiative properties of methane. The physics is needed only to explain why the legal problem has the shape it does.

It is not the international law paper. Paper IV of this group examines the treaty regime. Here the treaties are named for their objectives and their equity principle, and the weight falls on the Indian position and the constitutional development.

Quick revision

• Four features that defeat the pollution model: the gases mix globally, they persist, the effect is on averages and probabilities rather than on identifiable events, and the victims are not the emitters.
• UNFCCC 1992, article 2: stabilization of greenhouse gas concentrations at a level that would prevent dangerous anthropogenic interference with the climate system.
• Paris Agreement 2015, article 2: well below two degrees, pursuing efforts towards one and a half; adaptation and resilience; and finance flows consistent with low emissions development. Article 2(2) carries equity and common but differentiated responsibilities and respective capabilities in the light of different national circumstances.
• Article 4 of the Agreement: global peaking as soon as possible, peaking taking longer for developing countries, and a balance between sources and sinks in the second half of the century. Each party sets its own nationally determined contribution.
• India argues historical responsibility and per capita emissions, and has no dedicated climate statute, only policy.
• M.K. Ranjitsinh v. Union of India, 2024 INSC 280: the people of India have a right against the adverse effects of climate change, sourced in Articles 21 and 14 and informed by Articles 48A and 51A(g).

Test yourself

1. Why is causation so difficult in a climate case?

Because the greenhouse gases mix globally, so the location of a source is irrelevant; because they persist, so today's temperature reflects a century of accumulated emissions; and because the effect is on the frequency and intensity of events rather than on any particular event, so no single flood or storm can be attributed to any single emitter.

2. State the objective in article 2 of the Framework Convention.

To achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, within a time frame sufficient to allow ecosystems to adapt naturally, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner.

3. What is the structural difference between the Convention and the Paris Agreement?

The Convention imposed differentiated obligations on a fixed list of countries. The Paris Agreement applies to all parties, each of which sets its own nationally determined contribution, so the obligation is one of process rather than of outcome. That is why it was politically achievable and why its adequacy is contested.

4. What did the Supreme Court hold in the Great Indian Bustard case, and from where did it source the right?

That the people of India have a right against the adverse effects of climate change. It sourced the right in Articles 21 and 14, holding that Articles 48A and 51A(g), although not justiciable in themselves, show that the Constitution recognises the importance of the natural world, and that this importance becomes a right in those two articles. Without a stable climate the right to life is not fully realised, and the inability of poorer communities to adapt engages the right to equality.