Author: cprindia

A DISCUSSION WITH PROFESSOR DANIEL BODANSKY ON THE PARIS AGREEMENT AND THE UPCOMING CONFERENCE OF THE PARTIES (COP25) IN SANTIAGO
CLIMATE RESEARCH

On October 14 2019, the Initiative on Climate, Energy and Environment (ICEE) at the Centre for Policy Research (CPR) hosted Professor Daniel Bodansky (Regents’ Professor, Sandra Day O’Connor College of Law, Arizona State University) for a discussion on recent developments in the international climate change regime. Professor Bodansky analyzed the state of play in the UN Framework Convention on Climate Change regime, outlined relevant articles of the Paris Agreement, and previewed the upcoming Conference of the Parties (COP25) in Santiago in December.

To learn more about the evolution of the international climate change regime, read International Climate Change Law (Oxford University Press 2017) edited by Daniel Bodansky, Jutta Brunnee, and Lavanya Rajamani (Visiting Professor at CPR). You can also read these recent open-access articles:

The Issues that Never Die. In: Special Issue on the Paris Rulebook. Carbon and Climate Law Review 12(3): 184 -190. By Daniel Bodansky and Lavanya Rajamani.
General Issues in Elaborating the Paris Agreement. Center for Climate and Energy Solutions: Arlington, Virginia. By Daniel Bodansky and Lavanya Rajamani.
About the Speaker

Daniel M Bodansky is a leading authority on international environmental law generally and climate change law in particular. Prior to his arrival at the College of Law in 2010, Professor Bodansky was the Associate Dean for Faculty Development and Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law. He has served as the climate change coordinator and attorney-advisor at the U.S. Department of State, in addition to consulting for the United Nations in the areas of climate change and tobacco control.

He has previously been awarded the International Affairs Fellowship from the Council of Foreign Relations, a Pew Faculty Fellowship in International Affairs, and a Jean Monnet Fellowship from the European University Institute. His book, The Art and Craft of International Environmental Law, published by Harvard University Press, received the 2010 Harold and Margaret Sprout Award of the International Law Association, as the best book that year in the field of international environmental studies. His co-authored book, International Climate Change Law (with Jutta Brunnée and Lavanya Rajamani) received the 2018 Certificate of Merit from the American Society of International Law as the best book published the previous year in a specialized area of international law.

FULL JOURNAL ARTICLE BY SHYLASHRI SHANKAR
BUREAUCRACY

The Constitution of India envisages three types of emergencies: A national emergency; a state emergency (in the federal setup, regions are called states in India, and the central government has the power to impose an emergency if there is a breakdown of law and order in that state); and a financial emergency. ‘The problem the State faces is how it can respond effectively to exceptional situations without casting its adherence to the rule of law into question.; Ernst-Wolfgang Böckenförde offers a set of solutions within a model structure anchored in constitutional laws. The model structure, which applies at the federal level, advocates a separation between the authorising agency—the political wing—and the implementation agency, as well as creating a distinction between a ‘law’ and a ‘measure’, and between a most extreme and a merely difficult situation. By focusing on the actions of the higher judiciary in India, this article tests whether the safeguards in Böckenförde’s model structure function at the sub-national state level in a very different geography and context. The results highlight the concern that the dynamics of democracy and the reality of how political power is garnered in a federal Westminster style framework effectively stymie the procedural innovations introduced by Böckenförde’s model by creating conditions, not for fair play, but for subverting the spirit of the law. Even the procedures outlined by Böckenförde—such as an emphasis on making the agent who holds the emergency powers a political, and not merely an administrative organisation—accentuates, rather than mitigates, this problem.

PART 8 OF A SERIES ON ‘COASTAL REGULATION’ BY SHIBANI GHOSH FOR THE CPR-NAMATI ENVIRONMENT JUSTICE PROGRAM
ENVIRONMENTAL JUSTICE RIGHTS COASTAL GOVERNANCE

Shibani Ghosh is an environmental lawyer and Fellow at CPR.

The Supreme Court of India has often been commended for its vital role in protecting the environment. One of the areas of environmental concern where the Supreme Court’s involvement has been crucial is the protection and conservation of India’s coastal environment. In the context of the proposed amendments to the Coastal Regulation Zone (CRZ) Notification 2011, a law that permits varying degrees of land use in demarcated coastal areas, Ghosh looks at three judgments of the Supreme Court. These judgments not only express deep concern about the state of India’s coastal environment and the urgent need to protect it, but also establish the principles that the Court thinks should guide government’s action on the environment generally and the coasts specifically.

The three judgments

The first judgment was delivered in Indian Council for Enviro-legal Action v Union of India [(1996) 5 SCC 281]. It highlighted that Coastal Zone Management Plans (CZMPs) which were to be prepared by State Governments had not been finalised despite the passage of the statutory period of one year. It also challenged the amendments made to the law by the Central Government in 1994 to relax certain prohibitions.

The Court directed the Central and State Governments to finalise the CZMPs. On the issue of non-enforcement of environmental laws, the Court observed that ‘[e]nactment of a law, but tolerating its infringement, is worse than not enacting a law at all. … Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society’. The Court also found two of the 1994 amendments – that reduced the no-development zone (NDZ) – to be illegal. It asked the Central Government to consider constituting State and National Coastal Zone Management Authorities (CZMAs) for the effective implementation of the 1991 Notification.

In a landmark judgment in S. Jagannath v Union of India [(1997) 2 SCC 87], the Court referred to expert reports to identify the adverse impacts of coastal pollution caused by non-traditional and unregulated prawn farming. It held ‘[t]he purpose of the CRZ Notification is to protect the ecologically fragile coastal areas and to safeguard the aesthetic qualities and uses of the sea coast. The setting up of modern shrimp aquaculture farms right on the sea coast … is per se hazardous and is bound to degrade the marine ecology, coastal environment and the aesthetic uses of the sea coast’. The Court decided that prawn farming industries were prohibited in the coastal regulation zones under the CRZ Notification 1991 and their functioning was in violation of various other laws. It, however, excluded traditional systems of aquaculture from this prohibition.

In Vaamika Island v Union of India and Ors. [(2013) 8 SCC 760], the issue before the Court was whether certain properties on an island in the Vembanad Backwaters of Kerala should have been categorised as CRZ 1, which restricts its rebuilding or expansion, in Kerala’s CZMP. The Court held that the properties had been correctly categorised, and that the owner had violated the law by constructing on these properties. The Court upheld the High Court’s direction to demolish the illegal structures.

Guiding Principles

From a review of these judgments, it is possible to identify at least three principles that should guide environmental decision-making by the executive.

First, protection and conservation of our environment is the paramount objective of Indian environmental laws, and decision-making processes under these laws should support the furtherance of this objective.

In Indian Council for Enviro-legal Action, the Court assessed the government’s amendment to allow any construction within the NDZ, i.e. the area within 200 m from the High Tide Line (HTL). The Court invalidated this amendment holding that ‘[n]o suitable reason has been given which can persuade us to hold that the enactment of such a proviso was necessary, in the larger public interest, and the exercise of power under the said proviso will not result in large-scale ecological degradation and violation of Article 21 of the citizens living in those areas’. On the second amendment that relaxed the NDZ for tidal rivers from 100 m from HTL to 50 m, the Court did not see any reason to support a blanket reduction. It concluded that the reduction had been done for ‘extraneous reasons’. The Court held that ‘we are unable to conclude that the said amendment has been made in the larger public interest and is valid. This amendment is, therefore, contrary to the object of the Environment Act and has not been made for any valid reason and is, therefore, held to be illegal’.

In S. Jagannath, the Court held that ‘[k]eeping with the international commitments, and in greater national interest, the Government of India and the Governments of the coastal States are under a legal obligation to control marine pollution and protect the coastal environment’. The Court also highlighted that ‘[a]ny activity which has the effect of degrading the environment cannot be permitted. Apart from that the right of the fishermen and farmers living in the coastal areas to eke their living by way of fishing and farming cannot be denied to them’.

In Vaamika Island, the Court supported the Kerala High Court’s judgement on the CZMP categorisation as the ‘direction was issued by the High Court taking into consideration the larger public interest and to save Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognising the socio-economic importance of this waterbody, it has recently been scheduled under “vulnerable wetlands to be protected” and declared as [critically vulnerable coastal area]’. It affirmed the High Court’s order of demolition of illegal structures based on a previous decision of the Supreme Court in Piedade Filomena Gonsalves v State of Goa [(2004) 3 SCC 445] wherein the Court had held construction raised in violation of CRZ cannot be lightly condoned.

Second, environmental decision-making must benefit from expert knowledge and inputs, and for any decision which is at variance with such knowledge, the decision-maker should provide clear reasons.

While assessing the validity of the 1994 amendments in Indian Council for Enviro-Legal Action, the Court considered the recommendations of the Vohra Committee, an expert committee constituted by the Government to consider tourism development in coastal areas, keeping in mind the requirements of sustainable development and protection of fragile coastal ecology. Striking down the two amendments allowing construction in the NDZ, the Court observed that ‘no satisfactory reason has been given by the Union of India as to why it departed from the opinion of the Expert Committee and that too in such a manner that the concession which has now been given is far in excess of what was demanded by the Hotel and Tourism Industry’.

In S. Jagannath, the Court opined that ‘before any shrimp industry or shrimp pond is permitted to be installed in the ecolog[icall]y fragile coastal area it must pass through a strict environmental test… There must be an environmental impact assessment before permission is granted to install commercial shrimp farms… The assessment must also include the social impact on different population strata in the area. The quality of the assessment must be analytically based on superior technology’. This led to the direction to the Central Government to constitute an authority to oversee the protection of coastal areas.

Third, the government cannot arrogate to itself unbridled discretionary powers to dilute environmental norms.

In the absence of proper guidance on how to exercise such powers, the cost to the environment, and the people dependent on it, could be very high. In Indian Council for Enviro-Legal Action, while invalidating part of the 1994 amendments, the Court found that the Government had given itself excessive discretionary powers to relax prohibitions in the NDZ. The Court observed that the amendment ‘which gives the Central Government arbitrary, uncanalized and unguided power, the exercise of which may result in serious ecological degradation and may make the NDZ ineffective is ultra vires’.

As we witness an escalation in environmental conflicts, a blatant disregard for statutory processes, and a deliberate move towards diluting environmental norms, it is instructive to look back at judicial precedents that invalidated previous government attempts to dilute coastal regulation.

Shibani Ghosh would like to thank Yogini Oak for her valuable research assistance that has informed this piece.

The other pieces in this series can be accessed below:

• Coastal commons for private tourism and entertainment?
• Is it the end of participatory coastal planning?
• States ask Review Committee to loosen up the Coastal Regulation
• Crucial aspects of proposed Marine Coastal Regulatory Zone Notification revealed
• In conversation with Dr Shailesh Nayak – the man who led the review of coastal regulation
• The proposed Marine Coastal Regulation Zone (MCRZ) Notification
• A tale of two reviews: How two governments amended a coastal land use law
• Coastal Regulation Zone Disputes before the National Green Tribunal
• CRZ drives a wedge between communities in Mumbai

ON ET NOW
ECONOMY

Watch (above) as Rajiv Kumar analyses the continuing power tussle between the Tata Group and former chairman Cyrus Mistry on ET Now.

NEW JOURNAL ARTICLE BY LAVANYA RAJAMANI AND JUTTA BRUNNÉE
PARIS AGREEMENT CLIMATE RESEARCH

Abstract: In this analysis piece, we consider a legal question that generated much debate in the lead-up to the US decision to withdraw from the Paris Agreement: can a Party downgrade its nationally determined contribution (NDC) to climate mitigation without running afoul of its treaty commitments? Drawing on the treaty interpretation methods set out in the Vienna Convention on the Law of Treaties, we examine the Paris Agreement’s normative framework and analyse the provision on adjustment of NDCs. We show that, while NDCs as such are not legally binding, they are subject to binding procedural requirements and to normative expectations of progression and highest possible ambition. Read together, these binding and non-binding terms make plain that a Party would contravene the spirit of the Paris Agreement if it downgraded an existing NDC. The US federal government is already scaling back its domestic climate action, such that it is unlikely to meet its NDC. Its Paris withdrawal, however, can only be formally declared in 2019 and will not take effect until 2020. We consider how, during this interim period, the legal implications of the ‘withdrawal’ approach differ from those of the ‘stay-and-downgrade’ approach.

FULL ACCESS TO THE JOURNAL ARTICLE, CO-AUTHORED BY RADHIKA KHOSLA
CLIMATE RESEARCH

Cities are key for achieving the 1.5°C warming limit of the Paris Agreement. However, synthesising policy insights from the urban literature is a challenge, due to its rapid growth, breadth of topics and relative lack of assessments so far. Here we introduce methods from computational linguistics to build a systematic overview of research on transport, buildings, waste management and urban form. We find that the epistemic core of the mitigation- focused urban literature is currently centered on urban form and emissions accounting, while extensive research into demand-side options remain overlooked, including congestion and parking polices, active travel, and waste management. In the IPCC (Intergovernmental Panel on Climate Change) Special Report on 1.5°C, and for meeting the target itself, all such city-scale opportunities need to be examined.

The full article can be accessed here.

CPR RESEARCHERS ANALYSE THE LEADERSHIP OF THE ERSTWHILE PRIME MINISTER
POLITICS

Obituaries remember Atal Bihari Vajpayee as a ‘statesman with a poetic soul’. As voices from across the political spectrum hail him as a ‘true nationalist’ who ‘stood for democratic values and demonstrated this commitment in all his acts’, it becomes important to understand the legacy he has left behind.

In this curated media commentary below, CPR researchers analyse the leadership and policies of the former Prime Minister.

Sandeep Bhardwaj writes in the News Central, about Vajpayee’s contribution to the Hindutva agenda, that goes beyond the demolition of the Babri Masjid and the 2002 Gujarat riots, which has opened the door to today’s political climate of communalism, hyper-nationalism and fear. Bhardwaj elucidates how ‘Indians started discovering new ‘anti-nationals’ in their midst everyday’ and how ‘anti-Muslim propaganda became commonplace’ under the Vajpayee government.
He explains how despite these facts, Vajpayee is still remembered for his moderation, arguing that it was a case of ‘secular wish fulfillment’ – ‘there was a strong desire within the liberal India to see him as a moderate and to believe that Indian secularism remained intact despite the evidence to the contrary’. Apart from that, ‘the BJP (Bharatiya Janata Party) Government also employed three main strategies to keep Hindutva palatable. First, corruption and economic liberalisation issues were kept on the forefront, while Hindutva agenda kept building up beneath the surface. Second, stories of fissures within Hindu right-wing were forever highlighted – Vajpayee vs Advani, BJP vs RSS (Rashtriya Swayamsevak Sangh), RSS vs VHP (Vishva Hindu Parishad) – as a distraction, all the while these elements worked hand-in-hand on the ground. Third, Vajpayee and others sought to redefine Hindutva and present it as a benign ideology, often using vague or meaningless explanations, going as far as to suggest that it had nothing to do with Hinduism’.

As the nation was prepared for today’s political climate by the BJP government, Bhardwaj concludes by arguing that Vajpayee ‘ was either an unwitting abettor or willingly complicit – at best he played with fire without understanding that it was bound to go out of control, or at worst, he knowingly lit the match which burned down the building’.

The full article can be accessed here.

Srinath Raghavan writes in ThePrint, about Vajpayee’s guidelines on China and how they remain India’s best hope for an eventual agreement to solve the border dispute.
Raghavan highlights a series of failed attempts by successive governments to end the boundary dispute, which encompassed three sectors – eastern (Arunachal Pradesh), middle (Himachal Pradesh and Uttarakhand) and western (Ladakh including the Aksai Chin plateau). The Chinese Premier, Zhou Enlai had suggested that ‘if India accepted their claims to de facto control in the western sector, he would be open to considering India’s claimed boundary in the eastern sector’. However, such a ‘package deal’ was rejected and the bilateral relationship between the two countries went downhill.

Raghavan describes how ‘in an ironic turn of history, the relationship did not thaw until the advent of the Janata government in 1977 with Desai at the helm and Vajpayee as his foreign minister. Vajpayee’s visit to Beijing in February 1979 was a crucial moment. To assuage public opinion in India, the Desai government had stated that the relationship could not progress until the boundary dispute was resolved. In their meetings with Vajpayee, however, the Chinese leaders evinced no urgency on this matter. They wanted to put the boundary issue on the backburner and improve exchanges in other areas, especially economic ties. Deng Xiaoping said that if the problem could not be solved by this generation it should be set aside for the next generation. Vajpayee came up with a subtle formulation that bridged both sides’ positions’ by increasing functional exchanges between the two countries but not setting aside the border issue at the same time.

Vajpayee made repeated attempts, pressing ‘the Chinese to resume serious efforts to settle the boundary dispute in the interests of the overall relationship’ and ‘suggested that both sides appoint special representatives to conduct political negotiations and report directly to the principals’. Raghavan describes this as a breakthrough as ‘unlike previous negotiations, these would not be caught in legal-historical tangles but aim at a political settlement in stages.’ This process ‘paved the way for the Indian government to accept the idea of a ‘package settlement’ involving all sectors. This, in turn, led to the landmark agreement of 2005 on political parameters for settling the boundary dispute’.

The full article can be accessed here.

FULL VIDEO OF LECTURE BY PRATAP BHANU MEHTA
POLITICS SOUTH ASIA

Watch full talk (above) by Pratap Bhanu Mehta on ‘The Melody of Discord: The Self and History in Iqbal’, delivered as part of the fall 2016 OP Jindal Distinguished Lecture Series titled ‘The Nietzschean Moment in Indian Intellectual History’, organised by the Brown-India Initiative at Brown University.

FULL VIDEO OF THE DISCUSSION
ELECTION STUDIES POLITICS

Watch the full video (above) of the discussion on ‘The method behind India’s most successful pollster’ featuring CPR Fellow, Rahul Verma, in conversation with Pradeep Gupta, Chief Managing Director of Axis-My India.

Predicting election outcomes in India is considered a hazardous exercise. But not for Pradeep Gupta and Axis-My India. Since 2014, the team has consistently predicted elections with great accuracy. For instance, in the recent Haryana assembly elections, Axis-My India was the only pollster predicting that the BJP is likely to fall short of a majority.

In this conversation with Gupta, Rahul Verma tried to understand how Axis-My India conducts its election surveys and what makes him India’s most successful pollster.

The question and answer session that followed can be accessed here.

This discussion was supported by Rosa Luxemburg Stiftung – South Asia.