The Legality of Downgrading Nationally Determined Contributions under the Paris Agreement: Lessons from the US Disengagement

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.

The full paper is available on the OUP Academic website, subject to access restrictions. For a copy of the paper, please write to Lavanya Rajamani at lrajamani@gmail.com.

An earlier question-and-answer blog with Lavanya Rajamani on Trump’s announcement to withdraw from the Paris Agreement can be accessed here.

The literature landscape on 1.5 °C climate change and cities

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.

The many facets of Atal Bihari Vajpayee

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.

The Melody of Discord: The Self and History in Iqbal

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.

The method behind India’s most successful pollster: Rahul Verma in Conversation with Pradeep Gupta, Axis-My India

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.

The Most Dangerous Place: A History of the United States in South Asia

NEW BOOK BY SRINATH RAGHAVAN
SOUTH ASIA INTERNATIONAL POLITICS PODCAST

Srinath Raghavan’s new book The Most Dangerous Place: A History of the United States in South Asia will be launched on 3 July, 2018. In the run-up, listen to the CPR podcast (above) with Raghavan providing a preview to his book.

The book presents a gripping account of America’s political and strategic, economic and cultural presence in South Asia since 1776. By illuminating the patterns of the past, this sweeping history also throws light on the challenges of the future.

Read book reviews, which have appeared thus far:

Open Magazine: ‘Srinath Raghavan’s treatment is sure footed and his narrative animates the interplay of personalities, interests and power, as US presidencies rub up against Indian and Pakistan leaders.’
India Today: ‘This is one of the best histories of US engagement with South Asia offering a more nuanced and coherent perspective. Raghavan has burnished his reputation as India’s leading contemporary historian and political analyst.’
The Print: ‘Raghavan’s broad and detailed swathe of the US-South Asia relationship beautifully brings out this inherent contradiction in the heart of US policy.’
The Indian Express: ‘It is a definitive account, and the sheer scope and expanse of coverage sets the book apart from all earlier efforts on US and South Asia.’
The Hindu: ‘…it is a wonder that Raghavan has been able to encompass so much history across the expanse of the subcontinent in under 400 pages and few details miss his archive-trained eyes.’
Outlook: ‘Raghavan’s mastery has been in bringing together a vast trove of material to write this eminently readable history of the US in South Asia.’
Financial Express: ‘Raghavan is to be commended for the rich temporal tapestry he has woven and it is a complex yet rewarding trapeze. His nimble pen points to stimulating linkages.’

The NRC Quagmire: Why is Assam on Edge?

The NRC Quagmire: Why is Assam on Edge?
LISTEN TO THE PODCAST FEATURING SANJOY HAZARIKA AND YAMINI AIYAR
PODCAST RIGHTS IDENTITY DISCRIMINATION

Listen to the 32nd episode of the CPR podcast, ThoughtSpace (above) featuring Sanjoy Hazarika (Director, Commonwealth Human Rights Initiative and Honorary Research Professor, CPR) and Yamini Aiyar (President and Chief Executive, CPR).

ABOUT THE SERIES

The Citizenship Amendment Act (CAA) was recently passed in both houses of the Indian parliament, triggering large-scale protests across the country. What does the act mean for the future of Indian democracy? How do we understand the on-going protests and what are some of the political, economic and social implications of this movement?

In this mini-series curated by the CPR, we unpack these questions and shed light on what the next few months can have in store.

ABOUT THE EPISODE

The passage of the CAA was met by a fierce reaction in the northeastern part of the country, particularly in Assam. Assam has also witnessed the National Register of Citizens or the NRC process.

What were the reasons behind this process and how did it unfold? Why are the people of Assam protesting against the CAA and are these protests different from that in the rest of India? Are the CAA and NRC linked in any way?

In this episode, Yamini Aiyar speaks with Sanjoy Hazarika.

MORE RESEARCH ON THE CAA BY CPR SCHOLARS:

Unpacking the Citizenship Amendment Act
How Democratic Processes Damage Citizenship Rights: The Implications of CAA-NRC
Podcast: Citizenship Amendment Act- Protests, Democracy & Politics: Lessons from Latin America

The Numbers Game: A Look Beneath the Surface

WATCH FULL VIDEO OF THE SEMINAR ON EDUCATION DATA AND POLICY
EDUCATION

The Public Accountability and Governance in Education (PAGE) project at CPR organised a seminar on the various types of education data collected and how these are implemented in policy. The seminar drew wide participation from government, academic and private agencies.

The Numbers Game: Suggestions for Improving School Education Data

AS PART OF ‘POLICY CHALLENGES – 2019-2024: THE BIG POLICY QUESTIONS FOR THE NEW GOVERNMENT AND POSSIBLE PATHWAYS’
CPR EDUCATION

By Kiran Bhatty

In the context of the declining quality of public education, governance has emerged as an important explanatory variable, quite distinct from the education variables more commonly cited, such as teaching and learning practices or curriculum and textbook quality. An important component of the governance architecture in any sector is its information and data regime, as all aspects of monitoring, planning and policymaking are dependent on it. A look at the data system in the education sector in India reveals that there is much amiss at all levels of data collection and use.

This is not to deny that compared to a couple of decades ago, considerable energy and investment have gone into building a regular school-based decentralized data collection system in India. This District Information System for Education (DISE), set up after Sarva Shiksha Abhiyan (SSA) was launched in 2001, and now called Unified-DISE (U-DISE),1 collects data from 1.5 million schools (government and private) and provides report cards up to the secondary stage for every state, district and school. It is remarkable that this data is compiled and School Report Cards prepared and uploaded on the website on an annual basis. Education data from households is also being collected by Panchayats and compiled annually in Village Education Registers. A few states have supplemented this with data from Child Tracking Surveys, which enumerate the population of school-going children. In addition, the Ministry of Human Resource Development (MoHRD) commissioned three rounds of household surveys in 2006, 2009 and 2014. The SRI-IMRB surveys, as they are called, collect information on children in the age group 6-13 years who are out of school. Other large household data sets have emerged too, in addition to the National Sample Survey (NSS) and Census, such as the National Council of Applied Economic Research’s (NCAER) Indian Human Development Survey (IHDS-I, 2004-5 and IHDS-II, 2010-11), the Annual Status of Education Reports (ASER) since 2005, and now the Socio-Economic Caste Census (SECC). All of them provide data on education indicators and school participation in some form.

However, in the midst of this ‘feast’ of data sources, we get varied, often contradictory evidence on basic indicators such as the proportion of children out of school, the extent of improvement in retention levels, the learning outcomes and the quality of education. Even in areas of education finance, such as teacher appointments and salaries, we do not have an authentic database. Hence, despite the fact that the coverage and scope of data collection by the government has increased enormously with many more indicators added, nagging questions remain about the quality, utility and purpose of the data, with obvious implications for planning and policymaking. Further, with multiple sources of data – both governmental and non-government – in operation, data neutrality also cannot be assumed.

This paper highlights the methodological as well as administrative anomalies in the system, and points to the need for greater decentralized management of data as well as collaboration across agencies for purposes of standardizing definitions and methods of estimation. It further emphasizes the need for public verification of data to ensure authenticity as well as validation across sources to reduce bias.

Methodological Discrepancies

Definitions and Methods of Estimation

The methodological difficulties begin with the range of definitions and methods of estimation used for important indicators by different government and non-government agencies collecting data. For instance, estimates for out-of-school-children (OOSC),2 all collected through household surveys, are based on different ‘questions’ asked by investigators employed by each source. The NSS, for example, asks, ‘How many children are currently attending school?’, while the Census enumerators ask questions related to ‘status of attendance in an educational institution’. The MoHRD survey, on the other hand, claims to follow both the sampling and methodology used by the NSS, and yet arrives at vastly different results. The NSS and MoHRD surveys, which are based on a sample, then extrapolate from their figures the proportion of children that are out of school as a percentage of the population of children in that age group. Using this method, the NSS 71st round (2014) has pegged the figure at a little less than 10% of the child population, amounting to nearly 20 million children, while the MoHRD (SRI-IMRB, 2014) estimates put it at 3% and thus approximately 3 million! The 2011 Census, on the other hand, suggests that more than 15% children in the same age group do not go to school, thus giving us a wildly differing figure of almost 40 million.

Similarly, the figure for the total number of teachers in a school turns out to be not as simple a statistic as it sounds, with teachers being routinely sent on deputation to other schools.3 Thus, it is unclear whether a teacher who is on deputation from another school is to be counted in her current position or in her original school; or does she end up being counted in both? Similarly, information on the employment status of teachers has only two categories in the DISE format – regular and contract – whereas multiple categories that do not fit precisely into these categories also exist (voluntary, assistant, etc.), resulting in highly inaccurate data being collected on such an important indicator. Other gaps in the data collected include: information on salaries paid out by each state to the different categories of teachers and measures of learning outcomes on a regular basis. The problems are compounded by the fact that formats for collecting data are designed centrally and do not take into account local specificities; nor are teachers – often the primary data enumerators – adequately trained to fill the formats.

Validation and Verification of Data

Another aspect of data credibility that has proved to be a weak link in the data collection process is verification and validation of data. While the rules for DISE dictate that 10% of the sample be randomly cross-checked, DISE itself is unable to verify that this process is either regularly or adequately carried out, due to lack of capacities available at the frontline for the process. In addition, the education departments ignore the evidence presented by other government or non-government sources to validate and thus improve the credibility of their data. Data validation faces some mundane difficulties as well, related to different methods and time periods used for estimating different indicators by the agencies that collect data. For instance, the Right to Education (RTE) Act talks about children between 6 to 14 years age, but practically all data agencies (except those under MoHRD) use different age groups when compiling education data, making comparison quite difficult. Similarly, the dates and periodicity of data collection vary across sources. ASER is an annual survey; NFHS followed a six-yearly pattern initially but has now slipped to 10 years since the last survey. IHDS thus far has maintained a gap of six years between its two successive surveys. While NFHS-3 and IHDS-1 roughly cover the same period (2004-5 and 2005-6), neither corresponds to the Census dates, but IHDS-2 (2011-12) does. NSS also follows a different time period for its education surveys.

Administrative Anomalies

The Purpose of Generating Data

Different agencies plan their data collection for different (and specific) purposes, and not necessarily for planning or monitoring education and hence for education policy. For example, the education rounds of NSS are part of the survey on social consumption, which in turn seeks to assess the benefits derived by various sections of society from public expenditure incurred by the government.4 The population census, on the other hand, is the primary source of basic national population data required for administrative purposes and for different aspects of economic and social research and planning.5 The non-government sources also have unique purposes in mind, again not necessarily with education as the primary objective. Thus, NFHS is essentially a health and nutrition survey that also collects data on select education parameters. Similarly, IHDS is geared towards the larger goals of human development and poverty, especially the links between education, skills and livelihood. Only ASER is solely dedicated to education, specifically learning levels. However, it does not tell us how the levels of learning vary with student enrolment or attendance, or any household factor.

What is more surprising is that even the data collected by MoHRD and state education departments, though admittedly for the purpose of monitoring and planning education, is not geared towards policy goals. Instead, data collection and analysis are guided by their use in taking stock of the provisioning of schools, rather than as a mirror of their functioning. Unsurprisingly, therefore, school surveys focus on collecting information related to (i) broad indicators of infrastructure and teacher availability; and (ii) student enrolment and distribution of incentives. Both these sets of data showcase administrative efforts rather than education progress. Even the household survey (MoHRD’s SRI-IMRB) is used only for estimating OOSC. No effort is made to use disaggregated data to understand the problems of specific groups of children or schools.

A second conundrum associated with the purpose and use of education data relates to the fact that planning and policymaking are extremely centralized processes. Thus, data – however collected – plays a limited role in the planning and policy processes. For instance, the Project Approval Board at the MoHRD that approves annual plans and budgets (AWP&Bs) for the states does so on the basis of the finances allocated to it by the Ministry of Finance and the norms of expenditure specified by the central ministry (MoHRD). While the AWP&B for a state reflects the needs of the state, eventual allocations differ widely from it, as they are based on what is made available by the Ministry of Finance through processes that do not involve the education sector. Of course, state plans are themselves based on a process of aggregation that does not involve a genuine decentralized planning process. This is evident from the fact that dissemination strategies are not aligned with the goals of decentralized planning, as data is largely unavailable in usable form at the local or school level. In fact, local data management systems are virtually non-existent, putting paid to the idea of decentralized planning. Thus, while it is true that schools are now asked to prepare their plans through the School Management Committees, in fact what is submitted by them are copies of the DISE format – presumably as indicative of the status of schools and thus reflective of their needs! Eventually, therefore, at the district level – and probably also at the state level – DISE data is referred to for determining the state AWB&P.

Limited State Capacity

A second and perhaps overarching problem confronting the data regime in education is that of limited capacities to design, collect, analyse and use data throughout the government structures, from the central to the local. DISE is run almost entirely on the shoulders of data entry operators of the education departments at the district and block levels. Data that is collected from the ground up amounts to a process of simple aggregation resulting in the loss of specifics, such that by the time it reaches the central level, it barely reflects the ground realities and can hardly serve the needs of the people. The aggregation itself is still done manually at the block level in many states with digitalization appearing only at the district level. Further, implicit in the collection process is a conflict of interest, especially with DISE data as it is entirely dependent on formats filled by teachers. It is well established that teachers might be incentivized to represent information in ways that inflate facts, such as student enrolment.6

In addition, the departmental staff at the state level have not acquired the understanding, through their own qualifications or through training provided by the government, of the relevance and importance of quality data or its use in the planning or policy process. For instance, innumerable formats are designed for monitoring schools, but none of that data is put to any use.7 In fact, it is not even referred to in the monitoring or review meetings held at the block and the district. Unfortunately, the personnel involved in collecting and collating that information are themselves unable to gauge its importance as they see it as simply a chore – of ‘filling formats’. With the import of the data completely lost on them, they are unable to use it in a constructive fashion, making the entire exercise redundant.

The Way Forward

(i) Improving definitions, standardizing them across sources, and using improved methods of collection and estimation of basic indicators.

(ii) Developing capacities of the data regime and giving a greater role to data users, especially the education officials at different levels of government ranging from the national to the local. Necessary technical skills, if provided, will enable them to be cautious when collecting data, as also to interpret and use it appropriately, such as when making plans.

(iii) Providing support to monitoring agencies, such as school management committees, social audit groups, and education researchers, to allow them to publicly verify data that is officially collected. This requires data to be made publicly available especially at local levels. The lack of local data management systems – at the level of the school or even Panchayat – is a huge lacuna in the information and data regime of the education sector. Even the DISE formats that are filled by the teachers and sent up the bureaucratic ladder are not available at the school level. While schools are asked to keep a copy of the DISE Data Capture Format, they are unable to maintain more than the current year’s format, if even that. This is perhaps because schools do not have computing facilities, and hence all records are paper records – poorly maintained and not updated. In other words, even the information that is generated in the school is sent up to the next level for eventual digitization at a higher level (district or block level, as the case may be) where computing facilities are available. The digitized information, however, does not flow back to the school, for the same reason cited above. As a result, no institutional memory is built up for purposes of tracking change or progress in a school. Ideally the format should be verified by the parents and larger community before being sent up, to ensure accuracy. Further, data not collected by DISE could be maintained at the school and Panchayat levels as well and used for making school plans. At any rate, it could form the basis for questioning the centralized planning process.

(iv) Reducing bias by validation through the use of multiple data sets. Validation of data against different sources, especially in the case of data used for policy, can ensure that bias is factored in and therefore a more judicious use of data is effected. Multiple data sets have other uses as well. For instance, while any single data set cannot collect information on all relevant issues, data collection is known to be a very expensive and time-consuming process. Thus, information collected by NSS on household expenditures – which demonstrates that 70% of all OOSC in urban areas are concentrated in the lowest quintile, while in rural areas they are in the lowest two quintiles – is relevant information that can and should be used by the education department without having to repeat the exercise. Similarly, NFHS data provides linkages between education participation and family health, also of importance to the education department.

(v) Making better use of data through proactive collaboration of different government and non-government agencies. For instance, if household and school data were available in the same portal, it would maximize their use. Similarly, if the NSS education rounds were better coordinated, along with standardization of definitions of important indicators, it would greatly help in serving the cause of education goals. Streamlining the planning process to enable planning based on decentralized data will go a long way towards improving the use of data at the local level as well as ensuring a more genuine decentralized planning process.

Other pieces as part of CPR’s policy document, ‘Policy Challenges – 2019-2024’ can be accessed below:


U-Dise or Unified-DISE is a database of all students from grades 1 to 12.
Non-government sources do not collect information on this variable at the national level.
It is common to send a teacher appointed to a particular school to another, if there is a shortage in the other school. While shortages exist in a very large number of schools, such deputation typically takes place if the demand for more teachers is raised loudly enough or the political configuration is such that the school is able to draw a teacher towards their school, typically creating a shortage in the school from which the teacher is deputed!
http://mail.mospi.gov.in/.
http://censusindia.gov.in/Data_Products/Library/Indian_perceptive_link/C…
See Bhatty, Saraf and Gupta, ‘Out-of-school Children in India: Some Insights into What We Know and What We Don’t’, Economic and Political Weekly 52(49) (2017)
See Bhatty and Saraf, ‘Does Government’s Monitoring of Schools Work?’, CPR Working Paper (New Delhi: Centre for Policy Research, 2016).