From relative obscurity in the late 1980s when it was first discussed in the UN General Assembly, the issue of climate change has come, less than three decades later, to be characterized as ‘the defining human development challenge for the twenty first century’. In the decades that the international community has spent in search of a solution to climate change, climate science has gained in certainty, media attention has grown exponentially, and climate consciousness has acquired salience among the political classes. This was in evidence at the Copenhagen Climate Conference, 2009, that attracted 125 heads of state and government, the largest such gathering in the history of the United Nations, and nearly 40,000 participants. No collective challenge facing humanity has ever before attracted such attention, participation and political capital, yet the international community could not resolve its differences and arrive at a definitive formula to address climate change. At the root of the differences are differing self-serving visions of burden sharing among states.
In the early years, the negotiations focused, given the greater contribution of developed countries to the climate change problem as well as their enhanced capacity on generating greenhouse gas mitigation targets, timetables, and compliance mechanisms for developed countries. The gaze has shifted in recent years to the role that developing countries, in particular the more advanced among them, can and should play in addressing climate change. This shift is accompanied by a larger crisis in the climate regime precipitated in part by the United States’ rejection of the Kyoto Protocol, and consequent efforts by other developed countries to transition to a less prescriptive regime that could prove attractive to the United States. These two trends are together likely to lead to a future regime that is less prescriptive for all countries, and therefore has a limited role for compliance systems, whether for developed or developing countries. Nevertheless there are several tools and techniques, short of a fully fledged compliance system, that may be useful in ensuring that states are in compliance with their obligations. This chapter examines the tools and techniques in the climate regime as they relate to developing countries.
In this chapter, we examined health rights litigation in India before the Supreme Court and High Courts to determine whether litigation provides an effective mechanism for making health service delivery more equitable. For the purposes of the book and our chapter, we understood the right to health to include accessible, available and quality health care, as well as the underlying social determinants of health including, food, water, sanitation, education etc. By analysing a sample of 218 Supreme Court and High Court cases and conducting key informant interviews with petitioners, attorneys, judges, academics, government officials and civil society actors working on public health and human rights-related issues, we sought to answer the following questions:
a. Who were the petitioners in these cases?
b. What kinds of claims were brought?
c. How were these claims adjudicated?
d. What were the litigation outcomes that followed?
e. What were the legislative and policy outcomes that followed adjudication of these cases?
Assessed against the backdrop of a dismal health care situation in India, where accessibility, availability and quality of health care is extremely poor for the vast majority of the Indian population, we found a complex picture with many successes and failures of health rights litigation. We found that unlike countries like Argentina and Brazil also studied as part of this book, health rights litigation does not appear to be worsening health inequities in India. Yet, health rights litigation by itself cannot bring about the structural and systemic changes necessary for improving access to health care for the vast majority of the Indian population.
The principle of common but differentiated responsibilities and respective capabilities (CBDRRC) 2has, from the inception of the climate dialogue, underpinned the efforts of the international community to address climate change. At the Second World Climate Conference, 1990, countries recognized that the ‘principle of equity and common but differentiated responsibility of countries should be the basis of any global response to climate change’ (Hague Declaration, 1989; Noordwijk Declaration, 1989; Second World Climate Conference, 1990, paragraph 5). This principle finds reflection in the Framework Convention on Climate Change (UNFCCC, 1992) and is the basis of the burden sharing arrangements crafted under the FCCC and its Kyoto Protocol (UNFCCC, 1997b). The CBDRRC principle is also highlighted in numerous FCCC Conference of Parties (COP) decisions (Berlin Mandate, 1995; Bali Action Plan, 2007, Cancun Agreements, 2010), as well as the controversial Copenhagen Accord, 2009. Yet, the core content of the CBDRRC principle, the nature of the obligation it entails, as well the applications it lends itself to, are deeply contested, which in turn raises questions about its legal status and operational significance. This chapter explores the debates surrounding the constituent elements of the CBDRRC principle which shed light on the legal status and operational significance of the CBDRRC principle, as well as the ability (or lack thereof) of this principle to offer substantive guidance to Parties in the design of the post-2012 climate regime.
The relationship between John Stuart Mill’s political thought and imperialism has, in the literature, been approached in three different ways. The first approach is straightforwardly historical. Mill was not just a thinker. He was an important interlocutor in thinking about imperial power. He worked for the East India Company, whose approach to imperial governance he defended. He also weighed in on almost all of the important controversies surrounding the colonies in his time, from India to Ireland, from Jamaica to Australia.
The provision of drinking water in rural areas has been a major concern of successive governments in India for several decades. This can be explained easily by the immediate link between water and human survival, as well as that between sufficient safe water and an adequate standard of living. This immediate link between water and human life ensures that it has direct political implications from the local to the national level.
The regulatory framework for rural drinking water surprisingly does not reflect this sense of importance. Indeed, beyond the frequent assertion and reassertion of a fundamental right to water by the superior courts, little effort has been made to develop a comprehensive legislative framework operationalizing the fundamental right. An additional complication is that states have primary responsibility over drinking water. This has led to a maze of instruments that include mostly general provisions in legislation such as panchayat acts at the state level and secondary instruments adopted by the executive at the union level that have had a strong influence in the states because these instruments have come with financial incentives for states to adopt their principles.
Water use is regulated by a number of laws, rules, and principles in India. These include rights of control asserted by the government and individual usufructuary (i.e., use rather than ownership) rights. Water use is also regulated through much broader pronouncements, such as the fundamental right to water. In recent years, water law reforms have introduced signifi cant changes, including the establishment of water regulatory authorities and water user associations.
