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India 'lacks' institutional mechanism: Is there any scope for climate justice in action?

By Varsh Bhagat-Ganguly, Arun Prasad*

Emerging discourse on climate change has evolved a set of concepts and vocabulary of its own, such as climate mitigation, climate adaptation, climate resilience, climate justice, climate action, climate education, climate law/ litigation, climate finance, climate engineering, and so on, over the last 15 years. As the discourse moved from global warming to climate change almost 15 years ago, global climate negotiations through COPs has made shifts in the discourse.
The global climate negotiations under UNFCCC (United Nations Framework Convention on Climate Change) since 1992 broadly focused on two points: bringing temperature down by 2 degrees C, and limiting and reducing emissions of CO2 and other greenhouse gases (GHG). Although climate change is observed across the globe, whether to place it under epoch and Anthropocene has become debatable. Some scientists argue that climate change is a natural phenomenon.
This debate has triggered further questions, such as, whether human activities has affected the climate to an irreversible mode or it is nature which is changing its course on its own? Is the human at the centre of climate change and should take responsibility to drive and control polycentric, multi-scalar, and differentiated climate changes or should human be considered part of nature and continue to remain in harmony with nature? How do we understand human-nature connect is one of the critical questions?
Is there any space and scope for climate justice in the given discourse – is climate change human made or nature made? Most solutions dealing with climate change initially were of scientific nature, i.e., climate mitigation.
Therefore, a shift from scientific-technological solutions to impacts of socio-economic nature was required. If we consider climate justice as a normative justification for climate change policy, applicable to global to local level, how climate justice can be translated in policymaking and policy implementation, which are the supporting agencies and channels to be created through political engagement, etc., are the challenges of contemporary time.
This article maps out different frameworks, and avenues that have contributed to expansion of the discourse on climate justice. It explores whether the expansion has been translated into action that has paved a way for ensuring climate justice or not.
Moreover, it also addresses a question – can climate justice be possible without having any legal base? How the domain of law looks at and treat human-nature connect for moving towards climate justice? It also examines initiatives taken by India, and whether India is moving towards climate justice through the NAPCC (National Action Plan for Climate Change), climate finance, and other approaches dealing with climate change.

Scope for expansion of climate justice concept: from global to local

Usually, for expanding idea of ‘justice,’ we explore the sources like a theoretical construct; UN agency’s resolution; international instruments (Universal Declaration of Human Rights, Sustainable Development Goals, etc.); Constitution of India; legal and social action-based learnings; policy making of a respective country; justice delivery by judicial institution and based on legislation or legal provisions; etc. Justice is usually contextualised with inequality, resource equity, and inclusive and sustainable development.
The idea of equality originates from differentiated impact, and degree of vulnerability of different countries at global level, and on different communities at national level.
The problem of climate change raises issues of equity and justice, particularly about its causes and impacts. This is because those that have contributed the least to climate change face most of its impacts. Different shifts have been observed in the evolution of the concept of climate justice. It began with Kyoto Protocol in 1997 as CDM (Clean Development Mechanism).
Later, 2010 onwards, human rights framework expanded the principles of climate justice. Parallel to UNFCCC’s definition of climate justice in 2015, the ideas of inter and intra generational justice framework, environment justice, distributive justice, and social justice frameworks have been incorporated in the discourse of climate change and climate justice.

UNFCCC defines climate justice

A definition of climate justice was adopted by UNFCCC at Paris in COP-21 in 2015. Climate justice is defined as “a concept that emphasizes the need for fair and equitable responses to climate change, acknowledging the disproportionate impacts of climate change on vulnerable and marginalized communities. It calls for addressing historical and social injustices, recognizing the differentiated responsibilities of various nations in contributing to climate change, and promoting the protection of human rights and environmental integrity in climate actions.”

Clean Development Mechanism and climate justice

CDM is a market-based mechanism established by Article 12 of the Kyoto Protocol. The CDM aimed at assisting developing countries to achieve sustainable development, and the reduction in their GHG emissions achieved by the CDM projects. In this scenario, how to incorporate distributive justice in the CDM project/largely the scientific-technological solution has been a challenge. Moreover, what is distributive justice in CDM has never been defined.
Firstly, there are various theories of distributive justice, such as egalitarianism, utilitarianism, and Rawls’ difference principle. Generally, these theories can be regarded as ‘outcome-based’ approaches, as they would often result in set outcomes, regardless of the specific situation under consideration. in these theories, specific circumstances are often disregarded.
The approach to distributive justice in international law appears to be what can be called a ‘process-based’ approach. Distributive justice is usually seen as the outcome of a process that takes certain relevant issues into consideration. Such concerns of equitable distribution within CDM projects were not incorporated at the onset.
While discussing equitable geographic distribution of CDM projects as one of the ways to ensure climate justice, complexities were added on the counts of just and sustainable development, i.e., referring to Human Development Index (HDI).
Thus, calculating GHG emission, HDI, and CDM potential in each CDM project, skewed distribution could not be explained solely by countries’ GHG emission levels. The general investment/project element; and the CDM-specific element were also considered to be the limitations of distributive justice framework for CDM.

Right to development and climate justice

The UN General Assembly Declaration on Right to Development, 1986 affirms Right to Development ‘as a universal and inalienable right and as an integral part of fundamental human rights.’ The international community has begun to establish relation between human rights and climate change keeping ‘right to development’ as a focal point.
Climate justice acknowledges the intrinsic elemental injustice of the climate change problem globally as well as within the countries where climate change impacts devastated comparatively more of the vulnerable and marginalised groups, such as indigenous people, women and children compared to the people in advantageous position.
Climate justice refers to ‘group rights’ including the right to clean environment, right to development, the right to peace, etc., which demands the following: (i) commitments from a particular group as well as duties of the global community towards the human life; (ii) participation from everyone and being different from the traditional and globally accepted individual human rights approach; and (iii) institutional mechanism at national and international level. So, if other related rights are in danger due to climate change, and not handled effectively, relevance and importance of these rights and mechanisms are questioned.

Human rights and CBDRRC framework for climate justice

Human rights-based approach to climate action is a result of globally agreed normative values.
Adopting human rights framework at global level, the Mary Robinson Foundation evolved principles of climate justice, they are: (i) respect and protect human rights; (ii) support the right to development; (iii) share benefits and burdens of equitably; (iv) ensure that climate change decisions are participatory, transparent, and accountable; (v) highlight gender equality and equity; (vi) harness the transformative power of education for climate stewardship; and (vii) use of effective partnerships to secure climate justice in 2011.
Based on similar set of concerns, as reported by MoEFCC in 2015, the principles of has been adopted by the UNFCCC as well as by the National Action Plan for Climate Change in India.
The concept of ‘Equity and Common but Differentiated Responsibilities and Respective Capabilities’ (CBDRRC) is a result of dual-edged facts and arguments: on one hand, GHG emissions from developed countries and polluting environment at global level; lack of proper technologies and tools used by the developing nations, which do not let them preserve their environment while keeping the pace with economic development.
To bring in equality and equity resources, the international legal climate change framework (various protocols and declarations in COPs) is introduced as CBDRRC, aiming at minimising the disparity between the developed and developing countries.

The mainstay of CBDRRC rests on the principle of “common heritage of mankind”, and normative principles of equity in the international law. As the legal instruments are associated with equity, different instruments provide opportunity to translate this principle across different sectors in different countries.
For instance, International Labour Organisation has acknowledged that “differences of climates, habitats and customs of economic opportunity and industrial tradition, make strict uniformity in the conditions of labour difficult of immediate attainment”.
The concept of “differentiated responsibility” depends on different elements, which include the specific needs and situations of nations, economic growth of, nations and the past contributions causing climate change. They are not purely of legally binding characteristic; they may not result in a fixed outcome defined for different countries.

Intergenerational justice linked to climate justice

Globally, the concept of inter and intra generational equity under the sustainable development and environmental justice approach is also been promoted. With respect to intergenerational justice, it argues that the “present generations have certain duties towards future generations,” i.e., “when one talks about the rights of future generations this inevitably seems to raise the issue of how to balance the rights’ claims of those alive today against the rights’ claims of future generations.”
In this framework, moral problems of risk imposition and just and sustainable natural resource governance are at the centre. The issue of just and sustainable resource governance calls for a range of institutions and policies at several levels, since natural resources come in very different shapes and forms.
Every citizen is asked for “how we should manage the planet's natural resources so as to give our children, our grandchildren and future generations a planet worth living on” through this framework.

Parlance of environment justice, social justice, and climate justice

For climate justice the right to clean environment and the right to development are usually correlated while focusing on the notion of pollution, i.e., a right to pollution can never be considered as a right to pollute. Over and above, the principle of ‘polluters pay,’ climate justice brings in a concept of climate finance, which paves a way to climate justice. One of the ways to deal with climate change adaptations is through technology transfer, from developed to developing countries; however, this also remains in the domain of technological solutions.
The right to development along with parlance of environment justice therefore needs to go beyond technology transfer, considering just and inclusive development as a core for climate justice.
Susannah Fisher has gone beyond CBDRRC and articulated emerging geographies of climate justice based on an analysis of the work of a loose civil society coalition in India (largely with parlance of social justice); she represented global South along with India, where climate change provokes questions of uneven development processes as well as environmental concerns.
For example, how migrant workers and local farmers suffer due to erratic rainfall caused by climate change (Rajasthan); how people have suffered due to heat and cold waves (Gorakhpur, Sunderbans, etc.); how exploitative use of water has created crisis; etc. thus, climate justice must be understood as an accumulative process working over multiple scales; understand the spatiality of justice working at different scales with a multiplicity of justice concerns and claims; and politics of scale.
The scale is socially constructed and produced through social relationships and practice and they are therefore subject to constant re-negotiation and struggle. Scaling up is sometimes linked to social movements as a strategic device to promote people’s cause, i.e., the way people negotiate, influence for the desired political and economic transformation.

Is India ready for climate justice?

India is a crucial player in international climate negotiations by virtue of four main factors: its large population; its rapid economic growth; its political role as a leader amongst nations of the global South; and its position on the frontline of climate change impacts.
With a 7,500-kilometer-long coastline, many large flood plains of monsoon-fed rivers, and high dependence of livelihoods on agriculture, India stands to lose heavily from cyclones and coastal storms, erratic rainfall patterns, and increased frequency and severity of floods and droughts. This will lead to plummeting crop yields and more hunger, forced migration, and an aggravation of mass-level deprivation and poverty.
The idea of climate justice originates from varied sources and approaches. Praful Bidwai discusses four critical points and proposed alternatives: First, Indian policy makers remain fixated on only one limited notion of equity anchored in per capita emissions. Second, India’s CDM strategy is flawed and conceptually confused; ‘sub-prime carbon’ trading cannot make a credible contribution to resolving climate crisis. Third, India’s policy is made with a small cloistered group of serving and former bureaucrats and diplomats and without broad consultation with independent experts, people’s movements, civil society organisations or concerned citizens. Fourth, this policy is exclusionary, gender blind and impervious to other broader social concerns. There are no social reference points and criteria against which these policies and priorities can be tested, so that they can be rectified, refined and made responsive to social needs.
Although India has incorporated climate justice in its policy presentations, especially under the NAPCC (National Action Plan for Climate Change), the major challenge regarding its implementation. There is no clear institutional mechanism to deal with climate change in India.
International dimension of climate justice and the relationships between states has dominated the Indian policy discourse, i.e., following the CBDRRC principle and focused mainly on emission targets, green technology & transfer, financial mechanisms that are binding targets for Annex 1 countries, India needs to ask: who will bear the costs of mitigation activities? Where will the effects of climate change be felt? How will these decisions be made? Domestic debate on India's climate change position has largely not focused on these internal issues due to concerns that internal divisions would undermine an internationally held position of southern solidarity and equity.
Climate justice in India must be understood as an accumulative process working over multiple scales understand the spatiality of justice working at different scales with a multiplicity of justice concerns and claims, and politics of scale. The scale is socially constructed and produced through social relationships and practice and they are therefore subject to constant re-negotiation and struggle.
Scaling up is sometimes linked to social movements as a strategic device to promote people’s cause, i.e., the way people negotiate, influence for the desired political and economic transformation.
India is yet to enact any legislation that address challenges of climate change. There are a very few climate change related legal cases observed. Shibani Ghosh has identified and analysed fourteen of the Supreme Court, High Courts, and the NGT in which the parties have raised climate change issues.
We came across a couple of law schools’/universities’ initiatives, i.e., a course on climate justice and climate law per se, and only one university has offered a Fellowship for Climate Action. Climate action by youth is largely through participation in COPs (Conference of Parties); long term initiatives by youth are in a very nascent stage.
The discourse on climate justice which is getting expanded with different intellectual and policy frameworks, is not translated into action – global to local, local to local, and local to regional – models are yet to be evolved.
*Dr. Varsha Bhagat-Ganguly works as a professor & Research Head at Institute of Law, Nirma University; she as a development sociologist has written on various social and development issues, such as violence on women, issues of single women, pastoralists and pastoralism, land question, land rights, and land titling; e-waste management, and social justice continuum. Dr. Arun Prasad is Associate Professor at Institute of Law, Nirma University. Microeconomics and development economics are his areas of interest.
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