Author : J. M. Mauskar

Expert Speak Terra Nova
Published on Jun 23, 2017
The Paris Agreement differs radically in as much that the commitment made by a Party in the Agreement is basically about the process.
US withdrawal from Paris Agreement: India should withstand pulls and pushes Ever since President Donald Trump made his announcement about the US withdrawing from the Paris Agreement in the Rose Garden of the White House on the first day of June, an avalanche of articles, blogs and comments has blanketed the media. One common thread in the initial reactions from the world leaders, namely that of pledging their support to Paris Agreement goals and objectives, is indeed welcome to countries like India, which had shown remarkable flexibility at Paris in December 2015 in order to achieve a consensus on the draft Paris Agreement mooted by the French Presidency. Now that the heat and dust has somewhat settled down, it is time to dispassionately and rationally assess the situation and deliberate on what we should do, while, at the same time, respecting the sovereign decision by a sovereign nation, even though we may not agree with it. So far, 195 countries have 'signed' the Paris Agreement. Out of this, 148 countries have 'ratified/accepted/approved' it. However, European Union countries like Czech Republic and the Netherland and other countries like Angola, Colombia, Egypt, Iran, Iraq, Qatar and Tanzania are yet to ratify it. Any agreement understandably applies to a country only after its ratification, etc.

US exceptionalism and the Paris Agreement

Global concerns for the US ratification related sensitivities and the insistence of EU and others for a legally binding treaty as a successor to the Kyoto Protocol post-2020, (to tie down the US and China/India), can be said to have led to today's impasse. While almost everyone is pinning the blame on President Trump, factually there was a steady drum beat pre-dating the Lima Conference of the Parties (CoP) in 2014 from the US Republicans regarding their serious concerns and red lines about a new Climate Change (CC) Agreement (especially its ratification without Senate’s involvement). Just before the Paris CoP, open letters were written by US Senators and Congressmen in this regard. The issue of the Paris Agreement was also flagged in the Republican Party manifesto in their last presidential elections of 2016. Therefore, as soon as the Paris Agreement was finalised on 15 December 2015 in a manner permitting an 'executive' approval by President Obama without a role for the Senate, a presidential withdrawal by his successor was politically and logically on the cards. We may note that since the United Nations Framework Convention on Climate Change (UNFCCC) was ratified after the constitutional 'advice and consent' of the Senate, so the extent to which the US is 'bound' to the Paris Agreement is qualitatively different.

Besides exiting some ratified agreements later on, like the Paris Agreement, or partially exiting, like the Convention on International Court of Justice, the US is exceptional in negotiating and signing but not subsequently ratifying key treaties, like the Vienna Convention on the Law of Treaties, 1969 or the UN Convention of the Law of Seas, 1994.

Non ratification of Kyoto Protocol under the UNFCCC by the US even after Vice President Al Gore signing it is yet another such US exceptionalism. In this regard, the latest example is President Trump's announcement of the intention to withdraw. But till the formal process of withdrawal is complete, the US continues to be member of the Paris Agreement.

US commitments under Paris Agreement

It has been stated that after President Trump's announcement, the US will no longer be bound by the commitments it assumed under the Paris Agreement, whether in respect of mitigation actions against climate change, or adaptation actions in its own territories, or provision of finance and technology to the developing countries. But the fact is that the Nationally Determined Contribution (not commitment) of the US, submitted in the middle of 2015, is silent about any adaptation actions or provision of finance and technology to other countries. Further, as compared to the Kyoto Protocol, the Paris Agreement differs radically in as much that the commitment made by a Party in the Agreement is basically about the process; submitting and updating the Nationally Determined Contribution (NDC), providing information about progress of implementation etc., and not of achieving any result such as reaching the NDC targets or provision of any particular amount of finance etc. Under the Kyoto Protocol, on the other hand, the developed countries undertook commitments for specific reduction of their Green House Gas (GHG) emissions in the specified time period. Lastly, any implementation actions under the Paris Agreement will start only after the end of the 2nd Commitment period of the Kyoto Protocol, mainly for the European Union, and the Copenhagen Pledges, for others including the US, India and China, as recognised in the Cancun Climate Meet of 2010, both covering the period 2013-2020.

The irony really is that most developed countries, including EU countries, that had agreed to the 2nd Commitment period of Kyoto Protocol from 2013 to 2020 are yet to ratify it.

For this 2nd Commitment period, the price inter-alia paid by the developing countries at the Durban Meet in December 2011 was to launch a process to negotiate a new post-2020 agreement by December 2015. While the mitigation performance for various countries, both developed and developing, is more or less satisfactory, (the US, the EU and India are on track), the same cannot be said of provision of finance and technology to developing countries by the developed countries, whether the US or others. Specifically, Green Climate Fund (GCF) is an outcome of the 2009 Copenhagen Climate Meet, well predating the Paris Agreement, and is yet to take off. The GCF kitty is well below US $10 billion as against an annual flow of US $100 billion promised by 2020 in Copenhagen from various sources, especially the GCF. Performance of other Annex I countries in regards to the GCF contributions is not much better than that of the US, it may be noted.

US withdrawal

As regards the widely anticipated US non-participation in climate negotiations following President Trump's announcement, it is clearly laid down in Article 28 of the Paris Agreement, especially paras 28.1 and 28.2, that no Party (country) can submit a notification of withdrawal before November 4, 2019, three years from the Agreement coming into force. The minimum duration thereafter for the actual withdrawal of any country from the Agreement after ratification is 12 months, that is not before 5 November 2020. This means till 5 November 2020, the US will continue to be a full-fledged member of the Paris Agreement and will be able to participate in all its deliberations fleshing out various Rules and Mechanisms, including mooting amendments to the Agreement. Even thereafter, as a Party to the UNFCCC, the parent agreement to the Paris Agreement, the US can participate in the Agreement negotiations as already provided in Article 16. The above timelines can also be assessed in the context of the voting for the next US presidential election being constitutionally mandated on the first Tuesday of November which is 2 November 2020. It may be observed that the notice for withdrawal would presumably have been sent well before this date, for instance in November 2019 itself, and the present President would be in office after this till Jan 2021. Theoretically of course the new President could seek to join the Paris Agreement again in 2021, but it all appears premature as of today. This is so because the US would reportedly be making formal demarches at present to the UN as also major countries as a follow up of President Trump's announcement and only the content of the demarches could tell us as to how the US intends to actually go about the withdrawal process.

Options not taken by Trump

As an alternative to what he did, President Trump could have quit the parent Climate Change (CC) treaty, UNFCCC, withdrawal from which would have taken effect just after one year from the date of the US notification to the UN Treaty Registry/UNFCCC Secretariat. Consequently, the US would also have been out of the Paris Agreement within 2018 in terms of the Agreement’s Article 28.3. But he did not do so which has its own positive implications, presently being lost sight of amidst the intense emotions arising from his announcement. For example, the US still is bound by all principle and provisions of the UNFCCC. It also appears that the US Supreme Court has opined since the 19th century that domestic policies and rules in the US need be in concordance with any constitutionally ratified international treaty, which the UNFCCC eminently is, having been recommended for ratification by the US Senate.

President Trump has not availed another option of sending the Paris Agreement belatedly to the US Senate for 'advise and consent'.

US exceptionalism, climate change, Paris Agreement The Republican case before the Lima/Paris CoPs, inter alia, was that since a CC agreement involves financial commitments and has domestic economic consequences, it would have to be submitted to the Senate, a course of action to which President Obama was not agreeable. While the meaning of this avoidance would be better appreciated by those more familiar with the US constitutional law and politics, it would seem that President Trump wants to keep this matter in his own hands.

The nature of the Paris Agreement

In their recent comments, a number of observers have been describing the Paris Agreement as a framework climate agreement. In fact just before the Paris CoP in December 2015 this description was used by some commentators with a view to wipe off the UNFCCC and its principles of CBDR (common but differentiated responsibilities) and Equity and attempt to start on a "new slate". We may note that President Obama approved the Paris Agreement within his powers rather than sending it to the Senate for advise and consent, unlike what was done in the 1990s for the UNFCCC. Further, ongoing negotiations under the Paris Agreement are on the consequent rules and regulations, most of which will clearly be in continuation of and based upon equivalent Convention rules and regulations, in terms of the Paris decisions of December 2015. The Paris Agreement is thus clearly under the UNFCCC, especially its Principles.

Suggested leadership role for India

Rather than harp on President Trump's beliefs about CC, we should point out that the 'stock and not flow of Carbon-dioxide (CO2)' is the basic cause of CC, to highlight ineqitability of what the US has done. This is so because global warming aka CC is due to the stock and not annual flow of CO2, wherein the cumulative shares of the US, EU, China and India are roughly 25, 22, 10 and 4 percent, something that ties up with their present global GDP shares — fossil fuel usage, energy generation and GDP obviously being interrelated. For the Indian leadership to commit to enhanced climate mitigation actions would mean agreeing to an unfair burden on fellow Indians, where almost two-thirds of households do not have combined access to electricity, commercial cooking energy, piped water and sanitation. In addition, to expect India and China to now pick up the US slack in GHG emissions, besides being patently unfair, may not even be technically possible. Reaffirming India's commitment to the environment and CC is the right thing to do and this has already been done at the highest political level. Leadership in the climate context in the foreseeable future must be taken by those countries who have the highest level of historical responsibilities. India should play its own lead role, say in solar and other non-fossil energy generation and various adaptation actions, but without being stampeded into a role mandating an equality between it and non-US developed countries just because of the US withdrawal.

For the Indian leadership to commit to enhanced climate mitigation actions would mean agreeing to an unfair burden on fellow Indians, where almost two-thirds of households do not have combined access to electricity, commercial cooking energy, piped water and sanitation.

Geopolitical dimensions of US withdrawal

Mahatma Gandhi used to say that the path was as important as the goal or that the means to achieve any aim were as important as the aim itself. We therefore need to keep in mind the Gandhian precept about the 'path' versus the 'goal' when deciding upon what India should do now. Despite what has widely been suggested, we should not eagerly rush into any new alliances as a reaction against the US announcement. To begin with, some of the developed countries, like France and Germany, which have been suggested for such climate alliances are far more tightly bound in their regional alliances, like the EU, which have held widely different positions on CC than India. Other developed countries like Japan, Canada and Australia have much stronger security and/or trade relationships with the US than that of a possible new climate understanding with India. We need support and cooperation from the US, especially in the energy sector. It is also time for India to concentrate more on its coal sector, and cleaner coal in particular. In fact, India's climate policy itself allows for more coal usage, especially cleaner coal. We should let the Indian coal sector be driven by the market and not force the sector to review their business goals and face an existential threat just on climate considerations post-US withdrawal. One can even now align very positively with the cleaner coal agenda of the US and collaborate with the US extensively while simultaneously expressing the right sentiments such as 'Planet First', 'Save the Climate' and so on. The intractable Intellectual Property Rights (IPR) problem, a key weakness of the Paris Agreement, can perhaps be resolved only through bilateral cooperation with the US. While we need not embrace the US position, we need to position ourselves as a global sustainability leader, extensively supporting cleaner energy, including coal. In a few days, the long anticipated meeting between Prime Minister Narendra Modi and President Trump could give a clue regarding the bilateral dimensions of Indo-American collaboration in the energy and environment sectors, both related to the CC matrix. The climate related outcomes of the G20 Summit in July 2017 under the German Presidency would also be keenly watched, especially on how developed and developing countries finally stand out against the US, which may not be the same as their initial reactions against President Trump's announcement of 1 June. Perhaps the picture will be clear only at Climate Conference in Bonn in November this year. It would therefore be quite premature to even talk of India further enhancing its NDCs or taking a lead role in CC mitigation actions or entering into alliances with other medium sized countries, irrespective of their developed/developing status, without further clarity on the global response to the US plans for their withdrawal from the Paris Agreement or for renegotiating it.

Indian imperatives

The right thing to do now is to stick to our Declaration language while ratifying the Paris Agreement. India's Declaration attached to its Ratification Instrument is as follows:

"The Government of India declares its understanding that, as per its national laws; keeping in view its development agenda, particularly the eradication of poverty and provision of basic needs for all its citizens, coupled with its commitment to following the low carbon path to progress, and on the assumption of unencumbered availability of cleaner sources of energy and technologies and financial resources from around the world; and based on a fair and ambitious assessment of global commitment to combating climate change, it is ratifying the Paris Agreement."

The Indian ethos, vision and commitment in regards to CC have been clearly enunciated in its NDC and the Declaration. It would be best to stick to these and ignore post-Trump announcement pulls and pushes, whether international or domestic.
The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.


J. M. Mauskar

J. M. Mauskar

Spending more than 34 years as a Public Servant as an officer of the Indian Administrative Service he has had ’hands on’ experience of International ...

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Robert Budnitz

Robert Budnitz

Robert Budnitz Lawrence Berkeley National Laboratory

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