Climate change and biodiversity treaties, the Biological Diversity Act and transboundary pollution

1. UNFCCC, 1992

The United Nations Framework Convention on Climate Change was opened for signature at Rio in 1992 and came into force in 1994. Its objective (Article 2) is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. It rests on common but differentiated responsibilities and respective capabilities: developed countries (Annex I) are to take the lead because they caused most of the historic emissions. The parties meet annually at the Conference of the Parties (COP). The Convention itself set no binding targets; that was left to a protocol.

2. The Kyoto Protocol, 1997

• Adopted at COP 3 in Kyoto in December 1997; in force from 16 February 2005, after Russia's ratification brought it past the required threshold. The United States never ratified it.
• It imposed legally binding emission reduction targets on developed countries (Annex B): an overall reduction of about 5% below 1990 levels in the first commitment period, 2008–2012. Developing countries, including India and China, had no binding targets.
• It covered six greenhouse gases: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride.
• Three flexible (market) mechanisms: emissions trading between Annex B parties; joint implementation (projects in another Annex B country); and the Clean Development Mechanism, under which a developed country could earn certified emission reductions by funding projects in developing countries. India hosted a large number of CDM projects.
• The Doha Amendment (2012) set a second period, 2013–2020. The Protocol has since been overtaken by the Paris Agreement.
• Criticism: no targets for large emerging emitters, non-participation of the United States, weak compliance, and the narrow coverage of the reductions.

3. The Paris Agreement, 2015

• Adopted at COP 21 in Paris in December 2015; in force from 4 November 2016. India ratified it on 2 October 2016.
• Goal (Article 2): hold the increase in global average temperature to well below 2°C above pre-industrial levels and pursue efforts to limit it to 1.5°C.
• Every party, developed and developing, submits a nationally determined contribution (NDC) every five years, each to be more ambitious than the last. The contributions are self-determined; the obligation to prepare and communicate them is binding, but achieving them is not.
• A transparency framework for reporting, a global stocktake every five years (the first concluded at COP 28 in 2023), provisions on adaptation, on loss and damage (Article 8), on finance from developed to developing countries, and on carbon markets (Article 6).
• India's updated NDC (2022) commits it to reduce the emissions intensity of its GDP by 45% from 2005 levels by 2030 and to have about 50% of installed electric power capacity from non-fossil sources by 2030; India has also announced a goal of net zero by 2070.

In 2025 the International Court of Justice gave an advisory opinion on the obligations of States in respect of climate change, treating those obligations as arising from the climate treaties and from general international law. In India the Supreme Court recognised a right against the adverse effects of climate change in M.K. Ranjitsinh v. Union of India, 2024 INSC 280, referring to India's Paris commitments.

The Montreal Protocol, 1987, under the Vienna Convention (1985) for the protection of the ozone layer, is often cited as the most successful environmental treaty; its Kigali Amendment (2016) phases down hydrofluorocarbons.

4. The Convention on Biological Diversity, 1992

Also opened at Rio; in force from 1993. Three objectives (Article 1): conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising from the use of genetic resources. It affirms the sovereign rights of States over their biological resources, requires prior informed consent for access to them, and recognises the knowledge of indigenous and local communities. Two protocols follow: the Cartagena Protocol on Biosafety (2000), on living modified organisms, and the Nagoya Protocol (2010) on access and benefit-sharing. The Kunming-Montreal Global Biodiversity Framework (2022) includes the target of conserving 30% of land and sea by 2030.

5. The Biological Diversity Act, 2002, as amended in 2023

India's implementing law. The Biological Diversity (Amendment) Act, 2023 came into force on 1 April 2024. Its structure is three-tier:

• National Biodiversity Authority (s.8), at Chennai. Under s.3, a foreigner, a non-resident Indian, or a body corporate not registered in India or with non-Indian participation in its share capital or management, needs the NBA's prior approval to obtain any biological resource occurring in India or associated knowledge for research, commercial utilisation or bio-survey. Results of research cannot be transferred abroad, and no intellectual property right based on Indian biological resources can be sought, without the required approval (ss.4 and 6).
• State Biodiversity Boards: under s.7 as substituted in 2023, Indian persons need only give prior intimation to the Board before accessing biological resources for commercial use. Codified traditional knowledge, cultivated medicinal plants and local people and communities, including growers and cultivators, are exempt.
• Biodiversity Management Committees (s.41) at the level of every local body, which maintain People's Biodiversity Registers and are consulted on access and benefit sharing.

The 2023 amendment decriminalised the main contraventions. Under the new s.55, breach of ss.3, 4, 6 or 7 attracts a penalty of not less than one lakh rupees, extending to fifty lakh rupees, or commensurate with the damage where that is greater, with an additional penalty up to one crore rupees for a continuing contravention, decided by an adjudicating officer under s.55A, with an appeal to the NGT within sixty days (s.55A(3) and (4)). Determinations of benefit sharing and orders of the NBA or a State Board are also appealable to the NGT (s.52A). Critics argued that the amendment eased access for the AYUSH and seed industries at the cost of benefit-sharing with communities.

6. Transboundary pollution

Pollution does not stop at borders: smoke from a smelter, a poisoned river, acid rain, an oil spill at sea, radioactive fallout, hazardous waste shipped abroad. The law:

• Trail Smelter arbitration (United States v. Canada, awards of 1938 and 1941). Sulphur dioxide from a smelter at Trail in British Columbia damaged crops and forests in the State of Washington. The tribunal held that no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another, when the case is of serious consequence and the injury is established by clear and convincing evidence. Canada was liable and the smelter was regulated.
• Corfu Channel (ICJ, 1949): every State's obligation not knowingly to allow its territory to be used for acts contrary to the rights of other States.
• Lac Lanoux arbitration (France v. Spain, 1957): an upstream State must consult and take into account the interests of the downstream State on a shared river.
• Stockholm Principle 21 and Rio Principle 2: sovereignty over resources with responsibility not to damage other States.
• The ICJ in Gabčíkovo-Nagymaros (1997) referred to sustainable development, and in Pulp Mills (Argentina v. Uruguay, 2010) treated environmental impact assessment of projects with transboundary risk as a requirement of general international law.
• Treaties: the Convention on Long-Range Transboundary Air Pollution (Geneva, 1979), born of acid rain in Europe; the Basel Convention (1989) on the control of transboundary movements of hazardous wastes and their disposal, implemented in India by the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016; the Rotterdam (1998) and Stockholm (2001) conventions on chemicals; and the two conventions adopted after Chernobyl (1986) on early notification of, and assistance in, nuclear accidents.

The Bhopal disaster raised the converse problem, a transnational corporation causing harm in a host country; the victims' suits in the United States were dismissed on the ground of forum non conveniens, sending the claims back to Indian courts.

How this is examined

June 2025 set “Kyoto Protocol” as a short note; August 2024 asked for a note on transboundary pollution; February 2025 asked for the role of international conventions in the development of environmental law. For Kyoto, give adoption and entry into force, Annex B targets, the six gases, the three mechanisms and the criticism, ending with Paris. For transboundary pollution, Trail Smelter with its holding, Principle 21, and the Basel Convention are the minimum.