📰 Beating plastic pollution: On Plastic Waste Management Amendment Rules
Serious implementation of new plastic waste rules can address the problem of waste
•The Plastic Waste Management Amendment Rules notified by the Centre on August 12 acknowledge the gravity of pollution caused by plastic articles of everyday use, particularly those that have no utility beyond a few minutes or hours. Under the new rules, the manufacture, sale and use of some single-use goods made with plastic, polystyrene, and expanded polystyrene, such as earbuds, plates, cups, glasses, cutlery, wrapping and packing films, are prohibited from July 1 next year, while others such as carry bags must be at least 75 microns thick from September 30, 2021, and 120 microns from December 31 next year, compared to 50 microns at present. The decisions follow recommendations made by an expert group constituted by the Department of Chemicals and Petrochemicals two years ago. In 2018, India won praise globally for asserting on World Environment Day that it would eliminate all single-use plastic by 2022, a theme that Prime Minister Narendra Modi has stressed more than once. Yet, policy coherence to achieve the goal has been lacking. The Central Pollution Control Board has reported that 22 States have, in the past, announced a ban on single-use plastic, but this has had little impact on the crisis of waste choking wetlands and waterways and being transported to the oceans to turn into microplastic.
•At about 34 lakh tonnes generated in 2019-20, India has a staggering annual volume of plastic waste, of which only about 60% is recycled. What is more, a recent study of the top 100 global producers of polymers that culminate in plastic waste found six of them based in India. It is unsurprising, therefore, that in spite of the staggering problem, policymakers have been treading on eggshells. The international view is changing, however, and support for a UN Plastic Treaty is growing; the majority of G7 countries too are supportive of cleaning up the oceans through a charter in the interests of human wellbeing and environmental integrity. India’s policies on environmental regulation are discordant, lofty on intent but feeble on outcomes, and plastic waste is no different. State governments have felt no compulsion to replace municipal contracts, where companies are paid for haulage of mixed waste, with terms that require segregation and accounting of materials. Considerable amounts of plastic waste cannot be recycled because of lack of segregation, leading to incineration, while mixing newer types of compostable plastic will confound the problem. Patchy regulation has led to prohibited plastic moving across State borders. Now that the Centre has adopted a broad ban, further pollution must end. Microplastic is already found in the food chain, and governments must act responsibly to stop the scourge.
Equitable cumulative emission targets and not net zero is the key to achieving the Paris Agreement’s temperature goals
•The recent report of the Intergovernmental Panel on Climate Change (IPCC), the Working Group I contribution to the Sixth Assessment Report (AR6), titled ‘Climate Change 2021: The Physical Science Basis’, is the first of four that the Panel will issue over the next one and a half years. The reports are eagerly awaited as they provide a summary assessment of all aspects of the challenge of global warming and past reports have heralded significant shifts in climate policy. This particular report has added significance as it is the only one of the four of AR6 to be ready before the 26th Conference of the Parties (COP26) of the UN Framework Convention on Climate Change to be held in Glasgow in November.
Findings of the report
•A significant section of the report reinforces what is already well known, though, importantly, with updated numbers, higher accuracy and specific regional assessments, including South Asia. Global surface temperature is now higher by 1.07oC since the pre-industrial era. The impact of climate change on the atmosphere, oceans and land is unmistakably of human origin and this impact is picking up pace. It is a striking fact that there is no part of the inhabited world that is now untouched by the impact of global warming. Carbon dioxide is the dominant source of warming. Aerosols contribute to reducing the impact of warming by other greenhouse gases, by almost a third. Methane reduction, while needed overall, is particularly significant only as part of the endgame as the drastic reduction of aerosols actually leads to an increase in warming.
•A major scientific advance in this report is the use of multiple lines of evidence (through precise technical methods) to pin down the values and trends of key climatic variables more accurately, and narrow their range of uncertainties. Climate predictions from models appear to be working better in many specific ways due to improved representation of basic processes and higher resolution, while the use of other evidence enables scientists to ensure that the modelling output is suitably filtered to match more closely the real world. Thus, the value of equilibrium climate sensitivity — the measure of how a specified increase in carbon dioxide concentration translates into long-term surface temperature rise — is now pinned down to the range of 2.5oC to 4.0oC, with a best estimate of 3oC, compared to the Fifth Assessment Report range of 1.5oC to 4.5oC. With the inclusion of the Indian Institute of Tropical Meteorology’s Earth System Model among the climate models used in AR6, India too has joined the climate modelling fraternity.
•The report expectedly projects an increase in climate extremes due to global warming, with heat waves, extreme rainfall events and occurrence of extreme sea levels all expected to intensify and be more frequent. Coincidentally, the IPCC session for the approval and release of the report was held in the background of news of unprecedented disasters from the global North, including massive forest fires, unprecedented rain and flooding, and record heat.
Restrict cumulative emissions
•A major finding of the report is that air pollution reduction and steep climate change mitigation are not complementary goals but require independent efforts over the short and medium term. This is particularly important as the claims of such a linkage have been used to argue that India, for instance, must cease the use of coal immediately, despite its continuing importance as the key element of the country’s energy security.
•The truly disconcerting news though, for the global North, is the report’s clear message that reaching net zero was not the determining factor for the world to limit itself to a 1.5oC , or 2oC, or indeed any specific temperature increase. The report is clear that it is the cumulative emissions in reaching net zero that determine the temperature rise. This obvious conclusion from past reports and scientific literature had become something of a casualty in the massive campaign mounted on net zero by the developed countries with the partisan support of the United Nations Secretary General and UN agencies.
•India’s Ministry for Environment, Forest and Climate Change was quick to note this point about net zero in a statement, adding that “historical cumulative emissions are the cause of the climate crisis that the world faces today.” It also noted that the “developed countries had usurped far more than their fair share of the global carbon budget.” The limitations of the remaining carbon budget for 1.5oC are so stringent — a mere 500 billion tonnes of carbon dioxide for an even chance of keeping to the limit — that they cannot be met by promises of net zero 30 years from now. The report is indeed a “clarion call for developed countries to undertake immediate, deep emission cuts,” as the Union Environment Minister, Bhupender Yadav, tweeted, especially if they are not to deprive the rest of the world, barring China, of any hope of future development. Developed countries must, in fact, reach net zero well before 2050. That Alok Sarma, the COP26 President, is not unaware of all this is seen from the shift in his discourse, appealing to “keep 1.5oC alive”.
Little cheer for Global South
•However, the exposure of the misleading character of the net zero campaign can bring little cheer to the global South, for an equally disconcerting finding is that the world is set to cross the 1.5oC limit within 10-15 years. If deep emissions cuts by the three big emitters — the U.S., the European Union and China — are not forthcoming, even the prospect of a mild overshoot of the limit followed by a later decline is likely to be foregone. After years of procrastination in real action, the constant shifting of goal posts to avoid immediate emissions reduction, and marking time with their obsession with Article 6 negotiations to pass the burden on to developing countries, the developed countries now have nowhere to hide.
•Regrettably, India cannot save the world from the consequences of the neglect of those whose responsibility it was to lead in taking credible action. India has contributed less than 5% of global cumulative emissions to date, with per capita annual emissions a third of the global average. India is also the only nation among the G20 with commitments under the Paris Agreement that are even 2oC warming-compatible. India needs its development space urgently to cope with the future, one where global temperature increase may be closer to 2oC. With India’s annual emissions at 3 billion tonnes in carbon dioxide equivalent terms, even the impossible, such as the total cessation of emissions for the next 30 years, with others’ emissions remaining the same, will buy the world less than two years of additional time for meeting the Paris Agreement temperature goals. The prospect of keeping almost a sixth of humanity in quasi-permanent deprivation for the rest of the century as a consequence cannot even be contemplated.
•Focusing on definite cumulative emission targets keeping equity and historical responsibility in view, immediate emission reductions by the developed countries with phase-out dates for all fossil fuels, massive investment in new technologies and their deployment, and a serious push to the mobilisation of adequate climate finance is the need of the hour. This is the message that the IPCC report has sent to this year’s climate summit and the world.
📰 The big opportunity
A rising youth population in India can be a silver lining
•According to various international studies, the median age in India would be 28 years by 2022-23, in contrast to 37 in China and 45 in western Europe. This is not an ageist remark, but rather an enormous growth opportunity as India will have the highest number of people in the workforce. In other words, India’s non-working population would be outnumbered by the working population, leading to a favourable demographic dividend.
•Given the changing face of world economies over the past two years, it is important to juxtapose these statistics with the predicted challenges of a post-COVID world. As per an Organisation for Economic Co-operation and Development (OECD) study, the equivalent of five years or more of per capita income would likely be lost by the end of 2021.
•The World Bank notes that we would be witnessing deep global recessions fuelled by lowered investments, displacement of human capital owing to lost jobs and schooling, and a disintegration of global trade and supply chains.
Effects of climate change
•In addition to this, increased use of non-degradable plastics, bio-medical waste and impediments to ongoing climate repair programmes have further exacerbated climate change deterioration. The effects of an increased use of plastics during the pandemic (which would end up in oceans or landfills) would cost fisheries, tourism and maritime transport industries an additional $40 billion, according to a UN Environment Program report.
•Hence, COVID-19 is an ongoing challenge that is further aggravating bigger concerns like economic recession and climate change. For most countries, these two predicaments would be bigger than the pandemic.
•Despite the gloomy outlook, there is a silver lining for India. Let us circle back to the demographic dividend or the economic growth brought on by a change in the structure of a country’s population. This leads to an increase in the labour force and, in turn, more people are working and being productive. This accelerates urbanisation and the growth of industries. Also, as the purchasing power of the populace increases, it opens up a bigger domestic market (which is already sizeable in the case of India), thus attracting more investment and increasing opportunities. Taking these factors into account, the Centre for Economics and Business Research (CEBR) predicts that despite the pandemic, India will become the third largest economy in the world by 2030. Deutsche Bank cements this forecast with their own findings that India’s economy will grow to $7 trillion by 2030 (it is about $2 trillion now).
•The younger the population the more climate-conscious they are. This can simply be explained by younger generations seeing the real-time impact of climate change — from increasing natural disasters to lessening natural resources. This makes them more inclined to act towards a greener tomorrow. A UN report on climate change tells us that close to half a million youth around the world have taken (or are taking) action against climate change through initiatives at their homes, schools and communities.
•A decisive ‘Future of Work’ survey conducted by the Prince’s Trust and HSBC claims that 85% of India’s youth are interested in a green job as they believe that healing the environment is the only sustainable way forward. When we corroborate this with India’s performance on climate change mitigation (one of the top 10 countries to have made substantial efforts towards mitigating climate change), we can fully understand the clout of a younger demographic. The Climate Change Performance Index (CCPI), 2021, puts only two G20 (or Group of Twenty) countries — India and U.K. — in the top 10.
•India has been the first in many fields. Chess was invented here. It was even one of the first countries in the world to have embraced strong women leaders. India is often at the forefront of bringing about change. But to continue unhindered on the path of reaping the benefits of the demographic dividend, efforts will have to be made. Inequality is a pressing issue, with the divide between urban and rural India being just a few kilometres in distance but spanning a few centuries in time. COVID-19 and the subsequent lockdowns have further deepened this divide. While the Union government has rolled out various subsidies and employment schemes, dominance of the informal economy makes it difficult for all benefactors to reap the benefits.
•The need of the hour is for public–private partnership (PPP) models to work in conjunction to bridge the gap. Education and skilling are also key components in enhancing the capabilities of the growing young population and helping them realize their full potential. Moreover, labour-intensive sectors need to be better supported for further job creation.
•The rising young population provides India with a great opportunity for growth, peppered with the possibility of path-breaking innovation. To be able to best utilise this boom, policies must ensure that they comprehensively cover all aspects aimed at increasing human development and standards of living, and can reach the remotest corners of this fast-growing nation.
📰 Case for third party funding
Such funding can improve access to justice
•Third party funding in arbitration, or litigation funding, is a concept where an unrelated party to a dispute finances the legal cost of one of the parties. The speculative investor receives part of the damages owed or recovered by the financed party in exchange for the funding. This form of funding is widely used in commercial arbitration and various litigations around the world. It is believed that this form of financing improves access to justice by providing advance funding and support against a lengthy and expensive litigation process.
•Historically, this form of funding was prohibited under the doctrines of maintenance and champerty. Maintenance deals with assistance to maintain litigation by an unconnected third party by providing finance. Champerty, a form of maintenance, refers to paying litigation costs by a third party for the objective of attaining a share of the proceeds of litigation. The need for such prohibition can be ascertained from its background. Feudal lords in medieval England would often trouble their enemies by financing frivolous lawsuits and thereby burdening courts. Later on, such prohibition was justified in the name of protecting the purity of justice because there was fear that a third party could manipulate the litigation process.
Need of the hour
•However, the current era seems to shrug off such concerns because the need of the hour is to increase our access to justice. Hence, rules against maintenance and champerty have been relaxed in various jurisdictions, including England, the U.S., Canada and Australia. Relaxation of rules, however, should not be construed as doing away completely with the prohibition on maintenance and champerty. In cases where there is an element of impropriety, the arrangement still falls under the prohibited category of maintenance and champerty.
•In the context of India, interestingly, there was no bar on maintenance or champerty. Starting from the decisions of the privy council, it was stated that the prohibition on maintenance and champerty, which existed in England, was not applicable in India. However, many such arrangements where an advocate is a party are categorically precluded in view of Supreme Court decisions and the Bar Council of India rules. These arrangements would include ones where there is a personal interest of the advocate in the outcome of the dispute or agreements of contingency fees or the funding of litigation of their clients by an advocate. To sum it up, “non-lawyer third party funding” is lawfully admissible in India.
•Even in the context of advocates, there was the controversial 2019 decision given by the Bombay High Court in the Jayaswal Ashoka Infrastructures Pvt. Ltd. v Pansare Lawad case, where the court decided that a contingent fee agreement entered by an advocate to represent his client before an “arbitrator” was not void. Therefore, what flows is a difference in how law deals with an arrangement of contingency fees between an advocate and client before a court where it renders it impermissible, and an advocate and client before an arbitral tribunal where such an arrangement is valid. The readers must, however, be informed that the above mentioned decision has been appealed against, has not been followed by other courts and has been the subject of much criticism.
Litigation risks
•The practice of third party funding is widely prevalent in Europe and the U.S., and must become prevalent in India. This is not only because third party funding plays an instrumental role in opening access to the court system but also helps businesses manage their litigation risks in a better manner. This risk can be managed because the third party may conduct an additional analysis of the case, ensuring deeper assessment of its outcome.
•However, while advocating for the enhancement of access to justice, we must also ensure that there are amendments. One of the most heated debates about third party financing in international arbitration is the disclosure of this kind of funding and how funders operate behind the scenes. Current arbitration rules and national laws remain silent on the issue. We can take inspiration from the Hong Kong International Arbitration Centre’s rules, the proposed changes in the International Bar Association rules and other such organisations, which stipulate that when a funding agreement is concluded, the funded party must notify the other party, the arbitral tribunal or emergency arbitrator in writing of the fact that a financing agreement has been concluded, along with the identity of the third party sponsor.
•In India, third party funding may be in the form of payments or providing loans to a company in order to help them fund the dispute. It can be made attractive because it offers more time to settle the debt compared to traditional loans. In order to streamline the process in India, we are seeing the advent of organisations such as the Indian Association for Litigation Finance.
•Third party funding can definitely improve access to justice, but we must also ensure that scenarios like the ones that arose during the medieval period do not come up.
