In rushing to embrace the U.S. proposal to amend the Montreal Protocol on ozone depletion, New Delhi has neither helped multilateral efforts to tackle climate change nor ensured that the appliances industry gets access to viable alternative refrigerants

It is 1994, and less than a year to Assembly elections in Bihar. The Indian economy is on the mend but the benefits of liberalisation are yet to reach semi-urban and rural areas. Standing in the way of government efforts to boost consumer spending is a little known international treaty called the Montreal Protocol. The Protocol requires India — which ratified it in 1992 — to control and phase out the use of chlorofluorocarbons and halons, which are considered Ozone Depleting Substances (ODS). As a developing country, India has been offered a 10-year window to abide by its commitments to the Protocol.

‘Refrigerator or tiger?’

Reining in CFCs could possibly dent the consumer goods market in India: they are used as refrigerants in automobiles, electronic appliances, plastics and pharmaceuticals, among other applications. Of particular concern is the market for refrigerators, which has witnessed an unprecedented boom. Having acceded to the Protocol, the government has no option but to hard-sell it to the public. Maneka Gandhi — who as Environment Minister negotiated India’s entry into the Protocol — opts for a novel approach to the issue at an election rally in Bihar, in a constituency located near a tiger reserve. Ms. Gandhi — she would recall to the late political scientist Holly Sims — spins the story of “The Lady, or the Tiger” around to ask the crowd: “Do you want a refrigerator, or a tiger?”

Its impact on India’s consumer-driven growth notwithstanding, the Montreal Protocol was a much-needed instrument that addressed ozone depletion. The well-being of tigers is not directly linked to the decreasing volume of ozone in the atmosphere — but by comparing refrigerators to endangered animals, Ms. Gandhi simply sought to relate the importance of the treaty to laypersons.

This year, the Montreal Protocol is back in the spotlight. The United States and other developed countries are leading an effort to bring hydrofluorocarbons (HFCs) within the ambit of the treaty. India, which has scrupulously adhered to its original commitments under the Protocol, is being arm-twisted into agreement. Cutting down on HFCs will deprive Indian industry of the only viable alternative to CFCs. Despite its potential impact on the economy, in an election season, the United Progressive Alliance has made no effort to convince the public why it is tagging along with the proposal.

The reasons are fairly clear: India’s negotiating position has not been borne out of some sense of responsibility to the environment. It has its genesis in Prime Minister Manmohan Singh’s promise to U.S. President Barack Obama — made both at the G20 meeting at St. Petersburg and during his visit to the White House in September 2013 — that New Delhi will not object to the West’s initiative.

The Montreal Protocol was negotiated in the aftermath of a stunning discovery by British scientists of a giant hole in the ozone layer over Antarctica. This discovery in 1985 lent urgency to treaty deliberations. The Protocol owes its success to a sharply defined objective — to stem further ozone depletion. To this end, the treaty identifies the class and category of halons and CFCs that need to be regulated.

The West’s current proposal to sweep HFCs under the Montreal Protocol runs contrary to established principles of international law. In fact, it defeats the very purpose of the Protocol. HFCs do not harm the ozone layer. However, they contribute substantially to greenhouse gas emissions and thus, climate change. Since HFCs gained currency as an alternative to CFCs and other ozone-depleting substances, the West has argued, they too should be regulated under the Protocol. A treaty may have unintended consequences, but to amend it to tackle them all is neither feasible nor desirable. If it is found that conventional warfare has been on the rise on account of the absolute ban on nuclear weapons, should the Nuclear Non-Proliferation Treaty be amended to impose limits on defence budgets of countries?

Bringing HFCs under the Montreal Protocol, some have argued, serves the larger goal of tackling climate change. But regulating the only commercially viable alternative to ODS is likely to encourage non-compliance from the Protocol. In any event, history suggests the West’s proposal is not solely driven by noble intentions.

In return for its consent, India has been promised financial and technical assistance to phase out HFCs. The U.S. offered exactly the same carrot when the Protocol was negotiated two decades ago. Although a Multilateral Fund was set up to provide support for developing countries, its quantum was subject to much dispute. While India sought $1 billion for the Fund, the West offered merely $240 million in the interim period between 1991-93, with additional pledges to follow. As of 2010, $2.7 billion had been pledged. Here is a figure to put that amount in perspective: the refrigerator market in India alone is valued at $1.8 billion.

While negotiating the Protocol, India was sceptical about claims of technology transfer, so the Environment Ministry sought to make it “mandatory.” Alternative technology was concentrated in the hands of private players in the West, India argued, and the treaty had to compel them into sharing it with developing countries. Industrialised nations, as the then chief U.S. negotiator Richard Benedick recalls in his memoir Ozone Diplomacy, saw this demand as “environmental blackmail.” The “mandatory transfer” provision failed to materialise after China softened its stance. India was projected as a holdout to the Protocol, which increased pressure on the government to ratify it.

The result? Companies like DuPont — which influenced the U.S. position on the Protocol — and Daikin made windfall profits by tapping into emerging markets with their patented substitutes to CFCs. Similarly, western companies stand to gain most if HFCs are to be phased out under the Protocol. The U.S. holds most of the patents for alternative hydrocarbon and magnetic refrigerants. These technologies, which have not seen wide commercial usage in developing countries, could be prohibitively expensive.

Meanwhile, India has once again been called out for “stalling” the proposal to amend the Protocol. The Hindu has reported how, at the Bangkok conference to review the working of the Protocol recently, the Indian delegation objected to the setting up of a “contact group” on HFCs. The Ministry of Environment and Forests is keen to address HFCs within the U.N. Framework Convention on Climate Change. But setting a target to reduce HFCs under the Framework will lead to similar demands for other greenhouse gases, something the U.S. steadfastly opposes. HFCs are potent compounds but their contribution to climate change is currently minuscule compared to that of CO2 emissions. Tweaking the Montreal Protocol not only frees the U.S. from any commitment on other greenhouse gas emissions, but also works to favour its companies.

Phasing down HFCs

The Ministry has been thrown under the bus after the Prime Minister agreed — during his U.S. visit — to set up an Indo-U.S. Task Force to discuss “phasing down” HFCs under the Protocol. India’s negotiating position at climate talks have, regrettably, been held hostage to the Prime Minister’s foreign policy legacy.

If the Montreal Protocol is amended to include HFCs within its scope, India and other developing countries have no option but to import expensive and largely untested technology from the West. The government has proposed to allow for compulsory licensing to make it accessible to domestic players. Two wrongs, however, do not make a right. For starters, New Delhi will find it difficult to justify granting compulsory licences — regarded as an emergency measure — for green technology under the TRIPS regime. Second, compulsory licences are only going to serve the interests of big Indian companies which have the wherewithal to manufacture alternative refrigerants cheaply and on an industrial scale.

India’s accession to the Montreal Protocol offers a few lessons for this government. While it negotiated the terms of the Protocol during the late 1980s, it did not join as an original signatory. India adopted a negotiation strategy aimed at securing financial assistance in addition to a “grace period” to phase out CFCs. With the wisdom of hindsight it is clear that developed countries are not going to pay for the damage they have caused to the ozone layer. This does not dilute the imperative of tackling climate change — rather than rushing to embrace the U.S. position on the Montreal Protocol, India should stick to its original demand to address all greenhouse gas emissions through the UNFCC. At the U.N. climate talks, India’s commitment to stringent emission norms must doubtless be coupled with a legally binding assurance of technology transfer.

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