By agreeing to a legally binding agreement without knowing its scope, nature and content, India and developing countries are likely to lose much more than gain. A legally binding agreement must not only ensure ambitious mitigation by developed countries but also have specific and realizable gains in terms of finance and technology, assurances against unilateral actions and facilitate access to technology-related intellectual property rights (IPRs). There are no indications available that this is going to happen in the near future.
A legally binding agreement without these assurances will lead into a trap of binding commitments where no corresponding benefits occur either to the developing country concerned or for the global community as a whole. This will leave the possibility open to the developed countries to renounce their commitments, when a suitable opportunity arises, on the ground of lack of ratification of the instrument by their political authorities or lack of ambition. The conduct of some of the developed country parties under the Convention and its Kyoto Protocol provides a strong evidence of this possibility.
It is presumptuous to believe that India’s willingness to get into a legally binding agreement will automatically ensure an agreement on equitable arrangements for the post 2020 period. India fought hard at Durban to get the option of ‘agreed outcome with legal force’ inserted in the Durban Platform document precisely in order to secure an agreement on the principles and the substance before an agreement is reached on the form of outcomes. An essential pre-condition for a successful legally binding agreement is for the principle of equity and CBDR to be clearly spelt out in its structure.