Global Transitions 5 (2023) 217e224

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Global Transitions
journal homepage: www.keaipublishing.com/en/journals/global-transitions/

International investments and environmental protection in India -

Policy and implementation gaps in mitigating the carbon footprints
Nisha Yadav*, Fincy Pallissery
Christ (Deemed to be University), School of Law (NCR), Delhi NCR Campus, Ghaziabad, India

a r t i c l e i n f o a b s t r a c t

Article history: Introduction: While India's contribution and progress on environment protection has been applauded by
Received 8 February 2023 global leaders, India continues to be one of the biggest carbon and greenhouse gas (GHG) emitter
Received in revised form globally. Major sectors responsible for carbon emissions are also the major sectors attracting interna-
20 September 2023
tional investments. This paper intends review such investments and examine their impact on
Accepted 25 October 2023
environment.
Available online 23 November 2023
Methodology: A comprehensive review of the existing literature to identify the prevailing laws and
policies that apply to corporations to meeting environmental standards was undertaken. In addition,
extensive search was undertaken on the internet for reports and database that monitor corporate
behavior and report about their disclosures and efforts on addressing environmental concerns. A review
of the investment agreements signed, adopted and in-force in India was also undertaken to understand if
they meet the standards of environmental protection. Data collection was done between July 2022 to
June 2023.
Findings: The Constitution of India stipulates protection and improvement of public and environmental
health of the country. Several laws and policies have been adopted to meet this constitutional standard in
India, including The National Action Plan on Climate Change (NAPCC). The 17 SDGs have direct and in-
direct linkages and impact on the environment. It is evident that all international investment agreements
up to 2017 have no mention of environment exemption clause nor incorporates the GATT Article XX
exceptions. However, the recent IIAs do mention environment as exception to expropriation. It is also
seen that investments by big corporations have been responsible for huge deforestation, water pollution,
and fossil fuel globally and most of them have their footprints in India and continue to contribute to the
countries carbon footprint. India's commitment to renewable and non-conventional energy is the silver
lining to meeting the SDG goals and the net zero emission targets. Meeting ESG standards and its dis-
closures by regulatory body is another positive step towards environmental protection from interna-
tional investments.
Conclusion: The biggest global contributors to GHG and carbon emissions have their presence in India
and thus contribute to the overall carbon foot print of India. All international investments must be
required to comply with the legal and policy regulations on public health and environment protection. In
this regard, corporations should be mandated to follow ESG standards to meet the SDGs objectives.
© 2023 The Authors. Publishing services by Elsevier B.V. on behalf of KeAi Communications Co. Ltd. This
is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/
4.0/).

* Corresponding author. Christ (Deemed to be University) School of Law (NCR)

Delhi NCR Campus, Nandgram Rd, Marium Nagar, Sewa Nagar, Ghaziabad, Uttar
Pradesh 201003, India.
E-mail addresses: nisha.yadav@res.christuniversity.in, advocatenishayadav@
gmail.com (N. Yadav).
Production and Hosting by Elsevier on behalf of KeAi
1. Introduction
India is one of the fastest developing economy and ranked as
10th top economies in the world. With increasing ease of business,
ranked 63rd in 2019e20, India, as the 2nd largest global market, is
attracting more foreign investors and investments in the recent
years [1]. However, it is important that such investment is used for
sustainable development and in line with the accepted goals and to

https://doi.org/10.1016/j.glt.2023.10.001
2589-7918/© 2023 The Authors. Publishing services by Elsevier B.V. on behalf of KeAi Communications Co. Ltd. This is an open access article under the CC BY-NC-ND license
(http://creativecommons.org/licenses/by-nc-nd/4.0/).
N. Yadav and F. Pallissery
meet the targets sets for UNSDGs 2030. In September 2015, post the
finish line to meet the Millennium Development Goals, the General
Assembly adopted the 2030 a 17-point agenda for Sustainable
Development that includes 17 Goals defined in a list of 169 SDG
Targets and the progress towards these Targets is agreed to be
tracked by 232 unique Indicators. Some of the Goals have direct
bearing on environment while other have indirect impacts [2].
These global goals balance the environmental, social, and economic
dimensions of development. Therefore, environment protection
cannot be seen in isolation from development, society, and gover-
nance, it is at the core of the SDGs [3].
These global goals, according to Mr Narendra Modi, the Prime
Minister of India, “reflect our evolving understanding of the social,
economic and environmental linkages that define our lives.” [4].
The underline principles of the SDGs, as outlined by Mr Anto  nio
Guterres, the Secretary General of the UN, “require member states
to address the social, economic and environmental dimensions of
sustainable development in a balanced manner. Their imple-
mentation must embody the principles of inclusiveness, integration
and ‘leaving no one behind.” [4] Government of India designated its
premier think tank, Niti Ayog, to coordinate the SDGs with various
stakeholders for planning and progress to achieve the goals. A
mapping of all centrally sponsored welfare schemes for SDGs and
responsibility of respective ministries puts the Ministry of Envi-
ronment, Forest and Climate Change (MoEF&CC) as a key agency to
meet the SDGs [5]. India's contribution and progress in achieving
the SDGs has been applauded by global leader and its commitment
to environment protection is also well recognised. The United Na-
tions' highest environmental honour, the ‘UNEP Champions of the
Earth’ award was conferred to Prime Minister of India for his
leadership of the International Solar Alliance as well as his pledge
to eliminate all single-use plastic in India by 2022 [6].
However, India continues to be one of the biggest carbon and
greenhouse gas (GHG) emitter globally and was ranked 4th in 2018
contributing to 6.5 % of the global emissions [7]. The overall per
capita CO2 emission from fossil fuels and industry doubled in last 15
years from about 1 ton in 2005 to 2 tons in 2021 resulting in about
2.7 billion ton annual emission in 2021, which is 7.3 % of the global
CO2 emissions. In 2021, nearly 900 million tons of CO2 equivalent
methane was also emitted [8]. In terms of global greenhouse gases,
carbon dioxide is the largest contributor, accounting for around
three-quarters (74.4 %) of total emissions and India is the 3rd
largest emitter after China and the United States. Methane con-
tributes 17.3 % and India is 2nd largest emitter after China; nitrous
oxide, 6.2 % and here too, India is the 2nd largest emitter after
China; and other emissions (HFCs, CFCs, SF6) contribute 2.1 % [9].
Sector wise, emissions in India in 2019 were highest from elec-
tricity and heat (1.24 billion t) followed by agriculture (720 million
t), manufacturing and construction (580 million t), transport (316
million t), industry (169 million t), buildings (160 million t), waste
(84 million t) and other fuel combustion (70 million t) [8].
According to a 2017 report, Coal India was the biggest emitter of
CO2 and topped the list of 100 businesses with the highest CO2
emission. Three other Indian companies on the top 100 emitters
were NTPC Ltd, Oil & Natural Gas Corporation (ONGC) and the
Reliance Industries [10]. Other Indian multinationals that are
responsible for high levels of GHG emissions globally are Indian Oil
Corporation (IOC), Tata Steel, Steel Authority of India Limited (SAIL),
Adani Power. However, major Indian multinational corporations
are internalizing decarbonization goals to achieve carbon neutrality
by 2050. These include, Mahindra & Mahindra, Aditya Birla Group,
JSW Group, Adani Transmission, Vedanta, and Dalmia Cement.
Reliance Industries plan to achieve net zero by 2035. These cor-
porations are also eager and aggressive to reach the carbon
neutrality goals taking advantage of the lower interest rates under
218
Global Transitions 5 (2023) 217e224
sustainability-linked loans in their expansion plans [11].
Among the major sectors attracting international investments in
India several are also the key sectors responsible for carbon emis-
sions e.g. transport, manufacturing, construction, mining etc. [12]
In view of the environmental burden of international investments,
there is a need for such investments to be screened and only those
meeting the environmental, social and governance (ESG) standards,
which are in line with the SDG objectives, are allowed in the
country. To this effect, Government of India revised its obligations
under international trade and investment treaty and agreements by
terminating most of the existing treaties and entering upon new
agreements using the new model treaty text that allows greater
flexibilities to the host country to implement and enforce measure
for environmental and public health protection [13]. The new
regime not only protect measures taken in public interest or public
purpose objectives such as public health, safety and the environ-
ment from the ambit of expropriation, but also allow subject ex-
perts to assist any arbitration proceedings in case of investor state
disputes under such treaties.(Art 5,12,25,32 of the Model Treaty)
Achieving the SDGs is also linked to the countries progress
including in health and environment. Heat wave, floods, draughts
have become more common while malaria, malnutrition, and
diarrhoea remain major public health problem due to climate
change globally and in India. Globally, eight crore job losses will
happen due to heat stress by 2030 and India alone is likely to ac-
count for 3.4 crore job losses during this time putting 4.5 % of the
national GDP at risk [14]. While India attracts international in-
vestment, it is still lacking in achieving its SDGs. According to a
report by the Centre for Science and Environment, India slipped
three ranks in meeting its SDG targets, from 117 in 2021 to 120 in
2022. This was primarily because of major challenges in 11 SDGs
including zero hunger, good health and wellbeing, gender equality
and sustainable cities and communities, it further lacked in build-
ing resilient infrastructure, promoting inclusive and sustainable
industrialisation and fostering innovation in the previous year [15].
This paper documents the developments in international in-
vestment related obligations of India and presents the current
domestic and international legal frameworks for the same in rela-
tion to SDGs and environment protection. This review intends to
highlight the need for such investments to meet the objectives of
environment protection and thus contribute to sustainable
development.
2. Method
A comprehensive review of the existing literature to identify the
prevailing laws and policies that apply to corporations to meeting
environmental standards was undertaken(legal texts available at
India code database: https://www.indiacode.nic.in). In addition,
extensive search was undertaken on the internet for reports and
database that monitor corporate behavior and report about their
disclosures and efforts on addressing environment concerns. Car-
bon Disclosure Project (CDP) database (available at: https://www.
cdp.net/en) was reviewed and used to analyze such corporate
disclosures. We reviewed the SDG-2030 and specifically related to
environment and also analyzed how corporate investments are
contributing to environmental concerns and climate change (in-
formation available at Our World in Data at https://ourworldindata.
org/). A review of the investment agreements, constitutional and
legal provisions, policies and reports have been undertaken. In
particular, the investment agreements signed, adopted and in-force
in India have been reviewed and analyzed for this purpose (Treaty
text available in the UNCTAD repository at: https://
investmentpolicy.unctad.org/international-investment-
agreements/countries/96/india). The paper also examines the
N. Yadav and F. Pallissery
foreign investment of the largest MNCs affecting various aspects of
environment while looking at their presence and impact in India.
Data collection was done between July 2022 to June 2023.
3. Results
3.1. Legal and policy framework for protection of environment
The Constitution of India is the primary source of all legislation
and environment protection is no exception to this norm. Article
51A (7) of the Constitution imposes a duty on every citizen, “to
protect and improve the natural environment including forests, lakes,
rivers, wildlife and to have compassion for living creatures. [16]”
Further, the Directive Principles of State Policy (Part I, Art. 48A) of
the Constitution also directs that “the state shall endeavour to pro-
tect and improve the environment and to safeguard the forests and
wild life of the country.” [16] In addition to the Constitution of India,
there is a wide array of laws, regulations, rules, notifications and
bye-laws, together constituting the legal framework for environ-
ment protection in India (See Supplement Files-Table-S2). Besides
these polices, Government of India also introduced The National
Action Plan on Climate Change (NAPCC) in 2008 as a national
strategy to adapt to climate change and enhance the ecological
sustainability of India's development path. There are eight “Na-
tional Missions” that form the core of the National Action Plan [17].
In addition, countries and thereby corporates responsibilities
with respect to environmental protection is further substantiated
by the international obligations under the various environment
protection treaties. Starting from the Ramsar Convention to protect
the wetlands to the present time 26th session of the Conference of
Parties under the United Nations Framework Convention on
Climate Change in Glasgow in December 2021 require countries to
take action for protecting the environment and meet the set targets
under these treaties (See Supplement Files-Table-S3).
3.2. Sustainable development goals and environment
Environmental threats created by natural calamities not only
contribute to impoverishment of the affected population but also
have indirect effect to the nation as a whole (Goal-1). Similarly,
food security for the masses depend on sustainable productive
agriculture which will help in meeting the zero hunger goal (Goal-
2). Education on environment protection and responsibility to the
country and to the world at large at global citizen is also key to
meet the goals of Education and Environment (Goal-4). Women
empowerment to protect environment is also crucial (Goal-5).
Affordable, clean and renewable energy is one of the key
commitment under the global environmental treaties to protect
the environment (Goal-7). Discrimination and unequal distribu-
tion of resources further burdens the environment and needs to be
addressed by affirmative action in this regard (Goal-10). Emphasis
on the rule of law is key to meet environmental protection goals.
All laws related to environment protection must be applied with
just, fair and equitable principles (Goal-16). Cooperation among
government, non-government and think tanks and experts on the
matter is also important to achieve the environment goals (Goal-
17). Besides these goals that have been dealt by other ministries
and departments, all other goals are directly monitored and
executed by the MoEF&CC with various schemes to support
advancement on the set targets under the respective goals (See
Table S1).
The 17 SDGs have direct and indirect linkages and impact on the
environment. The welfare schemes of the Government of India
related to each SDGs are, therefore, also linked to environment
protection (See Table S1). The Ministry of Environment, Forest and
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Global Transitions 5 (2023) 217e224
Climate Change (MoEF&CC), Government of India is the key agency
to ensure implementation of these schemes [5].
3.3. International investment agreements of India
The Indian economy took a major transformation in the 1990's
[18] including various economic reforms and alignment to the rules
and regulations under the framework of the World Trade Organi-
zation [19]. This resulted in globalization and opened up the Indian
product and financial markets to foreign investors. India had
negotiated a series of regional, multilateral and bilateral agree-
ments that reached to about 42 free trade agreements by 2015 and
84 investment agreements by 2018 [20].
The increased impetus to international investment riding on the
liberalization policy adversely impacted the health and environ-
ment of the country. With globalisation of the tobacco industry and
entry of foreign brands, number of cigarette smokers in India
increased from 75 million in 1980 [21] to about 120 million in 2015
[22]. A closer look of globalisation of tobacco investments suggests
increased access to new markets by tobacco multinationals and
thereby increased smoking in LMICs [23] with a result that 80 % of
the global smokers live in LMICs and 70 % of all smoking related
deaths occur in these countries [24]. Similarly, in case of environ-
ments, the per capita energy consumption and CO2 emissions have
also increased in the post-reform period and liberalization-backed
GDP growth has had an adverse environmental impact on the In-
dian economy [25,26]. Examples range from the huge allegations of
corruption and no environmental impact assessment of the Enron
project in Maharashtra to P&O Ports UK's proposal to build port in
Vadhavan, the biologically richest part of Dahanu's coast. The port
was sited in a location that was rich in marine and terrestrial
biodiversity, which supported some 2 million people in the region
[27].
However, given the results in various disputes and changing
geo-political scenarios, in the recent years the Government of India
has moved to reassessing its commitments under these treaties and
decided to terminate majority of the investment agreements. As of
March 2022, India is party to 11 investment agreements that are in
force while two are signed and yet to get into force (Table 1).
While the earlier IIAs had no mention of health or environment
as an available recourse for the host countries to take preventive
measures, the post 2015 regime for BITs also missed this important
aspect. All agreements up to 2017 do not have any mention of
environment protection as part of the BITs in force. The 2013 BIT
with UAE, which is fourth biggest foreign investor country for India,
has no mention of environment exemption clause nor incorporates
the Article XX exceptions. However, the other remaining three BITs
in force (i.e. with Belarus, Columbia and ITA & TECC) mention
environment as exception to expropriation, Belarus and Columbia
also mention the GATT Article XX exceptions while ITA and TECC
and Belarus mention environment, sustainable development in
Preamble and CSR components of the BITs. The yet to be in force
agreements with Brazil have mention in expropriation, GATT
Article XX exception and also in its Preamble while Kyrgyzstan BIT
have it in GATT Article XX exception and in the CSR clause. It is clear
that not all agreements have strong provisions for environmental
safeguards and in absence of which, foreign investors may not feel
obligated taking necessary measures for environmental protection.
3.4. Deforestation
Investments by big corporations have been responsible for huge
deforestation globally and India is not an exception to this. IIAs are
one of the vehicles used by such corporations for investments in the
host countries. Table 2 provides a glimpse to the biggest
N. Yadav and F. Pallissery Global Transitions 5 (2023) 217e224

Table 1
Current international investment agreements of India.

Sl# Parties to the Agreement Status Environment exemption for host country

Expropriation Article XX Other

1 India-Israel BIT (1996) In force No No No

2 India - Philippines BIT (2000) In force No No No
3 India - Libya BIT (2007) In force No No No
4 India - Senegal BIT (2008) In force No No No
5 India - Latvia BIT (2010) In force No No No
6 India - Lithuania BIT (2011) In force No No No
7 India - United Arab Emirates BIT (2013) In force No No No
8 India - Bangladesh BIT (2017) In force No No No
9 ITA and TECC BIT (2018) In force Yes No Preamble and CSR
10 India - Belarus BIT (2018) In force Yes Yes Preamble and CSR
11 India - Colombia BIT (2018) In force Yes Yes
12 India - Kyrgyzstan BIT (2019) Signed (not in force) No Yes CSR
13 India - Brazil BIT (2020) Signed (not in force) Yes Yes Preamble

Table 2 3.6. Fossil fuel

Major companies responsible for deforestation globally.

SL# Company Country Presence In India According to the Carbon Majors Report of 2017, more than half of
1 Cargill USA Yes
the industrial emissions contributing to climate change can be
2 BlackRock USA Yes traced to just 25 corporate and state fossil fuel producers (Table 3)
3 Wilmar International Ltd. Singapore Yes [34]. Fossil fuels are the largest source of greenhouse gas (GHG)
4 Walmart USA Yes emissions in the world. These emissions have doubled in 28 years
5 JBS Brazil Yes
when compared with pre-1988 to the beginning of the industrial
6 IKEA Sweden Yes
7 Korindo Group PT Indonesia No revolution and accounted for 91 % of global industrial GHGs in 2015
8 Yakult Honsha Co. Ltd Japan Yes [34]. Except for the state owned Chinese companies all other top
9 Starbucks USA Yes emitters are also investors in India and are responsible for a large
10 McDonald's USA Yes burden of carbon footprint in the country. While the biggest being
11 Yum! Brands USA Yes
12 Procter & Gamble (P&G) USA Yes
government owned Coal India Limited. According to a 2019 Report
13 Ahold Delhaize Netherlands No by Climate Accountability, additional four countries are added to
this list of biggest 20 emitters of global GHG (Table 3) [35].
The Carbon Majors Report in 2017 estimated, if the fossil fuel
contributors to deforestation globally and whether they have a companies continue with business as usual like they have been
footprint in India. doing in the last three decades, the global temperature is estimated
11 out of top 13 companies responsible for global deforestation to rise by up to four Degree Celsius and cause extinction of several
have investments in India [28]. Four major commodities d beef, species while endangering the global food production and supply
palm oil, soy, and pulp and paper d are responsible for more than [36,37].
half of the global agricultural deforestation [29]. Several multina-
tional corporations into FMCG business have investments in India 3.7. The silver lining
and have no policy against deforestation, some Indian corporations
too lack such policy including Amul, Bhartiya International Ltd, Although several of the big global investors and the corporations
Emami Ltd., Future Group, Patanjali Ayurved and Suguna Foods have little respect for the environmental concerns while focused on
[30]. making business profitable, there are several others who do comply
with and disclose their efforts and initiatives on environment
protection. The Carbon Majors Database, a report published by the
3.5. Water pollution Carbon Disclosure Project (CDP), throws light on the role com-
panies and investors can play in tackling climate change. According
According to Carbon Disclosure Project Global Water Report to the database more than 13,000 companies provided information
2020, global water use, storage and distribution e and the lack of on environmental issues such as climate change, water security and
wastewater treatment - contributes 10 % of global greenhouse gas deforestation (See Figure-I below).
(GHG) emissions. It observes that only 4.4 % of businesses are In 2012 only 100 companies gave this disclosure on deforesta-
reporting progress against water pollution reduction targets [31]. tion, 345 on water security and 4112 on climate change. This
While companies like L'Oreal, Unilever taking bold action to enable number increased to 864, 3368 and 13,126 respectively in 2021
water security several others are failing in this goal. Agriculture, [38]. However, out of these more than 13,000 corporations, only
fashion, energy, meat and beverage industries leave the largest about 299 companies have been rated ‘A’ for leading the way to a
water foot print besides construction, mining and automobile in- net-zero, nature positive and equitable future [38]. Out of 340 In-
dustry. All these companies have large investments in India [32]. dian companies in the CDP disclosure database, only five Indian
In the past three years, the Central Ground Water Authority companies are on A list for climate change, four on water security
(CGWA) has allowed 144 companies, both MNCs and home-grown, and none on deforestation. This essentially indicates that more
to extract groundwater for free and sell it to us at a high premium. than 330 Indian companies on this list are not future ready [38].
Of these, however, only 24 companies are discharging their basic However, the good news is that, renewable energy plays a sig-
obligations of recharging the aquifers and recycling the waste- nificant role in providing energy services in a sustainable manner
water that is produced in the bottling process [33]. and, in particular, in mitigating climate change [39]. The global
220
N. Yadav and F. Pallissery Global Transitions 5 (2023) 217e224

Table 3
Biggest emitters of greenhouse gases globally in 2017.

Rank Company Country Presence in India

1 China (Coal) China e

2 Saudi Aramco Saudi Arabia Yes
3 Gazprom Russia Yes
4 National Iranian Oil Company Iran Yes
5 ExxonMobil United States Yes
6 Coal India India Yes
7 Pemex Mexico Yes
8 Russia (Coal) Russia Yes
9 Royal Dutch Shell Netherlands and United Kingdom Yes
10 China National Petroleum Corporation China e
11 BP United Kingdom Yes
12 Chevron Corporation United States Yes
13 PDVSA Venezuela Yes
14 Abu Dhabi National Oil Company United Arab Emirates Yes
15 Poland (Coal) Poland Yes
16 Peabody Energy United States Yes
17 Sonatrach Algeria Yes
18 Kuwait Petroleum Corporation Kuwait Yes
19 Total SA France Yes
20 BHP Australia and United Kingdom Yes
Biggest emitters of greenhouse gases globally in 2019
21 Chevron United States yes
22 ConocoPhillips United States e
23 Iraq National Oil Co. Iraq e
24 Petrobras Brazil e

Figure-I. Corporate disclosures on climate change, water security and deforestation..

investment in renewable energy, especially the foreign investment
for the same in India has been a silver lining in governmental
commitment to environmental protection in India. Government of
India permits 100 % FDI in renewable energy sector and in last two
decades the non-conventional energy sector has received an in-
vestment of about USD 14.12 billion [40]. Enercon (Germany),
Vestas (Denmark), Applied Materials (US), Asian Development
Bank, Enel (Italy), Gamesa (Spain), Orix (Japan), Nordex (Germany)
and Mudajaya (Malaysia) has been the leading foreign investors in
this sector, with the top investing countries being Singapore,
Mauritius, the Netherlands, and Japan [41]. India has also become a
major producer of wind turbines and now is among the top five
countries in terms of installation [39]. India is also leading the In-
ternational Solar Alliance while increasing its installed capacity in
solar energy. Japan, India and Australia have the major installations
accounting for 96.4 % of total capacity in the Asia-Pacific region
[42].
Overall, India has also excelled the pace of reducing GHG
emissions, which has reduced 33 % in last 14 years and the rate of
reduction that was 1.5 % in the previous 11 years was 3 % during
2016e2019 [43].
4. Environmental, social and governance (ESG) disclosure
Environmental, Social and Governance (ESG) disclosure is a
public reporting requirement for an organization about its perfor-
mance on ESG issues. This helps in assessing and sharing the efforts
undertaken by such organisations towards sustainability and
transparency in managing the environmental, social, and gover-
nance risks due to their various actions. As a result, several stock
exchanges, regulatory bodies, and other government agencies have
mandated ESG-related reporting for the benefit of stakeholders
including investors, customers, employees, regulators, and supply
chain partners [44].
To meet the standards of sustainability, On May 10, 2021, the
Securities and Exchange Board of India (SEBI) introduced the new
environment, social, and governance (ESG) reporting requirements
for the top 1000 listed companies by market capitalization. Cor-
porations are required to submit the Business Responsibility and
Sustainability Report (BRSR) as per the new ESG guidelines which
will become mandatory for the top 1000 listed companies from
financial year 2023e24 [45].
Majority of the international investments also occur in these top
listed companies of the country and therefore, a compliance with
the ESG norms by corporations will also insure that the

221
N. Yadav and F. Pallissery
international investments are contributing to and not in conflict
with the sustainable development goals. It may be considered to
add that ESG norms as a mandatory compliance under the inter-
national investment agreements entered by India to protect is
environment and sustainable goals.
5. Discussion
It is evident that environment protection is key to all SDGs and is
so reflected in the policies and programmes of the Government of
India, especially that of MoEF&CC with regard to meeting the
respective SDG objectives. Remarkable progress is reported in
achieving SDG 12,13,15 goals by MoEF&CC which has not only
simplified the process for granting of Environmental Clearances,
but also implementing city forest scheme to significantly enhance
the tree outside forests. While the Ministry is working towards
protecting the biodiversity and wetlands, it has also notified the
Plastic Waste Management Amendment Rules prohibiting identi-
fied single use plastic by 2022 and making ten beaches conferred
with prestigious Blue Flag certification [46].
India is also committed to protecting its glaciers, making the
railways green, action on single-use plastics, increasing production
of clean and renewable energy and reach to the goal of ‘net zero
emissions’ by 2070 [47]. The 2022 IPCC report indicated towards
India's good progress on low emissions per capita. Efforts are made
for Carbon Capture, utilisation and Storage which will help to
remove CO2 before it enters atmosphere. Further, with the help of
Tata Energy Research Institute (TERI) the Ministry of Power is also
implementing Clean Development Mechanism that inter alia looks
at cost of CO2 monitoring and verification of CO2 emission reduc-
tion and supervision of project implementation [48].
While India has a plethora of legislation, regulations and policies
on environment protection (See Table-S2) the actual enforcement
and compliance with the legal and policy framework remains
limited. This is partly due to poor coordination among government
agencies, weak institutional capacity and enforcement mecha-
nisms, lack of access to proper information, corruption and illegal
practices, and stifled civic engagement and partly due to the lack of
use of technology and innovation, industry interference, conflicting
interest of development and environmental protection [49e51].
According to a 2020 report by the Yale Centre for Environmental
Law and Policy, “India has been ranked 169 in the 2020 Environment
Performance Index, which is better than Burundi and Haiti but lagging
from Ghana. [52,53] In its progress towards achieving SDGs India,
ranked at 120, is far behind from all its neighbours except Pakistan,
which stands at 129 while Bhutan (75), Sri Lanka (87), Nepal (96)
and Bangladesh 109 are way ahead [15]. While the.
The international investment treaties in the past only focused on
the national security and emergency while environment and health
did not find space on the negotiation tables. In the past, out of the
84 investment treaties, national security and emergency were the
key areas for creating exceptions. Several did not have any room for
action for protection of public health and environment [20]. Some
of the free trade agreements included measures for such protection
like the India South Korea Comprehensive Economic Partnership
Agreement [20]. Only the agreement with Kuwait recognised the
significance of public health and environment, the one with
Australia recognised measures for diseases or pests and the
agreements with Czech Republic and Germany for prevention of
diseases or pests in animal and plants [20].
However, the recent agreements, in line with the model
agreement of 2015 provide that non-discriminatory measures
taken to protect environment may not be considered expropriation.
This is included in post 2017 BITs with ITA and TECC, Belarus,
Columbia and Brazil (Table 2). It also included a general exception
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Global Transitions 5 (2023) 217e224
clause as under GATT Article XX (seen under BITs with Belarus,
Columbia, Kyrgyzstan and Brazil, Preamble (seen in BITs with ITA
and TECC, Belarus, and Brazil) and under the CSR clause (seen in
BITs with ITA and TECC, Belarus, and Kyrgyzstan) (Table 2) [13].
The Nigeria-Morocco BIT of 2016 require investors to comply
with the environmental impact assessment procedures mandated
under the laws of the host state. While such requirement is absent
in any of the Indian BIT with no direct and binding obligations on
such international investors [54]. The Draft Pan African Investment
Code of 2016 allows host state to initiate counter claim in case of
violations of environmental and human rights norms. Similar
provisions have been incorporated in the Colombia Model BIT, but
such clear provisions are missing in the Indian Model BIT and
treaties entered to by India [54]. Importing domestic legal obliga-
tions expressly into the new investment treaties like in the Nigeria-
Morocco BIT also aligns with the 2020 draft of the Legally Binding
Treaty being developed by the UN Working Group on Business and
Human Rights [55].
One of the core principles of investment policy making has been
to promote investment for inclusive growth and sustainable
development with a balanced approach towards rights and obli-
gations of States and investors, keeping in mind to address the
social and environmental challenges, in the interest of develop-
ment for all [56,57]. As the UNCTAD report on International In-
vestment in climate Change Mitigation and Adaptation suggests,
with the impending challenges of climate change and global and
national targets to meet the net zero emission levels, all interna-
tional investment agreements must now align with the Paris
Agreement and net-zero targets by promoting and facilitating in-
vestment into climate-related projects e such as renewable energy
ones e and limit or exclude coverage of high-carbon investments
[58]. It is encouraging to note that out of 108 international project
finance deals for India in 2021, majority was in renewable energy.
6. Conclusion
Government of India has prioritized environment protection
and climate change in its policy development and implementation.
In view of the revised policy stand of the Government, several
earlier international investment agreements have been terminated
and new agreements have been entered with environment pro-
tection as one of the key non-negotiable aspects of such treaties
especially under the post 2017 BITs. However, the new IIAs are
recent and have to withstand test of the time and scrutiny of the
arbitration panels as and when such disputes arise in due course.
The biggest global contributors to GHG and carbon emissions
have their presence in India and thus responsible for the hefty
national and global carbon foot print. All national and international
corporations must be mandated to strictly comply with the legal
and policy regulations on environment protection. It is important
that corporations respect the ESG standards to meet the SDGs ob-
jectives which can be included as a legally binding provision under
the IIAs.
7. Recommendations
In view of the above we make the following submissions for
consideration of the Government of India to meet its international
obligations under the UNSDGs, Multilateral Environment Agree-
ments, International Investment Agreements and domestic
constitutional and environmental obligations:
1. More investments, both domestic and international, should be
prioritized to meet the various targets under the UNSDGs.
N. Yadav and F. Pallissery
2. All IIAs to be negotiated and implemented keeping the envi-
ronmental and health obligations and UNSDGs in sight.
3. All investments to be evaluated for their impact on the envi-
ronment and health not only during the negotiation but during
and after implementation of such agreements.
4. To meet the UNSDGs objectives require all IIAs and investments
therein to comply with the ESG standards as a legally binding
obligation.
5. Need to strengthen enforcement of the legal, constitutional and
environmental protection norms to advance overall compliance
with UNSDGs.
6. Considering the multi-stakeholder impact of both IIAs and the
environment protection, a whole of government approach in
meeting the UNSDGs is imperative.
Declaration of competing interest
Authors have no conflict of interest to Declare as this work is
part of the PhD work being undertaken by Ms Nisha Yadav, PhD
Candidate under the guidance of Dr Fincy Pallissery.
Appendix A. Supplementary data
Supplementary data to this article can be found online at
https://doi.org/10.1016/j.glt.2023.10.001.
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