Summary: In this article, the author critically examines the recent advisory opinion of the International Court of Justice on state obligations concerning climate change, unpacking its doctrinal foundations and normative ambitions. The piece analyses how the Court interprets principles such as due diligence, customary international law, and Common but Differentiated Responsibilities, while situating the opinion within Third World Approaches to International Law (TWAIL).
State liabilities and individual accountability of states has always been an issue of disputation, especially, with the developed v. developing nations debate. However, international courtrooms have lately been taking cognizance of the same. The recent advisory opinion on state obligations and duties relating to climate change, issued in July this year by the International Court of Justice [hereinafter “ICJ”], often called the World court, has garnered much attention. After sustained efforts by many small island nations and others, the UN General Assembly submitted its formal two pronged request in 2023 for an advisory opinion on the state obligations concerning climate change. This marked the end of a long drawn campaign by the Pacific Island Students Fighting Climate Change [PISFCC], who had sought legal clarity on climate obligations when faced with the existential threat of sea level rise. In delivering its unanimous advisory in 2025, the ICJ gave a crisp ruling leaving little wiggle room for ambiguity in obligations.
This piece, first, intends to objectively read into the world court’s opinion, second, trace its implications for a country like India and, last, discuss if the advisory has broken significant new ground or is it infected with loopholes.
Unpacking the landmark opinion
Through a historic ruling, the ICJ has come up as a staunch advocate for contemporary and urgent climate action calling climate change an “urgent and existential” threat. The court relied on an array of international instruments, including various climate treaties like the Kyoto Protocol, Paris Agreement, UNFCCC, and various rounds of COP’S etc. The Paris agreement in 2015 aimed at maintaining the global levels of warming below 2 degrees Celsius however, the ICJ revisited the document from a contemporary lense and confirmed that the primary goal under the 2015 agreement is to limit global levels under 1.5 degrees as a primary objective. Further, the ICJ highlighted the duties of due diligence and collective responsibility embraced by all. However, from a Third World Approach to International Law [hereinafter “TWAIL”], these international obligations carry the imprint of colonial continuities. The doctrines of ‘due diligence’ and ‘international cooperation’ emerged from a Eurocentric international order, historically designed to discipline and “civilize” non-European societies rather than empower them. The ICJ’s invocation of customary law and ‘collective responsibility’ thus, risks overlooking the asymmetrical history of law making itself, where the global south, including India, inherited environmental and economic structures rooted in colonial extraction. The same colonial economies that privileged raw material export and fossil dependency now become grounds for imposing new ‘duties’ of restraint.
Moving on, in response to the states’ argument that climate treaties constituted a lex specialis precluding the application of general international law, the world court remarked that the climate action plans of each nation or the Nationally determined contributions [hereinafter “NDCs”] are not at the states’ sole and complete discretion. Rather, parties must exercise due diligence in fulfilling their climate obligations and in preventing harmful human interference with the climate. This language of equality often conceals structural hierarchies. By framing climate change as a universal problem requiring equal diligence, the ICJ inadvertently holds developing states responsible under norms they did not shape. This echoes B.S. Chimni’s insight that international law continues to act as the governance arm of global capitalism, transforming postcolonial interdependence into dependence.
Furthermore, International Customary Law was brought into limelight which lies at the core of the UN Charter through principles such as the duty to cooperate and prevent significant and scathing harm to the environment through embracing and indulging in collective action. International instruments of climate change are not self-contained regimes or treaties and customary laws which give birth to the duty to safeguard should be respected in the fight against global climate ruination.
The principle of Common but Differentiated Responsibilities and Respective Capabilities [hereinafter “CBDR–RC”] was first outlined in the United Nations Framework Convention on Climate Change [hereinafter “UNFCCC”]. The principle originated when the UNFCCC divided countries into two groups based on their level of development and over time, this led to tensions between the already rich and currently emerging nations, shedding light on the principle of equity laid down in the UNFCCC which provided that countries must consider the equity between them as a basis of consideration and in accordance with their CBDR–RC in order to protect against global climate change. The ICJ in its recent advisory has laid great emphasis on the abovementioned principle and its role in interpretation of international climate obligations of states, building up to its comment on the developed v. developing nations debate, stating that the status of a nation as a developed or a developing nation is not permanent but ever evolving thus, the climate obligations should be assessed keeping in mind the contemporary circumstances, with the developed nations bearing a heavier responsibility due to a past burden of emissions and greater pool of current resources. Now, this observation of the status of a nation being fluid in terms of developed or developing, is compelling, however, it risks flattening historical accountability. From a TWAIL lens, this ‘dynamic equity’ can easily become a moving target, allowing wealthier nations to dilute their long-standing obligations while discipling poorer nations through global scrutiny. Besides, this interpretation by the ICJ positions developing states as moral saviors, developing nations as culpable polluters, and vulnerable populations as helpless victims, echoing Makau Matua’s “Savages, Victims, and Saviors” metaphor in human rights law.
Lastly, the ICJ emphasized upon the interdependence of environment and human well-being, highlighting the individual responsibility of states in failing compliance to their climatical promises and liability for anthropogenic greenhouse gas emissions. The court affirmed that states cannot meet their preexisting human rights obligations without working towards their environmental duties, since the foundational rights to a healthy human life lie in a clean and sustainable environment alongside safe air, water, food and housing. The ICJ President, Honorable Judge Yuji Iwasawa, further underscored that failing to comply by your international environmental obligations is equivalent to committing an internationally wrongful act with potential legal consequences for states. The court clarified that the nations should fulfil their breached obligations and promise to provide full reparations to injured states, given that a direct causal link can be established to the harm under the rules of state responsibility.
How does this impact India?
From an Indian perspective, climate change and matters related to it seem to be of secondary importance and not of any imminent threat as it is much too preoccupied lifting its citizens out of poverty, dealing with communal tensions, maintaining a stable political landscape and providing access to basic requirements and needs of the nation. However, despite these impediments, there are overarching reasons why India should actively engage with its climate obligations. Historically, in the developed v. developing nations debate, India is seen as a relatively smaller contributor to carbon emissions and a new player in the game thus, should not be asked to head the fleet. Regardless, India has been tackling climate change with a multibranched approach campaigning schemes like Panchamrit, Net Zero by 2070, Lifestyle for Environment Movement [LiFE], Green Hydrogen Mission etc. along with co–founding the International Solar Alliance [ISA] with France in 2015, thus, demonstrating an effort to localize climate governance rather than merely emulating western models.
From a TWAIL perspective, this is a form of postcolonial legal creativity, reclaiming agency within a global legal order that often marginalizes southern epistemologies.
The world court’s advisory while just being an opinion and not legally binding on states, has the potential for a greater effect on how states operate to reinforce international norms and individual obligations relating to climate action and protection. This will help developing nations to hold major emitters accountable and will be a push for collective and planned action. Further, the court emphasized upon climate finance, technological transfer and resource sharing by the developed countries thus, the ruling acts as a pressurizing mechanism for countries like India to demand their fair share in the war against climate change. Furthermore, this will aid in climate related litigation plaguing many developing nations due to allegations of insufficient action and violations of human rights such as the Ridhima Pandey case before the Indian Supreme Court. The case was filed in 2017, by a child climate activist before the National Green Tribunal seeking stronger climate action from the government, based on domestic and international obligations. The plaintiff argues for greater governmental intervention, not just for people today but for the future generations and similar is advocated by the ICJ in its advisory opinion that nations have a duty to protect the planet both for current and future humans. The advisory acts as an international guiding instrument for national governments and courts to formulate standards and laws to check compliance and curate stronger climate rules.
Despite being a developing nation, India is a significant contributor to greenhouse gas emissions thus, the world court’s advisory may lead to an increased international scrutiny into its emissions and also, could create a greater pressure to accelerate efficient climatic action.
Has the advisory broken significant new ground or does it remain constrained by notable limitations?
While the advisory is a welcome step in the international climate regime, especially in light of the United States’s withdrawal from the Paris Agreement, the questions it raises is whether the advisory has broken significant new ground when it comes to the climate regime of the world and the interpretation of previous climate treaties and norms. The advisory provides clarity on the objective obligations of states, but it still treats them as duties to be performed rather than outcomes to be ensured. The interpretation of the Paris Agreement is one already adopted by the Global North, there is sufficient room for commitments and obligations to be increasingly stringent, specifically, ensuring compliance and review mechanisms for the NDCs. However, specific jurisdictional courts would have to be identified, and each case could be adjudged on individual merits.
A plausible mechanism to address these systemic limitations through a structural recalibration of the global climate architecture can be the Dual Carbon Mandate Framework [DCMF], a modernized interpretation of the CBDR–RC. This approach converts developmental emissions into transitional allowances for sustainable growth rather than permanent exemptions, by allotting developmental carbon quotas to developing nations based on their poverty indices, energy gaps, infrastructural needs et cetera, while progressively investing in renewable energy. Parallelly, a global climate equity ledger could be maintained and administered under the UNFCCC which publicly tracks each nation’s carbon performance, finance contributions and technology transfers.
To take stock, at best, the ruling is appreciated for reiterating the climatical obligations of states and its importance especially when the developed nations are increasingly reluctant of fulfilling their share in the climate action. The advisory opinion does provide some teeth and value to the claims of the developing nations, however, in no way does it break any ground or bring novelty to the table. Though the normative momentum can be amplified by establishment of a Climate Responsibility Index [CRI] which annually evaluates and ranks states on their compliance with targets, coupled with a Climate Credit Swap [CCS] could be introduced, allowing developed nations to fulfil their part of their emission obligations by directly funding verified green infrastructure and adaptation projects in developing states, hereby transforming carbon markets into instruments of distributive justice.
The fault lines existing in the advisory opinion are two-fold, first, a Double dilemma for the developing states between the insufficient carbon space needed for eradication of poverty, sustainable development etc. and low carbon development that requires technology and monetary support which is out of reach, second, the existing lack of accountability of developed states weakens the equity that the ICJ seeks to reinforce. Thus, climate governance must transition into soft exhortation to actionable justice. At a domestic level, India could institutionalize a Climate Justice and Accountability Act [CJAA], modelled after the United Kingdom’s Climate Change Act but expanded to include carbon justice budgets, a climate commission, transitions funds et cetera.
A promising solution to a healthy and sustainable future is an open international economic ecosystem with mutual sharing, exchange and cooperation from the developed countries to the deprived ones and the principle of equity, due diligence, the CBDR–RC, provide for no new obligations binding or pressuring such exchange but rather just provide for an emphasized focus and a room for novel interpretations. These reforms, though ambitious, resonate with the ICJ’s spirit of collective responsibility and due diligence, transforming its advisory opinion from an interpretative exercise into a blueprint for a more equitable and enforceable climate regime.
Conclusion
Even if not legally binding or introducing any new obligations, the ICJ’s advisory opinion on Climate Change sheds a new light on the contemporary climate regime of the world and the need for emphasized action and equitable duty. It will serve as an authoritative text on climatical obligations of states and the intrinsic relationship of the environment and human beings, for the future international instruments and treaties, including possible domestic litigation and determination of NDCs by the states. On the other hand, the ruling also highlights the limited steps that can be taken by international forums and how individual liability and compliance with climate objectives is the need of the hour. For postcolonial states including India, the true challenge lies in not merely complying but in rewriting the grammar of obligations itself, transforming international law from a regime of control to one of collaboration. The future of climate justice must, therefore, be co-authored.
