India’s submissions before the ICJ’s climate change advisory opinion – Indian Blog of International Law

Rahul Mohanty

Background

The ongoing hearings before the International Court of Justice (ICJ) in the advisory opinion on states’ obligations regarding climate change have allowed states to clarify their legal positions outside of negotiating fora. This also comes when we approach the first global stocktake, examining the progress toward Paris Agreement goals, which has been too slow and inadequate. The ongoing climate negotiations also have entered the slow lane, with issues like climate finance reigniting a North-South debate.

India is in a unique position in the area of climate change actions. India remains a low-income developing country with a per capita income much below that of other emerging economies. It needs much affordable energy to improve its human development standards. At the same time, it is Earth’s most populated country, which ranks it among the top carbon emitters in absolute terms despite its low per capita emissions. This is further complicated by additional factors like its history of colonialism and extraction, regional and social inequalities, its vulnerability to climate change due to geographical factors, etc. These should be considered while understanding India’s submissions before the ICJ.

The primary question before the ICJ is what the obligations of states under international law are concerning the protection of the climate system and, by implication, the sources of such obligations and their consequences. Where ICJ situates the states’ obligations concerning climate change would significantly affect its final findings, especially on issues like human rights, historic responsibility, and reparations.

India’s Written and Oral Submissions

In its written submissions dated 21 March 2024 and in its oral arguments on 5^th December 2024, India argued that states have an obligation to prevent transboundary environmental harm, which also includes obligations of due diligence and prevention. However, it argued that there is a difference between environmental pollution and climate change, and the latter cannot be dealt with under the rules of transboundary environmental harm but under the regime of climate treaties (para 17, Written Submissions, para 10, Oral Arguments).

India focused on climate treaties (para 19-35, Written Submissions). It emphasized the principle of common but differentiated responsibilities (CBDR) and the obligation of the developed countries to take the lead and support developing countries in implementing their climate obligations (paras 37-42, Written Submissions, para 12-16, Oral Arguments).

India also emphasized climate justice and equitable access to the global climate budget. Highlighting the developing countries’ right to development, it argued that the total climate budget should be calculated regarding total emissions since the pre-industrial period and allocated between countries, considering the principle of CBDR and their respective historical emissions. In other words, developed countries must compensate developing countries for their historically disproportionate use of the carbon budget (paras 43-47, 61-63, and 77, Written Submissions, paras 18 and 34, Oral Arguments). It particularly highlighted the obligations of the developed countries with respect to climate finance, technology transfer and capacity development (paras 49-60, Written Submissions, paras 21-26, Oral Arguments).

India acknowledged the various resolutions of the Human Rights Council, linking human rights with climate change. Still, it cautioned that a balance must be struck between promoting climate policies and safeguarding individual human rights (para 77-79, Written Submissions). However, India did not elaborate on its stance on why it thinks there is a trade-off between climate action and the protection of human rights when most human rights bodies have recognized the protection of human rights would require climate action.

India also highlighted that despite its population, India contributed about 4% to global cumulative emissions between 1850 and 2017, and even today, its per capita emissions remain less than half the global average (para 96, Written Submissions). Nevertheless, India also highlighted its various voluntary climate actions.

Reflections on India’s Submissions

India’s arguments are puzzling in several aspects. First, India’s position on ‘heat’ and ‘CO₂’ not being environmental pollutants and not covered under transboundary harm is similar to the arguments made by the developed countries it seeks to hold responsible, such as the US and UK. This is also contrary to the statements made by the proponents of the advisory opinion, like Vanuatu, which has argued that ‘environment’ includes ‘climate system,’ and indeed, harm to the climate system is the most serious form of transboundary environmental harm, and is prohibited under customary international law. Similar argument was also taken by India in the ITLOS advisory opinion on climate change, where it argued that the troika of UNFCCC, Kyoto Protocol and Paris Agreement (which has CBDR-RC as  their cornerstone, as per India) provide a sui generis mechanism to deal with climate change, and therefore constitutes the applicable lex specialis on climate change issues (paras 16-17). India’s other arguments before ITLOS were also similar, highlighting CBDR-RC, historical responsibility, need for developed countries to help developing countries in implementation and providing equitable carbon space to developing countries. However, this position, which situates climate obligations solely under the post-1990s climate treaties, could undermine India arguments on the global carbon budget and holding developed countries responsible for historical emissions.

While India’s distinction between environmental pollutants and greenhouse gases is consistent with its domestic legislation on pollution, recent Indian jurisprudence has started considering climate change as part of its environmental obligations. For example, the Supreme Court of India in MK Ranjitsinh has recently recognized that “this right [against the adverse effects of climate change] and the right to a clean environment are two sides of the same coin….Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realized”. 

It is also interesting to note that India has been carefully silent on its own position while noting the various decisions and instruments linking climate change with human rights. This is despite the decisions of the Indian Judiciary acknowledging the link between human rights and climate change. It has cautioned that implementing climate-related policies should not impinge on the rights of individuals, particularly the most vulnerable. This hints at the allegations of greenwashing and human rights infringements being leveled at some renewable energy and green transition projects in different parts of the world.

It is also noteworthy that India has been silent on the question of customary international law on climate change, having not even those words once. It is also notable that while emphasizing the obligations of developed countries, India has also argued that the question of attributability does not arise in the case of climate change, and a different approach is needed.

These indicate that despite its rhetoric on historical responsibility, India has not used it as a legal argument. Instead, India is looking to use the provisions of the climate treaties to fix the obligations of developed countries, particularly those relating to climate finance. While this may be a diplomatically sensible strategy, it is difficult to maintain. 

(Rahul Mohanty is an Assistant Professor at the Jindal Global Law School.)