Author: Rahul Mohanty is a doctoral researcher at the University of Melbourne, focusing on International Climate Law and Governance. Prior to starting his PhD, he was an academic in the field of public international law with over four years of teaching and research experience, and worked as an Assistant Professor at Jindal Global Law School (JGLS), O.P. Jindal Global University, India and at NALSAR University of Law, India. His doctoral research focuses on issues of fairness in international climate governance.

The advisory opinion of the International Court of Justice on obligations of states on climate change, delivered last year, had been a landmark in many ways, rejecting a narrow, siloed approach and clarifying the wide range of sources from which obligations concerning climate change can arise. This has generated a lot of discussions, including its on their implications for various fields of international law.

As the home of the world’s largest population, one which is still developing and needs economic development to provide decent standard of living to its people, it is interesting to examine what the ICJ’s advisory opinion means to India, and how can it operationalise it. As I had noted before, India had made some rather noteworthy submissions before the ICJ in this case. One of the more puzzling aspects of its submissions was that India had essentially against applying general international law principles like prevention of transboundary environmental harm to climate change and implicitly favoured a lex specialis approach by restricting the obligations only to the climate treaties. This approach, which was also favoured by most developed countries, has been rejected by the ICJ, which has read the obligations under the climate treaties along with obligations under broader international law, including customary international law, international human rights law, international environmental law and other treaties.

This is not necessarily an undesirable outcome for India, especially since many of the ICJ’s observations are favourable for developing countries like India. For example, the Court has read in customary international law obligations like the due diligence principle, and duty to cooperate in the context of climate change. However, the way the court has applied it takes into account the principle of common but differentiated responsibility and respective capabilities, which India has favoured. For example, the court has noted that in applying the stringent due diligence standards, the states must “take all the means at its disposal to protect the climate system in accordance with its capabilities and available resources” (para 291), and developed countries must take more demanding measures. Similarly, the duty to cooperate has been explained by the court in following terms: “The duty to co-operate is founded on the recognition of the interdependence of States, requiring more than the transfer of finance or technology, in particular efforts by States to continuously develop, maintain and implement a collective climate policy that is based on an equitable distribution of burdens and in accordance with the principle of common but differentiated responsibilities and respective capabilities.” (para 306). This formulation also implicitly sees transfer of finance or technology as a facet of duty of cooperation (though the duty goes beyond that as well). This is similar to India’s position, which has long argued for transfer of technology and climate finance to better fulfil climate goals.

In this context, India would be well-advised to take measures to operationalise the ICJ’s advisory opinion. This may require India to take several policy and regulatory measures. First, the Indian approach of separating environmental issues and climate change issues, and relegating climate change issues to few policies like its National Action Plan on Climate Change would have to change. This would mean integrating climate related planning and assessment into its environmental laws as well. For example, presently India’s environmental impact assessment (EIA) mostly considers harm to the local environment, like forests and wildlife. However, increasingly there is an argument to also include assessment of impact of projects on climate systems within the EIA and the environmental clearance project. This may be necessary to meet the obligations concerning due diligence and prevention of transboundary harm arising from climate change. Similarly, a review of India’s environmental legislations and regulators, including the pollution control boards and the National Green Tribunal may be necessary, from the perspective of empowering them to also tackle relevant climate change mitigation related issues.

Second, as I have noted elsewhere, India’s recently NDC, though technically a progression over its previous NDC, does not represent its ‘highest possible ambition’, as required by the ICJ. Even considering India’s status as a developing country, India’s new NDC for 2031-35 are relatively modest, and does not reflect its growing capacities and aspirations. A higher mitigation ambition, supported by relevant policies, would not only help India comply with international legal obligations under the Paris Agreement, but also help in its own economic development goals, by diversifying its energy sources and better competing in the global clean technologies market.

Third, ICJ’s advisory opinion has also emphasis on the aspect of human rights and its linkages to climate change. This also parallels India’s Supreme Court’s decision in MK Ranjitsinh, where the Supreme Court articulated a right against adverse impacts of climate change. This is particularly relevant in the context of adaptation related action. India would need to proactively plan adaptation measures at a nationwide scale, and not wait for full impact of climate change to hit, to minimise its human rights impacts. This also means ensuring that India’s energy transition is also ‘just’. This would mean that the climate action, such as creating carbon sinks by undertaking afforestation, or investing in new renewable energy projects must also address issues like human rights of people who may be affected, especially forest dwellers and promote community participation so that the most marginalised and vulnerable peoples are not left behind.

Fourth, India should also leverage the ICJ’s advisory opinion at a diplomatic level to push for greater climate finance and technology transfer from developed countries. It can also use the ICJ’s articulation of the duty to cooperate to pushback against unilateralist policies of other countries and blocs (say EU’s CBAM) that complicate India’s efforts at mitigation without giving anything in return. However, at domestic level, it should consider reviewing its policies to make its regulations suitable for attracting and dealing with issues arising from the influx of climate finance.

Finally, as the above discussion shows, at various levels India needs to review and update its laws and policies to better meet the demands of climate change. This may require the government to review the need for a national level climate change related legislation, like what many other countries have done. These measures will help India fully operationalise and utilise the ICJ’s advisory opinion on climate change positively.