India's Legal Maneuvering: Indus Water Treaty and Pakistan's Diplomatic Dilemma
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The Hindu
15 hours ago
- The Hindu
What did the ICJ opinion state on climate obligations?
The advisory opinion of the International Court of Justice (ICJ) on the obligations of countries to reduce anthropogenic greenhouse gas emissions, and the legal consequences of the harm occasioned by their failure to meet these obligations, on July 23 has been the subject of much discussion. While it is a welcome affirmation of the multilateral climate regime at a time when the U.S appears to have damaged it through its withdrawal from the Paris Agreement, it also raises questions on, inter alia, its interpretation of the temperature goals of the Paris Agreement and its occlusion of the development imperatives of the global South. How has it upheld the case for the global South? The ICJ's opinion has several elements that the global South, including India, should be able to welcome. First, the Court has emphasised the significance of the totality of the climate regime, including the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement. This is in sharp contrast to the view of developed countries that have argued for sidelining the Convention and dismissing the Protocol, stating that the Paris Agreement had become the sole binding instrument of the multilateral climate regime. Across several paragraphs in its opinion, the Court has set out how the obligations of countries, especially those of developed nations, flow from various articles of the UNFCCC, particularly the provision of extending climate finance, technology transfer and capacity building to developing countries by developed nations. In underlining the foundational role of the UNFCCC, the Court has also reiterated the significance of the Convention's Annex-I and Annex-II, noting that the developed countries listed therein will continue to have additional obligations compared to the rest of the world. This is a firm rebuff, not only to the governments of the global North, but also to a vocal section of climate academia, that had proclaimed the end of Annex-based differentiation since the Paris accord was signed. In yet another affirmation of the global South's perspective, the ICJ opinion identifies the principle of Common But Differentiated Responsibilities and Respective Capabilities (CBDR&RC), drawing on Article 3 of the Convention, as the 'core guiding principle for determining the implementation of the climate change treaties'. Further in para 152, it affirms universality to the CBDR&RC principle, noting that it 'guides the interpretation of obligations under international environmental law beyond its express articulation in different treaties', opening up the possibility for extending the principle to arenas like biodiversity. Additionally, the ICJ's opinion notes the qualification to differentiation between developed and developing nations introduced by the Paris Agreement with the addition of the phrase, 'and in the light of national circumstances' to the term CBDR&RC. The Court views the qualification as a nuance which points out that what constitutes a 'developed' or 'developing' nations is not static. This will undoubtedly be a bone of contention in further interpretations of this opinion. What about the temperature goal? While these reaffirmations of the fundamental principles and values of the climate regime are noteworthy there is also much in the opinion that conforms to the narrative that developed countries, allied with some of the small island states and a range of vulnerable developing countries, have attempted to build over the years in interpreting the Paris Agreement. The opinion insists that the temperature target for limiting global warming as in Article 2.1 (a) of the Paris Agreement, no longer holds in defining the obligation of states. Article 2.1 clearly designates 'well below 2 degrees Celsius above pre-industrial levels' as the primary goal, while 'pursuing efforts to limit the temperature increase to 1.5 degrees C.' However, the Court argues that two paras from decisions of the 26th and 28th Conference of Parties of the UNFCCC, in which Parties have expressed agreement with the need to pursue efforts to limit temperature increase to 1.5 degrees Celsius, constitute an agreement among Parties to rewrite the temperature goal of the Paris Agreement itself. Hence, the opinion concludes, Parties' mitigation efforts must be aligned with collectively achieving the 1.5 degrees Celsius goal and not the range provided in the Agreement. This is a strange conclusion considering that the 1.5 degrees Celsius threshold is likely to be passed in a very few years. Nor does the opinion engage itself with the consequences of the breach of the 1.5 degrees Celsius goal. Even to lay opinion, it appears very odd that decisions taken in implementing an agreement should be interpreted as modifying the terms of the agreement itself. Much of the Court's enthusiasm for the 1.5 degrees Celsius target appears to stem from uncritical cherry-picking of a few headline statements from the Sixth Assessment Cycle reports (AR6) of the Intergovernmental Panel on Climate Change (IPCC). The Court has not considered it necessary that the IPCC reports themselves should be subject to scrutiny through the lens of equity. This is evident when it uncritically cites the IPCC's global target of GHG emissions reduction of 43% below 2020 levels by 2030 and 65% by 2035 for limiting temperature rise to 1.5 degrees Celsius. The recently concluded annual climate meeting of the UNFCCC held at Bonn, Germany, itself has now acknowledged the lack of equity and CBDR&RC in such projections. Has the Court broken new ground on enforcing obligations? Despite the extensive discussion on the obligations of states, in the context of climate laws and more generally in international law, the opinion does not articulate a more stringent framework of enforcement. In direct continuity with the established interpretation of the Paris Agreement by the global North, it holds that the provision of means of implementation as well as domestic mitigation action are only obligations of conduct (this means a duty which is to be performed towards achieving an outcome rather than guaranteeing the outcome itself). Only procedural aspects of the Paris Agreement, such as the timely and periodic submission of Nationally Determined Contributions are held to constitute stronger obligations of result. The opinion argues that even as obligations of conduct, the requirements on countries to meet their commitments can be sufficiently stringent. However, it depends on suitable courts with the requisite jurisdiction to enforce them and is contingent on the circumstances of every individual case. At best, the Court's opinion may be welcomed for reiterating the original intent of the Paris Agreement, in the face of the growing reluctance of developed nations to meet their obligations, but it breaks no significant new ground in this regard. Given the lack of appetite for climate action in the global North, and their opposition to even these weak obligations, the reiteration by the Court is undoubtedly of some value. What are some of the gaps in the opinion? The most striking lacuna in the opinion is its near-total sidelining of the twin challenge that global warming poses to the development of the global South, that is extensively discussed even in the IPCC. On the one hand southern nations will be increasingly unable to meet their energy needs for rapid poverty eradication and sustainable growth in the absence of adequate carbon space, while on the other hand low-carbon development requires finance and technology on a scale that remains out of reach. As Judge Xue Hanqin notes, in concluding her separate opinion, 'the Advisory Opinion fails to point out that, for peoples and individuals of the present and future generations affected by the adverse effects of climate change, the ultimate solution to guarantee them a clean, healthy and sustainable climate lies in a supportive and open international economic system that would lead to sustainable economic growth and development in all states based on international co-operation between developed and developing states.' With the opinion falling short on these two key issues for the global South, its qualification that equity and CBDR&RC would introduce no new obligations but only guide the interpretation and implementation of climate treaties, should be a matter of concern for developing countries. Much of the enthusiasm in global civil society for the opinion, stems from the prospect of further litigation at the national or regional level, with the opinion allowing the possibility that affected countries such as small island states could claim reparation or compensation. However, the opinion also makes clear that these would require independently establishing attribution, 'wrongfulness' and causation regarding the actions of Parties held responsible for harm, though it opens the door to their more expansive interpretation. On the issue of concerted global climate action though, and at the climate negotiations, it is unlikely that the advisory opinion would substantially move the needle, reproducing existing fault lines rather than overcoming them. As several of the separate opinions from various judges themselves indicate, the opinion may represent a missed opportunity rather than a game-changing intervention in the global climate discourse. T. Jayaraman is at the M. S. Swaminathan Research Foundation, Chennai. Tejal Kanitkar is at the National Institute of Advanced Studies, Bengaluru. Views expressed are personal.
Indian Express
2 days ago
- Indian Express
The milestone ICJ opinion on climate obligations is not just a verdict from afar, but a compass
For once, a ruling of the International Court of Justice (ICJ) at The Hague is making waves in Hyderabad. In a rare instance of policy resonance, the advisory opinion on climate change delivered by the 15-judge panel of the ICJ on July 23 has sparked conversation far beyond decision-makers in India. The ICJ's unanimous declaration of climate change as an existential threat is being discussed not only in think tanks in Delhi and boardrooms in Mumbai, but also among environmentally conscious students in Patancheru, Telangana, where I teach public policy. The case was initiated by Vanuatu, a Pacific island nation with a population of just 3,00,000. In March 2023, it led a coalition of small island states to secure consensual approval from the United Nations General Assembly to ask the ICJ two questions: What are states legally required to do to address climate change, and what are the consequences if they do not fulfil these duties? Over 130 countries joined as co-sponsors. India did not join, but it did not oppose it either. This cautious posture reflects India's complex position in global climate diplomacy. India's hesitation did not stem from disinterest. Rather, it reflected clear-eyed realism. As a developing nation still working to ensure universal access to electricity, healthcare, and employment, India undertakes a difficult balancing act. Unlike industrialised countries, India has not benefited from centuries of fossil fuel-powered growth. Although its total emissions are rising, per capita emissions remain among the lowest globally. Many households still rely on biomass for cooking and face irregular power supply. Despite these constraints, India has taken ambitious climate actions. By 2030, it aims for half its electricity to come from renewables. Emissions intensity has declined, afforestation has expanded, and electric buses now run in several Indian cities, including Delhi, Mumbai, Bengaluru and Hyderabad. India leads the International Solar Alliance and the Mission LiFE campaign promoting sustainable consumption. During its G20 presidency, it ensured that climate finance remained in the global spotlight. These are not peripheral gestures. They are structural shifts. By any fair measure, India has done more with less. By contrast, Canada emits seven times more per capita and continues to expand its oil sands production. Australia, a major coal exporter, sets modest domestic targets while profiting from global emissions. Considering historical responsibility, economic capacity, and present-day ambition, India's efforts stand out. Yet, the sweeping ICJ opinion, though not legally binding, will have consequences for India. It draws not only on climate treaties but also on the United Nations Charter, customary international law, the law of the sea, and human rights law. The Court affirms that states have obligations to prevent environmental harm, reduce emissions, adapt to climate impacts, and cooperate internationally. These duties are no longer moral appeals. They carry legal weight. The Court also ruled that climate change violates rights to life, health, and housing. States must act based on the best available science, adopt ambitious national plans, and may be legally compelled to strengthen them. Failure to act could invite claims for climate damage. Subsidies for polluting fuels are now within legal scrutiny. The opinion does not just outline obligations, it opens the door to legal consequences. For communities that have long suffered without recourse, this is a potential game changer. It affirms the principle of common but differentiated responsibilities. India has long argued that those who contributed most to climate change must do more to address it. The ICJ has now given that argument legal grounding. It will bolster developing countries in global negotiations. Yet, the new legal terrain raises at least three public policy challenges for India. First is legal preparedness. Indian courts already interpret the right to a healthy environment as part of the right to life. The ICJ ruling may spur a wave of litigation demanding stronger climate action or even compensation. The Indian state could also face lawsuits from within or from affected neighbouring island states. Anticipating such claims will be vital for legal and policy stability. Otherwise, a torrent of litigation could emerge without clear legal standards. Second is enforcement. India's environmental laws are strong on paper but patchy in practice. Pollution control agencies remain underfunded and compliance varies widely across different states and sectors. The ICJ has reinforced the importance of due diligence. Strengthening regulatory capacity must now become a national priority. Third is the issue of fossil fuel subsidies. These remain crucial for economically vulnerable households, especially for cooking gas and kerosene. But they also delay the shift to cleaner alternatives. The ICJ opinion, including the separate declaration appended by Judge Dalveer Bhandari of India, makes clear that subsidies have legal as well as fiscal implications. India must rethink how it provides support to the poor without locking them into polluting fuels. That will demand both financial resources and policy innovation. The diplomatic challenge lies in aligning climate ambition with fairness. India must continue taking climate action while defending the context of its development needs. Climate justice must not become a new form of injustice. The milestone ICJ opinion is not just a verdict from afar, but a compass. It signals the end of voluntary climate ambition and invites all countries to chart a harder, but fairer course. For India, the challenge now is to align duty with dignity and ambition with justice. The writer is former permanent representative of India to the United Nations, and dean, Kautilya School of Public Policy, Hyderabad
The Hindu
2 days ago
- The Hindu
Build on this joint statement to try and save Gaza
A recent joint statement by about 30 western states, which includes the United Kingdom, France and Italy, has called for an end to the war in Gaza. It condemns Israel's 'drip feeding of aid and the inhumane killing of civilians, including children, seeking to meet their most basic needs of water and food.' It says that the Israeli government is denying 'essential humanitarian assistance to the civilian population', which it finds 'unacceptable'. And it calls Israeli plans to sequester and eventually force Palestinian citizens out of Gaza 'completely unacceptable'. This is the strongest western criticism yet of Israeli conduct across Palestine, and it has coincided with Israel's offensive on Deir al-Balah, the city which has acted as a refuge for thousands of displaced people. It has the infrastructure, logistical bases and personnel to keep people alive, and its destruction will be catastrophic. It appears unlikely that this western condemnation will deter Israel. With a few exceptions, western governments have been calling upon their ally, Israel, to stop or moderate its behaviour while also ensuring that Tel Aviv has not suffered serious diplomatic, economic or military costs for acting with impunity across Palestine. Further, neither Germany nor the United States, Israel's most steadfast backers and its largest arms suppliers, have signed that statement. This is a signal that there has been no change in their policies and may be another reason why Israel is unlikely to stop. But there is still time for the world to act and prevent the Palestinians from being destroyed. The facts Is Israel committing genocide? The International Court of Justice (ICJ) may take years to determine this. Several jurists, legal and other scholars argue that what is unfolding in Gaza is in fact a genocide. However, rather than guiding us to facts, this question has become politicised and an end in itself. And the facts are sickening. Gaza had a population of about 2.3 million people when the war began in October 2023. About 60,000 people are confirmed dead, perhaps half of them women and children, and 90% the population has been displaced multiple times. The United Nations says that Gaza's remaining population has been squeezed into about 46 square kilometres of land where systems of food, health and hygiene have collapsed. That is about 43,478 people per square kilometre, living in conditions that one would not wish upon any form of life. Tel Aviv's game plan But these numbers do not capture what is widely suspected to be a systematic destruction of human life and habitat in Gaza through a micromanaged plan of starvation. Israel has curbed aid inflow when the war began. Earlier this year, it imposed a total blockade of 11 weeks and followed it up with a new aid delivery system that, according to the western nations' statement, 'deprives Gazans of human dignity'. Israeli forces have killed about a thousand desperate people seeking limited amounts of food under degrading conditions. And the UN says a third of the population has been living without eating. Exhaustion is endemic. Starvation is widespread. And famine looms. Is this not a genocide? Israel does not allow foreign journalists to report freely from Gaza. And it discredits the non-Israeli accounts coming out of Gaza. This has allowed it to dispute any assessment of its likely endgame in the territory. That Israel is carrying out ethnic cleansing is clear. Israeli leaders have publicly stated their plan to control most of Gaza, force the Palestinians into a 'humanitarian city', and let them out only if they choose to leave for another country. Two former Israeli Prime Ministers, Ehud Olmert and Yair Lapid, have called this 'city' a 'concentration camp'. Conditions for a future generation of Palestinians in Gaza are being destroyed. And as Jean Drèze recently noted in this daily, once famine sets in, people will turn against each other, which will put an end to all solidarity and chances of reconstituting. It would then be used as evidence of Palestinian barbarism and sub-humanity — and thus further proof that the Palestinians are not a people. Stop the hedging The UN says that the 'last lifelines to keep people alive are collapsing', but the world can still step in. The world has a chance to halt the catastrophe. Governments can review the scale of their diplomatic, economic and military ties with Israel. International peacekeepers can be sent to Gaza. Russia, China and India could join their 'Global South' partners in exerting additional pressure on Israel to stop. The Gulf countries and Türkiye should stop hedging. The western nations' statement has '... urge[d] the international community to unite in a common effort' to end the war. Non-western governments can test western sincerity by offering to evolve a common approach. There are some of us who know what is going on in Gaza is an act that will end the idea that 'humanity is one and universal'. Therefore, we must do what we can. Governments and corporations have more influence, but individuals can act on their conscience too. The time to act is now. Otherwise, we will be hanging our heads in shame and regret. Atul Mishra teaches international relations at the Shiv Nadar University, Delhi-NCR
