ICJ’s Advisory Opinion and the North-South Divide – A new beginning? – VIPS LAW BLOG

Environmental politics throughout the previous decades has been shadowed by a clash between the Global North and the Global South, with the Global North, which represents the industrialized west, trying to escape from their responsibilities, and the Global South, still struggling with the twin problems of carrying on development without environmental degradation. The Court has firmly laid down that all countries must adhere to the requirements of the UN Framework Convention on Climate Change and the Kyoto Protocol and that all these instruments are “mutually supportive of each other.”

The contention of the Global North that the Paris Agreement was the sole binding legal framework was also rejected by the court. However, as Justice Bhandari notes in his opinion, there will essentially be no liability on the countries of the Global North without due recognition to the ‘Polluter Pays’ principle, which holds polluters liable for the damages that they cause to the environment. Furthermore, the advisory opinion does not lay emphasis on establishing a proper mechanism that facilitates settling claims relating to environmental damages.

In another rebuff to the Global North, the court noted that it is “scientifically possible” to attribute contributions to climate change to individual states, considering both historical and current greenhouse gas emissions.[2]

Need for a differential approach

Since the historical greenhouse contributions of countries like India are as low as 3%[3] and scientific studies have established that Global North countries like the United States have been responsible for much of the greenhouse gas emissions[4], it goes on to reaffirm the position of the Global South in global environmental discourse. As for the Global South, the court supported the principle of Common but differentiated Responsibility with Respective Capabilities (CBDR-RC) which further supports the contention that climate change can be mostly attributed to the actions of the industrialized West.

The court further emphasized the role of technology transfers that was highlighted in the Paris Agreement. Furthermore, the court emphasized that countries can, in principle, face liability for climate harms, opening the door to potential ‘reparations’ for loss and damage, and the Paris Agreement’s disclaimer on liability does not override general international law.[5]These assertions by the Court stand in favor of India and its position in the international environmental discourse. By supporting the established concepts of CBDR-RC and the idea of technology transfers and also recognizing the historical responsibility of the West, India stands to gain a foothold in the international community by holding the West accountable for its contributions in degrading the climate.

A harmonious interpretation

Furthermore, the court, by highlighting that both Paris and Kyoto are mutually supportive of each other, lends support to the initially established binding mechanisms in Kyoto, which seek to hold the West and other nations accountable for their emissions. However, this decision has a few drawbacks for the Global South as well. As Justice Bhandari has rightfully pointed out in his separate opinion, the decision does not lay clear emphasis on the concept of “restitution,” whereby those countries that are substantially affected by the climate change crisis have their environments restored to pre-crisis levels by the collective effort of the international community.

This is particularly important for several small island states, like the infamous case of Tuvalu, that are on the brink of submerging due to rising sea levels. Justice Bhandari noted that the court should have emphasized “the continued recognition by all States of the maritime entitlements and sovereign rights of States adversely affected by sea-level rise, including in cases where their territory becomes submerged or otherwise compromised.”

Conclusion: Who’s responsibility?

Another important question that comes to mind when addressing this issue is who will lead such efforts, and if one were to lead these efforts, then through what mechanism would they lead these efforts? How would one deal with the displaced populations of these island countries? This advisory opinion fails to lay down any mechanism to address these questions, which is a crucial drawback of this judgement. Furthermore, if one is to talk about restitution in the cases of non-island states that are adversely affected by climate change, then another issue that arises is, what degree of restitution would be considered acceptable?

What level of satisfaction is necessary? As the ICJ in this decision (as well as in multiple decisions in the past) has emphasized even mere apologies are sufficient to be considered “satisfactory.” [6]But is issuing an apology or a condemnation or an acknowledgement sufficient in reality for the actual victims of climate change? Although this decision lays down the foundational stone in addressing critical questions of climate change, it still leaves many important questions unanswered, questions that affect the lives of millions of people throughout the globe.

*[The Author is a Third-Year student at the Vivekananda School of Law and Legal Studies, Vivekananda Institute of Professional Studies – Technical Campus, New Delhi.]

[1] ICJ Decision Summary pp 3

[2] ICJ Decision Summary pp 22

[3] https://indianexpress.com/article/india/indias-emissions-rose-by-6-1-in-2023-9637311/

[4] https://www.carbonmap.org/#Historical

[5] ICJ Advisory Opinion Para 388-395

[6] Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 35.