Introduction
The Advisory Opinion of the International Court of Justice (‘the ICJ’) on Obligations of States in Respect of Climate Change reaffirmed states’ obligations towards ensuring appropriate measures to reduce and mitigate the climate crisis. It empowers vulnerable states at the frontlines of climate change with legal leverage, holding climate obligations are erga omnes, and also establishes that all countries are obligated to regulate their fossil fuel industries.
The ICJ’s opinion, although welcomed, poses an uphill battle for South Asian states, namely Afghanistan, Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan, and Sri Lanka, that are highly climate vulnerable, but are also economically reliant on fossil fuels. The juxtaposition of South Asian countries lies between the most and the least developed countries, furthering issues pertaining to equitable burden-sharing principles that need these countries to reconcile historical inequalities with intragenerational and intergenerational equity to further economic growth and climate change-related protection in the region.
However, as noted in the ICJ’s opinion, the obligation to transition from the use of fossil fuels applies to all countries, and is a question of when and not if states can make the transition. As fossil fuel exploitation and climate change are linked, an emerging proposal gaining momentum for adoption, to address this challenge is the Fossil Fuel Non-Proliferation Treaty (‘FF-NPT’), which provides a framework to phase out fossil fuels and transition to clean resources. This analysis examines the implementation of the FF-NPT in South Asia, as a possible method to meet the obligations reaffirmed in the recent ICJ ruling.
Understanding the ICJ ruling and implications on South Asia
Subject to acute climate vulnerability, caused by glacial retreat and concentrated rainfall, and estimates of USD 1 trillion in annual flood damage and projections of longer hot days annually; with threats also felt amongst its population. With public concern about climate change, ranking among the highest across developing Asia. Specifically, between 90% and 92% of respondents in the region view climate change as a serious problem requiring action. Furthermore, the predominance of agriculture in the region and reliance of its population on it, subjects the region to severe food security issues and developmental risks. Against this backdrop, the ICJ’s ruling carries immediate and profound implications for the region’s governance and future development.
Additionally, lack of cooperation amongst states on climate action further amplifies the damage. Despite South Asian Association for Regional Cooperation (‘SAARC’) attempts at cooperative climate action, it still falls behind in binding regional mechanisms due to the historical geopolitical tensions, primarily between India and Pakistan. While geopolitical tensions are part of the failure, Navroz K. Dubash (2021), has observed that climate politics in economies like India, often operate under opportunistic institutions, primarily to deflect international pressure, ensuring it operated within domestic political constraints that prioritized the preference of national development over climate action. When compared with the Escazu Agreement in Latin America or Europe’s Aarhus Convention, South Asia lacks a credible framework to create regional cooperation and is often prevented from operationalizing key mechanisms towards disaster management, and climate action.
Moreover, prior to ICJ’s ruling, the climate governance framework was radically insufficient by itself. Its reliance on national determination; it left states discretion and autonomy to the States. With scholars viewing the approach radically insufficient due to its stringent interpretation and called for an interpretive approach that was rooted in a normative environment, which included broader international law principles of harm prevention, human rights and use of best available science. As Lavanya Rajamani (2024) argues, a normative-environment interpretation can construct an objective standard of due diligence for states’ conduct. Such a standard must align state actions with the 1.5°C temperature goal and reflect the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC). This approach found validation in ICJ’s ruling, by rejecting the submissions to characterize climate treaties as lex specialis displacing other legal obligations, it emphasized that the treaties and general principles are mutually reinforcing rather than exclusive, that its obligations arise under the entire corpus of international law, and that the application of the maxim requires actual inconsistency and discernible intention by states to exclude them.
Furthermore, the Court’s clarification of CBDR-RC and broader links to human rights also creates opportunities and risks. While regions with low historical emissions are acknowledged, its obligations will expand with growing capacities. For instance, India, with rising economic and technological strength, with its individual socioeconomic goals, NDC commitments, also faces increasing obligations to reduce reliance on traditional energy sources and demonstrate leadership in mitigation and adaptation. Furthermore, the ICJ’s conclusion on the prevention of climate harm and duty to cooperate directly tackles the region’s historical geopolitical tensions and mistrust, which have previously affected regional initiatives. Thus, calling for reviving regional initiatives.
Advancing the FF-NPT in South Asia
In order to operationalize the obligations affirmed in the ICJ’s Advisory Opinion with regard to phasing out fossil fuels, the FF-NPT possibly offers a structured pathway countries can employ to transition to clean energy. The FF-NPT can be split into three pillars: (i) non-proliferation, which calls for the prevention of exploitation and reduction of use of fossil fuel resources; (ii) disarmament, which deals with the reduction of demand for fossil fuels along with rapid substitution with renewable energy; and (iii) the peaceful usage of technology. We suggest that within this framework, the following suggestions could be implemented, along with a formative compliance mechanism, to deliver the region’s “highest possible ambition.”
Delving into non-proliferation, states would have to map out their fossil fuel use and devise a structure to restrict the supply side, with proper reporting and monitoring mechanisms. The Inter-American Court of Human Rights Advisory Opinion on Human Rights and the Climate Emergency held that the right to a stable climate is a human right and that states must ensure its enforceability. For state governments, this would call for enhanced governance of both the public sector and the private sector on the supply side, the latter of which becomes pertinent as there exist direct links between multinational corporations and the significant rise in South Asia’s carbon emissions. However, these goals are difficult to meet as there are grave issues pertaining to India’s coal freight and tax breaks, Bangladesh’s energy affordability, Sri Lanka’s refinery investments and Pakistan’s electricity tariff subsidies. As curtailing licensing and subsidies have been contentious for the private sector, legislation under the ambit of the FF-NPT could strengthen corporate climate accountability through setting standards for corporate emissions in the region, climate risk due diligence, carbon taxation, and pricing in the region. Transnational corporations and business enterprises’ impacts on human rights, which now include the right to stable climate, could be regulated under this pillar.
In the second pillar, the reduction of demand of fossil fuels or disarmament could be undertaken through the use of clean resources in urbanization, city planning, public transportation, agriculture and by developing carbon markets. Rapid and planned climate-sensitive urbanization in metropolitan cities such as Delhi, Karachi, Dhaka, along with the expansion of clean energy-based public transportation could substantially reduce energy demand in the cities. Although Delhi’s EV expansion and Kathmandu’s rapid public transport expansion have been welcomed, Dhaka has faced resistance from lobbies, highlighting issues that are more than technocratic and embody political processes. The FF-NPT’s compliance mechanisms would have to incorporate a timeline that takes these political processes.
Secondly, the reduction of carbon emissions linked with agricultural productivity is necessary as the sector contributes a significant amount of carbon emissions, as South Asia is predominantly agrarian. Furthermore, opening carbon markets would enable tradeable emissions, mobilize capital, and allow for continued development that is climate-sensitive.
In the final pillar of peaceful use of technology, the region must confront the “energy trilemma,” or the issues concerning energy equity, environmental sustainability, and energy security. While countries such as India, Nepal, Bangladesh, and Sri Lanka work towards ensuring energy equity, Pakistan has significantly fallen behind due to domestic political reasons and climate issues. On sustainability, Nepal, Sri Lanka, and India have set targets for net-zero 2045, 2050, and 2070, with closer decarbonization targets, signaling common ambition but also highlighting the lack of coordination between these states. Although there are growing imports and energy demand, energy security, which is raising concerns, the region has been evolving consistently. Conversely, Afghanistan might not be able to mitigate climate issues on its own, and ranked high in terms of climate risks on the Climate Adaptation Finance Index, 2024. These disparities complicate regional compliance of the proposed FF-NPT as these countries have severely uneven capabilities, and a supranational timeline might paralyze any regional cooperation.
Here, it is important to assess compliance mechanisms that could foster self-sufficiency domestically and within the South Asian region under the FF-NPT, allowing a quick transition. Unlike the prior environmental agreements that call for collective compliance through a singular goal for all countries, the FF-NPT could be implemented as a supranational regional treaty with independent compliance. The treaty allows countries to individually phase out at a self-determined pace, while simultaneously forming an umbrella mechanism that offers a generic framework for adoption, without great emphasis on generalized goals, but rather focusing on individual compliance.
The umbrella mechanism could allow states to track transboundary environmental harm, implement burden-sharing principles through legislation, and create discussion and dispute-resolution forums for states within the framework. As climate litigation evolves in the Global South, scholars such as Joana Setzer & Lisa Benjamin (2020) and Jacqueline Peel & Jolene Lin (2019) have argued that the region’s litigants are contributing to transnational jurisprudence with nuanced legal arguments linking climate change and human rights. This has fueled discussions on developing a substantive global south law to pursue transnational corporate litigation, which could be handled by the FF-NPT’s forum for South Asia, thereby preventing regulatory arbitrage arising from diversified domestic frameworks.
With South Asia’s geopolitical fragmentations and India’s preponderant geographical location, other states often fall short in the global stage. SAARC’s weak accountability system and the lack of institutional backing and valuation, coupled with the consensus-based approach to resolving disputes has caused greater geopolitical tensions. Noting these issues, it would be beneficial to consider adopting some of the Association of South East Asian Nations’ (‘ASEAN’) mechanisms for better compliance. Here, SAARC could work towards conflict management and cooperation in light of economic and climate-based integration, as ASEAN has done in the past. Although ASEAN faces geopolitical divisions, its principle of non-interference has kept geopolitical tensions under control, while creating avenues for pooled funding and implementation of environmental policies such as the ASEAN Climate Change and Energy Project that are unaffected by the former issues. This helps ASEAN perform as a regional organization at the global forum, instead of fragmented countries. Understanding the gravity of the erga omnes obligations of states to regulate fossil fuels, South Asia must work towards a climate change framework such as the FF-NPT that brackets geopolitical tensions as climate vulnerability is a dire issue.
Finally, drawing from the Global Transition Fund, a South Asian Carbon Fund could be created with pooled funds and resources, and possible carbon taxes that are collected at transboundary movements within the region, to aid other countries that need the funding to be able to transition at their optimal pace. However, precedents of such funds such as the Adaptation Fund, the Global Environment Facility Fund and others have previously faced issues of delayed disbursements and distributive fairness. To avoid such issues the FF-NPT would have to set a strong and transparent accountability mechanism, time-bound disbursement, and country specific equity criteria with proper adjustments and benchmarks.
Conclusion
The FF-NPT combines existing goals and NDCs in a structured framework. Such a normative pathway to regulate supply-side policies would help uphold the climate obligations and would help achieve greater climate justice, while meeting the goals of intergenerational and intragenerational equity.
Ananya Ahajoy is a fifth-year student at Symbiosis Law School, Pune and Benson Philipose is a Law graduate from Middlesex University, Dubai.
Picture Credit: Earth.Org
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