A Courtroom Battle over Futures in the Hague
This Part of the piece will focus on community-centered interpretation capable of transforming climate governance rather than merely restating its aspirations at international plane. Against this background, the ICJ advisory opinion is important for two reasons. First, it aligns with the growing understanding that climate change is not just an environmental concern; it also relates to issues of distributive justice, historical and inter-generational. Second, it allows for a focus on the Global South’s experiences in shaping international environmental law. ICJ’s opinion, by holding climate obligations on the State irrespective of its consent, dismantles ecological imperialism by dismantling the legal positivism that sustains it. Through this, ICJ corrects the epistemic injustice that has long allowed the North to dictate “sustainable paths” for the South, by freeing International Environmental Law from its colonial grabs of consent & control.
The General Assembly’s question was simple yet profound: what are the states’ obligations under international law regarding climate change, human rights, and inter-generational equity? In Barcelona Traction case, 1970, the ICJ first articulated the concept of erga omnes obligations, distinguishing between “obligations owed to a particular State” and those “owed towards the international community as a whole.” ICJ in its opinion recognized that the protection of Global Environmental Commons such as the atmosphere & high seas gives rise to erga omnes obligations under customary international law, including the duty to prevent significant trans-boundary harm from anthropogenic greenhouse gas emissions.
It further classified obligations under the UNFCC & Paris Agreement as erga omnes partes, acknowledging that all States share a “common interest in the protection of global environmental commons”, thereby grounding climate change obligations in community interest rather than reciprocal consent, and allowing any State to invoke responsibility for their breach in defense of the collective environmental good. For decades, international law mirrored the same colonial logic that enabled forest grabs by prioritizing sovereignty over survival, consent over conscience. The opinion has shattered this by acknowledging duty to cooperate, prevent climate harm & due diligence as Erga Omnes on state.
Emerging from Principle 21 of the Stockholm declaration, which grants states the right to exploit their own resources, was designed to ensure that a newly independent state could freely dispose of exploit and manage resources in pursuit of national development. Yet, as society shifted from colonial powers to national governments, many post-colonial regimes perpetuated extractivist development models, sometimes marginalizing local communities and reinforcing global dependencies, repeating the very practices of over extraction and resource driven growth central to the colonial economy order. This paradox shows that how a legal doctrine originally envisioned as a shield against foreign exploitation became in practice, a legitimizing tool for new forms of resource extraction.
The ICJ’s opinion bridges the doctrine of permanent sovereignty over natural resources and the realities of climate change by recognizing that climate impacts such as sea level rise, threaten both the territorial integrity and long fought sovereign rights of post-colonial states. Rather than treating loss of territory and resources as merely humanitarian concern, the court frames their protection as core legal applications, intertwined with self-determination and state continuity under International law.
The Court explains that climate treaties like the UNFCC, Kyoto Protocol, and Paris Agreement impose both conduct and result-based duties on states, going beyond near-moral obligations. Most importantly, it emphasizes on the idea of common but differentiated responsibilities by stating that developed nations, due to their historical responsibility and greater capability, must lead mitigation efforts and provide vulnerable nations with financial and technological support in the process. It calls for a number of specific, urgent actions: enforcing transparent, well-funded national adaptation plans; incorporating long-term systemic and inter-generational risks into environmental impact assessments; and updating laws on fossil fuel licensing, subsidies, and permitting to conform to this temperature benchmark.
The ICJ further elaborates on these obligations further by specifying that all states, irrespective of treaty status, must, in good faith, cooperate and take reasonable measures to prevent serious trans-boundary environmental harm. The advisory opinion establishes strong legal precedent, although not legally binding, it affirms that violations in the applications may ensure reparations, restitution, and compensation. This shifts the discourse from moral calls for climate justice to concrete legal accountability within International Environmental law for historical and ongoing injustices perpetuated through climate colonialism.
However, this raises a deeper issue about whether the ICJ can compel international law to confront its colonial inheritance. The foundations of international environmental law are rooted in Eurocentric ideas. Concepts like sustainable development and inter-generational equity, while innovative in discussion, often depict environmental protection as something that relies on development.
Although the ICJ’s decision affirms important principles of international environmental law, such as inter-generational equity, erga omnes obligations, and CBDR, it avoids naming the large emitters and does not provide detailed measures for attribution, causation, and redress, aspects which are the core of concrete enforcement of climate justice. Moreover, the rationale of the court rests primarily on the general, abstract statement of states’ duties, which limits the impact on transnational actors and rarely threatens dominant economic models or historic extraction patterns.
But the question still stands: will obligations to protect the climate mean a real break from the old way of using sovereignty to shield resource extraction? Or will it simply be another case of soft law, filled with principles but lacking enforcement? The stakes for indigenous communities are significant. Unless the ICJ’s opinion clearly empowers those who have traditionally borne the costs of extraction, it risks being just another advisory opinion.
The fight for climate justice cannot be meaningful without addressing the ecological debts of colonial empires. When villagers hugged trees during the Chipko movement, they were not just opposing logging; they were asserting inter-generational rights decades before this became part of UN treaties and conventions. The Narmada Bachao Andolan focused not only on displacement but also on redefining development to include the rights of communities and nature. The International Court of Justice now has the opportunity to bring these issues together into a clear framework that can actually limit states and challenge the imperial reasoning behind the colonial exploitation of forests in the Global South.
The ICJ can’t reverse history, but it may put at the center obligations that take into account differentiated responsibilities. Above all, it may aid in the unmaking of the epistemic injustice under which the North dictates solutions to issues it once caused. The ICJ’s advisory opinion may catalyze change. By reaffirming states’ legal commitments, this advisory opinion may offer an effective international foundation for improving India’s domestic legal system.
Conclusion
The North’s prosperity was built on centuries of plunder while outsourcing sacrifice to the South, which is following the path directed by the North to achieve its standards of development. The ICJ cannot stop chainsaws, but it can dull their blades by re-framing IEL around responsibility, not charity, and justice, not offsets. Unless IEL reckons with its own imperial roots, forests will continue to fall, sometimes in the name of railways or carbon markets but always at the expense of those least responsible. The stumps in the Global South tell a story that the Hague cannot afford to ignore.
India has always contended for common but differentiated responsibilities and respective capabilities, using the fact that the developed world has to bear the historical burden of the emissions and offer financial and technological support to the Global South. The Global South thus needs to fight against imperialism and insist on better terms of trade, acceptance of its own ecological concerns, and a fair share in the global environmental commons. By insisting that developed countries bear the historical burden of emissions and provide financial and technological support to the global South, India’s position could shape how international law interprets equity and justice in climate negotiations.
This advisory opinion is likely to powerfully influence how future treaties-including successors or updates to the UNFCC, the Paris Agreement, etc. are interpreted and drafted. Future treaties will probably include more explicit, enforceable obligations for equity through differentiated responsibilities and due diligence standards in both mitigation and adaptation. It could also spur treaty language to explicitly acknowledge differentiated obligations, ensuring that any future agreements cannot impose undifferentiated burdens upon all states but rather reflect their very historic contributions and capacities. This would be a much stronger, fairer framework that truly addressed the needs of the vulnerable South countries & communities and changed the face of international environmental law. As in the most recent climate submits, India’s emphasis on CBDR has helped anchor discussions on fairness and equity, nudging treaty drafters to embed these as enforceable standards and not mere aspirational goals.
The Global South cannot afford negotiations grounded in inadequate knowledge or hasty concessions that jeopardise intergenerational interests in exchange for symbolic environmental narratives. Effective climate action must be substantive legal & institutional reforms rather than mere symbolic & superficial commitments. This will involve dismantling the inefficient and oppressive government apparatus and changing the laws so that people act without waiting for a good bureaucrat to come along. As the laws exist, planting trees on government wasteland can land villagers in jail. Those talking about global warming should concentrate on what ought to be done at home.
Click here to read Part I
Shivam Singh and Priyanshi Jain are fourth-year law students at Dharmashastra National Law University, Jabalpur.
Picture Credit: Image by Biswarup Ganguly on Wikimedia Commons
Jindal Forum for International and Economic Laws 
