The advisory opinion concluded that “the most significant primary obligation for states in relation to climate change is the obligation to prevent significant harm to the climate system and other parts of the environment”. There are many nuances to this statement. First, to counter climate change, States must take steps to prevent harm to climate systems. Second, it must take steps to protect “other parts of the environment” and it must “prevent significant harm” to both environment and climate systems.
In one stroke, the International Court of Justice (ICJ) has freed climate change discourse from the narrow confines of “carbon” and “emission” to the larger domain of ecosystem, including rights-based approach. Its “advisory opinion” in a way clarifies the legal regime with respect to climate change as well as the protection of climate systems.
ICJ dealt with three interrelated impacts on States due to climate change—states that are “injured”, “specially affected” or are “particularly vulnerable” to the adverse impact of climate change. However, one must also realise that the question posed to ICJ by the UN was not very broad: it is limited to the obligations of States under “International law” to protect the climate system and other parts of the environment. ICJ limited its deliberation to only international treaties and conventions on the one hand to international customary law on the other. Further, the court while dealing with international law as well as environmental principles limited itself to existing laws only, since according to ICJ, as a court of law, it cannot anticipate the law before the legislator has laid it down.
The ICJ ruling could also lead to the evolution of environmental jurisprudence in India. India’s courts are still relying on the environmental principles of the post Stockholm Convention which is of the 1970s, when climate change was not an issue of global concern.
Climate change is at most a cosmetic addition in judicial decisions in India. If one looks at the numerous decisions of the National Green Tribunal, there is hardly any reference to climate change. Even if there is reference, it is only cursory and only an observation.
It does not in any manner influence the decision. The Supreme Court’s landmark ruling in “M.K. Ranjitsinh v Union of India” in 2024, wherein it held that every citizen has the right to be free from the adverse impact of climate change, has not led to any visible change in the way the courts approach environmental matters. Courts continue to focus mostly on statutory violations rather than the larger issues of climate change and its impact.
The ICJ advisory opinion has highlighted several areas for law and jurisprudence to develop: Standard of conduct, due diligence, reparation, compensation and restoration. Each one of these concepts require elaborate rules and procedures to make it effective. Climate change is yet to be part of India’s legislative framework. The answer is not about enacting a new law on climate change, the answer is to what extent we can incorporate climate change concerns including protection of climate systems within existing law, policy and decisions.
(Ritwick Dutta is an environmental lawyer based in Delhi)
This column was originally published in the August 16-31, 2025 print edition of Down To Earth