India submitted its arguments at International Court of Justice (ICJ) on December 5, underscoring the need of equitable global action on climate change.
The developing countries and small island development states have been demanding at least $1 trillion annually from developed countries for supporting conservation efforts. The COP29 negotiations at Baku, Azerbaijan also left several developing and vulnerable countries disappointed, even as a climate finance of $300 billion was finalised. This was thrice the previously agreed amount of $100 billion, which emanated out of COP15 in Copenhagen, Denmark in 2009.
The demand for $1 trillion is not new. At the time of adoption of the 2015 Paris Agreement, India had pitched for a $1-trillion funding assistance per year, focusing primarily on grants and concessional finance. However, the new collective quantified goal (or NCQG) at COP29 in Baku agreed to a much lower amount despite the repeated protests of several countries, including those that are most affected by climate change.
Reiterating that the promised package is “too little, too distant” and “not in keeping with the remit of Article 9 of the Paris Agreement”, Luther Rangreji, Joint Secretary and Legal Adviser, Ministry of External Affairs, in his submission of arguments highlighted that the onus of resolving challenges related to climate change should not only fall on the shoulders of developing countries.
Further highlighting the failed promise of allocating ample climate finance to deal with the situation, Rangreji highlighted, ”The $100 billion pledged at the Copenhagen COP in 2009 by developed country parties and the doubling of the contribution to the Adaptation Fund, have not yet been translated into any concrete actions.”
Emphasising on the developed countries' “historical responsibility" as major contributors of climate change, India questioned their "developed" while blaming them for "unjust enrichment through overexploitation of natural resources, intergenerational equity, fairness and justice, developmental, geographical, geopolitical and technological dimensions.”
Developing nations like India, on the other hand, have contributed the least to climate change, argued Rangreji at the ICJ hearing. "The developed world, which historically contributed most [to climate change], is best equipped with the technological and economic means to address this challenge,” he said. Expecting an equal contribution from developing nations was therefore “unjust”, said Rangreji.
“Countries which have reaped development benefits from exploiting fossil fuels demand developing countries to not utilise national energy resources available to them,” he added.
The landmark hearing is part of a series of petitions submitted by more than 98 countries that began on December 2. Vanuatu along with a group of Pacific island states have been leading efforts to clarify the obligations of States in respect of climate change, including towards small island developing states which are particularly vulnerable to the effects of climate change.
On the first day of the ICJ hearing, Ralph Regenvanu, Vanuatu’s Minister of Climate Change, spoke about Vanuatu's vulnerability as a small island developing state. “[Climate change] threatens our very existence,” he said. Regenvanu also said that countries with major greenhouse gas (GHG) emissions should take responsibility for resolving the damage caused by climate change. “We look to the court for recognition that the conduct that has already caused immense harm to my people and so many others is unlawful, that it must cease and that its consequences must be repaired,” Regenvanu said.
Among the other pressing issues raised by representatives from the Republic of Vanuatu were the obligations of States under international law to ensure the protection of vulnerable countries from the unequal and disproportionate impacts of climate change.
Arnold Loughman, Attorney General of Vanuatu, who delivered the opening statements on December 2, said, “What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
Loughman further said that states have obligations to act with due diligence, prevent significant harm to the environment, reduce emissions and provide support to countries like Vanuatu. The failure by developed countries, who have been among the major contributors of GHG emissions, to fulfill these obligations "constitutes an internationally wrongful act, triggering legal consequences under the international law of State responsibility", he added.
Other small island developing states also shared their concerns at the hearing. Echoing Vanuatu's stance, islands of Antigua and Barbuda raised the issue of rising sea levels, erosion of coastlines, increasing ocean temperatures and disruptions in the delicate ecosystems responsible for sustaining fisheries ⎯ an essential source of their food and livelihoods.
"[Intense weather events] have destroyed homes, decimated infrastructure and left scars on the lives of our people that no amount of financial aid can truly heal,” said Gaston Browne, Prime Minister of Antigua and Barbuda. According to Antigua and Barbuda, the country has been working to secure “livelihood of the people and rebuilt Barbuda at an immense cost”, landing in significant debt burden. The question remains the same, if they are already at the receiving end of the debt burden and have not fully developed then why they should pay the price of the actions of the developed states.
Bahamas, another small island developing states, shared that more than 75 per cent of all coral patches have experienced some level of bleaching in 2023. A series of tropical cyclones, including the 2019 Hurricane Dorian, a category 5 tropical cyclone, left behind a trail of destruction in Barbados, putting a burden on their economy.
“I ask you, who is going to retrain our fishermen when the fish are gone? And what is going to replace our tourism industry when the reefs and the beaches are gone? Despite the hijacking that we witnessed at COP29, climate treaties such as the Paris Agreement make clear that developed States have obligations to provide financial and technical assistance to vulnerable States such as the Bahamas,” said Leo Ryan Pinder, Attorney General, Minister for Legal Affairs.
“Second, the prevention obligation is onerous. It requires each State to use all means at its disposal” to prevent transboundary harm, he added. Bahamas also raised the issue of “the proportional allocation of mitigation duties" and now it must reflect the principle of “common but differentiated responsibilities”.
The hearing, which began on December 2, are scheduled to take place until December 13 in Hague, Netherlands. With 91 written statements and 62 responses submitted to the court, this case marks the largest-ever hearing at the ICJ. In total, 97 states and 11 international organisations will take part in the proceedings, offering countries and organisations a chance to elaborate on their positions on climate change in front of the ICJ directly.
Unlike judgments in contentious cases, the court’s advisory opinions are not binding. They help provide legal guidance on specific international law issues. However, while not binding, advisory opinions have “an authoritative value and cannot be neglected”.
