Request for an advisory opinion on the obligations of States with respect to climate change
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Question put by Judge Cleveland
“During these proceedings, a number of participants have referred to the production of
fossil fuels in the context of climate change, including with respect to subsidies. In your
view, what are the specific obligations under international law of States within whose
jurisdiction fossil fuels are produced to ensure protection of the climate system and
other parts of the environment from anthropogenic emissions of greenhouse gases, if
any?”
India's Response:
With respect to question raised above, India’s understanding of the general
international law is as follows:
1. States have an inalienable right to utilize natural resources, including fossil fuels,
within their territory/jurisdiction, for their economic and social development, with the
responsibility to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States or areas beyond the limits of national
jurisdiction. Examples of some of such references to this inalienable right in the United
Nations Charter, UN Declarations, and UN General Assembly Resolutions are in Annex-
I.
As contended in India’s written submission to the International Court of Justice (ICJ) as
well as oral statement before the Court, climate change and its effects is a larger
developmental issue, and cannot be conflated as a pure transboundary pollution or
transboundary harm.
2. It should also be noted that, throughout history, while the production of fossil fuels
may have occurred in a particular territory, they have been utilized around the world.
This is true even today, and applicable in case of most natural resources, not just fossil
fuels. Therefore, the question on the obligations of States in this context should not be
limited to the jurisdictions where fossil fuels are produced.
3. States have no specific obligations under international law to reduce or eliminate
fossil fuel subsidies. Fossil fuel subsidies are often necessitated by the national
circumstances in the developing States in their efforts to alleviate poverty and pursue
sustainable development and domestic energy security. Subsidizing cooking fuel
subsidies to poor households, for example, are unavoidable in some countries for
fighting hunger and poverty, while also actually reducing greenhouse gases (GHG)
emissions from domestic cooking as compared to the use of traditional domestic
cooking fuels, like wood, biomass, charcoal, etc.
In due recognition of such necessities, the decisions adopted at the recent UN Climate
Change conferences (including COP 26, COP27, and COP28), instead of putting any
specific obligations on the States, simply “Calls on Parties to contribute to the global
efforts to transition towards low-emission energy systems, in a nationally determined
manner, taking into account the Paris Agreement….. including accelerating efforts
towards.….phase-out of inefficient fossil fuel subsidies, while providing targeted
support to the poorest and most vulnerable in line with national circumstances and
recognizing the need for support towards a just transition”.
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Annex-I:
Select references to inalienable right to utilize natural resources in the UN Charter,
UN Declarations, and the UNGA Resolutions
i) Principle 21 of the Declaration of the United Nations Conference on Human
Environment, 1972 and Principle 2 of the Rio Declaration on Environment and
Development, 1992 and preambular paragraph 8 of the United Nation Framework
Convention on Climate Change recognises that “States have, in accordance with the
Charter of the United Nations and the principles of international law , the sovereign
right to exploit their own resources pursuant to their own environmental and
developmental policies and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or areas
beyond the limits of national jurisdiction”.
ii) United Nation’s General Assembly Resolution 1803 of 14 December 1962 titled
“Permanent Sovereignty over Natural Resources” in preambular para 5 recognises
“...the inalienable right of all states freely to dispose off their natural wealth and
resources in accordance with their national interest, and on respect for the economic
independence of states”.
iii) The UN General Assembly Resolution 41/128 of 4 December 1986 provides for a
Declaration on the Right to Development, wherein Article 1, paragraph 2 of this
Declaration provides that “the human right to development also implies the full
realisation of the right of peoples to self determination, which includes, subject to the
relevant provisions of both International Instruments on Human Rights, the exercise of
their inalienable right to full sovereignty over all their natural wealth and resources”.
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Written reply of India to the question put by Judge Cleveland at the end of the hearing held on 13 December 2024