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By universalising liability for fossil fuels, the ICJ risks undermining equity and penalising developing nations
On 23 July 2025, the International Court of Justice (ICJ) delivered a historic Advisory Opinion on climate change. Its tipping point lies in establishing that violation of climate obligations under international law is seen as a wrongful act, thereby invoking state responsibility.
What appears promising at first sight, soon betrays deeper worries, especially for Like-Minded Developing Countries (‘LMDCs’)—a bloc of 24 nations across Asia, Africa, and Latin America that underscore equity and developmental concerns in climate negotiations. In assessing ‘attribution’ for state responsibility under Para 427, the ICJ asserts that the failure of a state to take action to curtail greenhouse gas (‘GHG’) emissions, including through fossil fuel production, consumption, grant of exploration licenses or the provision of fossil fuel subsidies, may constitute an internationally wrongful act.
The omission of the Common but Differentiated Responsibilities-Respective Capabilities (CBDR-RC) principle indicates a universalist framing of obligations.
Notably, the omission of the Common but Differentiated Responsibilities-Respective Capabilities (CBDR-RC) principle indicates a universalist framing of obligations. This raises the concern that the ICJ’s sweeping interpretation may overlook historical emissions responsibility, thus impeding the nationally determined pathways of LMDCs that are focused on gradually phasing down fossil fuel subsidies.
Under international law, states have no specific obligation to reduce or eliminate fossil fuel subsidies. In contrast, the states have an inalienable sovereign right to utilise their natural wealth and resources, including fossil fuels, within their territory or jurisdiction, for their own economic and social development, pursuant to their own environmental and developmental policies.
Importantly, today, the language of climate diplomacy reflects this hard-fought consensus. Lately, COP26, COP27, and COP28 have steered clear of binding commitments on phasing out subsidies, instead calling only for the phase-down of unabated coal and the removal of inefficient subsidies that do not serve energy access or just transition objectives. This is because a gradual phase-down offers a pragmatic and equitable option to LMDCs to secure their strategic low emissions development transitions.
Against this backdrop, the ICJ’s expansive view appears out of step with the negotiated understanding of state obligations. This interpretation narrows the space for nationally determined climate action, which the UNFCCC, Paris Agreement, and the Outcome of the First Global Stocktake explicitly safeguard.
For India, a developing country still grappling with universal access to electricity, healthcare, and connectivity, the task of balancing growth with climate action is particularly challenging. Moreover, unlike industrialised countries, India has not benefited from centuries of fossil fuel-powered growth. Nevertheless, India’s calibrated ‘Remove, Target, Shift’ approach has managed to reduce fossil fuel subsidies by 85 percent in the oil and gas sector. The fiscal space created from phasing down these subsidies has been allocated to target subsidies to improve access to and expand the use of Liquefied Petroleum Gas (LPG) among the rural poor. As such, fossil fuel subsidies remain vital for India’s development needs as they ensure affordable cooking fuel and electricity for millions, especially rural and low-income households. These subsidies support energy access, grid stabilisation and energy security, while enabling India to balance poverty eradication with its climate transition goals. Without adequate financial support, then, demands for swift phase-outs of such subsidies appear neither fair nor feasible.
The fiscal space created from phasing down these subsidies has been allocated to target subsidies to improve access to and expand the use of Liquefied Petroleum Gas (LPG) among the rural poor.
The UNFCCC and Paris Agreement enshrine CBDR-RC, affirming that equity, national circumstances, and poverty eradication must frame climate action. CBDR-RC recognises the historical inequities in GHG emissions and the varying capacities of states to address climate change. To this end, India's intervention has reiterated that the developed countries need to commit to providing at least US$1.3 trillion every year till 2030. This must come through grants, concessional finance and non-debt-inducing support that cater to the evolving needs of developing countries, without subjecting them to growth-inhibiting conditionalities.
Set against this framework, not only have the ICJ proclaimed sweeping obligations, but Judges Bhandari and Cleveland, in their Joint Declaration, have alarmingly equated differing responsibilities with potential ‘get-out-of-jail’ cards. It is worth mentioning that in doing so, they have lifted the phrase from the Introductory Arguments of the Bahamas (Para 27, Joint Declaration), which characterises China, India, OPEC, Saudi Arabia, and Russia as major emitters typical of this association (Para 20, Verbatim Record 2024/36, The Bahamas). Such a portrayal glosses over the fundamental asymmetry between industrialised economies with centuries of fossil-fuelled growth and developing economies still striving to secure universal access to energy and basic welfare.
The Court's proposal of these additional obligations, even for developing economies that continue to rely on fossil fuel subsidies for basic energy security and poverty alleviation, threatens to transform climate justice from a principle of equity into a mechanism of control.
It would appear that the ICJ makes a formal nod to CBDR-RC but risks undermining it when it encourages uniform liability for fossil fuels, agnostic to the developing status of nations. In effect, what the states have deliberately preserved as a sovereign political choice is being judicially reframed as a binding legal obligation under international law. The Court's proposal of these additional obligations, even for developing economies that continue to rely on fossil fuel subsidies for basic energy security and poverty alleviation, threatens to transform climate justice from a principle of equity into a mechanism of control.
It cannot be overstated that climate justice requires differentiated pathways: developed countries must lead on absolute reductions, while enabling developing nations to pursue low-carbon growth without sacrificing development. India, for its part, has set its own net-zero emissions target by 2070. This should entail a systematic phase-down of fossil fuels. But more importantly, this should happen progressively, in a nationally determined manner, and in keeping with India’s socio-economic priorities and national circumstances, to ensure a just and equitable transition.
As things stand, the ICJ’s opinion risks being overshadowed by the tariff-induced political storm. Once the dust settles and COP30 approaches, its implications will likely resurface in negotiations, where the LMDCs must fiercely guard against fresh inequities being devised in the name of climate justice.
Arshia Roy is a Research Intern at the Observer Research Foundation.
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