The ICJ’s Advisory Opinion and the Enduring Triad of Environmental Injustice

Fifty years after the 1972 Stockholm Conference first set the grammar of international environmental governance, the world now turns to the Advisory Opinion (‘AO’) by International Court of Justice (‘ICJ’ or ‘Court’) on the Obligations of States in 2025. This article claims that while the AO marks a doctrinal consolidation of climate obligations under international law, its interpretive methodology entrenches structural asymmetries inherited from earlier phases of international environmental governance, thereby limiting its redistributive and corrective potential for the Global South. During Stockholm’s preparatory process, two blocs had emerged: the developed Global North (‘GN’), which adopted a technocratic and conservationist approach and laid-out the “Action Plan for the Future” on global scientific monitoring, and the developing Global South (‘GS’), which through Founex Report, argued that environmental protection could not precede economic development but must instead be conditioned upon it. Both were divorced from each other’s priorities and functioned as hermetically sealed “silos”, having their own epistemology of “the environment” This piece argues that the current AO still carries this bifurcation and reproduces the very exclusions and asymmetries that shaped Stockholm.

The 140-page AO unequivocally confirmed climate change as an “urgent and existential threat” needing action under the aegis of international law, spanning lex lata UN treaties, international customary law, human rights and general environmental principles. Ex facie, these are sweeping erga omnes obligations that resemble “quasi-constitutional” norm-making with legal consequences for states, thereby providing unprecedented legal force to climate duties. While the AO has been hailed as a “vindication for vulnerable states”, we argue that its universalist reasoning conceals persistent inequities. By grounding its conclusions in conventional legal categories and Western-centric tropes, the Court risks institutionalising the very asymmetries it ostensibly seeks to redress.

The Third World Approaches to International Law (‘TWAIL’) lens, emphasises that historical and material roots of the climate crisis are bound with colonialism, capitalism and legal institutions which facilitate extraction and dependency. In the AO, this concern is implicated by the Court’s insistence on formal uniform climate obligations without a commensurate doctrinal articulation of differentiated responsibility grounded in historical emissions, developmental capacity or structural vulnerability, despite these considerations being well-established in treaty practice and climate negotiations. Thus, any advisory opinion framed in a manner that treats development as neutral, and obligations as undifferentiated, reinforces precisely the institutional-normative-epistemic harms identified. To examine this, we aim to analyse how the Court in the AO pays lip service to equity and developmental concerns in its ‘neutral’ framework by imposing upon the third-world nations ‘injustices’ on three axes, namely: (i) institutional injustice, which discusses how the AO’s formalist reading of treaties and selective reliance on precedent marginalises the GS’s interests; (ii) normative injustice, elaborating on AO’s selective elevation of environmental norms and undifferentiated obligations and, (iii) epistemic injustice, which expands on how GS knowledge systems and lived experiences are discounted in defining harm and causation creating procedural and substantive burdens. This exercise is significant because the ICJ, particularly on questions of global public interest, functions as an authoritative interpretive figure that influences state practice, informs opinio juris, and shapes the trajectory of emerging customary international law (‘CIL’), rendering the AO normatively consequential in ways that distinguish it from earlier GN-centric decisions.

This critique, through its triad of justice, is situated within TWAIL and climate justice scholarship, which conceptualises international adjudication as a site where historical power asymmetries are reproduced through interpretive techniques, doctrinal prioritisation and institutional design rather than neutral application of law.

I. Institutional Injustice

This axis is about how institutions are structured in ways that systematically marginalise the GS’s interests. This injustice is seen in the AO’s “treaty formalism” prerogative, rather than purposive or transformative interpretation, which TWAIL scholars call structural (institutional) subordination through juridical form. The modus operandi was steeped in a formalist reading of treaty texts, as the court expounded the “right to a clean, healthy and sustainable environment” through existing civil, political and socio-economic rights under the International Covenant on Civil and Political Rights (‘ICCPR’) and International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), thereby diluting its independent normative force. This normative force decides the periphery of the right to operate as a self-standing source of obligations and remedies under international law as its subsumption within existing rights frameworks limits its ability to ground autonomous climate-specific duties, including reparations and structural mitigation obligations. This derivative treatment undermines the ongoing international efforts of UNGA Resolution 76/300 and Human Rights Council Resolution 48/13 which advocate recognition of the right as an autonomous norm capable of crystallising into CIL. The court also selectively narrativises sustainable development, as envisaged in the Rio Declaration (Principles 3, 4, and 7). The notion of sustainable development embodies a redistributive conception of intra-generational equity that balances environmental protection with differentiated developmental entitlements. Given the recognised role of the ICJ in evidencing opinio juris, its reduction of sustainable development to a policy consideration risks narrowing the customary content of the principle by signalling to states that redistribution and differentiation are optional rather than legal components of environmental obligation. However, the Court selectively relied on Gabčíkovo-Nagymaros, which envisioned sustainable development as a policy consideration, stripping the principle of its redistributive core as seen in the Rio Declaration (Principles 3, 4, 7; and reaffirmed in the Sustainable Development Goals). The legal consequence of this reinterpretation is GN’s continued fossil fuel dependence under the rhetoric of “sustainable progress”, coupled with the simultaneous constraining the GS’s developmental space by subjecting it to uniform environmental obligations divorced from historical responsibility.

While some may argue that referencing “development” implicitly nods to being inclusive towards GS needs, this is illusory in two ways. Firstly, “development” within Common but Differentiated Responsibility (‘CBDR’) is a principle of burden-sharing, as against the Court’s prerogative, where it is a burden-shifting device, which leads to its wrongful acknowledgement as an add-on of treaty interpretation, rather than a binding CIL norm. Secondly, the Court’s restriction of equity to applications infra legem (within the law), completely departs from the jurisprudence inTunisia v Libya (1982) and North Sea Continental Shelf (1969), where the ICJ recognised that equitable principles are “an integral part of the law”. This leads to closed doors for claims on equitable reparations, debt relief and redistributive climate justice, vital to the GS’s climate survival. Scholars like Udaibir Das observe that the GS remains trapped in a never-ending cycle where development finance is diverted toward debt servicing rather than resilience-building.

This formalism reflects a GN–centric jurispathic tendency embedded within a dominant nomos of adjudication, whereby international courts privilege liberal-market legal rationalities as universal while marginalising distributive and material conceptions of justice central to GS realities. In the post-Cold War human rights project, Prof. Upendra Baxi calls this “market-friendly canon of rights” i.e. a framework that prioritises negative liberties and market compatibility while subordinating socio-economic redistribution, completely foregoing the socio-economic urgencies that are existential for the GS. To illustrate, the concept of carbon colonialism similarly captures how wealthy states and corporations outsource greenhouse‐gas‐intensive production through global supply chains, carbon offset regimes, and trade instruments such as CBAM, thus preserving extraction-based development and perpetuating structural dependency. This is reflective of a continuation of colonial patterns where the GS becomes a site of surplus fossil‐carbon generation and ecological sacrifice. In Khaitan’s account, this neglect of socio-economic rights means that it ignores the material substrate without which civil-political rights remain hollow.

In this sense, the AO perpetuates institutional injustice, by imposing interpretive registers of the GN as the default universal standard. Justice Dalveer Bhandari has cautioned that such abstraction obscures climate change as an existential legal threat for certain states. A legally responsive framework would require clearly articulated obligations of cessation, restoration where feasible and compensation, elements recognised in general international law on responsibility but insufficiently operationalised in the AO.

II. Normative Injustice 

The normative axis of injustice entails a selective subordination of norms, wherein those norms that are conveniently suited are exemplified, by effectively ignoring others, and applied uniformly across all contexts.  According to  Prof. Antine Anghie, this veneer of universality or formal equality, reinforces the entrenched substantive inequality, as it overlooks the structural asymmetries between the GN and GS. In the AO, this manifests in two moves: one, byelevation of the “environment protection” in the human rights domain and two, via recognition of the normativity of the environment as a CIL norm. These moves provide the doctrinal foundation for the subsequent imposition of obligations without adequate legal differentiation.

The most aspirational aspect of the AO is the ICJ’s recognition of stable climate as “foundational”, or pre-conditional, for the enjoyment of rights to life, health, food, water and housing, and that states ought to take “necessary measures” to ensure their effective enjoyment (Paragraph 393). This framing implies that climate policy constitutes a legal duty and enables extraterritorial rights claims. However, the AO fails to specify how “necessary measures” are to be calibrated according to capacity, historical responsibility or developmental needs and may inadvertently impose onerous mitigation obligations for a poverty-stricken GS, sacrificing urgent developmental capabilities like education, health, housing, infrastructure, in order to comply with these standards. This is a reality as most of the negative impacts of climate change, such as extreme weather, food insecurity and loss of livelihoods, are borne by the GS, as highlighted by reportson the disproportionate climate burden. Prof. Amartya Sen maintains that the core function of human rights is to remove “unfreedoms”, i.e. conditions that prevent individuals and communities from exercising substantive life choices. Since poverty is not a peripheral condition but a juridically relevant fact, pressing the GS to adopt climate measures without the necessary infrastructure will effectively shrink freedoms.

Interestingly, Justice Dalveer Bhandari in his separate opinion grounded in consent and custom, points out the CIL perspective when he mentions that, “one cannot simply interpose the obligations arising under this regional treaty [Espoo Convention] to non-signatories from other parts of the world.” (Paragraph 32). He further critiques the premature recognition of the right to a healthy environment as customary and the under-engagement with the polluter-pays principle, a widely accepted principle of attribution. These critiques implicate the two core CIL duties invoked by the AO, the prevention of transboundary harm, via due diligence and the duty to cooperate.

With respect to due diligence, operationalised through Nationally Determined Contributions (‘NDCs’), the AO fails to account for empirical asymmetry in compliance.  Justice Xue Hanqin correctly stresses on this non-uniform nature of due diligence and emphasizes the need for contextualised due diligence based on capacity and historical contribution.Yet, the AO falls short to highlight this structural non-compliance as, firstly, Annex I states have enhanced commitments by only 7.4–8.8% over two decades; secondly, only fifteen states representing 16.2% of global emissions submitted updated NDCs; and thirdly, the major emitters such as the US, Brazil, the UK and the UAE remain procedurally absent. Moreover, the EU, despite submitting its joint NDC, remained formally non-compliant with Article 4(16) of the Paris Agreement, as it failed to disaggregate emission levels among its Member States. The AO also ignores the rampant policy reversals by strong players, such as the United States, which formally withdrew from the Paris Agreement between 2017 and 2021 and has shown a similar intent since early 2025.

The duty to cooperate is an edifice in the UN Charter as it is embedded within its foundational objectives of collective problem-solving and shared responsibility under Articles 1(3), 55 and 56, particularly in areas requiring collective action, such as environmental protection and sustainable development. In climate law, this duty performs a distributive function: it is the legal mechanism through which differentiated responsibilities, technology transfer, financial assistance and capacity-building are operationalised rather than left to voluntarism. Although the ICJ acknowledged that climate cooperation may crystallise into binding legal obligation, Justice Xue Hanqin observes that the Court reframed the inquiry from whether particular states have caused legally attributable harm to whether they may have contributed to climate change in general, while simultaneously declining to articulate concrete legal consequences flowing from non-cooperation (Paragraph 108). This gap highlights that although the duty to cooperate should theoretically support differentiated responsibilities and shared mitigation efforts, the AO leaves GS states vulnerable to obligations without clarity on enforcement. In this sense, it transforms cooperation from a corrective mechanism of equity into an obligation of compliance, undermining its capacity as a vehicle for climate justice.

III. Epistemic Injustice

The epistemic injustice axis asks, whose knowledge counts? How does GN epistemic privilege silence GS voices in defining harm, causation, and remedies?  Hence, it refers to the systematic exclusion or devaluation of certain groups’ knowledge systems, especially in climate adaptation policies. As espoused by Miranda Fricker, epistemic injustice manifests in two forms: testimonial injustice and hermeneutical injustice, both of which answer the above-mentioned questions.

First, the testimonial injustice view contends that GS states’ testimonies are discounted or doubted because of prejudice and “scientific” credibility deficit. If the developing states fail to submit or update  the NDCs due to structural poverty, technological incapacity or lack of finance, they would still be legally compelled to “perform” without allowance for material conditions, creating a “double burden”. This double burden manifests in two forms: a procedural burden of continuous reporting and compliance, and a substantive burden of achieving emission reductions without adequate means. It is pertinent to note that the inability to meet either is too often construed not as a structural constraint, but as non-performance. Empirical studies indicate that compliance regimes disproportionately penalise procedural lapses while offering limited transitional or compensatory mechanisms, thereby redirecting scarce state resources toward compliance signalling rather than development and adaptation, contributing to developmental stagnation. Although the court foregrounds vulnerability as a juridical fact for mitigation ambition and remedy, the factum of tangible results will always bind it. Similarly, the order on cessation requires the violating State to “revoke administrative or legislative measures” as well as deploy “all means at their disposal”. While this might operate as a technological substitution, through a shift to renewables for GN, the developing GS will have to dismantle a large chunk of energy access and industrialisation, thereby halting infrastructure growth. To illustrate, the standards imposed under the EU’s Carbon Border Adjustment Mechanism disproportionately affect the Emission Trading Systems of third-world nations, and GS’s assertions that transition costs are prohibitive are treated as political complaints rather than credible claims.

Second, hermeneutical injustice implies that the climate harms of GS communities do not fit neatly into Western legal categories of “causation” or “damage”. This is seen under Article 31 ILC Articles on State Responsibility (ChorzówFactory standard), which demands causation and financial quantification to have demonstrated “sufficiently direct and certain causal nexus” between emissions and harm.  By contrast, a better implementable standard would be to allow cumulative and sectoral attribution to inform liability. Hence, the states’ contributions to greenhouse gas emissions in identifiable sectors such as energy, transport, agriculture,  can be linked to observable harms like reduced crop yields, water scarcity or increased flooding risk. However, currently the terms remain ambiguous, leading to a “responsibility gap”. This is akin to the doctrinal dilemmas James Crawford warns about, where wrongful acts go unremedied as causation cannot be neatly established.

Unlike traditional transboundary harm, climate change is a result of diffuse and cumulative emissions, making it impossible to prove acts of emission. In contrast, the GN produces climate models, controls data infrastructures, and shapes thresholds of proof, having an epistemic privilege. Thus, compensation risks reproducing epistemic injustice, where the GS’s lived devastation is discounted as “indeterminate” while their breaches such as the failure to regulate or update NDCs, are easily demonstrable and documented. For example, the United States is the largest historical emitter and has contributed approximately 20% of global cumulative CO₂ emissions since 1850. Also, the annual emissions inventories show that the top 10 emitting countries account for over 60% of global historical CO₂ emissions. Meanwhile, the lived devastation in the GS via droughts, floods and loss of livelihoods is often discounted as “indeterminate” because it cannot be directly linked to specific emissions.

Conclusion

From a TWAIL standpoint, the Court’s message that all states are stakeholders (universalising responsibility in language and form) smuggles in an abstract “common good” narrative, leaving intact the sovereign structure that TWAIL critics argue perpetuates historic inequity.

Across the three axes of injustice traced in this paper, the Court’s reasoning collectively reveals certain nuances. First, institutionally, the Court’s adherence to treaty formalism converts developmental equity from a binding legal entitlement into a discretionary interpretive principle. Second, normatively, by elevating environmental protection as an autonomous human right without integrating differentiated responsibility, the AO imposes undifferentiated duties disregarding capacity, vulnerability and historical contribution to harm. Third, epistemically, the AO entrenches the instilled knowledge hierarchy by privileging technocratic, data-driven and Northern scientific paradigms in defining causation, harm, and remedy. The GS’s alternative epistemologies of development and adaptation are relegated to the margins as anecdotal or politically charged, rather than being recognised as credible evidentiary or normative sources. Thus, taken together, the AO sustains what TWAIL scholars identify as the continuum of structural dependency wherein the GS remains simultaneously bound by universal obligations and excluded from norm-making power.

In hindsight, the following considerations could be kept in mind while deciding environmental questions. Firstly, an explicit recognition of differentiated climate obligations as a customary norm is required. Secondly, sustainable development must embed redistributive mechanisms better through financial, technological and capacity-building support and funds on an international level. Thirdly, governance structures must meaningfully include GS voices such as indigenous, local and community knowledge alongside scientific models. Finally, accountability for major emitters in the GN must be enforced through binding disclosures, audits and guaranteed contributions to adaptation funds. Such a structure will respond to the realities of climate justice.

In 1972, Stockholm, Indian Prime Minister Indira Gandhi stressed how poverty itself is a major driver of environmental degradation, highlighting the inextricable link between development and environmental protection efforts. Her agreement to locate the UNEP headquarters in Nairobi, rather than pushing for New Delhi, was a deliberate shift of the epistemic centre of UN institutions away from the GN. This was done to prevent the recurrence of neo-colonial patterns in agenda-setting and decision-making. The enduring lesson from Stockholm is that the design of environmental obligations must consciously avoid reproducing structural exclusions, ensuring that the GS’s priorities are reflected both in normative content and governance structures.