In Conversation: Prof. Arpitha Kodiveri — Environment Law and Justice Scholar & Professor

SPIL Mumbai
2 hours ago
9 min read

The Q&A is curated and edited by Aditya Kumar for the SPIL Blog

Introduction

SPIL Blog turns its attention to a landmark moment in international law – the International Court of Justice’s Advisory Opinion on Climate Change, delivered on 23^rd July 2025. By articulating States’ obligations to mitigate and adapt to climate change through the lenses of customary international law, human rights, and the principle of intergenerational equity, the Opinion strengthens the legal foundations of global climate governance while opening new avenues for accountability.

Yet, as the debate around its implementation unfolds, crucial questions emerge: how will these legal obligations translate into domestic realities? Can the Opinion bridge the gap between global pronouncements and local environmental struggles? What does it mean for communities whose lives and livelihoods are most deeply intertwined with forests and fragile ecosystems?

To explore these dimensions, SPIL Mumbai is pleased to present a conversation with Dr. Arpitha Kodiveri, Assistant Professor of Political Science at Vassar College. In this Q&A, Dr. Kodiveri reflects on how the ICJ’s articulation of State obligations toward future generations intersects with questions of accountability, human rights, and forest-community governance. Her insights help situate Advisory Opinion within the broader struggle to ensure that climate justice is not only declared in international for a, but also realized in the everyday politics of land, rights, and community resilience.

1. How do you interpret the ICJ’s articulation of State obligations towards future generations in the Climate Advisory Opinion?

This is an important question. What stands out to me about the ICJ Advisory Opinion is the story of how the effort even began. A group of law students from the Pacific Islands came together under the umbrella of the Pacific Islands Law Students Fighting Climate Change (PIFSCC) and worked with the state of Vanuatu to bring a resolution before the UN General Assembly, which then led to the request for an advisory opinion from the ICJ. To me, this reflects how young people, and the youth climate movement in particular, have been pioneers in shaping legal solutions for climate justice. I begin with this story because it shows how youth are at the heart of the legal battle for climate justice, even as they grapple with a history of legal inaction on climate change. As the PIFSCC put it, they are “turning heartbreak into action.”

I emphasize the story of the ICJ Advisory Opinion because it illustrates how hope lies in the actions being taken by the youth climate movement worldwide. This case is just one example. Turning to the advisory opinion itself, its treatment of state obligations toward future generations should be understood both broadly and specifically. Broadly, it redefines international climate law and governance, making it a watershed moment. Specifically, it highlights the principle of intergenerational equity and places it at the center of state responsibility.

One of the most significant contributions of the advisory opinion is its rejection of the narrow view that only climate-specific agreements define state obligations. Instead, it adopts an integrative approach, showing how international environmental law, climate law, and human rights law together create a framework of principles and norms that guide state obligations. For example, the opinion draws on UNCLOS and other environmental treaties to clarify what states must do (paras 112–404). This integrative perspective provides a broad legal foundation for understanding state duties in relation to climate change.

The opinion also affirms that the principles of “no harm” and the duty to cooperate are part of customary international law on climate change. This means that even if countries withdraw from existing climate agreements, they remain bound by customary law to take action on climate mitigation and adaptation.

Another breakthrough lies in how the opinion narrows the discretionary power of states by prescribing what due diligence should look like in the context of climate harm. It sets out three requirements. First, nationally determined contributions toward mitigation and adaptation must continually evolve toward greater ambition than previous climate action plans. Second, states must regulate private actors within their jurisdictions. Third, they must regulate the fossil fuel industry itself. The opinion states (para 427):

“Failure of a State to take appropriate action to protect the climate system from GHG emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences, or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State.”

This is a tremendous step toward expanding the scope of international law in relation to climate obligations. Perhaps most striking is the opinion’s explanation of the consequences of an internationally wrongful act, namely the failure of a state to fulfil its climate obligations. It points to remedies such as restitution, reparations, and compensation for harms suffered. This is a major victory for countries in the Global South and small island nations that have long fought to bring concepts of loss, damage, and reparations into the heart of international climate law (paras 444–455).

Taken together, these aspects of the advisory opinion strengthen the legal obligations of states by making abstract principles more concrete. These obligations are binding, enforceable, and carry consequences if breached.

Intergenerational equity is included among the principles the opinion recognizes as part of international climate law. It frames intergenerational responsibility as an integral aspect of state responsibility, noting:

“Due regard for the interests of future generations and the long-term implications of conduct are equitable considerations that need to be taken into account where States contemplate, decide on, and implement policies and measures in fulfilment of their obligations under the relevant treaties and customary international law.”

In this way, intergenerational equity emerges as a central pillar in how state responsibility is understood and applied in the context of climate change. The advisory opinion’s holistic approach, combining sources of law with concrete consequences for breach, makes it a powerful tool for advancing intergenerational equity in the years ahead.

2. Do you think the Opinion will help bridge the accountability gap in enforcing international climate commitments?

The advisory opinion represents the most authoritative interpretation of international law to date, and it steadily advances the development of international climate law by addressing the accountability gap. The Paris Agreement was, in many ways, a bottom-up instrument. It allowed states to design their nationally determined contributions (hereinafter “NDCs”) in light of their own capacities to contribute to mitigation, adaptation, and climate finance. By contrast, the advisory opinion narrows this flexibility. It reduces state discretion in shaping their NDCs and introduces a due diligence framework aimed at keeping greenhouse gas emissions within the 1.5°C threshold.

The Court notes:

“The discretion of parties in the preparation of their NDCs is limited. As such, in the exercise of their discretion, parties are obliged to exercise due diligence and ensure that their NDCs fulfil their obligations under the Paris Agreement and, when taken together, are capable of achieving the temperature goal of limiting global warming to 1.5°C above pre-industrial levels, as well as the overall objective of stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”

By limiting state discretion and requiring due diligence in the preparation of NDCs, the advisory opinion establishes a firmer legal basis for holding states accountable for mitigation efforts.

On corporate accountability, the advisory opinion requires states to regulate private actors within their jurisdictions in line with their mitigation commitments. Importantly, it goes further in clarifying the overlap between state and corporate responsibility. As stated in paragraph 427:

Although the advisory opinion does not directly resolve questions of extraterritorial corporate accountability, it strengthens the link between state responsibility and private sector regulation. Its greatest contribution lies in the remedies it outlines for breaches of state obligations. In paragraphs 444–455, the opinion specifies that states harmed by internationally wrongful acts may seek remedies ranging from restitution and non-repetition to reparations.

This legal clarity provides a stronger basis for compelling states to meet their mitigation obligations and, in turn, to regulate private actors within their jurisdictions. While the advisory opinion does not fully close the accountability gap, it creates meaningful legal avenues for addressing it.

3. The Opinion references human rights obligations in the context of climate change. How do you see this influencing domestic environmental litigation in countries like India?

Paragraphs 369 to 404 of the Advisory Opinion affirm the recognition of a wide range of human rights and highlight the impact of climate change on their enjoyment. The opinion places particular emphasis on the right to a healthy environment, which was endorsed in the UN General Assembly Resolution of 2022. That resolution, and the advisory opinion’s reference to it, signal that this right is widely recognized across domestic legal systems. By integrating human rights into the body of applicable law for climate change, the advisory opinion reinforces and expands upon connections already drawn by courts in the Global South between environmental harm and human rights.

In countries such as India, rights-based approaches have long shaped environmental litigation. The advisory opinion reaffirms this pathway as a means of addressing the legal challenges of the Anthropocene. A recent landmark judgment by the Supreme Court of India illustrates this trend. In M.K. Ranjitsinh and Others v. Union of India, the Court issued the country’s first climate ruling, deriving the right to be free from the adverse effects of climate change from Articles 21 and 14 of the Constitution. This demonstrates how human rights frameworks can serve as the foundation for climate litigation.

The advisory opinion strengthens this approach by offering interpretive guidance and reasserts efforts made by countries in the global south to bring together the regimes of international human rights and climate change through various efforts of legal mobilization. It is already influencing domestic litigation. For example, in South Africa, the organizations Natural Justice and the Green Connection filed an appeal arguing that the government must reconsider the role of Shell’s oil exploration in contributing to climate change.

By clarifying the scope of state responsibility and linking it directly to human rights obligations, the advisory opinion provides new legal weight and creates additional pathways for domestic climate litigation, particularly in the Global South where such strategies are already taking root.

4. What are the key challenges you foresee in the implementation of this Opinion by states?

The Advisory Opinion is non-binding, but it provides important interpretive guidance on the question of state responsibility in relation to climate change. Its full impact remains to be seen, yet it is worth reflecting on some of the challenges its implementation may face, particularly in the realms of climate litigation and climate negotiations.

In the realm of climate litigation, the advisory opinion offers a robust legal framework that can be harnessed in future rights-based climate cases. It also strengthens arguments for litigation aimed at realizing state obligations on mitigation, as illustrated by the case brought in South Africa. However, the opinion does not squarely address the question of accountability for historical emissions. Judge Yusuf, in his separate opinion, noted that “historical responsibility is not just a matter of history but a matter of continued contribution, since the historical emissions of industrialized countries continue to have a significant impact on the current climate system.” The advisory opinion’s silence on this point leaves unresolved the challenge of how to hold states legally accountable for historical emissions that continue to drive climate harm.

In the realm of climate negotiations, the challenge lies in how states deploy the legal clarity of the advisory opinion in their negotiation strategies. Daniel Bodansky and Susan Minaz have argued that the opinion may complicate approaches that rely on nuance and consensus-building. While this concern is valid, I believe the greater challenge will be to see how the advisory opinion informs the future of international climate lawmaking on difficult questions such as reparations, mitigation obligations, and accountability for the 1.5°C target. Will the opinion help build consensus toward these goals, or will it, as some suggest, have a chilling effect on negotiations? The answer may only become clear in the lead-up to COP 30.

5. Given your research in Governing Forests, how do you see the Opinion intersecting with the protection of forests and Indigenous people’s rights, especially since forests are central to mitigation and adaptation strategies?

While the Advisory Opinion acknowledges the vulnerability of Indigenous peoples and their rights in the context of climate change, I do not think it goes far enough. For instance, it states: “Climate change may also impair the enjoyment of the rights of women, children and Indigenous peoples.” Although there are other references to the impact on Indigenous rights, the opinion does not clarify how those rights are being undermined or what remedies may be specifically available to Indigenous communities. This lack of engagement leaves Indigenous groups with the task of relying on the general human rights framework articulated in the advisory opinion and applying it to their own struggles.

Indigenous peoples are disproportionately affected by climate change, facing the loss of ancestral territories, cultural erosion, and displacement. Stronger and more explicit protections are needed to address these impacts directly. That said, the advisory opinion’s recognition of human rights and state responsibility does provide Indigenous movements with a foundational legal framework that can be further developed to secure protections for their rights.

On the question of forests, the advisory opinion reiterates the importance of forests as carbon sinks and highlights the need to prevent deforestation while promoting afforestation. However, conservation policies have historically compromised Indigenous rights. While international mechanisms such as REDD+ have attempted to integrate Indigenous participation and rights, this has not always translated into practice at the domestic level. In India, for example, compensatory afforestation projects have sometimes been carried out in ways that violate the rights of forest-dwelling communities. These experiences caution us against assuming that the drive to preserve forests as carbon sinks will automatically align with the protection of Indigenous rights.

Still, there is room for a more hopeful interpretation. Community-based conservation efforts could create opportunities for protecting both forests and Indigenous rights, ensuring that conservation does not come at the expense of communities but is instead strengthened by their stewardship. Whether this convergence materializes remains to be seen, but it is a possibility worth watching closely.