India’s Submission to the ITLOS Climate Change Advisory Opinion: A Lost Opportunity

• Pages: 19-31

LEX PORTUS VOL 10 ISS 2 2024

ISSN 2524-101X

eISSN 2617-541X

DOI 10.62821/lp10203

India’s Submission to the ITLOS Climate Change

Advisory Opinion: A Lost Opportunity

Chhaya Bhardwaj*, Daniel Stein**

*Associate Professor, OP Jindal Global Law School (Sonipat Narela Road, Sonipat, Haryana, 131001, India); Alexander von Humboldt International

Climate Protection Fellow, Hertie School (Friedrichstraße 180, Berlin, Germany) https://orcid.org/0000-0002-5040-4121

**Assistant Professor, OP Jindal Global Law School (Sonipat Narela Road, Sonipat, Haryana, 131001, India) https://orcid.org/0000-0001-6309-1171

ABSTRACT

The authors argue that India’s submission to the ITLOS for the proceedings concerning the

Advisory Opinion on Climate Change was a lost opportunity. India could have led the voices of

developing countries and countries with a marine environment vulnerable to climate change,

but India failed to do so. Additionally, India could have presented a more coherent and robust

submission while aligning it with India’s other international submissions and its domestic policies

on climate change, as well as contributing to global climate law and its judicial interpretation.

CITATION

Bhardwaj, C., & Stein, D. (2024).

India’s Submission to the ITLOS

Climate Change Advisory

Opinion: A Lost Opportunity.

Lex Portus, 10(2), 25–37.

https://doi.org/10.62821/lp10203

KEYWORDS

ITLOS, advisory opinion, India,

CBDR-RC, maritime law, climate

change, lex specialis

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Introduction

In the 1970s, when the third Law of the Sea Convention was undergoing deliberations

and negotiations, scholars like R. P. Anand argued that the world was undergoing rapid

technological, social, political, economic, and sociological changes and that these

transformations should be reected in a change in the law (Anand, 1977). Anand concluded

that this transformative new law cannot be founded on old laws, practices, and dogmas

(Anand, 1977). Today, the law of the sea is undergoing a massive transformation by looking

into the interlinkages and aspects of the law of the sea in the context of “climate change” –

a term/phrase/phenomenon that does not nd a place in the United Nations Convention

on the Law of the Sea (UNCLOS). The current debate at the intersection of climate change

and UNCLOS is at the heart of protecting and preserving the marine environment and

marine biodiversity under the existing provisions of UNCLOS (Koh, 1984). During UNCLOS

negotiations, new interest groups of states beyond traditional socioeconomic dichotomies

emerged, like “coastal states, the group of landlocked and geographically disadvantaged

States, the group of Straits States, the group of archipelagic States, and many others” (Koh,

1984). The negotiations, however, did not see a group of states vulnerable to climate change–

like the Commission of Small Island States on Climate Change and International Law (COSIS),

because the science of climate change was not strong enough during the negotiations to

allow these special interest groups to emerge. This coalition is one of the newest characteristics

emerging at the intersection of climate change and UNCLOS, and “these concepts have been

important from the overall Third World perspective on Climate Change” (Khoday, 2022).

However, historical comparisons between the developed and developing world point

to a “pattern of inequity” emerging due to inequity in international climate space. Despite