Advisory Opinion of the ICJ on State Responsibilities for Climate Change Impacts: Context of the Submissions made by Bangladesh
Members of the Delegation of Bangladesh Photograph: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.
Since last December, the International Court of Justice (ICJ) has been in the process of deliberating to deliver its Advisory Opinion (AO) on the obligations of States with respect to climate change. The ICJ has gone through different steps, starting with a letter from the United Nations General Assembly (UNGA) on April 2023 with a request for an AO. For this AO, the UNGA posed questions regarding the obligations of States to protect the climate system and other parts of the environment under international law and the legal consequences of causing significant harm to the climate system and other parts of the environment by any acts and omissions. The question regarding legal consequences covers both obligations for extra-territorial impacts and obligations for inter-generational equity..
Throughout this procedure, Bangladesh has participated very actively. Bangladesh submitted a written statement, written comments, oral submission and written reply to the questions posed by four judges of the ICJ after completion of the oral submission. Earlier, Bangladesh also took part in drafting the questions forwarded by the UN General Assembly to the ICJ as a member of the ICJ core group led by Vanuatu.
In its written statement, Bangladesh stated that scientific consensus exists at the global level regarding the causes and consequences of climate change. Being one of the most impacted States by the adverse impacts of climate change, Bangladesh is increasingly suffering and is also uniquely vulnerable to future devastation. Already, Bangladesh is facing adverse health impacts, increased mortality, destruction of infrastructure, loss of traditional livelihoods and large-scale displacement. Bangladesh has already committed to taking significant actions to mitigate greenhouse gas (GHG) emissions (through its updated Nationally Determined Contributions 2021) despite being one of the least responsible countries in this respect. Additionally, significant resources are also committed by Bangladesh (through the National Adaptation Plan of Bangladesh 2023-2050) for the implementation of adaptation measures.
Through its written statement, Bangladesh has acknowledged the ICJ’s jurisdiction for entertaining the request for an AO and has submitted that the ICJ is required to exercise this jurisdiction as there are no compelling reasons to decline the request. International human rights law is regarded to be relevant in determining the obligations of States as climate change has severe adverse impacts on human health. Bangladesh submits that States are obligated to prevent any significant harm to the environment as per fundamental principles of international law and have a duty of due diligence. If any State or group of States fails to comply with these obligations, it will make that State or group of States responsible under the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Bangladesh has also relied on the United Nations Convention on the Law of the Sea (UNCLOS) to ascertain the obligations of the States for the protection and conservation of oceans and seas. Bangladesh has elaborated on the responsibilities of States to take adequate measures for sufficient mitigation of GHG emissions and to ensure adequate financial flow alongside other necessary assistance aimed at supporting the most climate-vulnerable States.
These responsibilities of States for the internationally wrongful acts (or omissions) consist of – (i) obligation to cease the act, (ii) obligation to guarantee non-repetition and (iii) obligation to make full reparation for the injury caused. The activity of ‘full reparation’ can be made through restoration, compensation and satisfaction. However, environmental damage is often considered as an irreversible injury. For any financially assessable damage, prompt payment of adequate compensation may be required. On the other hand, satisfaction may include an acknowledgement of a breach of obligation, an expression of regret and a formal apology. Thus, Bangladesh requests that States in breach of their obligations cease their act, guarantee non-repetition, and make full reparation of the injury already caused by the internationally recognised wrongful act by way of restitution, compensation and satisfaction.
HE Mr Tareque Muhammad, Ambassador of the People’s Republic of Bangladesh to the Kingdom of the Netherlands (Bangladesh) Photograph: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.
In the written comments on the written statements submitted to the ICJ, Bangladesh has again emphasised the obligations of the States with respect to climate change under customary international law and UNCLOS. Bangladesh underlined that the application of the well-established rules of State responsibility cannot be precluded by difficulties in establishing causation with respect to climate change. Also, it is clearly indicated by Bangladesh that for addressing plural injury and plural responsibility of States, a well-established framework exists under ARSIWA. Here, Bangladesh has specifically mentioned the advisory opinion delivered by the International Tribunal for the Law of the Sea (ITLOS) regarding climate change and international law as relevant for determining the obligations of the States Parties in a consistent and coherent manner.
Mr Payam Akhavan, LLM SJD (Harvard) OOnt FRSC, Senior Fellow and Human Rights Chair, Massey College, University of Toronto, member of the Permanent Court of Arbitration, associate member of the Institut de droit international, member of the Law Society of Ontario, member of the Bar of the State of New York (Bangladesh) Photograph: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.
While answering the questions put forth by four of the judges of the ICJ after the completion of oral submissions, Bangladesh has further explained State obligations for climate change in its written reply. Bangladesh confirmed that the fossil fuel-producing countries are bound to ensure the transition to sustainable energy sources without causing significant harm. Article 4 of the Paris Agreement, or the procedural obligation to submit Nationally Determined Contributions (NDCs), does not displace the core obligation for mitigation. States are bound to ensure protection from climate change within their territory and the prevention of transboundary impacts of climate change that violate the right to a healthy environment. Bangladesh affirms that the climate change regime is not a lex specialis. Thus, principles of general international law are to be applied in this respect.
However, Bangladesh has put less emphasis on the rights of individuals or people of either present or future generations who are affected by the adverse impacts of climate change. While stating the obligations of States in its written statement, Bangladesh has covered the principle of inter-generational equity. Yet, while describing legal consequences, Bangladesh has focused more heavily on States’ obligations to climate-vulnerable States. No additional prayer(s) or insight(s) can be found regarding obligations for the present and future generations, though this question claims a separate and specific concentration on it.
To sum up, Bangladesh has made very extensive arguments on the obligations of States regarding anthropogenic climate change and the legal consequences of those obligations. It is expected that the ICJ will deliver the judgement within 2025 by considering all arguments and ensuring equity and justice for the climate-vulnerable countries of the world.
