THE projected devastating effects of climate change in the coming years have sparked mixed reactions in the international legal arena. While states that are highly vulnerable to climate impacts have been proactive in advocating for universal obligations to combat climate change through multilateral frameworks, many industrialised polluter states remain reluctant to engage in such processes. As a result, these affected nations have pursued initiatives to seek advisory opinions from various international courts and tribunals (ICTs) in order to clarify and solidify the climate-related obligations of states.
ICTs typically exercise two types of jurisdiction: (i) contentious jurisdiction and (ii) advisory jurisdiction. In contentious jurisdictions, ICTs resolve disputes between states that have been brought before them. In contrast, the advisory jurisdiction involves the deliberation of legal opinions on questions presented by competent entities. For instance, under the UN Charter, the General Assembly, the Security Council, and other authorised UN organs or specialised agencies can request advisory opinions from the International Court of Justice on legal matters within their competence. While these opinions are generally non-binding on states and international organisations, they hold significant persuasive legal weight.
Within the context of climate change, the International Tribunal for the Law of the Sea, ITLOS, has already issued an advisory opinion addressing states鈥� obligations to combat climate change in relation to the United Nations Convention on the Law of the Sea, UNCLOS. In the inter-American context, the Inter-American Court of Human Rights has concluded oral hearings for an advisory opinion concerning the Inter-American Convention on Human Rights, with the matter currently pending deliberation. However, the request for an advisory opinion on states鈥� climate change obligations in international law before the ICJ appears to be the cherry on top of the cake.
Bangladesh, ranked as the seventh most climate-affected country globally (Germanwatch, Global Climate Risk Index 2021), has been vocal about climate change in international political and judicial forums. It previously participated actively in both the written and oral proceedings of the ITLOS Advisory Opinion on Climate Change, held in Hamburg, Germany.
It is worth mentioning that ITLOS ruled that greenhouse gas emissions absorbed by oceans constitute marine pollution, affirming that states must take all necessary actions, based on the best available science, to minimise emissions in compliance with UNCLOS and other relevant international legal frameworks. As a coastal state, this advisory opinion holds particular significance for Bangladesh in reinforcing its climate-related obligations.
Bangladesh鈥檚 role in the ICJ Advisory Opinion on Climate Change extends beyond its mere participation in the proceedings. It was part of the Vanuatu-led core group of 18 states that spearheaded the unanimous adoption of UNGA Resolution 77/276 on March 29, 2023. Bangladesh has also submitted its written statement and written comments and participated in the oral proceedings.
It is to be noted that the ICJ Advisory Opinion on Climate Change has attracted unprecedented participation from states and international organisations. A total of 96 states and 11 international organisations participated in the oral proceedings held from December 2鈥�13, 2024. This Advisory Opinion request centres on two key legal questions: (1) the obligations of states under international law to protect the climate system and environment from greenhouse gas emissions for both current and future generations and (2) the legal consequences for states that cause significant harm to the climate system, especially regarding vulnerable nations and affected peoples and individuals.
In its written submission of March 25, 2024, Bangladesh emphasised states鈥� obligations under international law in the context of climate change, drawing on various branches of international law and scientific evidence. It further outlined the legal consequences of the states听violating climate-related international obligations. In its written comments of August 15, 2024, Bangladesh underscored states鈥� climate change-related obligations under customary international law, UNCLOS, the UN climate treaty regime, and human rights law. It further explained the general principles of state responsibility applicable in the context of climate change.
Bangladesh presented its oral submission on the first day (December 2, 2024) of the ten-day-long oral proceedings. The Bangladesh delegation was led by ambassador Tareque Muhammad (Bangladesh鈥檚 ambassador to the Netherlands) and comprised of Professor Payam Akhavan (University of Toronto) and Catherine Amirfar (Debevoise & Plimpton LLP) among others. Notably, both Professor Akhavan and Amirfar also represented Bangladesh before the ITLOS.
Bangladesh鈥檚 oral submission consisted of three key parts. First, ambassador Muhammad highlighted the country鈥檚 vulnerability to climate change and its urgent need to combat its effects. Professor Akhavan then emphasised Bangladesh鈥檚 position that 鈥榓ll states must take necessary measures to rapidly and deeply mitigate anthropogenic greenhouse gas emissions to avoid breaching the 1.5掳C threshold, with the greatest responsibility resting on developed and high-emitting states.鈥� He relied on customary international law, the UN climate treaty regime, human rights law, and the principle of common, but differentiated, responsibilities to substantiate this argument. Finally, Catherine Amirfar addressed Bangladesh鈥檚 stance on international obligations concerning climate adaptation, drawing upon the aforementioned sources of international law.
Bangladesh has particularly emphasised that, despite contributing only 0.52 per cent of global GHG emissions, it is disproportionately affected by climate change. It has strongly advocated for the application of the principle of common, but differentiated, responsibilities, highlighting the contributions of industrialised states to the worsening climate crisis and the impacts on small islands and low-lying nations. Given the heavy financial burden on climate-vulnerable countries to mitigate and adapt to climate change, Bangladesh has called for financial and technical support from high-emitting states, in accordance with their international obligations.
The ICJ鈥檚 forthcoming advisory opinion is widely anticipated to play a pivotal role in addressing climate change through international law. In light of the unanimous opinion recently delivered by ITLOS, the international community remains hopeful that the ICJ will adopt a similar stance.
Pending the ICJ鈥檚 deliberation, Bangladesh must continue to align its domestic laws with its international legal positions to effectively address climate change challenges. Its active participation in the ICJ and ITLOS proceedings underscores the importance of this alignment, serving as a reminder of the country鈥檚 domestic obligations to combat climate change. As one of the top 40 GHG emitters globally, Bangladesh faces the pressing need to harmonise its domestic laws and policies with its legal stance at the ICJ. This alignment is essential not only to mitigate the impacts of climate change but also to implement measures that enhance climate resilience, ensuring the nation鈥檚 preparedness for the challenges it will face in the future.
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Quazi Omar Foysal is an international law expert, currently serving as a lecturer at American International University-Bangladesh and practising as an advocate at the Supreme Court of Bangladesh.