Analysing its Submissions to the International Court of Justice – Indian Blog of International Law

Tejas Rao

As the International Court of Justice (ICJ) considers its landmark climate change advisory opinion, Bangladesh’s submissions offer a compelling perspective from one of the world’s most climate-vulnerable nations. Despite contributing less than 0.47% of global emissions (Written Statement para. 44), Bangladesh faces disproportionate climate impacts that threaten its very existence. Its submissions demonstrate how the existing international legal framework, properly interpreted, can provide a basis for meaningful climate action while highlighting the urgent need for more robust enforcement mechanisms. This post aims to provide an overview of its submissions.

State Obligations Under International Law (Question A)

Bangladesh’s approach to state obligations weaves together multiple sources of international law. The submissions explicitly reject attempts by some States to limit climate obligations to what has been dubbed throughout the proceedings, the UN Climate Treaty Regime (the UNFCCC and its subsequent agreements, including the Paris Agreement). In its Written Comments (para. 28), it argues that the UN Climate Treaty Regime “does not constitute lex specialis to the exclusion of other rules of international law.” This position, like that of other States, including the Melanesian Spearhead Group, challenges the notion that the Paris Agreement’s voluntary framework represents the complete extent of state obligations.

The customary international law obligation to prevent transboundary harm is at the heart of Bangladesh’s argument. Bangladesh argues in its Written Comments (para. 15) that this requires the “most stringent measures necessary to prevent such harm” given the catastrophic nature of climate impacts. This obligation, Bangladesh contends, is critical to interpreting and supporting the Paris Agreement obligation, to “take steps to mitigate GHG emissions to limit global warming to 1.5°C above pre-industrial levels”. This framing cleverly connects well-established principles of international law to specific climate targets, providing a legal basis for interpretation and enforcement of obligations set forth by the Paris Agreement. 

Bangladesh further emphasizes the critical role of the United Nations Convention on the Law of the Sea (UNCLOS), particularly Article 192’s obligation to protect and preserve the marine environment. Drawing on the recent ITLOS Advisory Opinion, Bangladesh argues this creates binding obligations regarding climate change, requiring States to take “active measures” while also entailing a “negative obligation not to degrade the marine environment” (Written Comments para. 12). This interpretation of UNCLOS as a climate change instrument represents a growingly accepted approach to expanding the legal framework for climate action.

Legal Consequences for Non-Compliance (Question B)

Bangladesh’s treatment of legal consequences is particularly noteworthy for its comprehensive approach to reparations and remedies. The submissions outline several specific consequences that should flow from breaches of climate obligations:

First, Bangladesh argues for a multi-faceted approach to reparations from high-emitting states to climate-vulnerable nations. Its Written Comment (para. 18) quantifies the immediate financial need, highlighting that Bangladesh alone requires at least US$10 billion annually for adaptation measures. However, Bangladesh’s conception of reparations extends beyond mere monetary compensation. Drawing on the established framework of state responsibility in international law, Bangladesh’s Written Comments (paras. 146-147) explicitly recognize that reparation should take the form of restitution where possible, compensation where restitution is not possible, and satisfaction where appropriate.

Second, Bangladesh advocates for a robust framework of state responsibility with specific emphasis on adaptation measures as a form of restitution. Its Written Comments (para. 6) argue that when States violate their mitigation obligations, they incur secondary obligations to “assist injured States with the adaptation measures necessary to remedy that harm.” This formulation is significant as it positions adaptation support not merely as compensation, but as a form of restitution aimed at restoring (to the extent possible) the position that would have existed but for the breach. Where full restitution is impossible due to the irreversible nature of some climate impacts, Bangladesh argues for compensation to cover the costs of necessary adaptation measures.

Third, Bangladesh calls for technology transfer and capacity-building obligations as additional forms of reparation. In its oral submissions (p.74), it emphasizes that these obligations must be understood as binding legal requirements rather than voluntary commitments. This approach recognizes that effective reparation for climate harms requires not only financial compensation but also the transfer of means to prevent and minimize future damage.

This  approach to legal consequences reflects an understanding of the widely-accepted established frameworks of state responsibility, adapting them to the unique challenges of climate change. By articulating specific forms of reparation – from restitution through adaptation measures to compensation and capacity building – Bangladesh provides the Court with a practical framework for implementing meaningful consequences for breaches of climate obligations.

Bangladesh’s Unique National Context

Bangladesh’s submissions are distinguished by their emphasis on current, devastating impacts rather than just future risks. Its Written Statement (para. 54) documents how in 2020 alone, 2.5 million Bangladeshis were forced to leave their homes due to cyclone Amphan. This focus on present impacts strengthens the legal argument for immediate action and compensation.

The submissions also uniquely emphasize how climate change undermines development rights. Bangladesh’s Written Comments (para. 44) detail how it has been “forced to re-direct funding for healthcare, education, and other social programs” toward climate adaptation, “undermining the rights to sustainable development and self-determination.” This connection between climate change and development rights adds an important dimension to the legal analysis.

Analysis and Implications

Bangladesh’s submissions represent a sophisticated attempt to establish a comprehensive legal framework for climate action that goes beyond the voluntary mechanisms of the Paris Agreement. By grounding climate obligations in customary international law, human rights law, and UNCLOS, Bangladesh provides the Court with multiple pathways to establish binding obligations while respecting the principle of common but differentiated responsibilities.

The emphasis on specific legal consequences and remedies is particularly important. While some submissions focus primarily on establishing obligations, Bangladesh’s detailed treatment of consequences provides a practical framework for enforcement. This could prove crucial in moving from abstract commitments to concrete action.

However, questions remain about how such consequences could be effectively implemented, particularly given the complex causation issues in climate change. Bangladesh’s submissions address this challenge by emphasizing objective standards and clear triggers for liability, but the practical mechanisms for enforcement would need further development.

Nevertheless, Bangladesh’s comprehensive approach, grounded in its lived experience of climate impacts, offers the Court a compelling framework for establishing meaningful legal obligations with concrete consequences for non-compliance. This could prove instrumental in developing international law’s response to the climate crisis. 

(Tejas Rao is a PhD Researcher at the University of Cambridge and a Senior Manager at the Centre for International Sustainable Development Law.)

Read the analysis of Sri Lanka’s submission here.