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

Karishma Ramchiary

Introduction 

This post discusses the Islamic Republic of Pakistan’s (hereinafter ‘Pakistan’) submissions (both in the form of Written Statement (hereafter ‘WS’) and Oral Arguments (hereafter ‘OA’) to the International Court of Justice (ICJ) with regards to the request for Advisory Opinion on obligations of states with respect to climate change.  

Pakistan’s submissions highlighted its experience with climate change, majorly focusing on extreme weather changes in the State, the experience of massive floods in 2010 and 2022, and the issue of extreme desertification being an arid to semi-arid country and its drastic consequences on its population’s livelihood and the loss of biodiversity. 

Taking note of it being a developing country, its legal submissions rested on i) the principle of prevention of significant transboundary harm, ii) the principle of common but differentiated responsibility, iii) the obligations of State as provided under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement and iv) the obligations under the United Nations Convention to Combat Desertification (UNCCD). 

Prevention of Significant Transboundary Harm and the Principle of Common but Differentiated Responsibility 

Putting emphasis on the ICJ pronouncements of Pulp Mills and the Corfu Channel, Principle 21 of Stockholm Declaration and Principle 2 of Rio Declaration, Pakistan’s WS highlighted the well-established ‘principle of prevention’, i.e., State’s exercise of activities in its territory without damaging or significantly harming other States or their rights. In the context of transboundary harm with respect to climate change, Pakistan asserted that the Preamble of the UNFCCC expressly recognizes transboundary harm arising from anthropogenic greenhouse emissions as it prescribes that no activities in the State’s jurisdiction or control should cause environmental harm to other State or beyond the limits of national jurisdiction. While acknowledging that the pronouncements it referred to are not directly linked with climate change, it made the argument that it is useful in the realization of the principle of transboundary harm even in the context of climate change as it is applied in any other type of environmental harm. An important state obligation (obligation of prevention and due diligence) which is applicable to all kinds of activities either planned or actual or done by a private entity or the State itself. (para 36 and 37,WS). Relying on this argument, Pakistan refuted the contrary arguments made by Australia, United States and the Nordic Countries which had forwarded the argument that ‘the obligation of prevention can only be applied to those cases that involved a direct and temporarily proximate cause of environmental harm from an identifiable source spreading from one state to a neighboring state’. This side further argued that the obligation of prevention in context to climate change lacks the required state practice and opinio juris. In order to strengthen its argument on obligation of prevention in context to climate change, alongwith the preamble of UNFCCC, Pakistan went on to rely on two more conventions namely, Convention on Long Range Transboundary Air Pollution (Art. 1(b)) and Vienna Convention for the protection of the Ozone Layer (Art. 1) which follows similar wording as UNFCCC. (OA) 

On the principle of Common but Differentiated Responsibility (CBDR), Pakistan argued that all States have the responsibility in context to climate change depending upon the State’s socio-economic condition and its historical contribution (if any) to climate change through anthropogenic greenhouse emissions (para 41 WS). Pakistan emphasized that CBDR is a well-established environmental law obligation enshrined under the UNFCCC, the Paris Agreement and the UNCCD. It went on to argue that CBDR not only plays a critical role in addressing the issue of climate change but also provides the means to mitigate significant transboundary harm. Upholding the principle of equity is a must and those who have caused the anthropogenic greenhouse emissions must bear the responsibilities. Such responsibilities include compensation and support and facilitation through funding and technology to enhance the capabilities of developing countries to combat climate change (para 46 WS and oral arguments).  (See here to understand how Nepal’s submission on CBDR was different from Pakistan.)

Important Obligations under the UNFCCC, the Paris Agreement and the UNCCD 

By reiterating the obligation of CBDR as laid down in UNFCCC, Pakistan identified the most important obligations set forth in the UNFCCC and the Paris Agreement. One of them being the obligation of stabilising the greenhouse gas concentrations and limiting the global increase in temperature to 1.5° C and at least below 2°C (Art. 2, UNFCCC). Pakistan highlighted that in maintaining this limit and achieving the emission reduction targets, the developed countries shall take the lead as agreed upon in the UNFCCC to ensure the commitment to support, promote and fund (financial resources) as well as transfer technology. (Art. 4 UNFCCC; Art. 4 and 9 Paris Agreement, page 27-30, WS). Pakistan also maintained that the obligation of the ‘principle of transboundary harm’ in context to greenhouse emissions and climate change as agreed under the UNFCCC has not yet been realized by the State Parties (para 48 WS). 

In relation to the UNCCD, Pakistan focused on the risks of desertification the country faces due to climate change. It highlighted its own national policies and actions under UNCCD including the National Action Programme, the Sustainable Land Management Programme, Tarbela Watershed Management Projects, etc. and asked for financial and technical assistance from developed countries (para 69 WS).

Conclusion 

Pakistan’s submissions were overall balanced, focusing on its climate change experience and its identified capabilities as a developing country. Apart from all its contentions as discussed, the most interesting argument would be the ‘principle of prevention’ i.e, the significant transboundary harm in the context of climate change. Whether this obligation applies in context to climate change (as interpreted everywhere beyond the limits of State’s jurisdiction) or only in cases of proximity (from one state to neighbouring state) would be a discussion for international law experts and of course I shall notably lookout for the ICJ’s position on this issue. In its both submissions Pakistan has adequately relied on cases of importance both from ICJ jurisdiction (Pulp Mills Case, Corfu Channel and others) and from other international adjudicatory bodies (Iron Rhine). Other than that it also relied on important Conventions and Declarations relating to climate change and the IPCC and Work Bank Reports to establish its case.

(Karishma Ramchiary is a research scholar in international law. She did her Masters in International Law from the South Asian University.)