Bangladesh's historic victory at ITLOS and beyond
On 21 May 2024, the 21 judges of the International Tribunal for the Law of the Sea (ITLOS), based in Hamburg (Germany), issued a unanimous advisory opinion that states are under a legally binding obligation to reduce greenhouse gas emissions to prevent catastrophic harm.
ITLOS was established under the 1982 UN Convention on the Law of the Sea – the ‘Constitution of the Oceans’. As the guardian of that law, its views on protection of the marine environment are authoritative. This is especially important because our oceans absorb 93% of excess heat from global warming. As such, the unanimous pronouncement from ITLOS is also likely to influence the forthcoming opinion by the International Court of Justice (ICJ). Since early last year, the UN’s principal Court in the Hague has been seized of the broader questions of international law, including the impact of climate change on human rights. So far, a record number of 91 States and international organizations have made submissions to the ICJ on this matter which is likely to deliver its option sometime in 2025.
As a climate vulnerable nation that has exercised global leadership on climate justice, Bangladesh has played an important role in both the ITLOS and ICJ proceedings. It now has an opportunity, together with other like-minded States, to exploit this historic precedent to pressure the major polluters to change course before it is too late.
The global regime for addressing climate change was established at the 1992 Earth Summit in Rio de Janeiro at which the UN Framework Convention on Climate Change was adopted. Under that treaty, the Paris Agreement was adopted in 2015 whereby States pledged to provide information on Nationally Determined Contributions (NDCs) to achieve the goal of keeping temperature rise to “well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.” That temperature range is based on the best available scientific evidence. Exceeding it would have catastrophic consequences, especially for States such as Bangladesh with extensive low-lying coastal areas that face rising sea-level and increasingly extreme weather events, exacerbated by river flooding arising from melting glaciers in the Himalayas. Already, thousands of climate migrants have been forced to abandon their ancestral rural homes for large cities like Dhaka. Such loss and damages arising from temperature rise will increase significantly in the coming years in the face of inaction by the major polluters.
Despite this reality, however, the Paris Agreement is essentially a voluntary scheme that does not bind them to do what is necessary to avoid significant harm to climate vulnerable States that have historically made negligible contributions to global warming but which now disproportionately suffer its worst effects. The Inter-Governmental Panel on Climate Change (IPCC) – reflecting the best available science – underlines that after some thirty years of the so-called “COP process” – with endless negotiations and resolutions – the current NDCs are such that the world is set to achieve a temperature rise of 2.8°C instead of 1.5°C.
There can be no doubt that continuing on this path will result in catastrophic consequences.
That is why the climate vulnerable States have turned to international courts and tribunals, because what they are demanding in the COP process – radical cuts in greenhouse gas emissions together with loss and damages owed to climate vulnerable States – demonstrates that their demands are merely reflecting their legitimate rights under international law. The long-established principle of international environmental law is that “the polluter pays” – the major polluters must either stop causing harm or, they must pay those that suffer as a result.
The ITLOS and ICJ processes have helped mobilize global opinion in favour of climate justice. They have opened a new chapter in the struggle for climate justice, whether through re-framing the negotiations in the COP process, or potentially, by moving from advisory opinions to contentious proceedings against the major polluters. An unprecedented number of 40 States and international organizations joined the ITLOS proceedings. The widespread participation in both the ITLOS and ICJ proceedings demonstrates that the precedent-setting effect of these opinions is being taken seriously, in the global North and South alike. Those who speak about a rule-oriented international order must realize that actions have consequences, and that those who suffer more and more from inaction will no longer be satisfied by empty promises.
It should be considered, however, that what the climate vulnerable States are suffering today will also be the fate of the major polluters as unprecedented flooding, forest fires, devastating storms and other disasters proliferate, with each year being the hottest on record.
The oceans, in particular, which regulate the global climate system, must be protected against further temperature rise. Nature knows no political boundaries. We are increasingly reminded that there is in fact only one humankind inhabiting a single planet – a planet that has allowed for the existence of life in an inhospitable universe through a miraculous balance of water, oxygen, and temperature without which we would all perish.
For decades, Bangladesh has been a crucial lead in the global climate discourse, be at UNFCCC COP or the UN. The proceedings of ITLOS and ICJ will help strengthen the global climate negotiations at a time when the urgency of radical action to save the earth has been transformed from a distant aspiration to an immediate need. Once the ICJ delivers its opinion, humankind can hopefully look back at both legal precedents as a significant turning point for a global community that still has time to address an unfolding, man-made and preventable disaster, that we euphemistically call “climate change”, but which imperils our fragile civilization and common survival.
* Dr. Payam Akhavan is a Professor of International Law at Massey College, University of Toronto, and a Member of the Permanent Court of Arbitration (PCA). He serves as the Counsel to Bangladesh in the climate change proceedings before ITLOS and the ICJ.