Written reply of Bangladesh to the questions put by Judges Cleveland, Tladi, Aurescu and Charlesworth at the end of the hearing held on 13 December 2024

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Response on behalf of the People’s Republic of Bangladesh to the questions posed by
Judges Cleveland, Tladi, Aurescu and Charlesworth on Friday, 13 December 2024
Question put by Judge Cleveland: During these proceedings, a number of participants
have referred to the production of fossil fuels in the context of climate change, including
with respect to subsidies. In your view, what are the specific obligations under
international law of States within whose jurisdiction fossil fuels are produced to ensure
protection of the climate system and other parts of the environment from anthropogenic
emissions of greenhouse gases, if any?
1. As Bangladesh has explained in its written and oral submissions, all States are
obligated under international law to take the measures necessary to deeply and rapidly mitigate
anthropogenic greenhouse gas (GHG) emissions to avoid significant harm to the climate
system and other parts of the environment, including, at a minimum, to avoid breaching the
1.5°C threshold1. This obligation is based upon the best available science, as reflected in the
reports of the IPCC2. It is premised upon distinct but mutually reinforcing regimes of
customary and conventional international law, including the core obligation of all States to
exercise due diligence to prevent transboundary environmental harm; the obligations of States
Parties to the United Nations Convention on the Law of the Sea to protect and preserve, and
prevent pollution of, the marine environment; the “UN Climate Change Regime”, comprised
primarily of the UNFCCC and Paris Agreement; and fundamental international human rights
norms3.
2. With respect to fossil fuels in particular, the obligations of States under international
law necessarily must take account of the fact that burning fossil fuels significantly increases
the concentration of GHGs in the atmosphere, thereby “unequivocally” causing global warming
1 See Written Statement of Bangladesh, paras. 127–139; Written Comments of Bangladesh, para. 16;
CR 2024/36, p. 67, para. 3 (Akhavan).
2 Intergovernmental Panel on Climate Change (“IPCC”), Climate Change 2023: Synthesis Report.
Contribution of Working Groups I, II and III to the Sixth Assessment Report of the Intergovernmental Panel
on Climate Change [Core Writing Team, H. Lee and J. Romero (eds.)], Geneva, Switzerland,
https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_FullVolume.pdf (hereinafter,
“IPCC Sixth Assessment Report”), p. 71. See also IPCC Special Report, Global Warming of 1.5C (2018),
https://www.ipcc.ch/sr15/, p. 18; Written Statement of Bangladesh, paras. 31–33; CR 2024/36, p. 67, para. 3
(Akhavan).
3 See Written Statement of Bangladesh, Section IV; Written Comments of Bangladesh, para. 22; CR 2024/36,
pp. 67–68, paras. 4–5 (Akhavan); id. at p. 73, para. 7 (Amirfar).
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and severe climate impacts4. Consistent with the best available science, at COP28, the States
Parties to the Paris Agreement recognized “the need for deep, rapid and sustained reductions
in greenhouse gas emissions in line with 1.5 °C pathways”, which in turn requires a
“transition[] away from fossil fuels in energy systems, in a just, orderly and equitable manner,
accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with
the science”5. Bangladesh echoed this consensus at COP29, calling for a new approach “based
on zero carbon. No fossil fuel. Only renewables”.6
3. In order to meet this obligation to transition away from fossil fuels, States within
whose jurisdiction or control fossil fuels are produced must ensure—whether by policy,
regulatory, legislative, and/or other action—that GHG emissions associated with such
production, considered on a cumulative basis (including scope 1, 2, and 3 emissions), do not
cause significant harm to the climate system or other parts of the environment. This includes
phasing out “inefficient” fossil fuel subsidies, which the World Trade Organization has
identified as an “important contribution … to the objectives of the Paris Agreement on Climate
Change, as well as to continued efforts to limit the temperature increase to 1.5 degrees above
pre-industrial levels and lower global climate-related risks”7.
Question put by Judge Tladi: In their written and oral pleadings, participants have
generally engaged in an interpretation of the various paragraphs of Article 4 of the
Paris Agreement. Many participants have, on the basis of this interpretation, come to
the conclusion that, to the extent that Article 4 imposes any obligations in respect of
Nationally Determined Contributions, these are procedural obligations. Participants
coming to this conclusion have, in general, relied on the ordinary meaning of the words,
context and sometimes some elements in Article 31(3) of the Vienna Convention on the
Law of Treaties. I would like to know from the participants whether, according to
them, “the object and purpose” of the Paris Agreement, and the object and purpose of
4 See Written Statement of Bangladesh, paras. 19–21; IPCC Sixth Assessment Report, pp. 42, 46; CR 2024/36,
p. 73, 75–76 paras. 6, 15 (Amirfar).
5 UNFCCC, Report of the Conference of the Parties serving as the meeting of the Parties to the Paris
Agreement on its fifth session, held in the United Arab Emirates from 30 November to 13 December 2023,
FCCC/PA/CMA/2023/16/Add.1, Decision 1/CMA.5, Outcome of the first global stocktake (15 March 2024),
para. 28 (emphasis added)..
6 Conference of Parties to the UNFCCC, National Statement of Bangladesh (15 November 2024), available
at https://unfccc.int/documents/643698, p. 1.
7 See World Trade Organization, Ministerial Statement on Fossil Fuel Subsidies (26 February 2024), available
at https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/MIN24/19.pdf&Open=True,
para. 5.
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the climate change treaty framework in general, has any effect on this interpretation
and if so, what effect does it have?
1. As described in Bangladesh’s written and oral submissions, States’ mitigationrelated
obligations under Article 4 of the Paris Agreement are largely procedural in nature,
requiring that States communicate and maintain NDCs that reflect their highest possible
ambition8. Each successive NDC must “represent a progression” of the State’s efforts over
time, which requires States to ensure that each NDC is more ambitious than the last9.
Interpreting the text of Article 4 in light of the object and purpose of the Paris Agreement does
not change the procedural nature of these obligations.
2. At the same time, however, the obligations contained in Article 4 of the Paris
Agreement are inseparable from substantive obligations arising from the UN Climate Change
Regime and other sources of international law. The Paris Agreement’s object and purpose
reflects the international and scientific consensus that States should “pursu[e] efforts to limit
the temperature increase to 1.5 °C above pre-industrial levels”10. This consensus informs
States’ obligation under customary international law to “use all the means at [a State’s]
disposal in order to avoid activities which take place in its territory . . . causing significant
damage to the environment of another State”11, which includes a “stringent” standard of due
diligence in the climate change context12 and requires States to take into account the best
available science and relevant international rules and standards13—“in particular the global
temperature goal of limiting the temperature increase to 1.5°C above pre-industrial levels and
the timeline for emission pathways to achieve that goal”14. As the IPCC and the majority of
States that participated in the oral proceedings recognize, current national commitments to
8 See Written Statement of Bangladesh, para. 37; Written Comments of Bangladesh, 29; CR 2024/36, p. 68,
para. 7 (Akhavan).
9 Written Comments of Bangladesh, para. 29; CR 2024/36, p. 68, para. 7 (Akhavan).
10 Paris Agreement, Articles 2(1)(a), 4(2), 4(3).
11 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, pp. 55–56,
para. 101.
12 Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change
and International Law, ITLOS, Advisory Opinion (21 May 2024) (hereinafter “ITLOS COSIS Advisory
Opinion”), paras. 241, 243, 399; CR 2024/36, p. 68, para. 6 (Akhavan); id. at pp. 73, 75, paras. 7, 15
(Amirfar).
13 ITLOS COSIS Advisory Opinion, paras. 206-208.
14 ITLOS COSIS Advisory Opinion, para. 243.
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reduce GHG emissions set out in respective NDCs are insufficient to stay within the 1.5 °C
threshold in accordance with best available science15, and thus cannot fulfill the obligations of
States under customary and conventional international law.
3. Accordingly, while the Paris Agreement alone does not embody the full extent of
applicable obligations under international law, it is entirely consistent with, and certainly does
not displace, States’ core mitigation-related obligations under the regimes of customary and
conventional international law noted above to take the measures necessary to deeply and
rapidly mitigate anthropogenic GHG emissions to avoid significant harm to the climate system
and other parts of the environment.
Question put by Judge Aurescu: Some participants have argued, during the written and
/ or oral stages of the proceedings, that there exists the right to a clean, healthy and
sustainable environment in international law. Could you please develop what is, in your
view, the legal content of this right and its relation with the other human rights which
you consider relevant for this advisory opinion?
4. The right of all persons to a clean, healthy and sustainable environment is now well
accepted under international law. In its Resolution 76/300—adopted in 2022 with 161 votes
in favor and zero votes against—the United Nations General Assembly expressly
“recognize[d] the right to clean, healthy and sustainable environment as a human right”16 and
further noted that “a vast majority of States have recognized some form of the right to a clean,
healthy and sustainable environment through international agreements, their national
constitutions, legislation, laws or policies”17. In addition, the vast majority of States
participating in this proceeding recognize the right to a clean, healthy and sustainable
15 See, e.g., CR 2024/36, pp. 15, paras. 10–12 (Antigua and Barbuda); id. at p. 17, para. 6 (Antigua and
Barbuda); CR 2024/36, p. 53, para. 2 (Bahamas); CR 2024/36, pp. 66, 71, paras. 10–11, 16 (Bangladesh);
CR 2024/36, p. 80, para. 4 (Barbados); CR 2024/37, p. 62, para. 1–2 (Philippines); CR 2024/38, pp. 27-28,
paras. 12, 19 (Chile); CR 2024/40, p. 67, para. 21 (Fiji); CR 2024/41, p. 19, para. 11 (Sierra Leone); CR
2024/41, p. 32, para. 5 (Ghana); CR 2024/42, p. 50, para. 27 (India); CR 2024/46, p. 42, para. 6 (Palestine);
id. at p. 50, para. 7 (Palestine); CR 2024/46, pp. 34–35, paras. 14–16 (New Zealand); CR 2024/47, pp. 27–
28, para. 6 (Netherlands); CR 2024/48, p. 58, para. 6 (Saint Lucia); CR 2024/49, p. 54, para. 7 (Seychelles);
CR 2024/50, p. 31, para. 8 (Sudan); CR 2024/52, p. 22, para. 3 (Viet Nam). See also IPCC Sixth Assessment
Report, p. 57.
16 United Nations General Assembly, Resolution 76/300, The human right to a clean, healthy and sustainable
environment, U.N. Doc. A/RES/76/300 (1 August 2022), Article 1.
17 United Nations General Assembly, Resolution 76/300, The human right to a clean, healthy and sustainable
environment, U.N. Doc. A/RES/76/300 (1 August 2022), Preamble. See also United Nations, “With 161
Votes in Favour, 8 Abstentions, General Assembly Adopts Landmark Resolution Recognizing Clean,
Healthy, Sustainable Environment as Human Right” (28 July 2022), available at
https://press.un.org/en/2022/ga12437.doc.htm.
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environment; indeed, only nine States argue there is no right to a healthy environment under
customary international law18.
5. The right to a healthy environment includes ensuring clean air and access to clean
and safe water, sustainable food, and adequate sanitation. It also encompasses the rights to a
safe climate and to healthy ecosystems and biodiversity, and the rights to access information
about the environment and to seek redress for environmental harms19. As such, the right to a
healthy environment is inextricably linked with other fundamental rights recognized, for
example, in the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, such as the rights to life20 and to health21,
including associated rights to water and food22, the right to sustainable development,23 and the
right to self-determination, the full realization of which includes the right to full sovereignty
over natural wealth and resources24. Indeed, maintenance of a healthy environment—which,
as the Court has recognized, “represents the living space, the quality of life and the very health
18 See Written Statement of Canada, para. 24; CR 2024/38, p. 17, para. 33 (Canada); Written Statement of
Germany, para. 104; CR 2024/36, p. 152, para. 29 (Germany); Written Statement of Indonesia, paras. 41–
44; CR 2024/42, p. 67, paras. 33–34 (Indonesia); Written Statement of New Zealand, para. 114; Written
Comments of New Zealand, para. 32; Written Comments of Saudi Arabia, para. 4.46; CR 2024/36, p. 33,
para. 13 (Saudi Arabia); CR 2024/50, p. 69, para. 43 (Serbia); Written Statement of Switzerland, paras. 60–
62; Written Statement of Tonga, para. 244; Written Statement of the United States of America, paras. 4.54–
4.58; CR 2024/40, p. 47, para. 32 (United States of America).
19 United Nations General Assembly, Resolution 76/300, The human right to a clean, healthy and sustainable
environment, U.N. Doc. A/RES/76/300 (1 August 2022), Preamble, Articles 1, 3; United Nations Human
Rights Committee, Resolution on the human right to a clean, healthy and sustainable environment, U.N.
Doc. A/HRC/RES/48/13 (18 October 2021), Preamble, Articles 1, 4(c); UN Committee on Economic, Social
and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health
(Article 12 of the Covenant), U.N. Doc. E/C.12/2000/4 (11 August 2000), paras. 4, 11, 15–16, 33, 36; UN
General Assembly, Resolution 45/94, The Need to Ensure a Healthy Environment for the Well-being of
Individuals, U.N. Doc. A/RES/45/94 (14 December 1990), Preamble, Article 1; CR 2024/36, p. 70, para. 13
(Akhavan).
20 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (16 December 1966) (hereinafter,
“ICCPR”), Article 6(1).
21 International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (16 December 1966)
(hereinafter, “ICESCR”), Article 12(1).
22 ICESCR, Article 11(1); UN Committee on Economic, Social and Cultural Rights, General Comment No.
14: The Right to the Highest Attainable Standard of Health (Article 12 of the Covenant), U.N. Doc.
E/C.12/2000/4 (11 August 2000), paras. 4, 33.
23 See UN General Assembly Resolution 41/128, Declaration on the Right to Development, U.N.
Doc. A/Res/41/128 (4 December 1986), Articles 1(2), 8.
24 ICESCR, Article 1(1); UN General Assembly Resolution 41/128, Declaration on the Right to Development,
U.N. Doc. A/Res/41/128 (4 December 1986), Preamble, Article 1(2).
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of human beings, including generations unborn”25—is critical to ensuring the full exercise and
enjoyment of each of these other fundamental rights.
6. Under international law, States are obligated to promote and encourage respect for
human rights—including the right to a clean, healthy, and sustainable environment—on a
global scale, and must refrain from conduct that would impede another State’s ability to protect
and ensure the exercise of this right by its population26. This includes obligations to prevent
or minimize transboundary climate change impacts that could affect the exercise of the right to
a healthy environment in another State’s territory27—including by taking the measures
necessary to mitigate GHG emissions to avoid significant harm to the climate system and other
parts of the environment.
Question put by Judge Charlesworth: In your understanding, what is the significance of
the declarations made by some States on becoming parties to the UNFCCC and Paris
Agreement to the effect that no provision in these agreements may be interpreted as
derogating from principles of general international law or any claims or rights
concerning compensation or liability due to the adverse effects of climate change?
1. As described in Bangladesh’s written and oral submissions, the UN Climate Change
Regime is consistent with—and therefore does not preclude, displace or limit—related
customary, conventional and general international law norms, rendering the principle of lex
specialis irrelevant28. Those norms apply in parallel to the UN Climate Change Regime, and
a State or group of States that fails to comply with their climate-related obligations under
general international law will be liable for an internationally wrongful act, for which full
reparation is due pursuant to the customary rules of State responsibility29. This is reflected in
the plain terms of the UNFCCC, which explicitly recognizes States’ obligations “in accordance
with the Charter of the United Nations and the principles of international law” and recalls
25 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 241, para. 29.
26 See Written Statement of Bangladesh, para. 105, footnote 209.
27 See Written Statement of Bangladesh, para. 105, footnote 210.
28 See Written Comments of Bangladesh, paras. 28, 32–34; Written Statement of Bangladesh, Section IV; CR
2024/36, pp. 68–70, paras. 8–12 (Akhavan).
29 International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts,
Yearbook of the International Law Commission vol. II (2001) (hereinafter, “ARSIWA”), Articles 2, 31.
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States’ “responsibility to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States”30.
2. The fact that certain States made declarations to the effect that no provision in the
UN Climate Change Regime treaties may be interpreted as derogating from principles of
general international law or any claims or rights concerning compensation or liability due to
the adverse effects of climate change merely confirms, out of an abundance of caution, that
those States did not intend for the UN Climate Change Regime to constitute lex specialis to the
exclusion of other rules of international law31.
3. Notably, no State has argued in these proceedings that the declarations referenced
in the question were inconsistent with States’ general understanding of the UN Climate Change
Regime at the time, and no contrary declarations were made by any States on becoming Parties
to the UN Climate Change Regime treaties32. Thus, the fact that some States made such
declarations, while others did not, does not have any significance with respect to the
relationship between the UN Climate Change Regime and relevant principles of customary and
general international law.
30 UNFCCC, Preamble. See also id. at Article 3(3) (referring to the precautionary principle, stating that “Parties
should take precautionary measures to anticipate, prevent or minimize the causes of climate change and
mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific
certainty should not be used as a reason for postponing such measures”).
31 See Bangladesh’s Written Comments, paras. 28-33.
32 See UN Treaty Collection, “Paris Agreement: Declarations”,
https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=xxvii-7-d&chapter=27&clang=_en;
UN Treaty Collection, “UNFCCC: Declarations”,
https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXVII-
7&chapter=27&Temp=mtdsg3&clang=_en.