By Gursimran Kaur Bakshi, a lawyer based in New Delhi.

Introduction

On March 29, 2023, the United Nations General Assembly (‘UNGA’) adopted a resolution requesting an advisory opinion on the “obligations of states with respect to climate change” from the International Court of Justice (‘ICJ’) by consensus.[i]

The resolution was drafted by Vanuatu, a South-pacific Island nation which continuously ranked first in the former World Risk Index, including on the 2021 report.[ii]

This is the first time the ICJ will be directly dealing with the issue of climate change. Previously, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, it only acknowledged the existence of the “general obligation of states” to ensure that activities within their jurisdiction must respect the environment of other states as a part of the corpus of international law relating to the environment.[iii] It reiterated the same in Gabcikovo-Nagyamaros Project (Hungary versus Slovakia).[iv]

Advisory opinion on obligations of states on climate change

The draft resolution seeks for the ICJ to render an advisory opinion on two questions, namely:

  • What are the obligations of states under international law to protect the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases?
  • What are the legal consequences under these obligations for states whereby they, by their acts or omissions, have caused significant harm to the climate system and other parts of the environment, concerning states, in particular, small island developing states and including peoples and individuals of the present and future generations affected by the adverse effect of climate change?[v]

Interestingly, the final draft of the advisory opinion is supported by a core group of 17 countries, including Bangladesh. It is also co-sponsored by states including Nepal, Sri Lanka and Maldives.[vi]

The presence of South Asian countries in the climate change discourse in international law is highly crucial and timely. A growing body of evidence suggests that South Asia continues to be disproportionately impacted by climate change. The impact of climate change is expected to intensify with the global rise in temperature.

Climate Change in South Asia

The World Bank’s Group Country Climate and Development Report, which is a diagnostic report that integrates climate change and development considerations, has published reports on Bangladesh, Nepal and Pakistan. The report suggests that despite optimistic global climate scenarios, Bangladesh faces “severe risks” from climate change. The country could have 13.3 million internal climate migrants by 2050.[vii]

27 percent of its coastal population is exposed to a “100-year coastal flood event,” which is expected to increase by 35 percent with half a metre of sea level rise. This is because sea level rise will nearly double asset risk while threatening agricultural production, water supplies, and coastal ecosystems. Cropland may shrink by 18 percent in southern Bangladesh and 6.5 percent nationally by 2040. Moreover, one-third of agricultural Gross Domestic Product may be lost due to climate variability and extreme events by 2050.[viii]

The situation in Pakistan is even worse. Last year, Pakistan as a whole received 243% more than the usual rainfall, making it the wettest August since 1961.[ix]

Sindh and Balochistan provinces experienced seven and eight times more rainfall than usual. By the end of August 2021, large parts of the country were submerged. The Indus River burst its banks across thousands of square kilometres, and due to its overflowing, a 100 km wide lake was created in the southern province of Sindh. The resultant floods affected over 33 million people, destroyed 1.7 million houses, and nearly 1500 people died. The Government had to declare a national emergency.[x]

A group of scientists found that the increased extreme monsoon rainfall in Pakistan was likely caused by climate change.[xi]

In early 2022, the World Weather Attribution warned of intensifying and prolonged heat waves in Pakistan and India.[xii]World Bank says heatwaves are the major threat to Pakistan’s labour force.

In 2020, the heatwave put millions of people in Pakistan at risk of heat stress and accelerated glacier melt. Extreme heat will significantly increase the frequency and severity of droughts, as per the World Economic Forum.[xiii]

As per Pakistan’s climate risk country profile, jointly developed by World Bank and the Asian Development Bank, an increase in the number of people affected by flooding is projected, with a likely increase of around 5 million people exposed to extreme river floods by 2035-2044.[xiv]

The condition of India is no better. As per the 2022 World Risk Report, India ranks second on the list of countries with the highest disaster risk worldwide after the Philippines on the World Risk Index. Bangladesh and Pakistan occupy the ninth and tenth positions, respectively.[xv] This is the index which island nations or undeveloped countries have usually occupied.

Nepal is in a moderately better position than Pakistan and Bangladesh, but the country remains highly vulnerable to climate change and natural disasters. It faces both extreme and slow-onset climate-related hazards.[xvi]

As per the 2023 World Risk Report published by the World Economic Forum, one of the top five risks faced by both India and Nepal is natural disasters and extreme weather events. Nepal is also prone to human-made environmental damage along with Bangladesh. On the other hand, Pakistan and Sri Lanka risk state collapse. [xvii]

Tourism contributes significantly to the Sri Lankan economy. However, most of the tourism economy is located in the coastal zone and therefore is exposed to multiple climate adversities, including extreme heatwaves, rainfall, and rising sea levels. Its climate risk report suggests that Sri Lanka will have to bear enormous adaptation costs to protect its tourist economy.[xviii]

Particularly threatening is the situation in war-torn Afghanistan, where 50 percent of the population faces extreme poverty. Afghanistan is the 14th most vulnerable country in the world.[xix] This, coupled with a significant increase in drought severity and an expected level of warming above the global average, makes the land-locked country vulnerable.[xx]

What would the advisory opinion mean to South Asian countries?

For South Asian countries, an authoritative international text on the obligation of states on climate change would allow individuals to make their governments accountable. This does not mean that all governments will be welcoming in accepting their international obligations. However, it would become more accessible for individuals to take governments to court. While Pakistan enacted the Climate Change Act 2017 and the Maldives recently implemented the Climate Emergency Act, 2021, none of the other South Asian countries has specific legislation dedicated to climate change adversities. Most of them have enacted policies. 

What’s interesting in South Asian countries is the growing number of domestic litigation. For instance, courts in Pakistan have twice faced the issue of inaction on the part of the government and dealt with the issue under the existing constitutional law framework. The Lahore High Court in Asghar Leghari versus Federation of Pakistan (2015)found that the delay and lethargy of Pakistan in implementing the National Climate Change Policy, 2012, and the Framework for Implementation of Climate Change Policy (2014-2030) violated the fundamental right to life which includes the right to a healthy and clean environment. The petitioner was an agriculturist who challenged the inaction of the government to address the challenges and meet the vulnerabilities associated with climate change.[xxi]

In this case, the Lahore High Court made pertinent observations on the current constitutional framework of Article 9 (right to life) and Article 14 (right to human dignity), read together with the constitutional principles of democracy, equality, and socio-economic and political justice. The Court also included international environmental principles such as sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine within its ambit. Most importantly, it observed that these constitutional principles read together with the right to life, right to human dignity, right to property and right to information provide the necessary judicial toolkit for the courts to address and monitor the government’s response to climate change.[xxii]

The violation of the right to a healthy environment recognised under this case was claimed in another climate-based litigation in Pakistan in Maria Khan etc versus Federation of Pakistan (2018). In this case, the petitioners claimed that Pakistan is not fulfilling the obligation to reduce and mitigate the adverse impact of climate change.[xxiii]

Recently, a petition was filed from the Delhi High Court, in India, directing the government to form an appropriate committee for reviewing the existing policies relating to the environment. The petition also stated that India should prepare a roadmap to ensure compliance with the Paris Agreement.[xxiv]

India, along with all South Asian nations, is a party to the Paris Agreement, the international treaty on climate change which attempts to reduce the rise in global average temperature to below 1.5 degree Celsius above pre-industrial levels”.[xxv] The court, however, held that India has already updated its National Determined Contribution (NDC) under the United Nations Framework Convention on Climate Change. Notably, one of its NDC is to create a domestic framework, which India has failed to adopt.[xxvi]

The crux of this article is that an authoritative text from the ICJ will allow courts to understand the way forward regarding climate change litigations because that is the only plausible course of actions the South Asian countries can take. So far, South Asian courts have randomly dealt with issues of climate change. However, the ICJ opinion will hopefully add a sense of direction in respect of ongoing and future litigations.

Conclusion

Climate change for certain parts of the world is already a human right crisis, threatening the realisation of socio-economic rights to the extent that it hinders political and civil rights. The movement to seek an advisory opinion is timely because it is going to impact the future negotiations for global climate change actions. For this part of the world, it would strengthen the judicial response to climate change adversities against the inaction of the governments and make them accountable.

Photo: A family crosses the flooded streets of Pakistan, free license from Asian Development Bank.

[i] ‘General Assembly Adopts Resolution Requesting International Court of Justice Provide Advisory Opinion on States’ Obligations Concerning Climate Change’ (news.un.org, 29 March 2023)<https://press.un.org/en/2023/ga12497.doc.htm> accessed 06 May 2023.

[ii] Dr. Mariya Aleksandrova, Sascha Balasko, Prof. Dr. Markus Kaltenborn, Dr. Daniele Malerba, Peter Mucke, Oliver Neuschäfer, Dr. Katrin Radtke, Ruben Prütz, Dr. Christoph Strupat, Daniel Weller and Nicola Wiebe,   ‘WorldRiskReport 2021’ ( Bündnis Entwicklung Hilft 2021) <https://weltrisikobericht.de/wp-content/uploads/2021/09/WorldRiskReport_2021_Online.pdf> accessed 06 May 2023.

[iii] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports, 1996, at 19.

[iv] Gabčikovo-Nagymaros Project, Hungary v Slovakia, I.C.J. Reports, 1997, at 38.

[v] Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, UNGA Res A/RES/77/276 (29 March 2023).

[vi] Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, UNGA Res A/RES/77/276 (29 March 2023).

[vii]  ‘Country Climate and Development Report : Bangladesh’ (The World Bank Group 2022) < https://openknowledge.worldbank.org/server/api/core/bitstreams/6d66e133-e49d-5ad9-b056-7b1a6c6206ed/content> accessed 12 May 2023.

[viii] ‘Country Climate and Development Report: Bangladesh’ (The World Bank Group 2022) < https://openknowledge.worldbank.org/server/api/core/bitstreams/6d66e133-e49d-5ad9-b056-7b1a6c6206ed/content> accessed 12 May 2023. 

[ix] ‘Pakistan’s Monthly Climate Summary 2022’ (Pakistan Meteorological Department 2022) <http://www.pmd.gov.pk/cdpc/Pakistan_Monthly_Climate_Summary_August_2022.pdf> accessed 12 May 2023.

[x] ‘Climate change likely increased extreme monsoon rainfall, flooding highly vulnerable communities in Pakistan’ (World Weather Attribution 2022) <https://www.worldweatherattribution.org/climate-change-likely-increased-extreme-monsoon-rainfall-flooding-highly-vulnerable-communities-in-pakistan/> accessed 12 May 2023.

[xi] Ibid.

[xii] ‘Climate Change made devastating early heat in India and Pakistan 30 times more likely’ (World Weather Attribution 2022) <https://www.worldweatherattribution.org/climate-change-made-devastating-early-heat-in-india-and-pakistan-30-times-more-likely/> accessed 12 May 2023.

[xiii] Olivia Rosane, ‘Record-breaking heat wave strains ‘limits of human survivability’ in India and Pakistan’ (World Economic Forum 2022) <https://www.weforum.org/agenda/2022/05/record-breaking-heatwaves-limit-human-survivability-india-pakistan> accessed 12 May 2023.

[xiv] ‘Climate Risk Country Report: Pakistan’ (The World Bank Group & Asian Development Bank 2021) <https://www.adb.org/sites/default/files/publication/700916/climate-risk-country-profile-pakistan.pdf> accessed May 12 2023.

[xv] Franziska Atwii, Dr. Kristin Bergtora Sandvik, Lotte Kirch, Beáta Paragi,Dr. Katrin Radtke, Sören Schneider and Daniel Weller ‘WorldRiskReport 2022’ (Bündnis Entwicklung Hilft 2022) <https://weltrisikobericht.de/wp-content/uploads/2022/09/WorldRiskReport-2022_Online.pdf> accessed 10 May 2023.

[xvi] ‘Country Climate and Development Report: Nepal’ (The World Bank Group 2022) https://openknowledge.worldbank.org/server/api/core/bitstreams/30a1cb25-232c-41ab-bd96-7046d446c2fc/content> accessed on 12 May 2023.

[xvii] ‘The Global Risks Report 2023’ (World Economic Forum 2023) 

 <https://www3.weforum.org/docs/WEF_Global_Risks_Report_2023.pdf>  accessed 12 May 2023.

[xviii] ‘Climate Risk Country Profile: Sri Lanka’ (The World Bank & Asian Development Bank 2021) < https://climateknowledgeportal.worldbank.org/sites/default/files/2021-05/15507-WB_Sri%20Lanka%20Country%20Profile-WEB.pdf> accessed 12 May 2023.

[xix] ‘Notre Dame Global Adaption Initiative’ (Notre Dame Research 2020) https://gain.nd.edu/our-work/country-index/rankings/> accessed 12 May 2023.

[xx]  ‘Climate Risk Country Profile: Afghanistan ( The World Bank Group & Asian Development Bank 2022) <https://climateknowledgeportal.worldbank.org/sites/default/files/2021-05/15396A-WB_Afghanistan%20Country%20Profile-WEB.pdf> accessed 12 May 2023.

[xxi]   Ashgar Leghari versus Federation of Pakistan W.P. No. 25501/20151.

[xxii] Ibid.

[xxiii] Maria Khan etc versus Federation of Pakistan W.P. No. 8960/2019

[xxiv] Rohit Madan versus Union of India through Secretary, Ministry of Environment, Forest, and Climate Change & Ors, W.P. (C) 6319/2022.

[xxv] Paris Agreement (adopted 13 December 2015, entered into force 11 April 2016) U.N. Doc. FCCC/CP/2015/L.9/Rev/1 (Paris Agreement).

[xxvi] United Nations Framework Convention on Climate Change (adopted 8 May 1992, entered into force 21 March 1994) 1771 U.N.T.S 107.