By Ms. Gareema Devkota, Ms. Surangana Dhakal and Ms. Bipasana Karki, fifth-year law students of the BBM- LL.B program
Introduction
In 2024, three international courts, the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Court of Human Rights (IACtHR), convened unprecedented advisory proceedings on Climate Change. The ICJ Advisory Opinions are judicial statements on legal questions submitted to the Court by organs of the United Nations and other international legal bodies authorised to seek them (Zimmerman et al. 2019). These Advisory Opinions, although not binding, hold significant legal and moral authority and aim to clarify State Responsibility concerning climate change under international law. For climate-vulnerable States like Nepal, which suffer disproportionately from the impacts of climate change despite its negligible contribution to it, the Advisory Opinions could be transformative, helping to pave the way for climate justice.
Background
Nepal is one of the States that is especially affected by and particularly vulnerable to the adverse effects of climate change, owing to its topographical diversity, fragile geological structure, sensitive ecosystems and diversity of climate and microclimate zones (ICIMOD). The adverse effects of climate change in Nepal are diverse, severe and escalating- with glacial melting in the Northern Himalayas to unpredictable monsoons in the Southern Terai region. Despite this acute vulnerability, Nepal’s greenhouse gas emissions remain minimal, accounting for 0.027% of the global emissions as of 2016 (Written Statement by Nepal, para. 16).
The Himalayas are warming at twice the global average, reducing the natural water storage, which threatens freshwater supply and subsequent water scarcity in the near future (World Bank 2021, p.1). This instability further causes floods, landslides and huge surface water runoff, compromising the transboundary water security across South Asia (World Bank 2021, p.9). In several parts of the country, unpredictable weather patterns have caused agricultural productivity to decline, with crop failure, declining yields and the looming threat of food insecurity (Shrestha et al. 2024). In 2021 alone, floods and landslides triggered by intense monsoon rains displaced hundreds and destroyed vital infrastructure (Reliefweb, 2021). And the brunt of it all is faced by the poorest and the most marginalised groups throughout the country (WFP 2014).
Nepal has actively engaged in international climate diplomacy and is a party to key conventions such as the UNFCCC, the Kyoto Protocol, and the Paris Agreement. As of 2025, Nepal has submitted its Third Nationally Determined Contribution for the period up to 2035 (NDC 3.0). However, these commitments are difficult to fulfil in practice as the implementation is undermined by Nepal’s reliance on donor funding, insufficient international support, political instability, and limited financial and technological capacity. Nepal’s context highlights the deeply entrenched inequities in the climate justice regime.
Nepal’s situation clearly outlines the inequality in climate change risk and contribution, which can be tackled through the principle of Common But Differentiated Responsibilities (CBDR). As such, Nepal calls upon the ICJ to clarify not just the obligations of Least Developed Countries (LDCs), but also expound on the obligations of major emitters, who contribute significantly to global carbon emissions and the transboundary harm caused thereof (Written Statement of Nepal, p.12). For Nepal, securing climate justice is not just limited to the fulfilment of its national commitments; it further encompasses accountability from the major emitters in the form of financial and technological support. This, subsequently, safeguards the basic rights of the populace in the highly affected nations- including future generations, indigenous people, women, people with disabilities and other marginalised communities.
Analysis of the Legal Regime and Principles
The international legal framework governing climate change includes treaties, customary international law, and the general principles of international environmental law. Nepal’s obligations under the UNFCCC, Kyoto Protocol and Paris Agreement are primarily procedural, requiring the submission of NDCs, adaptation policies and periodic reporting. However, these frameworks fall short in articulating the substantive obligations concerning state responsibility of the major emitters. The ongoing advisory proceedings before the ICJ may emerge as a transformative development to fulfil this legal void.
The ICJ is currently examining legal questions forwarded by the United Nations General Assembly regarding the legal consequences of States’ acts or omission contributing to climate change, under international law and the underlying principles of international environment law (UNGA Res A/77/L.58), This is especially significant for climate-vulnerable nations like- Nepal, Maldives, Vanuatu, and other Small Island Developing States (SIDs), which despite their minimal historical contribution to climate change face the most severe consequences. Nepal’s Written Statement emphasised that international law must reflect climate realities and historical responsibility, arguing that a lack of climate action constitutes a breach of international obligations (Written Statement by Nepal, paras. 32–38). Furthermore, the formal recognition of such legal responsibilities of high-emitting States provides for the reparative measures consistent with the principle of Equity, Common but Differentiated Responsibilities (CBDR), Polluter Pays, and Intergenerational Equity.
Nepal has emphasised the importance of equity in its submissions to the ICJ, calling for a legal interpretation reflecting the CBDR principle in climate change adaptation and capacity building for LDCs. Enshrined in Article 2(2) of the Paris Agreement, the principle expounds that climate action must consider different national circumstances. This principle underpins the concept of reparative justice, which emphasises compensatory mechanisms for environmental harm through financial compensation, technology transfer, capacity building and legal empowerment (White 2017). It encompasses financial compensation, technology transfer, capacity building, debt relief, and legal empowerment.
The establishment of the Loss and Damage Fund at COP27 marked a historic step in this direction, with an aim to assist nations most adversely impacted by climate change by providing financial resources that directly address irreparable climate-induced harm (COP27).
The polluter pays principle is central to the discussions of reparative justice, and is codified in Principle 16 of the Rio Declaration, stating that “the polluter should bear the cost of pollution”. The implementation of this principle in climate change litigation presents substantial challenges, primarily due to the transboundary nature of emissions. However, advances in climate attribution science are gradually bridging this gap, with the emergence of tools and methodologies that can trace specific climate events to emissions produced by States or Corporations. For instance, the Carbon Majors Report revealed that just 100 corporations have been responsible for 71% of global emissions since 1988. ICJ’s recognition of such scientific evidence in its Advisory Opinion could significantly strengthen the basis for legal liability (CDP, 2017).
For instance, the ITLOS Advisory Opinion, requested by the Commission of Small Island States, tackled the legal obligations of States under UNCLOS regarding the protection of the marine environment from climate impacts; and unequivocally stated that greenhouse gas emissions qualify as marine pollution and that States have a duty to prevent, reduce, and control such pollution (ITLOS Advisory Opinion, para. 134). This reinforces Nepal’s arguments for stricter obligations on major emitters whose transboundary emissions adversely affect Nepal.
Another critical concern for Nepal is intergenerational equity, the principle that present generations hold the Earth in trust for future generations. This is particularly pertinent for Nepal’s youth, who face disproportionate climate risks despite contributing minimally to global emissions.
A favourable Advisory Opinion could enshrine this principle more firmly in international law, reinforcing the long-term obligations of states.
Additionally, the human rights implications of climate change are well-documented and deeply felt in Nepal. The right to life, guaranteed under Nepal’s Constitution and international instruments like the ICCPR, is threatened by climate-induced disasters. The rights to life, water, food, housing, health, and a clean environment are especially threatened in Nepal’s poor and marginalised communities. For instance, IACtHR, in its judgment of Lhaka Honhat v. Argentina, highlights the linkage between environmental degradation and human rights violations, particularly concerning indigenous communities. These precedents are significant for Nepal, where the right to life, health, water, and indigenous cultural integrity are increasingly undermined by climate-induced disasters. Thereby, Nepal’s submission introduces the theme of a just and equitable transition, emphasising the need to pursue climate solutions that are inclusive, participatory, and sensitive to social justice concerns, especially the rights of Indigenous Peoples, women, and youth (Nepal’s Written Statement, paras. 33-35).
The ICJ Advisory Opinions are not legally binding, but they carry substantial persuasive authority and contribute to the evolution of customary international law. For example, the Court’s 2004 Advisory Opinion on the Israeli Wall significantly influenced international debate and domestic jurisprudence, despite its non-binding nature (International Court of Justice, 2004). The current climate proceedings could yield a similar impact, particularly if the Court clearly articulates State Responsibility with regard to Climate Change. Furthermore, the ICJ could play a crucial role in advancing equity and climate justice by ensuring that shifts toward low-carbon economies do not exacerbate existing inequalities. For climate-vulnerable states like Nepal, where livelihoods are deeply connected to natural resources, a fair transition is essential.
Therefore, the ICJ’s Advisory Opinion has the potential to reshape the international legal landscape surrounding climate change. For countries like Nepal, climate-vulnerable yet low-emitting, the proceedings represent a vital opportunity to promote equity, accountability, and justice within the global climate regime. The outcome could affirm not only past obligations and present duties but also future responsibilities, ensuring that both law and policy evolve in a direction that protects the most affected and vulnerable States and people.
Nepali Youth’s Stance
Climate change is not a distant crisis for Nepal but a lived-in and escalating reality. The negative impacts of climate change echo throughout the country and are felt by the entire population in one way or another, particularly the poor and the marginalised communities. As time goes by, a constant threat looms over the basic rights to food, water, health and a clean environment. Nepal’s youth posit themselves uniquely as the least responsible for the climate crisis, yet the most affected by its consequences. Despite this, there is an underrepresentation in policy making for a Nation that the youth will eventually inherit and pass on to the next generation. While Nepal’s Third NDC outlines ambitious climate goals, the gap between the policy promises and implementation remains stark. A growing sense of climate frustration can be felt among the youth, many of whom have turned to advocacy, litigation and community-based action to demand accountability.
Conclusion
The advisory proceedings in the international courts signify an opportunity to reshape the current state of the global legal framework on climate justice. For climate-vulnerable countries like Nepal, which bear the brunt of the climate impacts despite negligible contributions to global emissions, their proceedings provide hope for equity and accountability.
Nepal’s situation underscores the urgent need to address the disproportionate burdens faced by small island nations and least developed nations through clear legal obligations and international cooperation. The Advisory Opinions help to clarify the responsibilities of major historical and current emitters, reinforce principles of equity and common but differentiated responsibilities, and ensure access to finance and technological support for the most affected nations.
We hope for a future where the law reflects climate realities and historical responsibilities; one where climate justice is actionable, not just aspirational.