Author: Ms. Sampada Mainali, a second-year law student of the BBM- LL.B program
Introduction
On March 29, 2023, the United Nations General Assembly (UNGA) adopted a historic resolution (A/RES/77/276) requesting the International Court of Justice (ICJ) to provide advisory opinion on the obligations of states with regard to climate change, pursuant to Article 96, paragraph 1 of the UN Charter, which permits the General Assembly to request the International Court of Justice to provide advisory opinion on any legal question. This resolution was adopted by the consensus of over 130 countries, including Nepal, under the leadership of Vanuatu, creating history as it became the first requested advisory opinion with overwhelming support from the General Assembly.
Nepal’s engagement in this international legal initiative reflects its interest in the questions presented before the court with regard to climate justice, which are yet to be answered by the court. Nepal, a small landlocked and least developed country (LDC) located in the fragile Himalayan ecosystem, has been grappling with devastating impacts of climate change despite its negligible contribution to the issue at hand. In its written and oral arguments to the court, Nepal expounds how it is especially affected by and particularly vulnerable to the adverse effects of climate change. This blog post critically analyzes the significant principles and arguments presented by Nepal concerning state obligations, justice and implications under international law. It presents Nepal as an active legal actor influencing the development of new international climate jurisprudence rather than as a helpless victim.
Context
The International Court of Justice (ICJ), the UN’s main judicial body, plays a vital role in shaping international law. Under Article 65 of its Statute, the Court can issue advisory opinions when asked by UN bodies. These opinions aren’t legally binding, but they carry strong moral and legal influence. Over the years, ICJ advisory opinions have guided the development of international standards on issues like decolonisation, human rights, and environmental responsibility.
Nepal’s involvement in the climate advisory proceedings before the ICJ reflects both urgency and principle. Though Nepal emits less than 0.03% of the world’s greenhouse gases, it’s among the countries most vulnerable to climate change. Its Himalayan terrain and reliance on agriculture make it highly sensitive to rising temperatures, shifting weather patterns, and climate-related disasters. Melting glaciers, glacial lake outburst floods (GLOFs), unpredictable rainfall, and biodiversity loss are already affecting millions, especially in rural, indigenous, and mountainous communities. Nepal’s participation in the ICJ process is backed by its commitments at both the international and national levels. Internationally, Nepal is a party to core climate treaties like the UNFCCC and the Paris Agreement, and has long supported the principle of “common but differentiated responsibilities.” It also aligns with other Least Developed Countries (LDCs) in calling for stronger global accountability on climate action.
At home, Nepal has built a relatively forward-looking environmental legal framework. Article 30 of the Constitution guarantees the right to a clean and healthy environment, and the judiciary has taken bold steps to enforce it. In public interest cases like Shrestha v. Office of the Prime Minister and Others, the Supreme Court has ordered stronger environmental protections and oversight. Nepal’s 2020 climate plan (NDC) also pledges net-zero emissions by 2045, with clear priorities on clean energy, agriculture, and forest conservation. For Nepal, this advisory opinion isn’t just symbolic; it’s a chance to demand stronger accountability from major polluters, influence international climate law, and strengthen its own legal tools for protecting people and ecosystems at risk. It’s about turning vulnerability into voice and principle into legal power.
Analysis
In its written and oral submissions to the International Court of Justice (ICJ), Nepal positions itself alongside other climate-vulnerable states, demanding that climate action be viewed not just as a matter of goodwill or diplomacy, but as a matter of law. Rather than relying solely on voluntary cooperation, Nepal’s arguments frame climate obligations as enforceable duties, rooted in a combination of environmental law, human rights, treaty obligations, and evolving legal principles such as intergenerational equity and erga omnes responsibility.
I. Treaty-Based Obligations and the Purpose of the Paris Agreement
Nepal’s submission to the International Court of Justice (ICJ) centers on binding commitments under key climate treaties, the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. At the heart of Nepal’s argument is Article 2(1)(a) of the Paris Agreement, which commits States to limit global temperature rise to “well below 2°C” while pursuing efforts to cap it at 1.5°C above pre-industrial levels. Nepal insists that this is not a mere aspirational goal, but a binding obligation grounded in the treaty’s purpose and objectives.
Drawing on Article 31 of the Vienna Convention on the Law of Treaties, Nepal argues that the Paris Agreement’s language must be interpreted in light of its object and purpose. This interpretation is reinforced by foundational principles such as the precautionary principle (UNFCCC Article 3.3), equity (Article 3.1), and the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). Together, these principles underline the necessity for States, especially high emitters, to act decisively to meet temperature targets. Nepal’s position echoes the reasoning in Urgenda Foundation v. Netherlands (2019), where the Dutch Supreme Court affirmed that failure to mitigate emissions amounted to a violation of human rights under the European Convention on Human Rights. This landmark case underscores the increasing legal weight given to climate targets in domestic and international law, strengthening Nepal’s treaty-based claims.
II. The No-Harm Principle and the Duty of Due Diligence
A central pillar of Nepal’s legal case is the no-harm principle, a cornerstone of customary international environmental law, affirmed as early as the Trail Smelter Arbitration (1941) and enshrined in key declarations such as the Stockholm and Rio Declarations. This principle holds that States must prevent activities within their jurisdiction from causing environmental harm beyond their borders. Nepal asserts that anthropogenic greenhouse gas emissions causing trans boundary climate harm clearly fall within the ambit of this principle. This is especially critical given Nepal’s vulnerability to climate-induced impacts originating from emissions produced by other States.
Closely linked to this is the duty of due diligence, as clarified by the ICJ in cases like Pulp Mills on the River Uruguay (2010) and Certain Activities Carried Out by Nicaragua in the Border Area (2015). Nepal argues that due diligence requires high-emitting States to take all appropriate measures to prevent foreseeable harm, including conducting Environmental Impact Assessments (EIAs) before adopting policies or activities likely to increase climate risks. This procedural obligation is vital because it shifts the responsibility onto emitting States to anticipate and mitigate harm proactively. Nepal stresses that failure to do so, especially when vulnerable countries suffer disproportionate effects, constitutes a breach of international law.
III. Human Rights Obligations and Climate Vulnerability
Nepal’s submission innovatively integrates international human rights law into the climate conversation. It contends that States’ inaction on climate change threatens the enjoyment of fundamental rights protected under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These rights include the right to life, health, food, water, and adequate housing, all of which are jeopardised by climate impacts.
Nepal highlights the extraterritorial dimension of these obligations. Citing jurisprudence such as Portillo Cáceres v. Paraguay (UN Human Rights Committee, 2019) and the Inter-American Court of Human Rights’ Advisory Opinion OC-23/17, Nepal argues that States bear responsibilities not only within their borders but also when their actions foreseeably cause harm abroad. This is further supported by the ICJ’s Wall Advisory Opinion (2004), which affirmed States’ extraterritorial duties under international law. This human rights framing reinforces the urgency and moral imperative for States to act, positioning climate inaction as a violation of internationally recognised rights rather than just an environmental issue.
IV. Intersectionality: Protecting Women, Indigenous Peoples, and Marginalised Communities
A significant advancement in Nepal’s argument is its intersectional approach, emphasising how climate change disproportionately harms women, Indigenous peoples, and marginalised communities. Drawing on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), Nepal asserts that States have specific obligations to protect these vulnerable groups from climate harm.
Women in rural and agrarian societies like Nepal often bear the brunt of climate-related food insecurity, displacement, and disruptions to their livelihoods. Indigenous peoples, closely connected to their ancestral lands and ecosystems through traditional ecological knowledge, face grave threats from biodiversity loss, glacial retreat, and deforestation. These impacts undermine their cultural rights, self-determination, and right to free, prior, and informed consent as recognised under UNDRIP Articles 8, 25, and 29. By framing climate inaction as a form of indirect discrimination that deepens systemic inequalities, Nepal aligns with recent legal findings such as the CEDAW Committee’s decision in Asmania et al. v. Austria, which recognises that failure to address climate change can amount to gender-based human rights violations.
V. Intergenerational Equity and the Rights of Future Generations
Nepal also advances the principle of intergenerational equity, a widely accepted tenet of international law that obligates present generations to safeguard the environment for the benefit of future ones. This principle was notably articulated in Judge Weeramantry’s separate opinion in the Gabcíkovo-Nagymaros Project (1997).
Building on this foundation, courts such as Pakistan’s Lahore High Court in Leghari v. Pakistan (2015) and Colombia’s Supreme Court in Future Generations v. Ministry of the Environment (2018) have legally recognised the rights of future generations. Nepal emphasises that climate change, with its irreversible and long-lasting consequences, uniquely endangers unborn persons whose rights current generations are duty-bound to protect. This argument encourages a long-term, sustainable approach to policymaking that balances immediate development needs with the environmental rights of those yet to be born.
Nepal’s submissions to the ICJ were clear and bold. It based its arguments on established legal principles like the no-harm rule, treaty commitments, and human rights while also pushing for broader recognition of intergenerational justice and global responsibilities. Nepal made the case that climate inaction isn’t just unfair, it’s unlawful. If the ICJ agrees, it could be a turning point: helping move the world from soft promises to hard obligations. And in doing so, Nepal, despite being a small emitter, has proven to be a powerful voice for those most affected by the climate crisis.
Reflection
As a young person from Nepal, one of the countries most exposed to the impacts of climate change, the arguments raised in Nepal’s submission to the ICJ feel particularly relevant. Climate change is already affecting critical aspects of life in our mountains, rivers, agriculture, and infrastructure. For Nepalese youth, especially those from rural and indigenous communities, these changes are shaping not only our environment but also our social and economic futures.
Nepal’s submission is significant in how it frames climate change as a legal and rights-based issue rather than only an environmental concern. This reflects the way many young people in the Global South are approaching the climate crisis through the lens of justice, responsibility, and intergenerational equity. It’s not just about reducing emissions; it’s about ensuring that current and future generations are protected under international law. The submission also acknowledges how climate change exacerbates existing vulnerabilities, particularly for women and Indigenous peoples. This intersectional framing aligns with the realities on the ground and helps build a more inclusive legal narrative, one that resonates with youth working at the intersections of law, policy, and environmental advocacy.
Nepal’s position at the ICJ also mirrors the momentum of youth-led movements globally. The advisory opinion process itself was initiated by students from the Pacific, and Nepal’s engagement in the proceedings reinforces the growing role that youth and small states are playing in shaping global legal discourse on climate change. This moment offers a strong example of how a climate-vulnerable country can use international legal mechanisms to assert its rights and responsibilities.
Conclusion
Nepal’s submission to the ICJ makes a strong case that climate change is not just a scientific or political issue; it’s a legal one. By drawing on principles like no-harm, due diligence, and intergenerational equity, Nepal reminds the international community that States have real responsibilities, especially to those most affected. What stands out is how the submission brings attention to the lived experiences of vulnerable groups, including women and indigenous people. It shows that climate law must reflect the realities on the ground, not just global averages or abstract targets.
As a young person from a country on the frontlines of climate change, I see this moment as an opportunity to move from words to action. The hope is that the ICJ’s opinion will help turn moral responsibility into legal obligation and that countries like Nepal can help lead that change.
References
https://www.icj-cij.org/sites/default/files/case-related/187/187-20240327-wri-01-00-en.pdf
https://kathmandupost.com/columns/2024/08/06/nepal-s-journey-to-climate-justice