Author: Ms. Eureca Adhikari, a second-year law student of the BEc-LL.B program

As Gyan Chandra Acharya rightly states,

“No sea, but not immune – landlocked countries suffer too.”

This powerful remark captures a fundamental truth: although countries like Nepal have no coastlines, they are still deeply affected by the consequences of climate change, including glacial melting, erratic rainfall, and rising temperatures.

The ITLOS Advisory Opinion: Climate law

In May 2023, the International Tribunal for the Law of the Sea (ITLOS) issued a landmark advisory opinion in response to a request from the Commission of Small Island States on Climate Change and International Law (COSIS). The tribunal clarified what international legal obligations states have under the United Nations Convention on the Law of the Sea (UNCLOS) in the context of climate change. ITLOS confirmed that GHG emissions constitute marine pollution under Article 1(1)(4) of UNCLOS.

Pollution involves the introduction of harmful materials into the environment, often accumulating in landfills and affecting natural habitats (National Geographic Society). According to Article 1, paragraph 1, subparagraph 4, of the Convention reads: For the purposes of this Convention… “pollution of the marine environment” means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities. This conclusion is based on a detailed analysis of the three cumulative criteria in the Convention’s definition of marine pollution, i.e. Substance or Energy, Introduction By Humans into Marine Environment and Deleterious Effects (due to ocean warming, sea level rise and ocean acidification)

In Article 1(1)(4) OF UNCLOS, all emissions, even from landlocked states, are legally relevant to the marine environment. All the States have a duty to prevent, reduce, and control GHG emissions, even if they are:

·   Not coastal

·   Not major polluters, which are directly targeted for the landlocked countries.

Nepal, as a low-emitting developing country, contributes an extremely small fraction to global greenhouse gas (GHG) emissions, both in absolute terms and on a per capita basis. Its emissions are minimal compared to major industrialised nations and are primarily from subsistence agriculture and limited energy use, rather than large-scale industrial activity. The definition stated in Article 1, paragraph 4, which depicts the accumulative and sustained nature of emissions over time, would be inappropriate and unjust to characterise Nepal’s limited and non-industrial emissions as “pollution of the marine environment.” Nepal’s emissions neither exhibit the scale nor the intensity required to result in the kinds of deleterious effects outlined in the Convention.

Subsistence Emissions Should Not Be Equated With Pollution

 In Article 1, paragraph 4, the term “[e]missions” is defined as “the release of greenhouse gases and/or their precursors into the atmosphere over a specified area and period of time.” The use by the UNFCCC of the plural (“emissions”) and of the qualifier “over a period of time” suggests that these are multiple and, to a certain extent, lasting releases of GHGs, which, inter alia, indicate their eventual accumulation or concentration.

While the decision in the case of Urgenda Foundation vs. State of Netherlands and the ITLOS Advisory Opinion highlights that all States bear legal obligations in addressing climate change, it is neither equitable nor just to impose the same level of moral or legal responsibility on countries like Nepal that contribute negligibly to global greenhouse gas emissions. Nepal’s GHG emissions are 1.84 tonnes per capita compared to developed and coastal countries like the U.S. (17.6) and the Netherlands (9.2). Nepal’s emissions are hundreds of times lower than major emitters. Unlike developed and industrialised nations with a long history of carbon-intensive development, Nepal’s emissions are minimal, non-industrial, and largely survival-based, arising from sectors like agriculture and domestic energy use. Applying the same standards to both high-emitting and low-emitting countries undermines the principle of equity and common but differentiated responsibilities as mentioned in international environmental law, including the UNFCCC and the Paris Agreement. Furthermore, holding countries like Nepal to account for pollution they did not meaningfully cause risks diverting attention and resources from the real drivers of climate change. Rather than being treated as polluters, small emitters like Nepal should be supported in adapting to climate impacts and pursuing sustainable development. It is not fair morally or legally to burden them with a disproportionate share of responsibility for a global crisis they neither created nor significantly accelerated.

The article “Subsistence Emissions and Climate Justice” by Göran Duus-Otterström supports the concept of subsistence emissions by affirming that people have a moral right to emit greenhouse gases when such emissions are necessary for basic survival and meeting vital needs, especially in poorer countries. Landlocked countries may justifiably argue for higher emission allowances compared to coastal countries because they lack direct access to the economic and resource benefits provided by the sea, such as fisheries, shipping, and tourism. This geographic disadvantage limits their opportunities for sustainable development and access to low-carbon economic alternatives. Consequently, landlocked nations often rely more heavily on carbon-intensive industries to achieve basic development goals and improve living standards. Therefore, considering these constraints, allowing landlocked countries relatively higher emissions could be viewed as an equitable approach within the broader framework of climate justice, recognising their unique challenges and development needs.

The ITLOS opinion encourages all states to adopt and implement effective environmental regulations, set emission reduction targets in line with international agreements, and monitor their contributions to global harm. For Nepal, global climate-related policies are no longer only matters of domestic governance or foreign aid dependency: they are matters of international legal responsibility. This gives Nepal an incentive to:

• Participate in international legal developments, including future advisory opinions like the International Court of Justice (ICJ) Advisory Opinion on Climate Change and Human Rights or the Inter-American Court of Human Rights (IACtHR) Advisory Opinion on Climate Emergency and Human Rights.
• Strengthen regional cooperation with South Asian countries on climate adaptation and mitigation, and bring itself to be heard in the global climate justice discussions.
• To promote climate justice from the mountains to the sea, asserting that even the highest peaks are part of the global environmental continuum. 

CONCLUSION

In a nutshell, we can say that the GHG emissions by Nepal don’t satisfy the criteria of “pollution of the marine environment. The recent advisory opinion by the International Tribunal for the Law of the Sea (ITLOS) powerfully dismantles the misconception that responsibility for ocean health rests solely with coastal states. In an interconnected climate system, no country is isolated from the consequences of environmental harm, nor from the duty to act responsibly. The global nature of climate impacts means that landlocked developing countries (LLDCs) cannot be excluded from international climate justice discussions, including legal forums like ITLOS, where decisions on ocean-related climate responsibilities increasingly shape global accountability. However, countries like Nepal cannot bear an unequal burden of climate impacts without corresponding global support. Their emissions arise from basic survival, not from luxury or industrial expansion.