By Mr Pratyush Paudel, a law student of Kathmandu University School of Law

In 2023, the UN General Assembly made history by asking the ICJ to issue an advisory opinion on clarifying states’ legal obligations regarding climate change. This movement was a huge step in things to prevent climate change, especially for a country like Nepal, a mountain-rich country with the world’s most well-known mountain ranges, the Himalayas, where transboundary climate harm and climate change have severely affected its mountainous region. The Himalayas have been severely affected by climate change, which has caused various things such as melting of the glaciers, causing glacier outbursts, melting of the snow, temperature rise, impact on the people there, and impact on the fauna there, etc. ICJ Advisory Opinion can really impact how different states take responsibility regarding climate change; this can help countries like Nepal from climate change impacting them.

Climate Justice is a concept which ranges from and connects the science of climate change, policy regarding climate change, to broader topics such as equity, rights, human rights, and social justice. It is a concept that, if achieved, can change the future of the Himalayas, changing it from a future of barren and rocky nothing to a future of snow-filled mountains as it should be. The Himalayas have a lot of impact in South Asia, with a critical role in regulating climate and water systems there. Yet, this high altitude region has been warming up fast, faster than other places. This has been severely impacting the whole of South Asia, especially Nepal, where most of it is situated. These impacts are not just environmental, they are really social and economic as well, and they affect various rural, indigenous and marginalised communities.

Nepal actively participates in various climate-related events, ratifying several international treaties related to climate change, climate governance, and many other things related to climate. Nepal also showed its active participation in COPs events, starting from the adoption of the UN Framework Convention on Climate Change in New York in 1992, to the Kyoto Protocol during COP3 in 1997, and the Paris Agreement during COP 21 in 2015. However, under these instruments, the states’ ability to demand accountability for harm caused by other nations has remained limited. The principle of common but differentiated responsibilities (CBDR) recognises the unequal burdens and capacities of states, but lacks strong and dynamic enforcement mechanisms. The ICJ advisory opinion offers an opportunity to fill this legal void by interpreting the scope of existing state obligations under international law, particularly regarding transboundary harm, human rights, and other various aspects.

In a domestic context, the Constitution of Nepal has given its citizens the Right to Clean Environment under Article 30, which aligns with global principles of environmental justice. Even though Nepal has provisions for environmental justice, it has yet to be fulfilled or take necessary actions to fulfil it because of limited resources, political instability, and lack of clarity on extraterritorial obligations. So, interpretation by the ICJ could really help put a foundation for Nepal to apply climate justice in its own country while also advocating for climate justice through various diplomatic and other platforms.

Nepal has also submitted a written statement to the ICJ regarding the obligation of states in respect of climate change (a request for advisory opinion). In that statement, Nepal states that the questions made by the UN General Assembly are legal in nature and fall within the ICJ’s jurisdiction. Nepal highlights that climate change poses a huge and existential threat to countries like Nepal, countries that have very low to negligible impact on global emissions but are hugely impacted and affected because of the country’s geographical and developmental status. The statement Nepal submitted shows how Nepal is highly vulnerable to climate-related or climate-induced disasters like glacier lake outburst floods, untimely monsoons, and other various aspects, despite its emissions being just around 0.027% of the global total in 2016.

Nepal, in the statement, argues that states have clear obligations under international treaties to limit the global rise in temperature and to reduce climate change, including things such as greenhouse gas emissions. These obligations extend under international rights law, requiring states to protect individuals’ right to life, health, food, and a clean environment. In the statement, Nepal states that developed nations have a bigger responsibility because of their historical emissions and their greater capacity to mitigate climate impacts. Nepal also says that states must fulfil duties like conducting environmental impact assessments and duties like avoiding significant transboundary harm. 

The submission also urges that there should be legal consequences that should be followed for countries that cause harm to vulnerable countries. These include things like compensation and reparative measures under a very important principle in environmental law, which is the polluters pay principle. Nepal, adding to that, says that states have various obligations towards individuals, including women, persons with disabilities, and indigenous people, who are more vulnerable because of climate change. Nepal calls on the ICJ to declare strong international legal obligations to protect the climate and ensure climate justice and justice for many of the world’s vulnerable communities because of climate change.

Nepal’s written submission to the ICJ is closely related to climate justice, which emphasises the fair treatment of all people and countries in the global response to climate change. In Nepal’s argument is a very important principle is that states like Nepal suffer the most severe impacts of climate change despite contributing negligibly to global emissions of greenhouse gases. This shows the main thing regarding climate justice, inequitable distribution of burdens, where the poorest and least developed nations face the greater risks, while other historically high-emitting and wealthier countries don’t face that big a risk. 

Nepal, in the statement, raises one of the cornerstone ideas of climate justice, which is common but differentiated responsibilities, an idea which says that developed countries have a legal and moral obligation to do more. This includes not only reducing emissions but also supporting developing nations through technology, finance, and capacity building. Nepal also expands climate justice to include not only things related to climate change and emissions but rather also human rights, gender justice, intergenerational equity, and the protection of indigenous peoples and persons with disabilities and says that climate action must consider these diverse vulnerabilities and uphold the dignity and rights of all affected things and people both now and in the future. Nepal’s submission frames the ICJ advisory opinion as an opportunity to affirm legal principles that include climate justice, historical accountability, equitable responsibility, support for the most vulnerable, and the protection of human rights and ecosystems for present and future generations.

After seeing Nepal’s statement and knowing about what climate justice is, we can see how the Himalayas are caught in a disproportionate situation, bearing the cost of other countries. The Himlayas serve as an essential water source for over 1.5 billion people across South Asia, yet Himalayan communities are among the least responsible for the emissions that induce the climate crisis and climate change. This injustice is made even worse for those people because of their limited financial and technical capacity to adapt to changes, which can ease the situation. Nepal’s statement further asks for help from different states to help it in various matters of vulnerable groups, such as the communities in the Himalayas. Nepal asks for support in terms of climate finance, technology transfer, and capacity building for adaptation in the mountain regions of its country. 

These kinds of support will help Nepal help the communities in its Himalayan regions. The developed countries need to adapt to help countries like Nepal and communities like those in the Himalaya, whether it is in the case of lowering emissions or giving other kinds of support. This is the least that those countries can do, seeing their historical emission rates and also their current emission rates. This would ensure a future for the Himalayas to be a snow-filled mountain rather than a barren, rocky nothing, and would also ensure a future for the people in the Himalayas and their communities. This would also ensure a future for the fauna found there by not letting them become extinct. 

Furthermore, climate justice in the Himalayas demands legal accountability for the harm caused by the emissions elsewhere that trigger and let local disasters happen, such as glacier lake outburst floods. It also requires protecting the future generations also in terms of freshwater, food security, and cultural heritage in the Himalayas, which at this time is being threatened. These are the types of protections which will ensure that the Himalayas and the people of the Himalayas have a future they can look towards rather than a future where the Himalayas are not what they should be. At last, climate justice in the Himalayas is calling for global recognition of the region’s vulnerability, redistribution of responsibility and resources, and legal commitments to protect both the environment and human rights in one of the world’s most climate-sensitive areas, such as the Himalayas.