By Ms. Millie Gautam*

Climate change refers to long-term shifts in weather and temperature patterns. It is inevitable and a natural phenomenon. However, natural climate change is slow and gradual, unlike human-induced climate change, which is known for its rapid and global tendencies. Naturally, climate change happens due to factors like volcanic activity and changes in the Earth’s orbit; regardless, the major reasons for climate change today are the burning of fossil fuels, industrial emissions, and deforestation. 

Climate change happens when human activities release large amounts of greenhouse gases into the atmosphere, which, in simplest terms, forms a blanket around the Earth that traps the heat and warms the Earth. Climate change is not just a matter of a rise in global temperature. Still, it leads to various other problems like disrupting weather systems, melting ice caps, rising sea levels, and threatening ecosystems and human life. Nepal’s contribution to climate change, although less, has faced many significant problems due to global climate change in various fields like melting of glaciers from the mountains, droughts, heavy rainfalls, landslides, threatening Nepal’s agriculture, biodiversity, and livelihoods. Most of the South Asian countries face the same fate. So, how do we address these problems? As individual countries, we can be more environmentally conscious and introduce environment friendly laws but from a historical and global standpoint, given the complexity of international laws and with regards to the challenges that come along with its implementation or internalization, there is no proper global mechanism to instruct global emitters to reduce their emissions or a strong way to hold the past and present emitters legally accountable. As the nature of these emissions is cumulative in nature, the historical as well as current global emitters are responsible for global climate change, but due to the weak implementation mechanisms of international law it has been difficult to hold these emitters accountable. United Nations Framework Convention on Climate Change (UNFCCC) is an international treaty, adopted in 1992 at the Earth Summit in Rio de Janeiro, aimed at addressing climate change by promoting global cooperation to reduce greenhouse gas emissions and mitigate its impacts which establishes a framework for negotiating specific agreements, like the Kyoto Protocol (1997) and the Paris Agreement (2015), and hosts annual Conference of the Parties (COP) meetings to review progress and set new commitments. COP is a supreme decision-making body of UNFCCC that serves as a platform for negotiating, reviewing, and promoting the implementation of international climate agreements. It promotes commitments to reduce greenhouse gas emissions, they lack strong enforcement mechanisms to hold specific emitters liable.

One of the potential solutions to determining global emitters accountability is legal responses, such as, advisory opinions regarding which helps to clarify state responsibility for climate change. Legal responses are actions or measures rooted in legal frameworks to address a specific issue or problem, aiming to regulate behavior, enforce accountability, or provide remedies and protections. These responses can operate at international, regional, national, or local levels.

In recent years, three major international courts have been approached to issue advisory opinions clarifying states’ legal duties on climate change:

• The International Tribunal for the Law of the Sea (ITLOS) has delivered its opinion in 2024, recognizing greenhouse gas emissions as marine pollution and requiring states to prevent, reduce, and control such pollution under UNCLOS.

• The Inter-American Court of Human Rights (IACtHR) delivered its opinion in May 2025, affirming that climate change does violate human rights, with a special focus on the rights of children, Indigenous peoples, Afro-descendant communities, and future generations.

• The International Court of Justice (ICJ) is expected to deliver the most comprehensive opinion, based on a request by the UN General Assembly, addressing both legal duties and consequences of climate harm.

However, as the cumulative nature of emissions means historical and current global emitters bear significant responsibility, the weak enforcement mechanisms of international law have made it difficult to hold these polluters accountable. This blog compares the approaches of these courts, analyzing their focus on state duties, marine protection, and human rights, and reflects on how the South Asian Association for Regional Cooperation (SAARC) can draw lessons to strengthen regional climate governance, building on the advocacy of groups like World’s Youth for Climate Justice(WYCJ). 

The International Court of Justice(ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. With the advocacy of the group Pacific Island Students Fighting Climate Change and World’s Youth for Climate Justice, the campaign for an advisory opinion on climate change was initiated and eventually presented before the UN General Assembly, requesting the International Court of Justice (ICJ) to clarify states’ legal obligations for climate change.

The Inter-American Court of Human Rights (IACtHR) is a regional judicial body established in 1979 under the Organization of American States (OAS) through the American Convention on Human Rights. It began operations in 1979 to interpret and enforce human rights obligations in the Americas. The Court’s role is to adjudicate human rights disputes brought by states or individuals against OAS member states that have accepted its jurisdiction and to provide advisory opinions on legal questions referred by OAS organs or member states. Chile and Colombia requested the IACtHR in 2023 to clarify states’ human rights obligations in addressing climate change impacts. In July 2025, the Court issued Advisory Opinion, declaring that states have legal duties to prevent and respond to climate-related harm, especially where it affects vulnerable groups like children, Indigenous peoples, Afro-descendant communities, and future generations. The Court emphasized that human being inherently have the right to a healthy environment just like other rights like life, health, food, and water. While the opinion directly applies to the states of America, its reasoning can influence other regions like South Asia, where many countries face similar human rights challenges due to climate change. SAARC states can look to this opinion as a guide for building a human-centered regional response.

The International Tribunal for the Law of the Sea (ITLOS) is a global court based in Hamburg, Germany, set up in 1996 under the United Nations Convention on the Law of the Sea (UNCLOS). Its job is to settle disputes about oceans like maritime boundaries, or fishing rights, and give advisory opinions when asked by states or organizations. ITLOS focuses on protecting the seas and everything in them. In 2023, Comission of Small Island States on Climate Change and International Law (COSIS), pushed for an advisory opinion to figure out what countries must do under UNCLOS to cut emissions and save marine environments from climate change threats like rising seas and dying corals. This matters a lot for places like Bangladesh and the Maldives in South Asia, where oceans are a lifeline. Other coastal nations in the region, such as Sri Lanka, India, and Pakistan, are also in line to be directly impacted, especially given their long coastlines, vulnerable coastal communities, and economic reliance on the sea. ITLOS’s work could help push for stronger regional and global protections.

The advisory opinions of these three courts differ on grounds of applicability, focus and significant implications. The ICJ, with its universal mandate to promote global accountability, addresses a broad spectrum of cross-border legal issues, including state responsibilities, environmental obligations, and transboundary harm. This opinion is non-binding but globally persuasive, with strong influence on international and domestic law due to the ICJ’s universal jurisdiction. The ICJ focuses on state responsibilities viewing climate change as a global issue covering wide range of problems arising due to climate change not limited by it’s scope to specific areas. The ICJ’s advisory opinion can hold major polluting nations for climate impacts on vulnerable countries like Nepal, Bangladesh and Pakistan which were affected by flood and Afghanistan’s drought induced by climate change. Similarly in country like Nepal where glaciers melting is a big issue, advisory opinions given by ITLOS or IACtHR are not applicable due to their limited scope. The requested advisory opinion by ICJ will most likely focus on both adaptation and mitigation but primarily focus on mitigation measures while taking adaptation side by side.

Contrararily ITLOS specifically focuses on marine issues i.e. marine pollution from greenhouse gases and sea level rises due to climate change which limits its scope primarily to ocean related impacts. This opinion is non-binding but persuasive for UNCLOS parties. Advisory opinion by ITLOS focuses on how greenhouse gas emissions affect the seas and the responsibility that comes with climate change induced marine related issues. It is less applicable to landlocked countries or countries facing terrestrial climate impacts, such as Nepal’s floods or India’s heat waves. While it is particularly helpful for small island nations threatened by submersion and land loss due to sea level rise, despite their minimal contribution to greenhouse gas emissions, it is also relevant to all coastal countries, as the opinion addresses marine pollution more broadly. The ITLOS advisory opinion focuses primarily on preventive measures (mitigation, reducing GHG emissions as marine pollution) under UNCLOS, with a secondary focus on adaptive measures (protecting marine ecosystems, supporting vulnerable coastal states like Bangladesh). 

On the other hand, the Inter-American Court of Human Rights (IACtHR), primarily addresses the impact of climate change within its state parties, i.e., the American states under the Organization of American States (OAS). As a human rights court, its advisory opinion focuses on the protection of fundamental rights in the face of climate change. In its 2025 Advisory Opinion, the Court linked climate change directly to violations of human rights such as the rights to life, health, food, water, and housing. The opinion emphasizes on adaptive obligations, encouraging states to take protective measures especially for vulnerable groups such as children, Indigenous peoples, Afro-descendant communities, and future generations. Although mitigation has been included, the opinion is largely anthropocentric, placing humans’ well-being and justice at the core of state obligations. However the good part is that it also reinforces procedural rights, like access to information, participation, and access to justice, strengthening democratic and inclusive environmental governance. Although, the opinion is non-binding and directly only applies to OAS member states, its’ legal reasoning holds growing persuasive value globally. In the context of Nepal and the broader South Asian region, the opinion may not be a binding authority but can still serve as a powerful reference for framing rights-based regional policies, especially where human and environmental vulnerabilities intersect.

South Asian Association for Regional Co-operation (SAARC)  is the regional intergovernmental organization and geopolitical union of states in South Asia. Its member states are Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka. SAARC’s initiative on climate action is included in the Dhaka Declaration and SAARC action plan on Climate Change which identifies seven areas: adaptation, mitigation, technology transfer, finance, education, risk management, and regional cooperation. SAARC can legally create shared climate policies under its Charter and existing declarations, addressing issues like floods, Himalayan glacier melt, and coastal risks in Bangladesh. South Asian countries are already facing serious climate challenges, making it important for them to focus more on adaptation. Drawing on the human rights–based approach of the Inter-American Court of Human Rights (IACtHR) can help shape this response. This is especially relevant for SAARC, which is better positioned to support regional cooperation in disaster management and resource sharing.  As compared to mitigation, which involves a lot of commitment including long-term emission cuts and is often slowed down by political tensions and competing national priorities, adaptation efforts can be more immediate and achievable. The IACtHR’s advisory opinion offers a comparatively helpful example for SAARC to follow, highlighting the need to protect vulnerable groups and promote fairness, including intergenerational justice. It encourages practical, urgent steps that fit better within the region’s current political and institutional realities. Similarly, SAARC can incorporate ITLOS advisory opinion for coastal nations like Bangladesh and the Maldives, where rising seas threaten ecosystems and populations. ICJ’s opinion can also be incorporated in SAARC by imposing state responsibility principles from ICJ. SAARC can help fight climate change by following 2008 Dhaka Declaration’s Action Plan, building flood defenses in Bangladesh and sharing clean energy technology in South Asia. It can make the SAARC Disaster Management Centre stronger to help warn about and respond to issues like floods and melting glaciers in Nepal and India. Using the SAARC Development Fund, it can finance projects like solar power and protective measures for coastal places like the Maldives. SAARC can work together on rules to manage rivers that cross country borders, which would help reduce flooding and drought in places like Pakistan. It can create a regional climate fund to support projects that fight climate change and support adaptation, inspired by other global funds. By reviving meetings among Environment Ministers, SAARC can ensure that national climate goals align with the Paris Agreement. It can also push for climate justice at Conference of Parties(COP)s to get support for unique challenges in South Asia. SAARC can encourage climate education to help communities deal with issues related to rising sea levels and disasters. A focus on human rights-based approach can make sure that vulnerable communities, such as coastal communities, are prioritized. Even with political challenges, SAARC can show unity at COP meetings to show South Asia’s commitment to a safer future.

Three major international courts are offering new ways to think about climate change through the law. The International Court of Justice (ICJ), still working on its opinion since 2023, is expected to focus on what states are legally responsible for and how they should be held accountable for the damage caused by climate change. The International Tribunal for the Law of the Sea (ITLOS) has already shared its opinion in 2024. It declared that greenhouse gas emissions count as marine pollution, meaning countries must take actual steps to protect the oceans. The Inter-American Court of Human Rights (IACtHR) has delivered its advisory opinion, affirming that climate change violates human rights, especially those of vulnerable groups like children, Indigenous communities, Afro-descendant populations, and future generations, grounding its reasoning in principles of intersectionality and intergenerational equity. For a region like South Asia, where melting glaciers, rising seas, and deadly floods are already disrupting lives, these global legal developments offer hope. SAARC, the South Asian regional body, has a chance to step up. By learning from these opinions, it could create better policies: maybe a shared climate fund, stronger coastal protections, or regional rules that put people’s rights at the heart of climate action.

Youth-led movements like the World’s Youth for Climate Justice are already pushing for change. They’re proving that even in a world with slow international action, young voices can shape history. The big question now is: Will South Asian leaders listen, and work together for a fairer, safer climate future? Or will they let the grudges get in the way of protecting millions of lives?

* The author is a third-year law student of BBM – LL.B program of Kathmandu University School of Law, Nepal.