Seeking Justice Amid Climate Injustice: Analyzing Nepal’s Written Statement on Obligation of States in Respect of Climate Change
By Ms. Sanghamita Bade Shrestha*
The United Nations General Assembly’s Resolution 77/276, co-sponsored and voted for by Nepal, requested the International Court of Justice (ICJ) for an Advisory Opinion (AO) on the “obligations of States in respect of climate change”, which is the first-ever proceeding related to climate change. The primary purpose of this proceeding was to ascertain a legal basis for States to combat climate change and determine legal consequences for the wrong done. Nepal made both oral and written statements, but failed to submit the written statement within the extended time limit; however, the ICJ authorized the late submission on an exceptional basis. During the public hearing, Nepal stated that it was being penalized for others’ bad karma. Nepal is a geographically landlocked country with a diverse ecosystem and a developing economy. Despite emitting only 0.11% of the world's total greenhouse gas (GHG) emissions, Nepal was ranked 78th in the Climate Risk Index 2022 and the 4th most affected country by climate change. These data credibly showcase how Nepal is facing a disproportionate impact of climate change. This blog post aims to analyze how Nepal raises its voice against the injustices it faces due to the ubiquitous feature of today’s world—climate injustice—before the world’s highest international tribunal.
Resolution 77/276 inquires the ICJ in two pivotal questions. Simply put, they are:
(a) The question of legal obligation of States to protect the climate system and environment from the anthropogenic emissions of GHGs, and
(b) The question of legal consequences faced by States that, through actions or inaction, have caused significant harm, concerning:
(i) States, including, in particular, the small island developing states which are injured or specially affected by or are vulnerable to climate change.
(ii) Affected people and individuals of present and future generations.
Nepal faces significant climate risks due to its geographical features, which stretch from the flat Terai to the mountain range consisting of the world’s highest peak. Its geographical structure is prone to natural disasters, such as floods, landslides, and Glacial Lake Outburst Floods (GLOFS). In addition to that, rising temperatures due to climate change have been a contributing factor to disrupting air pollution, deteriorating the health of people, and considerably increasing the risk of disasters, despite emitting negligible GHGs.
Nepal submits, through its written statement, that the greatest impact of climate change is seen in the mountainous region, asserting that it is facing Elevation-Dependent Warming (EDW). There is increasing evidence related to EDW that the elevated areas are facing greater warming than the other parts, which proves that Nepal is experiencing increased warming than the global average. Evidently, the glaciers are melting at a concerning rate, and approximately one-third of the snow has melted in just over three decades. The Prime Minister also addressed that snow-glittering mountains have turned into black rocks. Nepal, therefore, is one of the most vulnerable countries in terms of climate change impacts.
The written submission highlights Nepal as an upstanding member of the international community, as it has ratified 16 Multilateral Environmental Agreements in an effort to combat climate change. Principles of international environmental laws are enshrined in the country’s constitution and have been incorporated in its national legislation, such as the Environment Protection Act, Forest Act, etc.
Through this written statement, Nepal has positioned itself as a direct beneficiary of the obligations of the States and focused that the ICJ shall expound the State’s obligation to follow the principle of Common but Differential Obligation. Furthermore, Nepal underlines that the legal consequences faced by responsible states are not charity, and shall be looked into as compensation for the damage to the environment.
Analysis of the Submission:
a. Analysis of the submission on the first question:
It is pertinent to note that climate change is a transboundary environmental challenge posing an unequal burden on States. The notion of climate injustice is extensively employed to delineate the account of historical responsibility of developed nations (primarily in the Global North) for greenhouse gas emissions, which places a disproportionate burden being borne by developing countries in the Global South. According to Nepal, the questions asked to the Court, implies differential obligations to be determined by the court. The following are the key takeaways of Nepal’s submission on this particular question:
Obligations of States have been outlined under the binding goal of the Paris Agreement, according to Article 2, which states:
“Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”
Obligations of States to minimize the impacts of climate change as an effort to promote and protect the human rights of all people, especially of those falling into vulnerable groups. Moreover, States are obliged to adopt and enforce targeted measures to combat climate change. This responsibility of the State to human beings is not limited to its citizens, but applies extra-territorially.
Bearing in mind that climate change is a transboundary challenge, international standards and commitments help mitigate impacts. International Action Plans imposed by international agreements, such as UNFCCC, Bali Action Plan, Paris Agreement, etc., require States to cooperate and communicate internationally, for instance, through the submission of Nationally Determined Contribution.
Obligations must be imposed based on the historic contributions as well as the economic status. Developed countries have a “duty of assistance” as per the preamble of the UN Charter. Thus, Nepal, being an economically weak and vulnerable country, must be given assistance to combat climate change.
Scrutinizing the submission made on this question, Nepal’s constitution has safeguarded the right to clean environment (Article 30) and has incorporated policies related to the protection of the environment in Part 4. Thus, it is indubitable that Nepalese legislation is pro-environment. Moreover, the country has been taking international cooperation seriously, for example, by timely submitting the required NDC. Noteworthily, Nepal’s submission stresses on duty of assistance by the developed country, but is ranked as one of the highly corrupt nations in the world, where instances of misappropriation of international assistance are common, making this emphasis questionable unless the assistance it is seeking is non-monetary.
b. Analysis of the submission on the second question:
i. Analyzing submission on sub-question (i)
This sub-question requests the ICJ to render a decision on the legal consequences of States, which, due to their geographical circumstances and level of development, are injured or specially affected by or particularly vulnerable to the adverse effects of climate change.
Nepal’s submission focuses on enunciating the climate injustice and that a developing country like itself is facing burdens from the impact of climate change, as well as developmental impacts. To balance these burdens, vulnerable countries must be given support and permitted to follow a less stringent approach while dealing with climate change.
The customary international law principle of “no significant harm” shall be applied to establish guilt or wrongdoing in environmental aspects.
While construing resulting liabilities under international law, although considered ineffective, the carbon trading methods given by the Kyoto Protocol or a less stringent version of the polluter-pay principle (PPP) must be implemented to even out the disproportionate burden faced by countries like Nepal.
Nepal’s submission is in line with the ample environmental protection-related national legislation it has adopted. For instance, PPP has been enshrined in the supreme law of the land itself (Article 30(2)). Additionally, detailed provisions on Environmental Impact Assessment (EIA) have been incorporated in the Environmental Protection Act, 2019. But, it is to be noted that these provisions are not being properly enforced. Measures to monitor the environment are still weak, civic engagement is minimal, and coordination between different levels of government is ineffective. Without meaningful implementation and accountability, Nepal’s progressive legal framework risks becoming performative rather than transformative in addressing climate and environmental injustices.
ii. Analyzing submission on sub-question (ii)
The question of legal consequences of States concerning peoples and individuals of the present and future generations affected by the adverse effects of climate change was put forward before the ICJ, in which Nepal submits a compelling legal argument that climate change does not just pose a threat to the environment, but intrinsically affect human rights of the concerned people of present and future generation.
States are obliged under several international declarations and agreements, like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), etc., to respect, promote, and protect human rights of all human beings. States are required to take positive measures for that purpose and take progressive steps to realize their full potential.
This submission strikes the need for both intragenerational and intergenerational equity.
Intragenerational equity is highlighted as the statement focuses on those vulnerable groups disproportionately affected by climate change imploring the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the ILO Convention No. 169, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Convention on the Rights of Persons with Disabilities (CRPD), to emphasize States’ duties to adopt and enforce climate policies which is inclusive in nature.
Intergenerational equity is emphasized by framing that the States have the responsibility not just to protect the human rights of the present but also those of future generations, as these rights are not temporary.
This morally urgent call of Nepal advocates for a rights-based, inclusive approach in terms of the governance of climate change.
Nepal, albeit a small developing country and stepping into the ICJ for the very first time, manifested a bold statement with an aim to voice against the climate injustice it is facing. We are being punished for the crimes we never committed was rightly noted by the Foreign Minister of Nepal while delivering an oral presentation during the court's public hearing. Further, Nepal asserts that those developed countries that have a high contribution to global GHGs are entitled to curb emissions, adhere to international environmental law principles grounded in the MEAs, and protect fundamental human rights of all people thereby maintaining the purpose of entering MEAs in the first place. Finally, the political implications of this written statement are apparent: demanding justice for this transboundary environmental challenge.
* The author is a fourth-year law student of the BBM- LL.B program of Kathmandu University School of Law, Nepal.
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