Nepal's Claim for Reparation from the USA, China, and India for the 2026 Glacial Dam Outburst in the Himalayas

 Nepal's Claim for Reparation from the USA, China, and India for the 2026 Glacial Dam Outburst in the Himalayas

1. Recently, Nepal, one of the less-developed, carbon-neutral countries, surprised the world by claiming that the USA, China, and India are responsible for its glacial burst sufferings. It made a claim for more than USD 10 billion on the grounds that these countries are among the biggest emitters of ‘greenhouse gases', which aggravate global warming, which is the main cause of glacial lake outbursts. I sympathise with Nepal. But sympathy is irrelevant when evaluating a legal claim based on international law of state responsibility. Nepal believes that the law relating to global warming and climate change imposes costs and obligations on all international actors. The purpose of this blog is to chronicle the legal developments in this field and provide some unsolicited legal advice to Nepal so that, in the future, countries can base their claims on a stronger legal foundation.

 

2. The first major development was the United Nations Framework Convention on Climate Change (UNFCCC), 1992. Till then, under the existing international legal framework, States had full freedom to decide how much greenhouse gas they could emit and what fuels they could consume for the generation of electricity. The Convention itself makes it clear that it is a framework instrument. The international community recognised that there is a ‘non-liquet’ (where there is no law) situation and the need to make some laws on the point.

Please appreciate that the Convention itself employs the expression “Framework Convention” while describing the nomenculature. The next major legal development was the Kyoto Protocol, 1997. It was a binding international instrument ratified by numerous countries. It came into force on 16^th Feb 2005. The Convention has been considered path-breaking because it introduced a principle that imposed specific obligations primarily on developed countries, which were historically responsible for a substantial share of global emissions. It sought to expand the “Principle of common but differentiated responsibilities” based on the respective capacities of nations. Under the Protocol, developed countries agreed to limit and reduce their emissions and achieve specified emission-reduction targets. The countries were obliged to achieve these targets through appropriate local measures. Non-compliance with these targets does not, by itself, automatically entail ‘international state responsibility’ on the part of the delinquent States. The States were also permitted to use market-based mechanisms, including the purchase of “carbon credits”, subject to the applicable rules. It must, however, be said that carbon credits have not yet been traded on a sufficiently major and meaningful scale to resolve the fundamental problem of global emissions. Hence, non-compliance with emission-reduction obligations by itself does not necessarily impose actionable international state responsibility under the environmental laws on global warming.

 

3. The Kyoto Protocol, 1997, was subsequently followed by the Paris Agreement, which came into force on 4 November 2016. The Agreement has been accepted by almost all countries of the world. Although the USA was a party to the Agreement, the Trump administration had initiated the process of withdrawal. The Paris Agreement is a legally binding international treaty under which countries have undertaken to reduce the increase in global temperature to well below 2 degrees Celsius above “pre-industrial levels” and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels. This indirectly implies that member countries can continue to emit greenhouse gases so long as their overall efforts remain consistent with the objectives and obligations undertaken under the Agreement. The Paris Agreement contemplates that global greenhouse gas emissions should peak as soon as possible and that substantial reductions should thereafter be achieved. This convention visualises that the 2025- 2030 period as ‘the peak period’. Thereafter, by 2045, emissions will be reduced to 30%. The USA is one of the world's biggest emitters. It also has nationally determined contributions under the Paris Agreement. Under Mr. Trump's presidency, the phenomenon of global warming itself has been questioned or treated as an obstacle to their economic growth. His argument is that, if the USA is to become a major manufacturing nation once again, it must continue to rely on locally available, abundant and comparatively cheap energy. But this energy on their scale, is unclean or polluting energy. Therefore, a Nepali’s claim for non-compliance of global warming obligations and climate change is, at best, doubtful. There is no easy way for a country such as Nepal to win an international legal claim against major powers such as the USA and China when the jurisprudential basis of such a claim remains uncertain.

 

4. On the other hand, Nepal can strengthen its claim against China if it bases its case on negligence /nuisance and absolute liability. The creation of huge water bodies and the construction of large hydroelectric projects in seismically sensitive zones constitute an unreasonable or potentially harmful use of territory. The Principle of strict liability emerging from Rylands v Fletcher [1868] UKHL 1, (1868) LR 3 HL 330https://www.bailii.org/cgi-bin/markup.cgi?doc=%2Fuk%2Fcases%2FUKHL%2F1868%2F1.html&method=boolean&query=title+%28+rylands+%29+and+title+%28+fletcher+%29&utm_source=chatgpt.com, relating to strict liability for damage arising from the non-natural use of land, and the decision in M.C. Mehta v. Union of India (1987) 1 SCC 395 https://indiankanoon.org/doc/1486949/?utm_source=chatgpt.com  concerning the Oleum Gas Leak, have laid down into the ‘doctrine of absolute liability’ in Indian environmental law. China has undertaken projects in areas belonging to Nepal and China. The area is environmentally and seismically sensitive. Many of these power projects are constructed in the Himalayan region. However, the power produced is intended more for the Chinese grid than for Nepal's domestic consumption. International environmental law was at a very nascent stage when the USA and Canada chose to settle by arbitration the public nuisance dispute arising from pollution caused by the Trail Smelter Arbitration (United States v. Canada), 3 R.I.A.A. 1905 (1941) https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1612 . The USA was compelled to address Canada's claim for compensation for transboundary pollution. Similarly, following the Exxon Valdez oil spill Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) https://supreme.justia.com/cases/federal/us/554/471/?utm_source=chatgpt.com , Exxon had to pay substantial Arctic pollution costs to Canada for environmental cleanup. In these circumstances, it is logical that Nepal has made its claims against the biggest emitters. But one has to assess the allowability of the claim in light other circumstances that are obvious to a diligent observer. We have to appreciate that in the present case, China created artificial water bodies in its territory. The water bodies were created as a result of the so-called development works carried out by China. These works include roads, railways, tunnels, airports, and hydroelectric projects. Some of these hydroelectric projects are located in Nepal. Thus Nepal is a consenting party to these projects. It also derives commercial benefits from these projects. However, while dealing with a global superpower like China, a country like Nepal does not have the economic or technical capacity to fully appreciate the environmental disasters that may follow the implementation of such projects. China does not conduct detailed environmental impact assessments, which, in a country like India, would ensure public participation in the ultimate decision-making process before the projects are finalised. Further, projects undertaken by the Chinese Government in border territories do not require permission or approval from statutory or independent oversight functionaries. Hence, China, being the dominant party and the major beneficiary of these projects, should bear the cost of environmental disasters attributable to such projects. In international environmental law, two important principles are the ‘Polluter Pays Principle’ and ‘the Precautionary Principle’. These principles are relevant and applicable in the present circumstances.

 

5. China’s experimentation with the exploitation of the Himalayan region began with the construction of railways and the Karakoram Highway in Pakistan. The construction of high-speed railways in the Himalayan regions has made the rest of the world realise that such huge structures in unsuitable and fragile rocky terrain over permafrost carry with them unknown risks.

With all the fanfare, the Karakoram Highway is not a year-round, all-weather highway as projected. Smooth traffic flow is possible only during the summer months. The Himalayan ice is relatively thinner than the ice in the Arctic and Antarctic regions. The incidence of global warming is higher in the equatorial and temperate zones than in the polar regions. Increased construction activity in the Himalayas has increased the incidence of avalanches and rock bursts, accompanied by landslides. Global warming is also decreasing the extent of glaciers in the Himalayan region. Hence, China and India, being the top emitters of greenhouse gases in the region, should be more conscious of the increasing ice-cap melt in the Himalayas.

6. As I see it, the recent incident of the bursting of an artificial lake was caused by two main factors:

1.  China’s development activities: Artificial water bodies were created in connection with the construction of hydroelectric projects in Nepal by China. Since China is a major consumer of the allegedly clean power generated by these projects, it is also the biggest beneficiary.

2.  Glacial and climatic factors: Huge glaciers and ice caps that remain throughout the year surrounded these artificial lakes formed naturally made of ice and rock. Global warming has increased temperatures in the Himalayan region. Huge quantities of meltwater and ice subsequently fell into these artificial lakes. This caused flash floods even though there was no rain. This caused thousands of deaths in Tibet and Nepal.

Despite this, Xi Jinping tours the rest of the world and lectures on the global order as if nothing had happened. Nepal should therefore realise that China bears primary responsibility for the glacial outburst. Contributory negligence can also be attributed to the State of Nepal. In these circumstances, Nepal’s claim against India and the USA for being responsible for increased greenhouse gas emissions appears far-fetched, unrealistic, and unlikely to serve any useful purpose.