Nepal must move from climate diplomacy to climate litigation, but with proof, not in haste

Prime Minister Balendra Shah (Balen) is set to travel to New York for the 81st session of the United Nations General Assembly (UNGA). The visit comes amid intense pressure in the aftermath of the Bhotekoshi-Trishuli River basin flash floods, a disaster that has claimed thousands of lives and left thousands more missing.
Though the UNGA is scheduled to begin on September 8, the high-level general debate will begin on September 22. And the visit of PM Shah is not only going to the first out of country official visit as he has not made a foreign visit since taking charge on March 27, but also will mark the shift in diplomacy as he is going to voice the concern of Nepal’s story of climate disaster despite Nepal’s less or no contribution to global carbon emission.
For decades, Nepal has gone to the world’s climate conferences or UNGA with the same message: we are among the countries most exposed to climate change, yet we have contributed almost nothing to the problem.
The message is true. But it is also no longer enough.
Nepal’s latest Himalayan catastrophe – as named ‘Himalayan Tsunami’ by some of the global media – has made the limits of conventional climate diplomacy brutally clear. The August 26 glacier-related disaster along the Nepal-China border has killed hundreds, left more than 5,000 still missing and inflicted extraordinary damage on infrastructure and livelihoods. Rescue operations have continued amid destroyed roads, bridges and hydropower facilities. Government’s preliminary estimates put reconstruction and rehabilitation needs at roughly $4 billion to $5 billion – close to a tenth of the country’s economy – while the latest reported assessment puts direct losses at about $2.56 billion.
The figures itself explains that this is not simply another natural disaster.
Scientists increasingly understand that a warming climate is destabilizing glaciers, permafrost and mountain slopes, increasing the risks of avalanches, glacial lake outburst floods, landslides and cascading disasters across the Hindu Kush Himalaya. Recent research on Nepal also finds that some extreme rainfall and heat events have become substantially more likely because of anthropogenic climate change.
Nepal therefore faces a strategic choice.
It can continue asking the international community for greater climate finance, stronger adaptation support and solidarity. Or it can begin asking a more difficult question: Who should pay for the losses that climate change is imposing on countries that did little to cause it?
The answer requires Nepal to move from climate diplomacy to compensation diplomacy, and eventually, where the legal and scientific evidence permits, to climate litigation.
This is not a call for confrontation. It is a call for a different conception of climate justice.
For years, Nepal has presented itself primarily as a vulnerable country. That identity has helped bring international attention and some financial support. But vulnerability without enforceable claims can easily become a permanent political condition: the vulnerable ask, the powerful promise, and the money arrives slowly, conditionally or inadequately.
Nepal should now become more than a country seeking assistance.
It should become a country asserting a claim.
The distinction matters.
The international climate regime has already recognized the principle of loss and damage. The creation of the Fund for Responding to Loss and Damage marked an important institutional development. Yet establishing a fund is not the same as ensuring that countries suffering irreversible climate-related losses receive adequate compensation.
Nepal should therefore stop treating loss and damage as another development-finance programme.
It is a question of justice.
Consider the arithmetic. Nepal builds a road, bridge or hydropower plant with scarce domestic resources or borrowed money. And one fine day, a climate-amplified disaster destroys it. The government then borrows again to rebuild. If another disaster follows, it borrows once more.
At what point does climate change become a debt crisis?
This is the hidden economic cost of climate change for vulnerable developing countries like Nepal. Climate disasters do not merely destroy assets. They destroy the fiscal space needed to build new ones.
Nepal cannot indefinitely finance climate losses through domestic taxation and sovereign borrowing.
Nor should it.
The first step toward changing this equation is deceptively simple: Nepal must start keeping the bill.
The country needs a national Loss and Damage Account that records, systematically and scientifically, the economic consequences of climate-related disasters.
That account should go far beyond destroyed roads and buildings. It should measure lost agricultural output, electricity generation, tourism revenues, employment, household assets, public revenue, migration, displacement, ecosystem services and the long-term effects on human capital.
It should also distinguish between the immediate physical damage and the wider economic losses that unfold over years.
Most importantly, Nepal needs to invest in attribution science.
International climate diplomacy increasingly depends on the ability to establish whether and to what extent a particular event has been influenced by anthropogenic climate change. A recent study on Nepal specifically argues that stronger attribution studies, better data systems and improved institutional coordination would strengthen the country's ability to access international loss-and-damage finance.
This is where Nepal's climate policy must become much more sophisticated.
Emotion can establish moral urgency.
But evidence establishes a claim.
Thus, Nepal should adopt the second step that is compensation diplomacy.
Nepal should build a coalition of countries facing comparable circumstances: least-developed countries, mountain states, small island states and other climate-vulnerable developing economies.
But the objective should change.
Instead of repeatedly asking wealthy countries to increase voluntary assistance, Nepal should push for predictable, accessible and adequate mechanisms for financing unavoidable climate losses.
That could include grants rather than loans, concessional reconstruction finance, debt suspension following major climate disasters, debt restructuring, disaster clauses in sovereign borrowing and automatic financing triggered by objectively measured climate events.
This would not be charity.
It would be an attempt to distribute an increasingly globalized risk more fairly.
Nepal's argument should also be grounded in the principle of common but differentiated responsibilities. Every country shares responsibility for addressing climate change, but historical contributions to atmospheric greenhouse-gas concentrations and national capacities to respond are profoundly unequal.
The country that contributed least cannot reasonably be expected to bear the entire cost of consequences produced by a global system it did little to create.
But diplomacy has limits.
That is where litigation enters.
Climate litigation should not be understood as Nepal's first resort. Nor should it become a theatrical exercise in naming and shaming major emitters.
It should be treated as a strategic instrument.
Nepal should establish a high-level Climate Litigation Task Force comprising international lawyers, climate scientists, economists, diplomats and constitutional and environmental law experts. Its first mandate should not be to file a lawsuit. It should be to determine whether a legally credible case exists.
What duties do states owe to countries exposed to climate-related harm?
What does international environmental law require regarding transboundary harm?
Can historical emissions be legally connected to specific categories of loss?
How should causation be established?
Can states claim remedies for climate-related harm through existing international judicial or quasi-judicial mechanisms?
These are difficult questions. The fact that they are difficult is precisely why Nepal should begin studying them now.
The objective is not necessarily to win a courtroom battle tomorrow.
The objective is to change the negotiating position today.
A country that possesses a credible legal strategy negotiates differently from a country that possesses only a moral appeal.
Nepal should understand this as leverage.
If a legal route is eventually found, it could be pursued. If it is not, the legal research would still strengthen Nepal's position in international negotiations by clarifying rights, obligations and evidentiary standards.
There is another dimension to this strategy.
Nepal should stop presenting the Himalayas merely as a fragile ecosystem in need of protection. The Himalayas should be understood as a global climate asset.
The region's glaciers and snowfields underpin water systems serving enormous populations across Asia. The stability of the Himalayan cryosphere matters not only to Nepal but to agriculture, energy, water security and human settlements far beyond its borders.
If the world considers Himalayan stability a global public good, the costs of protecting it cannot reasonably be assigned entirely to Himalayan countries.
Nepal should therefore propose an international Himalayan Climate Resilience and Loss and Damage Facility, financed through multilateral climate institutions and designed specifically for mountain risks.
“Such an initiative would finance glacier monitoring, early-warning systems, resilient infrastructure, scientific research and, crucially, unavoidable losses,” geologist Shree Kamal Dwevedi argues, adding that it would turn Nepal's vulnerability into diplomatic leverage.
But there is an important caveat. “Nepal must not turn climate litigation into a geopolitical weapon against either of its neighbors.”
The recent disaster occurred in a sensitive transboundary Himalayan environment. Questions about glacier instability, early-warning data, infrastructure and disaster information sharing deserve serious investigation. But attribution must not be confused with political accusation.
A serious climate claim requires evidence.
Nepal must therefore invest in precisely that evidence: satellite monitoring, glacier and permafrost research, hydrological data, hazard mapping, event attribution and transparent disaster accounting, he adds.
In future climate diplomacy, data will be power.
Nepal's diplomats should be able to arrive at international negotiations not merely with photographs of destroyed villages, but with a quantified claim, a scientific attribution assessment, an economic model and a legal memorandum.
That would change the conversation.
The country's message would no longer be: We are poor and vulnerable. Please help us.
It would become: We have suffered measurable losses from a global climate crisis. Here is the evidence. Here is the economic cost. Here is the legal basis for responsibility. Here is what a fair international response should look like.
That is the difference between aid-seeking diplomacy and rights-based diplomacy.
Nepal should also recognize that climate litigation is not necessarily about suing fossil-fuel companies or industrialized states for every disaster. The legal landscape is too complex for such simplistic claims. The more credible path may involve strategic litigation, advisory opinions, international legal interpretation and domestic legal action that establishes duties of prevention, disclosure, adaptation and protection.
The point is to create accountability where conventional diplomacy has failed to do so.
Nepal has been patient.
It has participated in climate negotiations. It has adopted national plans. It has pledged ambitious environmental goals. It has repeatedly highlighted the vulnerability of the Himalayas. Yet the gap between climate promises and climate finance remains enormous. Nepal estimates that implementing its adaptation priorities and climate commitments will require tens of billions of dollars.
The country cannot continue financing an international climate crisis from its own limited fiscal resources.
The August 26 disaster should therefore become a turning point.
Nepal needs a national Climate Justice and Compensation Strategy with five pillars: systematic loss-and-damage accounting, scientific attribution, compensation diplomacy, legal preparedness and strategic litigation.
The shift is conceptual as much as institutional.
Climate diplomacy asks the world to listen.
Compensation diplomacy asks the world to contribute.
Climate litigation asks the world to answer.
Nepal should be prepared for all three.
The Himalayas are warning us that the climate crisis is no longer a distant environmental problem. It is a question of national solvency, human security and international justice.
Nepal did not create this crisis.
But Nepal is paying for it.
The time has come to send the bill back to the world.
And PM Balendra Shah is expected to do the same in the 81st UNGA !!!
(Frist published in nepalkhabar.com -- https://en.nepalkhabar.com/news/detail/19696/)