When Disaster Becomes a Legal Question: Lessons from the Nepal Tragedy

Hiteshwar Sharma and Chavitina SV Chandan

Oct 27

7 min read

Around 1,400 people have died, around 5,000 people remain missing, vital infrastructure like bridges, hydropower structures, electrical grid of around 475 megawatts have been destroyed, and towns and entire villages have been swept away. On August 26, 2026, what initially appeared to be a magnitude 4.4 earthquake struck near the Nepal-China border. It caused a massive glacial block to collapse, plunging a kilometer to the valley floor and causing catastrophic flash floods. Later, the US Geological Survey verified that the landslide and the glacier collapse itself were responsible for seismic activity rather than tectonic movements.

In recent years, Nepal has become a hotspot for climatic calamities. Rocky mountainsides are becoming less solid and more fluid, while vast stretches of ice in the Himalayas are melting. Scientists speculate that a landslide may have occurred, causing a devastating avalanche of rock and ice that tore down the mountainside. Nepal's roads, bridges, hydropower structures, and embankments are designed with a focus on historical hydrology without taking into account various risks such as debris load, seismic impacts, and the effects of climate change. Additionally, the usage of low serviceability materials and improper maintenance caused the facilities to malfunction during disasters.

When Disaster Becomes A Question Of Law

Law is an authoritative instrument for social steering which can provide instruments to support the resilience-based approach to disasters. The role of law in disaster management is prima facie concerned with the enforceable right of disaster victims to rescue, relief and rehabilitation. Law can set standards to limit the excesses of a goal-driven, managerial-enabling approach where the aims justify almost any means, potentially endangering resilience. Policy-making is guided by law, which verifies the substantive coherence of policies pursued with constitutional ideals and checks the methods employed to accomplish policy goals against values of the rule of law.

A resilience approach can be used to identify legal-institutional shortcomings that result from a lack of funding or a failure to follow up on very ambiguous signs. It also emphasizes how a mismatch between the extent of disasters and the scope of the law can be a significant cause of vulnerability. The relationship between law and resilience must be examined since law will either be used to mitigate disasters or be linked to their failure. One of the fields that resilience paradigm challenges in various ways is law. Resilience is a pluri-semantic term that is not yet fully legally constituted, which leads to issues with definition and scope.

Law, Liability, And The “Act Of God” Tort law can be useful in preventing and mitigating man-made catastrophes, such as "na-tech" disasters that involve the combination of technical risks and natural hazards; its applicability to disasters that are solely natural is more restricted. In theory, the person impacted by a natural disaster like an earthquake must bear the cost of any losses. First-party insurance or the State (as a result of the State's duty to ensure social solidarity) may offer compensation for such a loss. However, Tort law might still be crucial when it comes to natural disasters. Clear regulations governing public authority responsibilities can both encourage public authorities to take appropriate preventive measures and to compensate victims in cases where their failure to take reasonable preventive measures contributed to worsening the effects of a natural disaster. Therefore, effective tort law remedies can boost societal resilience even in the event of a natural disaster. Foreseeability: Can The Law Anticipate An Uncertain Disaster

However, the problem of foreseeability is highlighted by the role of negligence. In most cases, negligence occurs when a reasonable person could have foreseen the risk of harm. This poses a significant challenge in the context of disasters, when the occurrence of a natural hazard may typically be considered an "Act of God," especially when the specific event could not have been reasonably predicted. Therefore, the crucial question is whether the underlying danger was sufficiently predictable to necessitate reasonable preventative steps, rather than whether the specific calamity could have been predicted.

This also highlights a more general conflict between resilience and the law. While resilience demands that institutions anticipate and adjust to uncertain and evolving circumstances, law inevitably functions through current regulations and previous rulings. Negligence could discourage actors from preparing for dangers whose specific form, time, or location cannot be understood in advance if it requires an overly accurate prediction of the harm that ultimately occurs. In this sense, negligence, while capable of strengthening resilience through accountability, can also limit it when foreseeability is interpreted too narrowly.

As a result, the law might need to take a more comprehensive and proactive strategy to address ambiguity. Liability shouldn't rely on predictability of the precise disaster; rather, it should encourage public authorities and other responsible actors to identify foreseeable types of risk and take reasonable measures to prevent or mitigate their consequences. From Relief To Resistance: The Evolving Role Of The State As we are examining the relation between law and disasters, we must discuss the constitutional safeguards and scope of rights associated with it. India's Constitution states that the country is a welfare state, meaning that the government works to improve the general well-being of its citizens. Courts have broadened the definition of life and personal liberty under Article 21, particularly post the Maneka Gandhi case. Since the right to life is the most fundamental of all human rights, it entails the right to exist free from the damaging effects of pollution, environmental deterioration, and ecological imbalances. The logical conclusion that the right to rescue, relief, and rehabilitation is a basic right protected by Article 21 will result from a comprehensive reading of numerous rulings of the courts in India. While constitutional faith is associated with the values and ideals safeguarded by the Constitution, crisis has taught us that faith is also produced by the Constitution's effectiveness and capacity to endure. This has been seen in the way India's laws pertaining to the environment and disasters have changed in the wake of previous tragedies. The dynamic evolution of environmental laws in the Indian context is an example that can be followed by other countries to respond to the ever-evolving environment-related challenges.

While nation-states are already required by existing human rights obligations to take steps to reduce the risks of natural or man-made disasters, it is crucial to understand that failing to take practical steps that would have prevented or lessened the effects of foreseeable disasters amounts to a violation of the right to life and, as stated in “Budayeva & Others v. Russia” , incurs the state's responsibility under international law. According to a ruling by the European Court of Human Rights, states must put preventive measures in place to shield citizens from the dangers of disasters in order to uphold the right to life. In the Indian context, Article 21 of the Indian Constitution imposes an affirmative duty on the State to safeguard human life, including preventing environmental deterioration. Human rights and other international legal instruments must be integrated in this situation in order to create a unique framework of values for creating circumstances that uphold the victims' rights and restore their dignity. A rights-based approach should be the foundation rather than an add-on for subsequent phases of disaster management.

From National Responsibility To Global Corporation

The Sendai Framework is an international soft law instrument that lays down political commitments to achieve better protection against disasters in the period 2015–2030. The Sendai framework makes an effort to recognize that everyone has a shared duty to mitigate disasters and build resilience. However, it is still entangled in a Westphalian idea that states bear the primary duty for mitigating disasters. A normatively appropriate conception of responsibility for resilience against socio-political disasters must inevitably be shared and differentiated but impose binding obligations because states and individuals involved in global economic exchanges are the source of amplifying disasters. Such a notion of duty that fosters resilience has not yet been institutionalized in the international legal system.

Rethinking Disaster Law: From Reaction To Anticipation

The dilemma that emerges is how to develop a workable framework for cooperation and coordination while overcoming some of the localized aspects of geopolitics while yet acknowledging the demands of realpolitik. Mother Nature's catastrophic force serves as a reminder that geography's political aspects are only significant when nature doesn't suddenly and destructively intervene. In contrast to the notion of nation-states, the natural world does not recognize political boundaries. Therefore, catastrophe resilience must be viewed as an international endeavor. By implementing some best practices from developed countries like the United States, the Subcontinent can likewise become more resilient to disasters. The US has increased its focus on resilience measures over time by providing states, local communities, and individuals with the financial resources and policy guidance they need to recover from a disaster. The US has developed a sophisticated multi-hazard system that anticipates and responds to all hazards, moving from single laws meant to only compensate people affected by a particular hazard like flooding to more comprehensive laws focused at managing different kinds of hazards. The US Disaster Management system fosters a sense of community resilience.

Conclusion

Increasing satellite rainfall observations, centralized forecast models, automatic river gauges and increased public participation should be the main priorities of countries like Nepal, which are currently facing the wrath of nature. Natural or man-made disasters can result in the loss of homes and loved ones, as well as the sacrifice of future plans since families must use all of their resources just to get back on their feet. Effective laws can lessen these effects and make it possible for communities to prepare disasters, deal with them, and quickly "bounce back" through rational recovery procedures. The lessons learned from Nepal indicate that a people-centered, human rights-based approach to disaster risk reduction and the integration of law into disaster management is the need of the hour.

This blog has been authored by Hiteshwar Sharma and Chavitina SV Chandan, students at Campus Law Centre, University of Delhi