Can the ICJ opinion bring climate justice for Indigenous peoples?

The landmark ruling by the world’s top court says national climate policies must protect Indigenous and minority rights – but to be effective, it needs to be enforced by states

For centuries, Indigenous peoples have demonstrated the indivisibility of human and ecosystem well-being. Now, the highest court in the world is behind them.

A milestone in an existential battle – that’s how the recent advisory opinion on climate change from the International Court of Justice (ICJ) has been hailed. Does it signal climate justice for minorities and Indigenous peoples, groups among those most vulnerable to climate change, or is it just another piece of paper?

The ICJ rejected arguments from the worst pollution offenders that only climate change treaties apply in this space, instead affirming the equal relevance of international human rights law in this context.

It also recognised that degradation of the environment violates our human rights, and that we cannot meaningfully enjoy those rights without a clean, healthy and sustainable environment to live in.

These recognitions are important for all humanity, but particularly so for those whose rights are already the least fulfilled or most at risk – Indigenous peoples and minorities among them.

Reinforcing accountability

Had the ICJ’s opinion been published a few years ago, perhaps the Indigenous Zenadth Kes (or Torres Strait) Islanders would have won their domestic case against Australia. As one of the most marine-oriented and sea life-dependent Indigenous societies on the planet, dramatic sea-level rise has put their material and cultural survival in jeopardy.

“Climate change is like a poison brought to our shores. We live in fear wherever we go,” according to elder and activist Yessie Mosby.

Zenadth Kes elders launched their case against Australia in October 2021, arguing that the state had a duty of care to protect them from the ravages of climate change.

A few weeks ago, the case was dismissed.

The court found that Australia did not owe them a duty of care, even as it acknowledged the devastation and jeopardy they faced. It said that such matters were for parliament, not the courts.

The ICJ’s opinion could have prevented Australia from avoiding responsibility in this way. Though the ink is dry on their defeat, for the future at least, the ICJ’s opinion would support the grounds for appeal in this and similar cases, where domestic courts have not recognised their state’s obligations to its citizens.

The opinion also offers influential support to communities who have already won their legal battles – but whose governments continue to drag their feet on implementation.

This includes cases where communities have rightly argued that state-led climate measures were designed and implemented in violation of their rights – such as in the cases of the Indigenous Ogiek in Kenya, Batwa in the DRC, Kichwa in Peru, and many others. By reinforcing states’ legal obligations, the ICJ opinion helps dismantle the excuses often used to justify delay or inaction.

Legal principles support minority and Indigenous rights

The court also named several important principles for the interpretation and application of international law – with direct implications for the rights of Indigenous peoples and minorities.

The principle of equity strengthens legal claims for Indigenous peoples and minorities to receive targeted protection and support for the preservation of their land, knowledge systems and cultural identity for future generations.

The principle of sustainable development, meanwhile, should prevent development projects that endanger Indigenous land rights, livelihoods and traditional ecological practices.

The precautionary principle provides a basis for preventing projects that threaten ecosystems even in the absence of full scientific certainty about potential harm, allowing affected communities to more effectively contest environmental devastation and the rights violations that go along with it.

The court’s support for the principle of common but differentiated responsibilities further legitimises calls for wealthier, historically high-emitting states to provide Indigenous peoples and minorities with the means to adapt to climate impacts, protect their territories and rights and participate meaningfully in climate governance.

All these principles can be invoked to argue that just climate action must be designed and implemented in accordance with human rights, redress past harms, provide access to loss and damage mechanisms, and provide financial and technical support for restoring ecosystems, cultural heritage and community resilience.

Alongside international human rights agreements, these principles offer a reinforced legal framework to advocate for free, prior, and informed consent, meaningful participation in climate policy-making and inclusion of traditional knowledge.

It’s time for change

Despite its strong pronouncements on climate justice, the ICJ’s opinion is not binding: states are under no formal obligation to comply. It also lacks depth in addressing the intersectional impacts of climate change – such as on people with disabilities.

Nevertheless, it reinforces the legal foundations for state accountability. Its real impact now lies in the hands of legal practitioners, advocates, impacted communities and human rights defenders.

In October, the case of the Muddusjärvi Reindeer Herders’ Cooperative against Finland will be heard. The collective is part of the Indigenous Inari Sámi community, numbering just 800. Like many Indigenous peoples, their lifestyle, their livelihoods, their very existence are inextricably entwined with their ancestral land.

Climate change, dispossession and logging have harmed their habitat and severely endangered their traditional reindeer-herding practices. Their case sets out how Finland’s failure to prevent and mitigate this desolation is a violation of their human rights.

It’s very likely that the ICJ’s opinion will be used by their lawyers to reinforce Finland’s responsibilities towards the Inari Sámi and their right to reparations.

A victory for the Muddusjärvi Cooperative would give renewed hope to minorities and Indigenous peoples worldwide. The ICJ has affirmed what Indigenous peoples have long known. It’s time for states to listen.

Cover photo:  COP16 participants celebrate the establishment of the Subsidiary Body for Indigenous Peoples, in Cali, Colombia, on November 2, 2024. (Photo by IISD/ENB | Mike Muzurakis)