A Fourth World Critique of the ICJ’s Climate Change Advisory Opinion

In the historic Climate Change Advisory Opinion (‘The Advisory Opinion’), the International Court of Justice (‘ICJ’) undertook substantial steps in recognising the obligation on States to protect the environment and prevent climate change. It recognised that the customary international law (‘CIL’) obligation on states to prevent transboundary harm is of an erga omnes character (para. 440), meaning that it is “owed to the international community as a whole”. The ICJ also recognised the human rights implications of climate change, and how climate change has the potential to affect human rights such as the rights to health, life, privacy, and home (para. 386). Although these were steps taken in the right direction, the ICJ failed to properly account for the Fourth World, which comprises indigenous peoples who are the most vulnerable to climate change (p. 398). Its recognition of indigenous people in the Advisory Opinion fails to be sufficient as it did not recognise any obligations on States to prevent disproportionate impacts of climate change from affecting their indigenous populations.

This paper critiques the Advisory Opinion from a Fourth World perspective. Part II of the paper describes what the Fourth World Approach to International Law (‘FWAIL’) is and why the Advisory Opinion must be observed through the lens of the Fourth World. Part III analyses how the Advisory Opinion overlooks the Fourth world, both procedurally and substantively. Part IV reimagines the Advisory Opinion, keeping in mind the Fourth world, and recommends changes to the current international system.

What Is FWAIL and Why Is It Relevant for the Advisory Opinion?

This part of the paper discusses FWAIL and its origins. It then substantiates why the Advisory Opinion must be analysed from the Fourth World approach.

What Is FWAIL?

FWAIL, or the Original Nations approach to international law, specifically refers to indigenous people and their systemic exclusion from international law. The Fourth World was originally defined by George Manuel as “a vision of the future history of North America and of the Indian people” (p. 291). Drawing from Antonio Gramsci, the hegemony of the dominant group leads to the imposition of coercive power on groups that have not consented. Until now, it was the hegemony of the Western developed states that prevented the Global South’s interests from being heard. The objective of the third world approach to international law (‘TWAIL’) was to tackle this hegemony. However, now, it is all states, from the First, Second and Third Worlds, who have been continuing to engage in the ongoing occupation and exploitation of the Fourth World people and their resources (p. 226). For example, the Rohingyas in Myanmar have been rendered stateless and stripped of their citizenship; the Kashmiris continue to be caught in between India and Pakistan and struggle for independence (pp. 223-224); and the Okinawans continue to bear the brunt of Japan’s military collaboration with the US (pp. 228-232). This continuous exploitation of the Fourth World people, facilitated through active decisions on behalf of the State, represents the predatory nature of the State. This predatory nature is the exact reason why the Fourth World needs to be recognised by international law so that its people’s needs and interests can be protected.

Why Is the Advisory Opinion Relevant?

Although of a non-binding nature, advisory opinions seek to establish authoritatively the rights and obligations that exist amongst states and other subjects (p. 24). They are especially important because there is no higher source of authority at the international level than the ICJ (p. 52). The ICJ itself (Preliminary Objections, pp. 333-338), other international courts and tribunals (such as the European Court of Justice (paras. 104-106), and the ITLOS (Preliminary Objections, para. 205), states, and commentators have relied on the ICJ’s advisory opinions as being an accurate representation of applicable international law.

Further, international courts and tribunals depend on ‘normative legitimacy’, meaning the moral rightfulness of authority, more than domestic courts (pp. 504-505). This is because international courts do not carry the same amount of power to compel States to comply with their decisions. To acquire this legitimacy, Torbisco-Casals argues that international courts should not only cater to the State parties before them but also cater to the broader range of actors in the increasingly global civil society (p. 498). This includes international non-governmental organisations, social movements, alliances, etc. that have collectively had an increasing influence in shaping global politics. Failing to keep their normative legitimacy, international courts’ authority may be undermined. For example, the ICC is facing a declining legitimacy vis-à-vis many African citizens and States who have come to believe that the ICC is biased against them (p. 494). This has led certain African parties to withdraw from its jurisdiction (p. 494). Thus, international courts must not only support State parties, but they must also support the individuals and groups of the diverse global society.

Thus, since advisory opinions carry the same legal weight as the decisions of the ICJ while it exercises its contentious jurisdiction, it is pertinent to scrutinise them to ensure that they do not overlook the main stakeholders of the obligations they recognise. Thus, any determination of existing legal obligations by the ICJ in the Advisory Opinion must be done with recognising the rights and interests of the indigenous peoples, so that it continues to carry its legitimacy as the World Court.

How Does the Advisory Opinion Overlook the Fourth World?

This part of the paper analyses how the Advisory Opinion has overlooked the main stakeholder of its decision: the Fourth World. It is pertinent to note that the Advisory Opinion is a fruit of the efforts of a civil society movement that included indigenous peoples. A coalition, the Melanesian Spearhead Group developed and promoted the idea of an Advisory Opinion, which was taken up by Government of Vanuatu. This reflects the importance of the change that can be brought about by indigenous narratives on climate change. However, after the initiation of ICJ proceedings, the origin of the proceedings itself has been procedurally and substantively excluded.

Procedural Exclusion by the ICJ

Only States may be parties to the ICJ’s proceedings (Art. 34(1)). This provision has led to the procedural exclusion of the Fourth World from international law and has continued the trend of international law keeping the Fourth World at the periphery.

By allowing only States to be parties to its proceedings, the ICJ makes States the de facto representative of their populations, which includes nations (p. 237). The term nation here means “culture-bound territory of a common people” (p. 227). As established before, States are not bound to represent the views of their populations, and many times they actively undertake decisions that are contrary to the needs and interests of their people (see Part II.A. on “FWAIL”). In the Advisory Opinion, we see States take two approaches. Some States like Vanuatu, Solomon Islands, Canada,  and Sierra Leone explicitly addressed the challenges faced by their indigenous populations and urged the ICJ to pay heed. However, some States exhibited predatory behavior in their written submissions, wherein they tried to restrict their obligations pertaining to protecting the environment. For example, States like Germany, Saudi Arabia, and the US argued that the only obligations that they had were through the environmental treaties that they were parties to, and that they did not have any obligations beyond what was imposed by these treaties. The main purpose of these arguments was to negate the existence of any non-treaty international law obligation on them to protect the environment. Some States, such as the UK, Switzerland, the US, China, and Saudi Arabia, rejected the notion that the obligation to protect the environment could arise from human rights instruments, refusing to recognise the human rights implications of climate change. Along with these arguments, several States did not refer to the impacts of climate change felt by their own indigenous communities. This includes States such as the US, Russia, Argentina, UAE, Japan, etc. Some States recognised indigenous rights, but failed to elaborate on the extent of the impacts felt by their indigenous populations, such as India (paras. 77, 77). Thus, indigenous peoples continue to be pushed to the peripheries of international law, even when the issue at hand has a direct implication on them.

Furthermore, by allowing only States to participate in its proceedings, the ICJ fails to recognise several indigenous peoples’ organisations that have established their status as the international representatives of indigenous people. These include organisations such as the World Council for Indigenous Peoples, the Inuit Circumpolar Conference, Minority Rights Group International, and the Centre of World Indigenous Studies. Many of these indigenous peoples’ organisations have even attained the official UN Observer Status, and some have participated in international conferences that involve human rights issues relating to indigenous peoples and in the UN Permanent Forum on Indigenous Issues (p. 242).

Substantive Exclusion by the ICJ

Almost as a direct implication of the inconsistent written submissions by States with respect to their indigenous peoples and their rights, the ICJ failed to correctly recognise the obligations owed by States towards the protection of the environment of the indigenous peoples. In the Advisory Opinion, the ICJ recognised that under the Paris Agreement, when undertaking action to address climate change, State parties are to respect, promote and consider indigenous rights, and that the right to a clean environment is necessary for the full enjoyment of human rights such as the right to life, health, and an adequate standard of living (para. 382). However, it has failed to recognise the extent of the human rights implications of climate change on indigenous peoples. The Fourth World is intrinsically linked with nature and land as they form a substantive portion of their culture. For the indigenous peoples, their link to their land is “the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival” (para. 149). Thus, any damage to the environment directly affects the indigenous peoples’ way of living in a disproportionate manner.

Therefore, the ICJ’s mere recognition of climate change having the potential to affect indigenous people disproportionately fails to be sufficient. The ICJ must recognise that it is the actions of States themselves that are leading to the said disproportionate impact on indigenous peoples. This requires the explicit recognition of indigenous communities across the world and a nuanced legal analysis of the predatory actions of the State against these communities (see Part II.A. on “FWAIL”). Only upon doing so can the ICJ correctly interpret the human rights implications of climate change under CIL, the Universal Declaration on Human Rights, the ICCPR, ICESCR, Paris Agreement, and other instruments of international human rights law. In the absence of this recognition, the treatment of indigenous peoples in the Advisory Opinion continues the trend of keeping the Fourth World at the periphery of international law.

The Way Forward

For ensuring that the Fourth World does not continue to be in the periphery of international law, express recognition by the highest source of authority in international law, the ICJ, is necessary (p. 52). This must involve the recognition of indigenous peoples’ human rights to the environment.

The recognition of indigenous peoples’ human rights by the ICJ can be done in a manner similar to the way the ICJ has recognised the rights of individuals before it. For example, in the LaGrand case, the ICJ recognised that individuals carry the right to be informed of their access to their consulate in cases of criminal detention in foreign countries (para. 125). The ICJ derived this right from the Vienna Convention on Consular Relations (‘VCCR’) even though the VCCR does not explicitly mention any ‘rights’ of individuals to consular access (Art. 36). The implication of this recognition of individual rights created an obligation on States vis-à-vis individuals and allowed States to invoke each other’s responsibility in cases of breach (paras. 125-130). Thus, the ICJ may explicitly recognise the rights of indigenous peoples to their environment to protect them from the predatory actions of States.

Further, the ICJ should recognise the efforts of indigenous organisations in the development of international human rights law through their participation in the UN Permanent Forum on Indigenous Issues and international conferences. This recognition may even extend to permitting these organisations to submit amicus curiae briefs, as was done by the Inter-American Court of Human Rights (‘IACtHR’) in its Advisory Opinion. The IACtHR in its Advisory Opinion, recognised the human rights implications of climate change as an independent issue under the American Convention on Human Rights and outlined the rights of affected persons and the parallel duties of States in fulfilling those rights in a comprehensive manner (paras. 428-434). One of the factors leading to this express recognition of human rights was the amicus curiae brief submitted by indigenous peoples. Similarly, permitting indigenous organisations to submit amicus curiae briefs would allow the ICJ to have a more nuanced understanding of the issues faced by the Fourth World, which in turn would allow the ICJ to deliver decisions that are representative of the global world, and not just States.

At present, the Advisory Opinion risks being labelled as a continuation of the ICJ’s bias against indigenous peoples (pp. 350-362). To ensure that the ICJ continues to hold its legitimacy as the World Court, it must recognise the constituents of the World. Failing which, the ICJ would continue to beat the battered drum and pave the way for it to be the States’ Court instead of the World’s.