Credits: Rafael Ishkhanyan on Unsplash

By: Vanessa Tünsmeyer

This blog post joins the long line of contributions covering the two most recently adopted Advisory Opinions on climate change. First, there was the Advisory Opinion on the climate emergency and human rights, adopted by the Inter-American Court of Human Rights (IACtHR) on May 29th of this year. The IACtHR was asked a list of questions by Chile and Columbia. The request sought the court’s guidance in the development of human rights-based solutions that are in line with the American Convention, to tackle the climate crisis. This was also done against the backdrop of the right to a healthy environment, which is enshrined in Art.11(1) of the Protocol of San Salvador and has already been the subject of an earlier Advisory Opinion by the IACtHR as well as covered in its case-law. The International Court of Justice (ICJ) in turn adopted its Advisory Opinion on ‘state obligations in respect of Climate Change’ on July 23rd of this year. The Advisory Opinion responded to a Resolution adopted by the UN General Assembly and included a reference to human rights law but was broader in terms of its legal scope given that it covered all state obligations under international law. Rather than considering the two courts’ consideration of state obligations to combat climate change, or the human right to a healthy environment, this blog post aims to consider the space conceded to Indigenous peoples in both Advisory Opinions.

A focus on Indigenous Peoples

Indigenous Peoples are disproportionately affected by the effects of climate change for a number of reasons. First, many Indigenous communities who practice subsistence agriculture are particularly vulnerable to climate change. Second, many Indigenous Peoples have a close connection to their ancestral lands, including through using particular natural resources or sites for their cultural practices. Climate change threatens such resources that are necessary for the continued practice of their culture. In addition, Indigenous Peoples often have strong ties to their ancestral lands. If they have to migrate due to climate change, this may then result in the denial of their right to culture, both because of the loss of the tie to their lands as well as the inability to continue cultural practices connected with their territories (and its resources). This has already been recognised by the Human Rights Committee in Daniel Billy, when the Committee considered the impact of Australia’s actions on the lives of the Torres Strait Islander Peoples and found the state guilty of multiple human rights violations. Third, Indigenous Peoples belong to the poorest sectors of society globally and therefore are disproportionately impacted by the effects of climate change. It is thus not surprising that Indigenous organisations have been very active in the fight against climate change for a long time. Such organisations have also been involved in the two advisory proceedings discussed here. This post focuses on the role Indigenous Peoples played in the proceedings themselves as well as manner in which Indigenous Peoples are discussed in the Advisory Opinions eventually adopted.

Indigenous Peoples involvement in the proceedings

In terms of involvement in the proceedings, Indigenous youth have played a key role in the proceedings in front of the ICJ, by starting the process that culminated in the adoption of the Advisory Opinion by the ICJ in July 2025. In addition, throughout the period leading up to the adoption of the Advisory Opinion by the ICJ, Indigenous activists undertook a variety of actions designed to bring Indigenous voices to the attention of the judges and the wider public. In the IACtHR’s advisory proceedings on the climate emergency, due to the IACtHR’s more inclusive rules for allowing the interests of amici to be addressed to the court, numerous Indigenous organisations submitted amicus curiae briefs. More than 263 briefs were submitted, many by Indigenous organizations or NGOS collaborating with Indigenous Peoples, signalling a significant level t of Indigenous Peoples involvement in the IACtHR proceedings. Perhaps as a result of this involvement in the proceedings, the Advisory Opinion by the IACtHR itself pays a striking amount of attention to Indigenous Peoples. Reading the two Advisory Opinions side by side, it is clear that the attention paid to Indigenous Peoples in the two Advisory Opinions differs tremendously, arguably reflecting their varying extent of involvement in the proceedings, the different nature of the two institutions and the difference in the legal questions asked to the courts.

Indigenous Peoples in the IACtHR’s ‘Advisory Opinion on the Climate Emergency and Human Rights’

In the IACtHR’s Advisory Opinion, the term “indigenous” appears an astonishing 190 times. There are a number of reasons for this: First, the court has, over time, built up a solid string of case-law on state obligations with regard to the environment that involved Indigenous Peoples. In the case of U’wa Indigenous Peoples and its members v Columbia, for example, the court recognised not only the urgency of the triple planetary crisis but also the particular vulnerability of Indigenous Peoples to the consequences of environmental degradation because of their way of life leading to enhanced obligations. The Advisory Opinion on the climate emergency then used the concept of the triple planetary crisis to emphasis the urgency of the emergency. In the case of the Rama and Kriol Peoples, and the Black Creole Indigenous Community of Bluefields et al. v. Nicaragua, the IACtHR affirmed that the right to a healthy environment is protected as part of the progressive realisation of human rights enshrined in Art.26 of the American Convention. The right to a healthy environment was then used as a building block in the Advisory Opinion on the climate emergency to further develop the rights of nature. Because cases involving Indigenous Peoples form part of the court’s case-law on the right to a healthy environment, it is only natural that reference to said case-law appear in the Advisory Opinion on the climate emergency. However, this is not the only reason for their prominence in the Advisory Opinion.  

The second reason why Indigenous Peoples feature so prominently in the Advisory Opinion is the attention which the court pays to the relationship between Indigenous Peoples and the environment. Due consideration is given to the multifaceted nature of the relationship between Indigenous Peoples and Climate Change. Going far beyond merely referencing Indigenous rights cases, the court depicts Indigenous Peoples in its narrative as both victim and possible agent of change: On the one hand they are included as one of the vulnerable groups (IACtHR AO climate emergency, paras. 223, 605). It also recognised that they are particularly affected by the negative impacts of climate change due to their way of life (IACtHR AO climate emergency, para. 108), as was already recognised in its earlier case-law. On the other hand, the court also recognises that Indigenous Peoples (can) play an important role in protecting the environment and combating climate change, provided states involve them in their plans (IACtHR AO climate emergency, paras. 110, 280,339-341). This includes taking advantage of Indigenous knowledge and recognising the important role Indigenous Peoples have played in the conservation of their territories. The court also paid attention to the dangers of measures taken in the transition to ‘clean’ energy (IACtHR AO climate emergency, paras 339-342).

While the court explicitly mentioned violations that occur in the extraction of rare-earth minerals, such violations occur in other contexts and are a problem for Indigenous Peoples across the globe, not just in the Inter-American context. An example from Europe would be the much-discussed construction of the Fosen windfarms on lands used by the Sámi, which has also been covered by Medes Malaihollo on this blog. The Advisory Opinion provided by the IACtHR will therefore hopefully serve to illuminate state obligations in this area beyond the geographical context of the Americas. It also reinforced the need to respect Indigenous rights given the relationship of Indigenous Peoples with their lands and territories.

Indigenous Peoples in the ICJ Advisory Opinion on Climate Change

By contrast, the ICJ was asked to determine the applicable obligations of states to combat climate change under international law and to advise on the responsibilities of states for the harm they caused states (in particular small island states) and peoples and individuals by failing to fulfil their obligations. The broader international law focus and the traditional state focus of the ICJ perhaps explains why, from a human rights perspective, the opinion does not reach its full potential and leaves a number of unclarities. This also holds true for the scarce attention paid to Indigenous Peoples in the Advisory Opinion.

By comparison with the Inter-American context, Indigenous Peoples play a minor role both numerically as well as in substance. The term ‘indigenous’ is used a total of four times in the Opinion itself. The ICJ limits itself to recognising that the rights of Indigenous Peoples may be impaired by climate change; recognising that they are in vulnerable to the effects of climate change; and highlighting the need for states to take this into account in any mitigation or adaptation action (ICJ AO, paras 374, 382, 384). Noteworthy is the reference to the Human Rights Committee’s decision in Daniel Billy, which stated that a state’s failure to ‘implement timely and adequate adaptation measures to address the adverse impacts of climate change may violate the right to privacy, family and home’ (ICJ AO, para 381).

There is arguably more to find in the Separate Opinions and (Joint) Declarations attached to the ICJ’s Advisory Opinion on state obligations in respect of climate change on the role of Indigenous Peoples than in the Advisory Opinion itself. Judge Sebutinde, for example, points to the Opinions failure to recognise the rights of Indigenous Peoples, peoples and communities, such as the right to a clean, healthy and sustainable environment. Judge Bandhari likewise remarked on the lack of consideration for Indigenous Peoples’ rights, albeit in the context of state responsibility and restitution for damages suffered by Indigenous Peoples through the ‘restoration of the rights of indigenous peoples to their lands, territories, and resources adversely affected by climate change’ (Separate Opinion by Judge Bandhari, para 7). Judge Xue referenced the need to account for Indigenous knowledge and human rights in national adaptation strategies. The most extensive consideration of the existential threat posed by climate change to Indigenous Peoples across the globe was offered by Judge Charlesworth. She extends the court’s comparatively brief discussion of state obligations arising under international human rights law and discusses both the right to a clean and healthy environment, as well as state obligations arising under other human rights. Moreover, Indigenous Peoples are discussed not only in the context of vulnerable groups, in contrast to the Advisory Opinion itself. Rather, their position is concretised, as Judge Charlesworth considers the impact of climate change on cultural rights through the destruction of heritage sites, the loss of intangible cultural heritage and the loss of Indigenous knowledge and custom (paras 16-17). She actively engages with the Advisory Opinion of the Inter-American Court of Human Rights throughout. Judge Aurescu contributed by linking the right to a healthy and clean environment to both the United Nations Declaration on the Rights of Indigenous Peoples and the American Declaration on the Rights of Indigenous Peoples, thereby implicitly recognising the contribution of the field of indigenous rights to environmental law.

Final Remarks

To conclude, the two Advisory Opinions on state obligations and climate change recognise the existential threat that the climate crisis poses to the continued existence of Indigenous Peoples as peoples. The full implications of this, also in terms of state obligations in the area of indigenous rights, will need to be further concretised in future case-law. The two Advisory Opinions, as well as the separate opinions and declarations by a number of ICJ judges will hopefully provide useful guidance and inspiration for national judiciaries in recognising harm suffered by Indigenous Peoples on the basis of international law. This is even more important where national legal systems remain slow to recognise harm suffered by Indigenous Peoples and fail to offer a satisfactory remedy.

Bio:

Vanessa Tünsmeyer specializes in the area of cultural rights, minority and indigenous rights and cultural heritage law. In 2022 she published a monograph with Springer on aligning legal mechanisms on the return of colonial-era heritage with state obligations under human rights law. She has worked at universities in Germany and The Netherlands and was a visiting researcher at the Peter Allard Hall Law School in Vancouver, Canada. Currently she works as Assistant Professor at the Department of Legal Methods of the Rijksuniversiteit Groningen and acts as academic co-lead for an interdisciplinary research group on ‘Conflict, Environment & Justice'.