ICJ's opinion on climate responsibility is spot on

22 November 2024, Berlin: Participants at a rally hold a banner with the slogan "Climate crisis does not wait for government crisis". On the occasion of COP 29 in Baku, activists from Fridays for Future demonstrate in front of the Federal Foreign Office for the expansion and strengthening of climate protection in Germany and worldwide. [FILE/Standard]

Something good happened in The Hague this week. It came with a momentum worth keeping in the fight for climate justice locally and beyond.

The International Court of Justice (ICJ) made its pronouncement following a push by a group in the Pacific nation of Vanuatu for clarification on the responsibility and legal obligations in relation to climate change. Some 130 countries also supported this push.

The court’s stand was that the climate must be protected for “present and future generations”. It said it is the responsibility of states to protect the rights of their citizens in the face of rising global temperatures. In simpler terms, “clean, healthy and sustainable environment” is a human right.

This ruling, though non-binding, sets the ground for countries that suffer the worst climate-induced catastrophes to seek justice in a world plagued by inaction, with impunity. It presents a moral weight, a consciousness that every country must bear if they are genuine about climate action.

As the journey to Brazil, for the annual global climate talks in November (COP30) begins, this ICJ opinion comes as impetus for the African Group of Negotiators in their strategy, and as they position themselves in the climate diplomacy, to ensure polluters are not just exposed, but also made to pay.

Back home, it should motivate policy makers and legal minds to push for the best frameworks and meaningful climate governance in the interest of humans and the rest of creation that suffer from the climate crisis. For climate advocates, this is a fan in the push for justice, because it touches on human rights, including to be alive.

Kenya has already began this effort locally. In 2022, the Ilchamus and Tugen communities, supported by Kituo Cha Sheria, filed a suit at the Environment and Land Court, saying the government had failed to protect them from floods in Baringo County. They claimed the government had failed to fulfil its legal obligation in the Climate Change Act (2016) and Constitution. They demanded compensation for losses incurred, relocation facilitation, and rehabilitation of damaged infrastructure. They literally directly tied state accountability to climate change impacts.

The Judiciary acted, and justly so, with the deserved seriousness, even approving a request to have a three-judge bench for the case. In 2019, the National Environment Tribunal revoked a licence for the construction of a $2 billion coal-powered plant in Lamu, Kenya. The court ruled that the environmental impact assessment was not adequately done, hence ignoring pertinent issues that would have affected the communities that lived nearby. Of course, the environment was going to be badly damaged as well, and the biodiversity loss that could have followed may have been unimaginable. The decision was welcomed by opponents of the project, mostly climate activists. In the end, the rights of grassroots communities triumphed. Globally, a 2023 UNEP report has shown how climate litigation has been increasing, actually more than doubled since 2017. Once the courts begin to acknowledge the link between climate change and human rights, vulnerable populations will enjoy better protection.

The ICJ opinion should guide countries on how to structure national laws that will boost implementation of climate adaptation policies, and allocation of funds meant for climate-induced loss and damage. This opinion is a tool to pressure highly pollutant developed nations to honor their pledges to finance climate action, adequately support vulnerable communities and also minimise their Greenhouse Gas emission.

Finally, African nations must not ignore their domestic responsibility. Polluters must be held accountable. Besides, we must invest in climate-smart agriculture, resilient infrastructure, and manage climate funds transparently.

The writer is a Contributing Editor at Mongabay