Dr. Elisa Fornalé, Swiss National Science Foundation (SNSF) Professor at the World Trade Institute (WTI), University of Bern and Tamara Köhler, her research assistant for the SNSF Project Climate Change and Human Mobility, discuss the UN Child Rights Committee ruling on a historic petition brought forward by 16 children against Argentina, Brazil, France, Germany and Turkey...
Introduction: “Climate Change Crisis as a Child Crisis”
On October 11, the UN Child Rights Committee (the Committee) ruled on a historic communications procedure brought forward by 16 children (plaintiffs) against Argentina, Brazil, France, Germany and Turkey for failing to prevent and mitigate the consequences of climate change (Nos. 104-108/2019). Although the State parties have known of the effects of climate change for a long time and signed the United Nations Framework Convention on Climate Change in 1992, they did not initiate adequate measures to prevent the current climate crisis from happening. It has so far proved difficult to face this essential challenge, and the negative impacts of climate change are already having a disproportionate effect on the enjoyment of many established children’s rights, in particular the right to life (Article 6), the right to health (Article 24), and the right to culture (Article 30). Furthermore, the plaintiffs complained that the carbon emissions from the mentioned States were not only affecting children on their respective territories but also beyond. The plaintiffs made use of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure under which an individual or a group of individuals within the jurisdiction of a State party can submit a “communication” against said State for violations of rights granted (amongst others) under the Convention on the Rights of the Child.
Even though the communication has been found inadmissible, the decision is significant for clarifying the human rights-climate change relation and the crucial dimension of procedural requirements.
A New Grammar of Climate Action: Bottom-Up Activism v. Lethargy of Political Negotiations
The adoption of the United Nations High Commissioner Report in 2009 highlighted how climate change raises unprecedented challenges to the enjoyment of a range of human rights. In the Resolution adopted in 2011, the Human Rights Council detailed how human rights obligations and commitments should “inform and strengthen international and national policy making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes” (Resolution 18/22). This emphasis has brought the work of the UN treaty bodies, and in particular the Committee, to clarify the meaning of open-textured human rights provisions in relation to climate vulnerability by taking into account the needs and interests of “segments of the population,” as children, that are most exposed to the effects of climate change. Children are not only already experiencing the climate crisis in today’s society, but at the same time they will suffer the longest under an uncertain future due to climate change. For this reason, the Committee required States to “put children’s health concerns at the centre of their climate change adaptation and mitigations strategies” (General Comment n. 15, para. 50) and in its Concluding Observations (CO) on States’ periodic reports, the Committee clarified individual States’ duties by focusing on the need to (1) develop adequate preventive measures by increasing “children’s awareness and preparedness for climate change and natural disasters” (Malawi, CO, para. 36 (d)); (2) to adopt national adaptation plans “for reducing the level of greenhouse emissions to prevent dangerous climate impact” (Belgium, CO, 35(b)); and (3) to include children’s views in disaster risk management plans and programs (Austria, CO; Tuvalu, CO; Micronesia, CO).
However, it is evident that this interpretative practice will not automatically translate the human rights-climate change relation into increased protection. In the last years, a new generation of climate lawsuits where the plaintiff(s) seeks to hold governments to account for climate inaction (or action) based on human rights groundswell started to develop. These tangible and actionable legal claims can help to reinforce States’ obligations as part of what has been described by Peel and Osofsky as “a rights turn” trend in climate change litigation (Peel and Osofsky, 2018) to employ rights claims against climate change inaction. It is worth mentioning the 2018 decision of the Supreme Court of Colombia, Future Generations v. Minister of the Environment, which ruled that climate change and deforestation were threatening the constitutional rights of present and future generations. At the moment, there is a landmark case (Cláudia Duarte Agostinho and Others v. Portugal and 32 Others States) pending before the European Court of Human Rights (ECHR) where six children sued 33 governments for their inaction against climate change that risk to compromise their right to life, their right to respect for their private and family lives, and their right not to be discriminated against.
This ruling by the Committee also represents a significant effort to raise the international attention to the human rights-climate change linkages, but dealing with the protection children’s rights. As stressed by Kyriakides et al., who tabled a motion for a resolution by the Parliamentary Assembly of the Council of Europe in 2019, “children are much more than passive victims of climate change, they are powerful agents of change active at all levels.” The existence of these cases offers the opportunity to learn from the actual and potential vulnerable subjects how the enjoyment of their human rights has been and might be affected by State inaction on climate change and to try new space for actions that spell out States’ obligations and the “attribution of duties” in concrete.
Cross-Border Responsibilities for Climate Change Impacts?
In line with this, the second aspect deeply analyzed by the Committee was the “jurisdiction” of the respondent States, in particular the need to assess what the Committee described as “novel jurisdictional issues of transboundary harm related to climate change” and human rights duties (para. 10.4). The children indeed pleaded for a broader approach concerning jurisdiction by invoking the extraterritorial dimension of States’ obligations to protect children’s rights. It was imperative for the Committee to clarify the scope and definition of jurisdiction in human rights-based climate case by understanding “toward which rights-holder does a state party hold obligations?”. By making reference to the Inter-American Court of Human Rights’ Advisory Opinion on the Environment and Human Rights (para. 101), the Committee observed that “when transboundary harm occurs that affects treaty–based rights, it is understood that the persons whose rights have been violated are under the jurisdiction of the State of origin.” (para 10.5). The Committee reasoned by relying on two elements to assess State jurisdiction: 1) the ‘effective control’ by the States in their territory over the sources of carbon emissions that contribute to the effects of climate change everywhere; and 2) the existence of a causal link between States’ climate actions or omissions and the reasonably foreseeable “life-threatening” risks of violation of children’s rights within and outside their borders. The Committee considered that both elements were met for establishing jurisdiction (Article 5 (1) of the Optional Protocol), in particular by highlighting how the global nature of climate change interact with individual state responsibility (“the collective nature of the causes of climate change must not absolve a State from its individual responsibility” para. 10.8) to prevent transboundary harm to materialize (ILA, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001, Article 2).
Exhaustion of Domestic Remedies and Procedural Limits
To conclude, a few remarks on the last ‘obstacle’ faced by the petition in the admissibility phase: the exhaustion of domestic remedies (Art. 7 Lit. e of the Optional Protocol). The communications 104-108/2019 all fell through Art. 7 lit. e of the Optional Protocol, hence are inadmissible, as the domestic remedies have not been exhausted. Exempt from this requirement are communications when the “application of the remedies is unreasonably prolonged or unlikely to bring effective relief.” Although the plaintiffs argued that first their case would have been “unduly prolonged” due to backlog in many courts and that it will be practically unreasonable to bring the case in all different countries involved at the same time. Second, as highlighted by Boyd and Knox in their third-party intervention submitted on May 1, 2020, “remedies from individual domestic courts will not be effective in isolation, as a single domestic court clearly lacks the jurisdiction to impose obligations on other States to cooperate internationally to resolve the climate crisis” and that the Committee has the expertise to consider matter that involve multiple states parties (para. 50). The Committee did not consider this tp have “sufficiently substantiated their arguments” (para. 10.19) and at the same time in the open letter sent to the children it noted that “although we entirely understood the significance and urgency of your complaint, we had to work within the limits of the legal powers given to us under the optional protocol on a communications procedure.” This decision contributes to highlighting how ‘global challenges to the human rights,’ such as climate change, require crossing the limits of our legal frameworks, including its procedural limits, to seek effective remedies. The ECHR has now the opportunity to provide guidance on the admissibility requirements in the Claudia Duarte Agostinho pending case and it is important to see if the ECHR will reach the same conclusions on the exhaustion of local remedies and the role of domestic courts.
Despite not succeeding entirely with their complaint, the decision represented an opportunity for developing a keen understanding of how global challenges have an impact on state jurisdiction. Climate change does not stop at borders and such endeavour require understanding the implications for our ‘current regime of jurisdiction,’ in particular “where the duty-bearing State exercises not effective control over the right-holder, but only over a potential cause of harm to that person.” This could mean to look for alternative jurisdictional practices, as ‘selfless intervention,’ to overcome deficits at international and national levels. What the next General Comment n. 26 on “Children Rights and the Environment with a Special Focus on Climate Change” will do is to engage with these emerging challenges by clarifying the content and the legal implications of crucial concepts such as “international cooperation” and “extraterritorial obligations.” Also, new and inspiring initiatives are already trying to draw the attention at different levels, as the step taken by the Parliamentary Assembly that will discuss a draft resolution and a draft recommendation on “Inaction on Climate Change – A Violation of Children’s Rights” in January 2022, to ensure that States contribute to find collective responses by going beyond their inaction and by drafting a new space of action where the active participation of children is enabled.
The authors acknowledge the support of the SNSF grant no. PP00P1163700 (www.climco2.org).
Dr. Elisa Fornalé is a Swiss National Science Foundation (SNSF) Professor at the World Trade Institute (WTI), University of Bern.
Tamara Köhler is Dr. Elisa Fornalé’s research assistant for the SNSF Project Climate Change and Human Mobility.
Suggested citation: Dr. Elisa Fornalé and Tamara Köhler, Climate Change Inaction and Children’s Rights, JURIST – Academic Commentary, January 20, 2022, https://www.jurist.org/commentary/2022/01/Elisa-Fornalé-Tamara-Köhler-Climate-Change-Inaction-Children’s Rights-UN-Committee’s-Views/.
This article was prepared for publication by Nandini Dwivedi, a JURIST assistant editor. Please direct any questions or comments to her at email@example.com
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