How states may be held responsible for impact on children

The UN Committee on the Rights of the Child has determined that a government can, in theory, be held to account for the impact its country’s carbon emissions have on its children, both within and outside of its borders. This is in response to a complaint filed in September 2019 by youth climate activists, including Greta Thunberg.

The petition alleged that, by failing to reduce carbon emissions in line with the Paris Agreement, five nations – Argentina, Brazil, France, Germany and Turkey – were violating their rights to life, to health and to culture, as guaranteed by the UN Convention on the Rights of the Child (CRC). Thunberg explained that these countries were named for illustrative purposes: they are the highest emitters to have ratified the complaints mechanism of the CRC.

The petition outlined specific impacts of climate change on the individual children’s lives: how the sight of rising sea levels are damaging the mental health of children in Micronesia – undermining their CRC right to health; how, in northern Sweden, children’s CRC right to culture is being denied because climate change is hindering the reindeer herding traditions passed down through generations.

Elsewhere the complaint highlighted rising temperatures in Lagos, Nigeria and related respiratory conditions; the various threats posed by drought conditions in Tunisia, California and South Africa; and the deadly heat waves that have come to characterise French summers.

However, instead of engaging with these specific claims, and determining what specific responsibilities governments might bear as a result, the committee ruled only on a theoretical level. States, it ruled, bear cross-border responsibility towards children for failing mitigate the climate crisis.

This case was the first to be taken by a group of children to a UN body. But while the ruling does mark a milestone in international law, the claimants are right to be disappointed with the outcome. This is a missed opportunity. In refusing to engage with their specific claims, the committee has proven unwilling to ensure that human rights procedures match the urgency of the climate crisis.

Legal responsibility

The committee found that states are not taking enough steps to reduce emissions, even when they can reasonably foresee that children in other states will be harmed. Where children have litigated through national courts (and failed), the committee will admit complaints.

In this instance, the committee’s refusal to rule on the specific claims made by these 16 children is precisely because, as it contended, the applicants had not first worked through courts in their respective countries.

However, the committee’s rules of procedure do state that this requirement can be bypassed when such domestic litigation would be “unreasonably prolonged or unlikely to bring effective relief”: in other words, when it might take too long or be ineffective.

In their original petition, the young people had duly outlined why no equivalent domestic court cases would succeed. They showed that children struggle to access justice, they outlined the urgency of the climate crisis and they claimed that no single court could provide the remedy sought in the petition against these five nations.

On the face of it, then, these reasons provided the committee with a firm legal basis on which to override the rule that applicants work through domestic courts before reaching international level with a climate case. Although the standard for bypassing the rule is high, recent cases have demonstrated that it is not impossible. However, the committee did not go down that route.

Lost opportunity

The committee published five separate decisions, one for each state named in the petition. In these, it spends little time outlining why they do not accept the arguments the young people have made.

In its decision relating specifically to Germany, the committee refers to the recent case of Neubauer v Germany in which a young climate activist from the Fridays for Future movement was successful in arguing that the German state needed to change its climate policy. The committee states that this is evidence that national courts can provide avenues for meaningful climate litigation.

Although this may be true in Germany, there are four other states in this UN complaint where it is not at all clear that national courts would follow suit. The entire basis for the committee refusing to hear the youths’ case was that they did not first go through national courts. It is therefore disappointing that the committee did not elaborate further on why an exception to the rule could not be made, at least in the case of the four other states.

This finding means that youth litigants are expected to find laws and legal representatives to help them litigate in their own countries. Neither is a given. And even if they were to manage this, they would most likely already be well into adulthood. The climate crisis, meanwhile, will be even more severe, perhaps irreversible. This surely qualifies as litigation that is “unlikely to bring effective relief” and could therefore be bypassed.

The past three years have increasingly seen children speak out because of the devastating urgency of the climate crisis. This case in particular has demonstrated the level of engagement that children can have with environmental and other political governance.

Interestingly, the committee saw fit to write a summary and explanation of the decision in child-friendly language. This represents a step forward for child-friendly justice at an international level where children are rarely litigants.

Nonetheless, the young litigants in this case feel let down. As Catarina Lorenzo (14, from Brazil) has put it, “I am disappointed in the committee for not seeing this case as admissible in a moment in which we are desperate for real and effective action, as we are facing a crisis, the climate crisis.”