Two years ago, in September 2019, 16 child human rights defenders (CHRDs) and climate activists from across the world filed a petition (you can read it here) against Argentina, Brazil, France, Germany and Turkey, five of the world’s largest emitters which had recognised the competence of the Committee to receive communications by ratifying the OPIC (see the status of ratifications here).
In their communication (which eventually became five separate communications, one against each State) they asked the Committee to hold these five States accountable for inaction on the climate crisis, a global escalating crisis that has proved to be first and foremost a child rights crisis. “Because children are among the most vulnerable to [climate change’s] life-threatening impacts, physiologically and mentally, they will bear the burden of these harms far more and far longer than adults” explained the complainants.
Petitioners claimed that by perpetuating climate change, each State failed to take the necessary preventive and precautionary measures to respect, protect and fulfill their rights under the Convention on the Rights of the Child (the Convention) including their rights to life, health, and the prioritisation of the child’s best interest as well as the cultural rights of authors from indigenous communities.
This is the first time an international body has issued a ruling on climate inaction and the first time the Committee has held oral hearings under the OPIC. In May this year, the 16 petitioners had the chance to meet with Committee members and explain them how climate change has affected their daily lives, they expressed their views about what the respondent States parties should do about climate change and why the Committee should consider their communications.
Key elements of the decisions
The Committee found the communications inadmissible for failure to exhaust domestic remedies (Article 7 (e) OPIC) and therefore it will not consider petitioners’ claims on the merits. Nevertheless, this is a historic ruling setting a groundbreaking precedent since as the Committee recognised it raised “novel jurisdictional issues of transboundary harm related to climate change”. Here we will analyse the decisions’ key elements to understand its impact and relevance for future claims:
- The Committee ruled that States bear cross-border responsibilities for harmful impact of climate change on children’s rights.
- Following the jurisdiction test adopted by the Inter-American Court of Human Rights in its Advisory Opinion OC-23/17 on the Environment and Human Rights, “when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated (…) if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, when the State of origin exercises effective control over the sources of the emissions in question.”
- In accordance with the principle of common but differentiated responsibilities, as reflected in the Paris Agreement, the Committee found that the global collective nature of the causation of climate change, which indeed requires a global response, must not absolve State parties of their individual responsibility that may derive from the transboundary harm the emissions originating within its territory may cause to children whatever their location.
- For the purposes of establishing jurisdiction, the Committee also analysed the causal link element and it concluded that a sufficient and foreseeable causal link was established between the harm alleged by the complainants and the acts and omissions of the five States.
- The Committee concluded that the authors had sufficiently justified, for the purposes of establishing jurisdiction, that the impairment of their Convention rights as a result of the State party’s acts or omissions regarding the carbon emissions originating within its territory was reasonably foreseeable.
- As children, the Committee affirmed that the authors are particularly impacted by the effects of climate change, both in terms of the manner in which they experience such effects as well as the potential of climate change to affect them throughout their lifetime, in particular if immediate action is not taken. And it further concluded that the authors have prima facie established that they have personally experienced a real and significant harm in order to justify their victim status.
- The Committee deemed the complaint inadmissible due to non-exhaustion of domestic remedies. It recalled that petitioners must make use of all judicial and administrative avenues that may offer them a reasonable prospect of redress. Domestic remedies need not to be exhausted if they objectively have no prospect of success but the mere doubts or assumptions about such success or effectiveness do not absolve the authors from exhausting them.
- While it cannot be considered a clear and absolute victory for the petitioners, the recognition of States transboundary responsibilities constitutes a significant development setting a historic precedent and paving the way for future claims before the Committee. As Ann Skelton, member of the Committee and Chair of the OPIC Working Group has remarked “our message to the children was that we, the Committee, hoped they would feel empowered by what they had managed to achieve through their case, and to continue with their advocacy work on climate change.”
- The publication of an open letter and a child-friendly version of the decisions significantly contributes to the effective realisation of the right to access information in a timely and accessible manner, a right which is closely linked and constitutes an essential part of access to justice. It also highlights the need of reporting back to children. Children should be empowered and enabled to access relevant and child-friendly information basically because only children armed with information are able to claim their rights. Indeed, the open letter and child-friendly decisions fit, as pointed by Professor Ton Liefaard “(…) in a movement around the concept of “child-friendly justice” which aims to make justice proceedings more child-centred”.
- The adoption of the Inter-American Court of Human Rights standard on jurisdiction clearly illustrates the cross-fertilisation between human rights courts and bodies, or “how international and regional bodies are looking at one another to build environmental human rights jurisprudence”, as John H. Knox, former Special Rapporteur on human rights and the environment, notes.
- With these decisions the Committee is also sending a very important message to States regarding their justice systems: the OPIC is a powerful tool for the realization of children’s rights, but it does not aim to replace national courts but rather to fill national gaps. Hence, it is imperative to build stronger access to justice at the national level.
- Recent and future encouraging developments:
- The decisions by the Committee come shortly after two very important Human Rights Council resolutions: the resolution recognising the right to a clean, healthy and sustainable environment as a human right and the resolution establishing a new Special Rapporteur on the promotion and protection of human rights in the context of climate change.
- In an effort to join the millions of children and young people, such as these 16 petitioners, who have mobilized around the world demanding that governments do more to address and combat the global climate crisis, the Committee’s next General Comment will focus on Children’s rights and the environment with a special focus on climate change. You can read the Chair of the Committee’s statement here and find the latest news on the GC here.
You can read the Committee’s press release on the decisions here.
You can find here the five decisions published by the Committee and also the open letter and child-friendly version sent to the petitioners. At the moment, they are only available in English.