Children’s Rights and Climate Change at the UN Committee on the Rights of the Child: Pragmatism and Principle in Sacchi v Argentina

On 11 October 2021, the UN Committee on the Rights of the Child published its decisions in complaints brought against five states – Argentina, Brazil, France, Germany and Turkey – by 16 child complainants under the Optional Protocol to the Convention on the rights of the Child on a Complaints Procedure (OPIC). In doing so, the Committee found that a State party can be held responsible for the negative impact of its carbon emissions on the rights of children both within and outside its territory.

In a decision that significantly advances international human rights law understanding of the scope of state obligations in the context of climate change – both in terms of the content such duties and their jurisdictional application – the Committee ultimately declared the complaints inadmissible due to non-exhaustion of domestic remedies. Although greeted with understandable dismay by some climate activists, the decision is a convincingly reasoned rejection – and one that leaves the door to future child rights climate justice complaints firmly open, while according appropriate respect to domestic processes.

The Complaint

The central assertion of the complaint was that by recklessly causing and perpetuating life-threatening climate change, the respondents have failed to take necessary preventive and precautionary measures to respect, protect, and fulfill the petitioners’ rights to life (Article 6), the highest attainable standard of health (Article 24), and to enjoy culture (Article 30) under the CRC. The authors had requested the Committee to make a series of findings that

‘1) climate change is a children’s rights crisis … that the State party, along with other states, has caused and is perpetuating the climate crisis by knowingly acting in disregard of the available scientific evidence regarding the measures needed to prevent and mitigate climate change … and that by perpetuating life-threatening climate change, the State party is violating the authors’ rights to life, health, and the prioritization of the child’s best interests, as well as the cultural rights of the authors from indigenous communities’. (CRC/C/88/D/104/2019, para 3.8).

The complaint provided extensive and striking accounts of the impacts of diverse climate change effects on the current and future lives of the authors, as well as on the environments and societies they live in.

The child complainants came from 12 different countries, with only five from countries that had ratified OPIC. Interestingly, Tunisia and the Marshall Islands – the home states of four of the complainants – were not the subject of the complaint, while Turkey – which none of the complainants came from – was. The choice of states appears to have been at least partially motivated by the fact that the five respondent states (all parties to the UN Framework Convention on Climate Change) are major historical emitters and influential members of the G20, with both direct responsibility themselves and the capacity to employ ‘legal, diplomatic, and economic tools’ to ensure that other major G20 emitters who are not States parties to OPIC take necessary action to decarbonise.  It was thus evident from the outset that the stance adopted by the Committee to the extra-territorial scope of the CRC would be crucial for all but four of the complainants.  

In terms of outcome, the complainants  sought recommendations from the Committee that the state party in question should review and make the necessary amendments to its laws in order to ensure that ‘mitigation and adaptation efforts are being accelerated to the maximum extent of available resources and on the basis of the best available scientific evidence to (i) protect the authors’ rights and (ii) make the best interests of the child a primary consideration, particularly in allocating the costs and burdens of climate change mitigation and adaption’.

Moving beyond individual state responsibility, the complainants requested the Committee to recommend that that the relevant State parties should initiate cooperative international action – and increase its efforts with respect to existing cooperative initiatives – to establish binding and enforceable measures to mitigate the climate crisis, prevent further harm to the authors and other children, and secure their rights.

Finally, and critically from the perspective of the ‘child-specific focus’ of the complaint, the authors asked the Committee to recommend that the State party ‘should ensure the child’s right to be heard and to express their views freely, in all international, national, and subnational efforts to mitigate or adapt to the climate crisis and in all efforts taken in response to this communication’. This last request was squarely based on Article 12 of the Convention. Notably, while the child’s right to be heard was deployed by the complainants in a future-oriented way, the complaint did not seek to holds states accountable for past failing to ensure the right of the child to be heard in environmental decision-making.

Of High Politics and Process?

The complaint was extremely high-profile. From its launch at a press conference hosted by UNICEF which featured input from celebrated child climate justice activist (and complaint author) Greta Thunberg, the complaint received far more attention than any other complaint brought before the Committee. At the time of the presentation of the complaint, 23 September 2019, the Committee had given views on only 9 cases brought before it. The complaint itself was notable for the complexity of issues raised in it, with Bakker accurately describing it as a potential ‘baptism of fire’ for the Committee.

Leaving aside the ‘big questions’ posed by the complaint in term of jurisdiction, victim status and causality, it was clear from the outset that the complaint’s compliance with relatively straightforward procedural admissibility criteria was not clear-cut.

Article 7(e) OPIC provides that the admissibility requirement of exhaustion of domestic remedies ‘shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief.’  Here, no effort had been made by any of the complainants to seek a domestic remedy in any of the states that were the subject of the complaint.  

The complaint argued that the rule should not apply in this instance for several reasons. First, it cited the general challenges faced by children in terms of accessing remedies for rights violations (including lack of resources, constrained ability to engage effectively with legal processes, dependence on adults). It then went on to assert that in addition to the challenges, ‘the petitioners face unique obstacles in exhausting domestic remedies in all five of the respondents’ jurisdictions would be [sic.] (1) unduly burdensome for the petitioners, (2) unlikely to bring effective [multijurisdictional] relief, and (3) unreasonably prolonged’. In doing so, the complaint did not engage in depth with the specific avenues or legal argumentation that could have been pursued by the complainants at the domestic level.

The third party intervenors – the current and former Special Rapporteurs on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment who have both prioritised children in their mandate-related work – also addressed the issue of domestic remedies. They argued strongly that the pursuit of domestic remedies would be unduly prolonged and unlikely to result in effective relief.

The approach adopted to exhaustion of domestic remedies raised multiple challenges for the Committee. First, if the Committee was to waive the requirement for domestic remedies on the basis of the obstacles faced by children generally in terms of access to justice, this would potentially have implications for the application of this rule to all child complainants under OPIC, not just the complainants. This could result in the Committee becoming a tribunal of ‘first instance of preference’ for child rights litigators.

Second, the complaint was brought at a time when a range of significant cases were in the process of being litigated before (and adjudicated on) by domestic courts. As such, a Committee finding there was no possibility of domestic remedies risked undermining these national efforts to hold states to account for climate change child rights failures, while also failing to accord appropriate respect to domestic legal processes.  

The complaint referred to important climate cases proceeding in the Netherlands, France, Germany, Belgium, India and other countries but asserted that these cases were focused on climate policies in each respective country and ‘do not and could not address the climate policies of foreign states or states’ failure to cooperate internationally’. However, the complaints’ wide-ranging assertion on this point will not have been helped by the March 2021 decision of the German Federal Constitutional Court (cited by the Committee in its decision on Germany) that it was ‘conceivable in principle’ that duties of protection arising from fundamental rights placed the German state under an obligation vis-à-vis complainants outside Germany to take action against impairments caused by global climate change. The German Court also found that the German constitution compels the state to engage in internationally oriented activities to tackle climate change at the global level and requires it to promote climate action within the international framework. France too had seen two major court decisions in March and July 2021 holding the government accountable for failing to take adequate measures to reduce its greenhouse gas emissions (cited by the Committee in its decision on France).

Responding to the intricate nature of the issues raised, the Committee held a series of oral hearings with the legal representatives of all parties under OPIC (pursuant to rule 19 of its Rules of Procedure). These afforded the Committee with a chance to explore some of the complexities of the case and the complaints decisions make clear that the domestic remedies point was a key focus of these exchanges.

In a move that could be understood as a concern to ensure that the complaints process was not reduced to a legalistic exchange involving and mediated by adults, a month prior the Committee preceded its meeting with the lawyers with its first ever oral hearing with the authors of the complaint. At this closed meeting with no State party representatives, the authors explained to the Committee 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.

This hearing made clear the Committee’s commitment to the child’s right to be heard in terms of its own process. It was also a clear signal that, even if it ultimately found the complaint to be inadmissible or unsuccessful on the merits, the Committee regarded the issues raised as ones of exceptional importance in terms of international child rights law.

The Decision

The Committee made a series of ground-breaking findings.

First, the Committee made clear that the Convention gives rise to extra-territorial obligations to address climate change. Jurisdiction was  a key focus of the oral hearings with the legal representatives and the Committee took advantage of the decision to remedy – at least for the purposes of climate change – its previous failure to make clear the standard it uses when assessing if and when extraterritorial obligations are owed by states. In Sacchi, the Committee noted the Human Rights Committee’s and the European Court of Human Rights’ relevant jurisprudence on ETOs but stressed that this case-law was developed and applied to factual situations which were very different to the facts and circumstances at issue. In highlighting that the communication raised ‘novel jurisdictional issues of transboundary harm related to climate change’, the Committee found that the appropriate test for jurisdiction was that adopted by the Inter-American Court of Human Rights in its 2017 Advisory Opinion on the Environment and Human Rights. According to the Committee, this implied that

‘when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated for the purposes of article 5 (1) [jurisdiction] of the Optional Protocol 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’.

The Committee observed further that while assessing the required elements to establish the responsibility of the State was something for the merits decision stage, the alleged harm suffered by the victims ‘needs to have been reasonably foreseeable to the State party at the time of its acts or omissions even for the purpose of establishing jurisdiction’. In doing so, the Committee made clear the importance of ‘effective control’ and reasonable foreseeability for the purposes of jurisdiction.

The Committee found that it was generally accepted and corroborated by scientific evidence that the carbon emissions originating in the respondent States parties contribute to the worsening of climate change, and that climate change has an adverse effect over the enjoyment of rights by individuals both within as well as beyond the territory of the State party. The Committee found that, through their ability to regulate activities that are the source of these emissions and to enforce such regulations, the States parties had effective control over the emissions and hence had individual responsibility. Citing the principle of common but differentiated responsibility, as reflected in the Paris Agreement, the Committee stated explicitly that that the collective nature of the causation of climate change does not absolve States parties of their individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location.

The Committee concluded that the complainants had sufficiently justified for the purposes of establishing jurisdiction that the potential harm in terms of their Convention rights of the State party’s acts or omissions regarding the carbon emissions originating in its territory was ‘reasonably foreseeable’ to the State party. In doing so, the Committee did not differentiate between state responsibility for emissions directly caused by state actors and those caused by non-state actors.

The Committee then addressed the causal link between state acts/omissions and the harm experienced by the complainants, concluding that they had prima facie established that they have personally experienced a real and significant harm in order to justify their victim status. As such, the respondent states were held liable on an individual basis for their contribution to a cumulative rights-harming problem (climate change) that arose as the result of the actions/omissions of multiple states (i.e., multi-state failure to reduce greenhouse gas emissions).  

A key element of the decision was the way in which the Committee placed the status, characteristics and lived experience of the complainants as children front and centre in its reasoning:

‘The Committee considers that, as children, 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. Due to the particular impact on children, and the recognition by States parties to the Convention that children are entitled to special safeguards, including appropriate legal protection states have heightened obligations to protect children from foreseeable harm’.

However, the complaints were declared inadmissible. In finding that domestic remedies had not been exhausted, the Committee referred to its earlier jurisprudence that authors must make use of all judicial or administrative avenues that may offer them a reasonable prospect of redress. While domestic remedies need not be exhausted if they objectively have no prospect of success (for example in cases where under applicable domestic laws the claim would inevitably be dismissed or where established jurisprudence of the highest domestic tribunals would preclude a positive result), mere doubts or assumptions about the success or effectiveness of remedies do not absolve the authors from exhausting them.

The Committee noted in its decisions that domestic proceedings had not been initiated by the complainants in any of the States parties. Each of its decisions focused in on the specific legal framework, avenues and obstacles in the relevant state, with the Committee concluding in each case that the complainants had not established why possible options had not or could not have been pursued.

With regard the complainants’ assertion regarding international cooperation, the Committee stated that the alleged State party’s failure to engage in international cooperation was raised in connection with the specific form of remedy that the complainants sought. However, they had not sufficiently established that such remedy is necessary to bring effective relief.

Regarding the authors’ argument that foreign sovereign immunity would prevent them from exhausting domestic remedies in the respondent States parties, the Committee noted that the issue of foreign sovereign immunity may arise only in relation to the particular remedy that the authors would aim to achieve by filing a case against other respondent States parties together with the State party in its domestic court. This had not been done by the complainants, resulting in insufficient substantiation of the authors’ claim that the application of the remedies is unlikely to bring effective relief.

The Committee also dismissed the authors’ argument that pursing remedies in the relevant States parties would be unreasonably prolonged. The authors claimed that the unique circumstances of their case meant that they would have to pursue five separate cases, in each respondent State party, each of which would take years. In the absence of any specific information by the authors that would justify the claim that domestic remedies would be ineffective or unavailable, and in the absence of any attempt by them to initiate domestic proceedings in the States parties in question, the Committee concluded that authors had failed to exhaust domestic remedies.

The Fall-out

There was much disappointment with the decision, with one of the child claimants stating on Twitter that ‘this is a delusional ruling and turn of events’. In a press release entitled, ‘UN Committee on the Rights of the Child Turns its Back on Climate Change Petition from Greta Thunberg and Children around the World’, the complaints legal representatives, Hausfeld and Earthjustice were highly critical of the Committee, stating that [t]The message [from the Committee] to children is “You’re on your own”’ and asserting – inaccurately – that the Committee had ‘closed the UN’s doors’.

One can question the appropriateness of this latter response when it was evident from the outset that it was far from guaranteed in terms of existing international human rights law that the complaint would be successful. In its open letter to the authors providing a simplified explanation of the decision, the Committee stated that, ‘[w]e want you to know that the Committee spent many hours discussing your case, and we struggled with the fact 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 [OPCI].

Far from kicking the door shut, the Committee has left it wide open for future child rights climate change complaints. The decision reflects a strong grasp of principle, procedure and pragmatism: the Committee has made clear that climate change is a child rights crisis but one that it can only respond to where the admissibility criteria it is required to apply are complied with. In doing so, it has ensured that it will not be overwhelmed by cases that can and should be addressed to domestic bodies in the first place. There was simply no way of admitting these complaints without effectively gutting the OPIC exhaustion of domestic remedies requirements. In addition to the impact this would have had in terms of the Committee’s workload, such an approach would have undermined its legitimacy, rightly exposing the Committee to even more criticism, particularly from states, leading to detrimental practical consequences for all future cases before the Committee.

Overall, the decision, while a loss for the specific claimants, was a major win for future climate change complaints under the OPIC due to the Committee’s expansive approach to the jurisdictional issue and causality. It also serves as a challenge to other regional and domestic bodies currently faced with cases on the human rights impact of climate change: given that the Committee chose to engage with the complex legal issues raised as substantively as possible (rather than simply focusing on compliance with technical admissibility criteria), what will be the response to a failure by those other bodies to do the same?