General Comment No.26 on Children and the Environment – A Milestone in International Human Rights Law?

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22 August 2023 saw the UN Committee on the Rights of the Child publish its much-anticipated General Comment No.26 on Children’s Rights and the Environment, with a Special Focus on Climate Change (GC26). The General Comment sets out a framework for a child rights-based approach to environmental protection, addressing issues ranging from access to justice and remedies in the context of environmental harm to delineating child rights-consistent measures that states must take to ensure climate change mitigation and adaptation. It has attracted a flurry of publicity, and rightly so.

This post will look at the origins of the GC26, the process leading up to its adoption, and the elements of the document that are of particular significance with regard to the evolution not just of children’s rights law but also of IHRL more generally.

The background – the legacy of Sacchi?

While the Committee first focused in-depth on the issue of child rights and the environment as far back as a September 2016 day of Discussion on the topic, it was only in June 2021 that the Committee announced that its next General Comment would be on children’s rights and the environment, with a special focus on climate change (see GC concept note here).

The Committee notes in the General Comment that “[t]he efforts of children to draw attention to these environmental crises created the motivation and were the momentum behind the present general comment” (para 2). There is no doubt, however, that one particular effort played a key role; namely, the complaints brought to the Committee by Chiara Sacchi and 15 other child complainants against five states in September 2019. As discussed previously on this blog-site, the complaints were deemed inadmissible but the Committee used its decision to make a series of findings. In addition to specifying that the Convention on the Rights of the Child (CRC) gives rise to extra-territorial obligations to address climate change and outlining the test for jurisdiction that it would use in the context of environmental harm, the Committee also engaged with causality and found that the complainants had prima facie established that they had personally experienced a real and significant harm such as to justify their victim status.

While the Sacchi litigation did not result in a positive outcome in terms of a legal finding of state wrongdoing, the complaints (and perhaps to some degree the disappointed response on the part of some to the Committee’s decision) drove home the message that the Committee needed to address the environment as a matter of urgency. Indeed, the impact of Sacchi was acknowledged by the Chair of the Committee in an interview with the Guardian published on the day that the General Comment came out: “[Sacchi] certainly galvanised the committee’s interest in deciding to issue this general comment. The case made us so aware of how children were feeling about these issues, how strongly they were fighting to get their views across.”

A multi-actor process

While UN treaty bodies often make use of OHCHR staff, consultants and external advisors in relation to General Comments, the GC26 process was notable for the high level of formal involvement of actors beyond the Committee.

The Committee received significant technical and logistical assistance from the NGOs Terre des Hommes (TdH) Deutschland and Child Rights Connect, as well as input from the Children’s Environmental Rights Initiative coalition. The TdH Steering Group which coordinated the General Comment process with the Committee played a central role, including in supporting the drafting of the document. Reflecting the range of issues at play in the context of the GC and the fact that (as the Chair noted its members are “not experts on the environment”), the GC process also involved an Advisory Board established in January 2022 made up of experts working on different aspects of international law and the environment, as well as climate science. (The author served on this body.) A Child Advisory Team made up of 12 children from six continents with climate and child rights advocacy experience also advised on the GC.

Numerous further consultations were also carried out and – consistent with its child-specific mandate and its efforts in recent years to include children in General Comment activities – the Committee was keen to stress both in the GC itself and in engagements with the press that it received over 16,000 contributions from children in 121 countries. There was also a very high level of interest in the GC from states, IGOs, civil society and others: the first draft of the GC which was issued for discussion in November 2022 resulted in comments from 17 states, 12 regional organisations and United Nations agencies and mechanisms, seven national human rights institutions, 13 children’s and youth groups and reports of consultations with children and young people, as well as over a 100 submissions from academics, NGOs and individuals. Despite this extensive input from external actors during the process, the Committee retained tight control of the GC, with the text ultimately adopted firmly reflecting Committee views on the issues at play.

Child-specific but with implications beyond child rights law

My emphasis here is on selected elements of the GC dealing with rights and obligations. Others will be better-placed to speak on the wide-ranging language and actions outlined by the Committee in terms of climate adaptation, mitigation and loss and damage (in language which one commentator has asserted is the clearest and strongest yet in IHRL terms). For the same reason I will not address the detailed treatment of business in the General Comment. My focus is on those elements of the GC that are of particular significance in terms of the evolution of international child rights law and IHRL generally. While the GC is generally recognised as fundamentally important from a child rights perspective, less appreciated has been how its contents have IHRL implications that go well beyond that context.

The most significant contribution made by the GC with regard to IHRL is the Committee’s express recognition of the autonomous right to a clean, healthy and sustainable environment as protected by the CRC. According to the Committee, that right is “implicit in the Convention and directly linked to, in particular, the rights to life, survival and development, under article 6, to the highest attainable standard of health, including taking into consideration the dangers and risks of environmental pollution, under article 24, to an adequate standard of living, under article 27, and to education, under article 28, including the development of respect for the natural environment, under article 29”. The decision to include the right in the GC was not inevitable or uncontroversial and the question whether the Committee should do so was the subject of discussion at different points during the GC process.

The Committee’s approach aligns with and directly contributes to the increasing recognition of this right at the international level by, amongst others, the UN General Assembly and Human Rights Council, as well as by regional human rights bodies. While of course the General Comment is only soft law in nature, it is an authoritative source of non-binding norms that interpret and add detail to the rights and obligations under the CRC. The experience with regard to “identified rights” under human rights treaties (e.g., the right to water under Article 11(1) ICESCR) suggests strongly that the Committee’s decision is likely to advance in general the growing recognition that this right is covered by the Convention, even if some states currently strongly contest the existence of such a right under the CRC.

The GC outlines both “substantive” and “procedural” elements of the right it has identified. The former are deemed to include clean air, a safe and stable climate, healthy ecosystems and biodiversity, safe and sufficient water, healthy and sustainable food and non-toxic environments. In turn, procedural elements include “access to information, participation in decision-making and child-friendly access to justice, with effective remedies” (para 66). The Committee also states that “[t]owards the realization of this right for children … States should immediately take the following action“ (para 65). Some of the measures then outlined are strongly child-specific (e.g., “Improve air quality, by reducing both outdoor and household air pollution, to prevent child mortality, especially among children under 5 years of age” (para 65(a)), but others are more general in nature (“Conserve, protect and restore biodiversity”).

The immediate action specified slightly confusingly relates to measures that the Committee (implicitly) recognises will take time (e.g., “equitably phase out the use of coal, oil and natural gas, ensure a fair and just transition of energy sources and invest in renewable energy, energy storage and energy efficiency to address the climate crisis” (para 65(d)) italics added). As such, it would be an error to conceptualise this recommendation for immediate action and associated measures as amounting to ‘immediate obligations’ in the sense of states having to ensure they are to be achieved in full straight away. Rather, what is clear is that the Committee expects states to take steps in relation to these measures immediately even if they and their associated outcomes cannot be fully accomplished straight away. Indeed, given the language of paras 71 and 72 of the section on “Obligation of States to respect, protect and fulfil children’s rights” – which refer to “retrogressive measures” and the obligation of states to use “the maximum extent of their available resources and, where needed, within the framework of international cooperation” – it seems clear that the Committee regards the right to a clean, healthy and sustainable environment as being similar to ESC rights under the Convention. That is, subject to the second sentence of Article 4: “[w]ith regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation”. (Worryingly some of the language of the Committee specifically could be understood to subject all of “children’s rights in relation to the environment” to these qualifications – something that could be understood to weaken the obligations imposed by civil and political rights related the environment in a way that is not suggested by the wording of Article 4 (see, e.g., CRC GC No.19 on public budgeting for the realization of children’s rights, para 25: “States parties have the obligation to immediately realize civil and political rights”).

It is clear from elsewhere in the GC that the Committee views states parties as obliged to respect, protect and fulfil the right (see, e.g., para 68). It is thus evident from the GC as a whole that the right to a clean, healthy and sustainable environment under the CRC must be understood as imposing a range of immediate and progressive obligations.

Interestingly, the Committee appears to read in a rather vaguely conceptualised limitation on the state’s obligation with regard to rights related to the environment – and this in the context of an instrument, which of course does not include a general limitations clause. The GC states in para 73 that “Subject to any obligations under international law, including those contained in multilateral environmental agreements to which they are party, States retain discretion in arriving at a reasonable balance between determining the appropriate levels of environmental protection and achieving other social goals in the light of available resources” (italics added). In outlining this limitation, the Committee does not draw on its previous work on limitations/restrictions or on that of other treaty bodies (see e.g., Nolan 2022). No further detail is provided on what such a “reasonable balance might be” and what the relevant “social goals” to be taken into account are. While this language appears to be drawn from the Framework Principles on Human Rights and the Environment produced by the Special Rapporteur on human rights and the environment (which in turn draws on limitations jurisprudence from other human rights bodies with a judicial or quasi-judicial mandate), more detail would have been valuable here given the Committee’s interpretative mandate and CRC-specific focus. (The Framework Principles did not refer to the CRC in this context).

The Committee goes on to state that “[n]evertheless, such leeway is limited by the obligations of States under the Convention”. This arguably provides limited assistance as the GC merely goes on to refer to states’ “heightened duty of care” to children (again, a novel element in terms of the Committee’s previous work – albeit familiar from tort law climate justice litigation argumentation) and the need for states to avoid the disproportionate and long-term effects of environmental harm experienced by children as group. The Committee does specify that states “should therefore set and enforce environmental standards that protect children from such disproportionate and long-term effects” and this wording may be intended to flesh out the parameters of “appropriate levels of environmental protection” for the purposes of the balancing exercise envisaged by the Committee. Ultimately, however much will hang on future interpretation of “a reasonable balance” by the Committee in the context of it its reporting and communications work.

That said, although questions remain as to the precise scope of the obligations imposed by the right to a clean, health sustainable environment under the CRC, the GC undoubtedly contributes to the concretisation of that right under IHRL, as well as providing a clear indication of how this right must be achieved in practice for children as a specific group. 

Another notable element of the GC is its detailed treatment of the linkages between Convention rights & the challenges posed by environmental harm (and states’ (non)responses to it) to children across the rights spectrum. By highlighting how environmental harm affects all rights – civil, social, economic, political, cultural – the Committee is using the GC to make clear that it is not a matter simply of economic and social rights. Indeed a particularly important element of the GC is its focus on civil and political rights, including with regard to the challenges faced by child environmental rights defenders (para 29) as well as the requirement for states to take measures to ensure that children participate meaningfully in environmental decision-making processes around “legislation, policies, regulations, projects and activities that may affect them, at the local, national and international levels” (para 27). It is to be hoped that this will help to focus further attention (on the part of states, treaty bodies and others) on the role that civil and political rights have to play in the context of environmental harm – including but also going beyond the child rights context.

Another area of interest in the GC from an IHRL perspective centres on the question of the obligation of international cooperation. This obligation, which is set out in Article 4 CRC is reflected in other IHRL instruments, including most notably Article 2(1) of the International Covenant on Economic, Social and Cultural Rights. However, although the Committee on Economic, Social and Cultural Rights has engaged with the obligation of international cooperation in detail (see, e.g., General Comment No.24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (2017); CESCR Statement on climate change and the International Covenant on Economic, Social and Cultural Right (2018)). GC 26 goes well beyond CESCR’s existing work in relation to climate change.

Having identified climate change, pollution and biodiversity as urgent examples of global threats to children’s rights that call for widest possible cooperation by all countries and their participation in an effective and appropriate international response, the Committee makes clear that the “obligations of international cooperation” resting on “each State depends in part on its situation” (para 91). Reflecting awareness of the global north/south imbalance in terms of historic contributions to climate change, the Committee flags that these duties are to be “appropriately guided by taking into account the historical and current emissions of greenhouse gases and the concept of common but differentiated responsibilities and States’ respective capabilities, in the light of different national circumstances” (para 91). The Committee makes clear this obligation requires, amongst others things: “the provision of technical and financial assistance from developed States to developing States consistent with Article 4 of the Convention” (para 91); that the environment-related programmes of donor States should be rights-based, and that States that receive international environmental finance and assistance should consider allocating a substantive part of that aid specifically to child-focused programmes (para 92); that environmental measures supported by international environmental finance mechanisms and international organisations should respect, protect and proactively seek to fulfil children’s rights, and that States should cooperate to support the establishment and implementation of procedures and mechanisms to provide access to effective remedies for violations of children’s rights in this context (para 93); and that States should cooperate in good faith in the establishment and funding of global responses to address environmental harm suffered by people in vulnerable situations (para 94). The Committee also specifies that states should undertake measures, including through international cooperation, to provide financial and technical assistance for addressing loss and damage (para 106) and underlines the obligation in the context of situations of cross-border displacement and migration linked to climate-related and environment-related events and related to armed conflict situations (para 50). Relatedly, the Committee also provides extensive detail on anchoring climate finance mechanisms – a crucial element of international cooperation – in a child-rights-based approach (paras 111-115).

The CESCR is currently working on a draft General Comment on sustainable development and ICESCR which is set to address the obligations (and scope thereof) that ICESCR imposes on states in relation to international assistance and cooperation for environmental protection and sustainable development. It will be interesting to see whether the approach to international cooperation in GC 26 (part of which is based on the United Nations Framework Convention on Climate Change) shapes CESCR’s interpretation of Article 2(1) ICESCR.

A missed opportunity?

While it is clear that there is much to be praised in the GC, there are also missed opportunities. Perhaps the most significant one in terms of the current state-of-play of IHRL is the Committee’s limited engagement with the issues of intra-generational justice and the rights of future generations.

First, while the Committee makes reference to “future generations” in different parts of the GC, its overall treatment of this issue and of inter-generational justice generally leaves much to be desired. Despite several references to future generations, the GC leaves key questions unanswered with regard to the extent to which ‘future generations’ coincide with currently living children (whether as children or future adults), and/or the extent to which ‘future generations’ (however defined) are afforded protection under the Convention. Nor does it engage in a meaningful way with the implications of children’s rights for the interpretation and application of the principle of intergenerational equity.

The GC’s introduction includes a quote from a child stating that “I would like to tell [adults] that we are the future generations and, if you destroy the planet, where will we live?”. Later on in the piece, in a section on “Intergenerational equity and future generations”, the Committee states that: “[w]hile the rights of children who are present on Earth require immediate urgent attention, the children constantly arriving are also entitled to the realization of their human rights to the maximum extent.” It is not clear whether these “constantly arriving” children are future generations in the view of the Committee or whether it is simply highlighting that as more children are born, they are entitled to have their rights realised in the here-and-now. In the relevant paragraph, the Committee appears to be drawing on language used in a 2018 report by the then Special Rapporteur on the environment and human rights, John Knox, where he argued for “discussions of future generations [to] take into account the rights of the children who are constantly arriving, or have already arrived, on this planet”. However, the GC’s language is not identical to that used in the report and ultimately the meaning of the relevant paragraph of the GC in this regard is less clear than that of the report.

The last few years have seen a very significant body of work in the IHRL context with regard to future generations’ rights. Crucial developments include the recent expert Maastricht Principles on the Human Rights of Future Generations, the work of the UN Secretary General on future generations, as well as efforts in relation to the pending UN Declaration for Future Generations. None of this work is reflected in the GC though the Committee will certainly have been aware of it.

The General Comment makes clear that “The Committee recognizes the principle of intergenerational equity and the interests of future generations” but it does not define that principle in any detail or address the relationship between future generations’ interests and those of current/present generations, including children. The Committee’s final statement in the key paragraph is that “[b]eyond their immediate obligations under the Convention with regard to the environment, States bear the responsibility for foreseeable environment-related threats arising as a result of their acts or omissions now, the full implications of which may not manifest for years or even decades”. This formulation clearly embraces state responsibility and causality but it does not make clear how such responsibility relates to future generations (or not).

The Committee’s decision to cut any reference to the concept of sustainable development (which was present as a “key concept” in the first draft of the GC) further reduces the scope for the GC to provide a meaningful roadmap for putting inter-generational justice into practice. This is particularly so with regard to questions that arise in terms of balancing the rights and interests of children in the here and now with those of not yet living children (i.e. future generations of children) and other future human rights-bearers in a context of finite resources. 

Interestingly, the Committee’s approach does not appear to have been adopted in response to a strong steer from states on this issue – indeed the language on future generations and intergenerational justice in the first draft of the GC drew limited state attention. Although several states made reference to future generations in passing in their comments on both the GC concept note and the first draft, very few addressed the relevant sections of the draft in any depth. A very small number of states did express concern about the Committee addressing future generations. France’s comment on the GC concept note stressed that the conceptions of ‘future generations’ and ‘intergenerational equity’ do not figure in the CRC and asserted that the GC should be limited to the principles and rights contained in the Convention. However, the Committee went on to mention both of these issues specifically. (While France reiterated the general point about Committee restraint in relation to a number of its comments on the draft GC, it did not address the future generations section specifically). Furthermore, although Canada asserted that the Committee’s focus in terms of future generations (and intergenerational justice) should be limited to born/living children (reiterating points made in its input on the GC concept note), the GC does not explicitly limit its scope to children in the here-and-now. Nor did the GC’s approach fully follow Kenya’s recommendation In response to the concept note that, “[u]ndertaking a child rights perspective requires broadening the perspective from the immediate present to the distant future. Children’s rights should be read by States in line with environmental principles of sustainable development as well as inter and intra-generational equity.” Finally, it is worth noting that the Committee did not respond to the point made by Germany in its comments on the draft GC that it should explain the source and the foundation contained in the Convention on which the principle of intergenerational equity and the interests of future generations are based.

The gaps and ambiguities highlighted here suggest that the Committee’s reluctance to engage meaningfully with the issue of future generations is likely to impact on the GC’s ability to contribute meaningfully to addressing the complexities posed by trying to address the intergenerational dimensions of environmental harm affecting child right-holders in the present as well as future child rights-bearers and other human rights-bearers who are not yet born. This is unfortunate given that there can be no doubt that the Committee will have to address these issues in its work on the environment in future.

Conclusion

The formal launch of the GC will take place on 18 September with events planned globally. There is no doubt that its contents strongly reflect children’s concerns around the environment and that it will be deployed as an advocacy tool at the national and international levels. The extent to which the GC will push forward children’s enjoyment of their rights in the context of environmental harm in practice remains to be seen, but the GC will certainly have an impact in that arena. At this early stage in its analysis, it also seems set to make a significant contribution to contemporary debates and developments in IHRL beyond child rights.

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