“This is all wrong. I shouldn’t be up here,” said Greta Thunberg, in her viral speech to the UN Climate Action Summit on 23 September 2019. “I should be back in school on the other side of the ocean. Yet you have come to us young people for hope. How dare you.”
The following day, on 24 September, she announced via her Twitter account that she and 15 other children from 12 nations had filed a complaint against five nations with the UN Committee on the Rights of the Child. The basis of the complaint is that the five countries – Argentina, Brazil, France, Germany and Turkey – are “recklessly causing and perpetuating life-threatening climate change [and] have failed to take necessary preventive and precautionary measures to respect, protect, and
While there are some reports that give indications as to what rights violations are alleged or what remedies are sought, at the time of writing, the submissions were not public. This article summarises the relevant legal processes and how the co-complainants may argue their claim.
Legal basis of complaint
The complaint is brought under the 1989 UN Convention on the Rights of the Child (CRC). As at September 2019, 196 countries have become ‘States Parties’ to the CRC, making it is one of the most widely ratified treaties in the world (with the USA one notable exception).
Through ratifying the CRC, States Parties signal that they accept there
The complaints or ‘communication’ mechanism under the Optional Protocol to the CRC
The Third Optional Protocol to the CRC, which came into effect in 2014, establishes a ‘communication process’ whereby the UN Committee on the Rights of the Child can receive and consider written communications from individuals subject to the jurisdiction of a State Party who claim that the State Party violated a right set out in the CRC. The Committee is made up of 18 independent experts of “high moral standing and recognized competence” in the field of children’s rights, appointed by States Parties (Article 43, CRC
The communications process established by the Optional Protocol to the CRC is relatively new. In comparison, the communications procedure to hear complaints under the International Covenant on Civil and Political Rights was established by the 1966 Optional Protocol to that treaty.
The ‘Optional Protocol’ is indeed optional and States Parties to the CRC are not required to also agree to the Optional Protocol. As at September 2019, only 46 countries of the 196 States Parties to the CRC had ratified the 2014 Optional Protocol. This means that, while the countries who haven’t ratified the Optional Protocol agree to respect, protect and fulfil the children’s rights set out in the CRC, they do not agree to allow alleged violations of the CRC to be heard by the Committee on the Rights of the Child.
As Greta stated on Twitter, the selection of Argentina, Brazil, France, Germany and Turkey is based on the fact that those five states are the highest emitters of the 46 countries that have ratified the Optional Protocol, and therefore permit children to file complaints with the Committee on the Rights of the Child.
The process
Once the Committee has received the complaint and communicated it to the State Party concerned, within six months the State Party shall submit written explanations or statements clarifying the matter and the remedy if any (Article 8, 2014 Optional Protocol). Article 10 of the 2014 Optional Protocol provides that the Committee shall consider communications received under the present Protocol in the light of all documentation made available to it by the individual and by the State Party concerned. It is standard practice for complainants and States Parties to exchange further submissions and comments on submissions. Once the file is considered complete, the Committee examines the information before it and forwards its views on the matter to the complainant/s and State Party concerned. The views of the Committee are not binding, but States Parties are expected to implement Committee views in good faith. The process generally takes several years to conclude.
What rights?
The complaint is one of only a few claims under an international human rights communications mechanism that alleges a country’s climate change policy violates international human rights law. The first was lodged under the ICCPR communications process in May 2019 against Australia by a number of Torres Strait Islanders. That case is also not public and is currently still in progress but a statement by the complainants’ lawyers gives an indication of the types of violations that might be alleged in this complaint under the CRC by the co-complainants (both the CRC and ICCPR contain similar obligations).
Article 6 – the right to life
Article 6 of the CRC provides that “States Parties recognize that every child has the inherent right to life” and “States Parties shall ensure to the maximum extent possible the survival and development of the child.”
The co-complainants may argue that Argentina, Brazil, France, Germany and Turkey have each failed to respect or protect their right to life arising under Article 6 by failing to respect (contributing to climate change), or not protecting (failing to prevent third parties like businesses within their jurisdiction from contributing to climate change), which will threaten the co-complainants’ lives. They may also argue that by failing to act on climate change, those States are not meeting their obligation under Article 6 to “ensure to the maximum extent possible” their survival and development.
The co-complainants will still need to establish that it is reasonably foreseeable that climate change presents a life-threatening situation that can result in loss of life. The co-complainants may develop this argument by attempting to establish a causal link with each States’ contribution to climate change (failure to respect) or by submitting the States’ legal and policy framework (for example, with respect to coal mining projects, destruction of forests, etc) are inadequate to protect the co-complainants against climate change as a reasonably foreseeable threat to their lives. In support of these submissions, the co-complainants will likely argue that each States’ target of reducing carbon or carbon equivalent emissions is insufficient and, in any event, the States are not on track to meet those commitments.
Article 16 – right to privacy, family and home
Article 16 explicitly requires States Parties to respect the right to privacy, family and home (refrain from arbitrary or unlawful interference with these rights) and protect against such interference through enacting laws.
Thus, the co-complainants’ arguments may be twofold, similar to those described above in relation to Article 6: first, that Argentina, Brazil, France, Germany and Turkey’s contributions to climate change and/or failure to set more ambitious emissions reductions targets are in violation of their obligations to refrain from interfering with the co-complainants’ family and home. Second, that by failing to enact laws expressly aimed at protecting the co-complainants from such interference, the Government is in violation of its obligation to protect against violations of Article 16 by third parties in its jurisdiction. The co-complainants’ submissions may focus on how climate change effects will destroy homes, cultural sites, force the co-complainants to migrate from their cultural lands, and
Article 24 – right to health; Article 27 – adequate standard of living
Article 24 provides that “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health…”
The co-complainants are likely to make similar arguments under Article 24 and Article 27, which provides that ‘States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’. The co-complainants may argue that these two articles require States Parties to take steps to ensure children meet a minimum standard for their health and development (including physical and mental) and that failing to take adequate action to address climate change puts their health, physical and mental wellbeing at risk, including by contributing to the spread of mosquito-borne disease, and poor air quality, plus causing “climate anxiety” and mental health issues among children.
Article 30 – right to enjoy culture
Article 30 provides that “in those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”
For the co-complainants to satisfy the Committee of a violation of Article 30, they must first establish themselves as persons belonging in an ethnic, religious or linguistic minority “in those States” and, second, demonstrate how climate change is preventing them from enjoying their own culture and/or profess and practise their own religion, or use their own language.
Barriers to success
There are two major jurisdictional barriers that might prevent the merits of the claim being considered by the Committee.
First is the jurisdictional qualification that the co-complainants have exhausted domestic remedies (Article 7, CRC). Unless the co-complainants can successfully argue that “remedies [are] unreasonably prolonged or unlikely to bring effective relief,” their claim will be inadmissible (Article 7.5, CRC).
Second, international human rights obligations are not owed by States to everyone. Rather, each State’s human rights obligations are limited to individuals in their jurisdiction. Indeed, Article 2.1 of the CRC reflects this principle in stating “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction.” Though there are disputes about how far a State’s “jurisdiction” extends, it would be a significant expansion in the interpretation of international human rights law for the Committee to find that States have obligations not only in relation to individuals within
Assuming the first jurisdictional hurdle can be met, some (but not all) of the co-complainants may also surpass the second jurisdictional hurdle due to their nationality or residence in Argentina, Brazil, France, or Germany. However, a third remaining hurdle to success is causation and attribution. The co-complainants will need to persuade the Committee that climate change will cause negative impacts on their human rights and that those impacts are legally caused by or attributable to the actions or inactions of the States the subject of the complaint. Though the co-complainants will likely argue that those States are among the world’s largest polluters, it will be legally and politically significant for the Committee to find a causal link sufficient to establish Argentina, Brazil, France, Germany and/or Turkey have breached the co-complainant’s human rights.
Conclusion
As with any body of law, international human rights law must adapt to be responsive to emerging issues that impede the full realisation of human rights. Climate change is one emerging area.
The application of international human rights law to States Parties’ responsibilities to protect, respect and fulfil human rights in relation to climate change remains debated. As climate change is a ‘super wicked problem’ that transcends jurisdictions, actors in the space (including governments, practitioners and academics) must grapple with complicated factual and legal questions of causation, state attribution and responsibility. This is in addition to resolving legal interpretative issues, including those arising from the convergence of bodies of international law (human rights and environmental) that have
As this communication is one of the first of its kind before a Human Rights
Perhaps most significantly, the communication and the Committee’s views may have broader normative influence. While one purpose of litigation is to enforce rights and duties of individuals, it can also have a secondary effect of promoting civil support and facilitating policy change. Notwithstanding the Committee’s views, initiating this communication may attract attention and support for Governments to take further action on climate change. This may ultimately make it easier for the co-complainants to put moral and political pressure on the Governments of the States involved. In this way, using human rights litigation can be an effective tool, to be used in combination with other tools, to promote action on climate change.
[1] Juliette McIntyre, ‘With 15 other children, Greta Thunberg has filed a UN complaint against 5 countries. Here’s what it’ll achieve’, The Conversation (online), 25 September 2019 <https://theconversation.com/with-15-other-children-greta-thunberg-has-filed-a-un-complaint-against-5-countries-heres-what-itll-achieve-124090>.
