Dr Noam Peleg

The UN Committee on the Rights of the Child this month decided that a State party can be held responsible for the negative impact of its carbon emissions on the rights of children within and outside its own territory.

The decision came just a few days after the UN Human Rights Council recognised the human right to a safe, clean, healthy and sustainable environment, and appointed a new Special Rapporteur on human rights and climate change – all just a month out from the 2021 UN Climate Change Conference (COP26), to be held in Glasgow, Scotland.

The Committee’s decision, a first of its kind by an international human rights body, was in response to a petition submitted in 2019 by 16 children and young adults from 12 countries against Argentina, Brazil, France, Germany, and Turkey. The children claimed that the environmental policies of these five countries contributed to the climate crisis that we are in.

The failure to take necessary preventive measures to protect and fulfil children’s rights, including the basic right to life and the rights to health and culture, the children argued, violate these countries obligations under the UN Convention on the Rights of the Child. They were able to bring this case under an Optional Protocol of Communication, which paved the way for children and organisations to approach the Committee and to argue that their rights under the UN Convention on the Rights of the Child are not respected. To date, 48 countries have ratified this protocol, but Australian is not one of them.

Like other climate justice cases from around the world, including in the Sharma case in Australia that was decided earlier this year, the children submitted a high volume of scientific evidence in support of their claim that the climate crisis is not an abstract future threat but rather a concrete one, and that the lack of immediate action will inevitability make things worse for future generations.

For example, they have argued (and the Committee has accepted) that an average global increase in temperature of 1.1°C has already caused destructive heat waves, fostering the spread of infectious diseases, forest fires, extreme weather, floods, and sea-level rise. They stated that as children, they are among the most affected by these life-threatening events, both mentally and physically.

The children submitted that the policies of Argentina, Brazil, France, Germany and Turkey impact the lives of children who live in their territories, but also the lives of children in neighbouring countries. Climate change, they said, has no limits. Changes in wind patterns, for example, can be a result of carbon emissions generated in one country, having an impact in other countries around the globe.

The Committee decided that in some circumstances, states can be held accountable for extra territorial harm, in a decision that follows the Advisory Opinion on Environment and Human Rights of the Inter-American Court of Human Rights. This could happen when harm occurs outside the borders of a country, and where the causation between states’ policies, or the lack of, and the negative impact on the rights of children located outside its territory, can be established. But the Committee added that the alleged harm suffered by children needs to have been reasonably foreseeable to the State at the time of its acts or omissions, to establish that a State has violated its duties under the Convention. While the Committee signalled that it has the power and willingness to hear the case, it nonetheless dismissed it on the bases of admissibility, deciding that the children had to first exhaust all domestic remedies before approaching this international forum. The Committee said that the children did not try to engage with the local systems in any of the five countries, neither by approaching the relevant governmental departments, nor through the Courts.

On their end, the children convincingly argued that engaging with domestic systems is inherently futile as they take too long, and that the likelihood that Courts will provide any meaningful remedy is close to none. But this argument did not convince the Committee.

The need to exhaust all local options is particularly important to climate justice activities in Australia. With the Sharma case, the Federal Court found that the Minister for the Environment owes a duty of care for children, but failed to provide any concrete remedies and did not issue the injunctions that the children have asked for, including preventing the approval of another mining licence due to its negative environmental impact. Moreover, the Minister appealed the decision arguing that the government does not have such a duty towards children. Pending the outcome of this appeal, a decision that the government either does not have a duty to care for children, or failure to order the Minister to act in accordance to its duty of care, can pave the way to establishing the jurisdiction of international human rights bodies to scrutinise laws and policies in Australia.

The UN Committee’s decision was welcomed by some environmental justice advocates as a triumph but others, especially children, were less enthusiastic. Alexandria Villaseñor, one of the children who petitioned the Committee, said that the failure to provide any remedy means that this decision is “ridiculous” and “patronising”, calling it double speak against children.

This ruling is promising despite its disappointing outcome. It indicates that the Committee is willing to read environmental rights of children into the Convention, and to establish states duty to take actions in matters that affect children outside their own borders. These duties might translate into a new General Comment on climate change and children’s rights that the Committee is drafting. It has already signalled that it will stipulate the sort of obligations that states have, substantive and procedural, to prevent and tackle pollution, loss of biodiversity, and climate change in broad strokes.

The political debate in Australia focuses on the narrow questions of emissions and 2050 targets. The international discourse is robust, and this decision signals that the obligations that Australia has, as a party to the Convention on the Rights of the Child, are broader, more concrete, and potentially subject to international accountability mechanism.

Dr Noam Peleg is an Associate at the Australian Human Rights Institute and a Senior Lecturer at the Faculty of Law & Justice. His work focuses on international children’s rights law and its intersection with human rights law, childhood studies, and family law.