How International Children’s Rights Law Can Force Governments to Prioritize Tackling Climate Change
The United Nations (UN) Convention on the Rights of the Child (CRC) guarantees youth the human right to be protected from threats. According to the convention, which was ratified by 196 UN member nations, all children are entitled to the “inherent right to life” and education, with the goal of these rights being the “development of the child’s personality, talents and mental and physical abilities to their fullest potential.” [1] Of all the threats children face, climate change is, without a doubt, proving itself to be the most formidable and existential. Today, the planet increasingly hurdles over temperature records, while extreme weather phenomena worsen in intensity and frequency each year. It has become increasingly evident that, due to climate change, children will lack an environment conducive to their development in the coming decades. [2] Even now, according to a 2018 UN Report to the Human Rights Council on the Rights of Children and the Environment, “air pollution, water pollution and exposure to toxic substances, together with other types of environmental harm, cause 1.5 million deaths of children under the age of 5 every year.” [3] It is the youth who already experience—and who will have to live with—the devastating effects of current carbon emissions. Despite this clear interpretive foundation for viewing climate change as a human rights and children’s rights threat, youth appeals against climate change in court have failed due to a lack of legal codification. The failures of courts proves that international human rights law must be expanded to explicitly guarantee children the right to a clean and safe environment.
Thus far, individual lawsuits against governments for failing to address the climate change crisis have found little success in courts. For example, in Juliana v. United States, a 2020 U.S. appeals court case, twenty-one youth sued the United States government for promoting the use of fossil fuels despite having been aware of their degrading effects on the environment since 1965. [4] These plaintiffs claimed that the government’s actions threatened their wellbeing and violated their constitutional rights, with each plaintiff citing personal health issues, psychological traumas, and property damage caused by climate change.
Despite this, Judge Hurwitz dismissed the case on the grounds that the plaintiffs lacked standing, meaning that these youth did not have legitimate grounds to claim they were wronged and thus could not argue their case in court. Writing for the 2-1 majority of the Ninth Circuit Court, Judge Hurwitz argued that a ruling for the plaintiffs was impossible, as it would entail “an order requiring the government to develop a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric CO2…’ [which] is beyond our constitutional power.” [5] Judge Hurwitz essentially asserted that granting the plaintiffs standing in this case—and subsequently ordering the U.S. government to curtail its use of fossil fuels to uphold the plaintiffs’ rights—would force the judiciary to overstep its bounds and become an unelected lawmaker. [6] Similarly, the 2018 European Union (EU) court case Armando Ferrão Carvalho and Others v. The European Parliament and the Council was dismissed because the judges ruled that the plaintiffs had not shown they were “individually concerned.” They argued that because each plaintiff was impacted differently by climate change, they collectively lacked the standing to blame the same action—the EU’s emissions of fossil fuels—for causing their losses. [7]
These dismissals demonstrate that youth often struggle to attain standing in climate change cases. Standing refers to the legitimacy of a plaintiff to fight their case in court, and often relies upon the court's ability to have jurisdiction over the wrongdoing committed. As the Carvalho case demonstrates, in climate change cases, plaintiffs are all affected differently by fossil fuel emissions and the resulting climate crisis. Yet, the plaintiffs’ singular, shared loss of a clean environment is the root cause for their individual damages—a fact that the court failed to recognize in its dismissal of Carvalho. Alternatively, as they did in Juliana, courts can also deny standing to plaintiffs by ruling that they do not have the power to rectify the wrongdoing and refer the plaintiffs to appeal to other branches of government for climate action.
Although climate change cases in individual courts have failed, current international law is equipped to handle such complaints. For instance, the UN Committee on the Rights of the Child, which follows the proceedings based on the Third Optional Protocol to the Convention on the Rights of a Child (OPIC), oversees the enforcement of CRC. [8] The issue of individual standing does not apply to OPIC’s protocols, since its rules dictate that any child can bring a case against a state for not upholding the principles of the CRC “regardless of whether their legal capacity is valid in the State party against which the communication is directed.” [9] In other words, any alleged violation of the CRC is legitimate grounds for an international legal challenge, no matter the individual’s standing in domestic courts. If the right to an environment were added as a protective measure for children, which was enforceable under OPIC, children could effectively petition their country to take action against climate change without the difficult hurdle of acquiring standing. Yet, since the CRC currently lacks explicit protections for the environment, petitions of children fighting for climate change action currently hold little water in CRC cases.
An addition to the CRC that cements the right of children to a clean and safe environment would eliminate the need for plaintiffs to share the same type of harm; instead, sharing a harmed environment would become their shared loss and the basis for litigation. The focus would then shift from if the children’s grievances are legitimate to how to address them. Subsequently, court rulings would be able to provoke drastic policy changes, something current courts had avoided in the Juliana and Carvalho cases. As stated in Judge Staton’s dissent in Juliana, policy changes required by a ruling are not necessarily outside the court’s authority to produce: “even a partial or temporary reprieve would constitute a meaningful redress. Such relief… would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province.” [10] While international court verdicts on a country’s human rights violations are not necessarily binding, the resulting pressure from the international community, in the form of political shaming or sanctions, could compel a nation to modify its domestic policies. [11]
Moreover, an addition to the CRC to protect the environment is justifiable and legitimate. Legal scholars contend that the “adequate standard of living, education, and health” the CRC enshrines necessitates a stable home, freedom from health afflictions, resources such as food and water to survive, and time dedicated to education. [12] Typically, war, epidemics, poor infrastructure, and economic downturns are the primary threats to these rights. [13] Currently, however, legal scholars agree that these protections will not be met because of the imminent “loss of livelihoods and food security resulting from increased water stress and habitat changes” induced by the climate crisis. [14] Furthermore, the threat to children’s rights incurred by climate change is different from other rights violations because of the temporal delay between the cause of the violation (e.g. the burning of fossil fuels) and the violation itself (e.g. the rising global temperature). This delay makes climate change a discriminatory violence because current wrongdoing will impact youth with more severity and scope than any other generation. [15] This delay is also why many courts are unwilling to view the cases as legitimate, as proven in the Carvalho case; courts are generally more inclined to adjudicate blame to parties when the violence is an immediate result of an action, rather than when it emerges years after its inciting incident. In cases where a delay exists between an inciting incident and the resulting violence, courts hesitate to assign blame for fear that other actions besides the one in question may have caused the violence, or that there is insufficient proof of a causal link between the inciting incident and subsequent damages.
Changing the CRC would also be legitimate due to the international support surrounding the right to a safe environment. A joint statement from the United Nations Environment Programme and fifteen nations affirms that 150 UN member states support the right to a clean environment. [16] They also argue that not formalizing this right results in “exacerbating inequalities, and creating protection gaps, especially for… children.” [17]
In addition, a currently pending case in the European Court of Human Rights, Claudia Duarte Agostinho and Others v. Portugal and 32 Other States, might reveal that the CRC’s current language can be interpreted as granting children a clean environment, thus implying it is in the spirit of the CRC to protect the environment more aggressively. In this case, the plaintiffs—six Portuguese youth—have cited the Office of the United Nations High Commissioner for Human Rights’ study on climate change’s relationship to the rights of the child to prove their governments are responsible for protecting children from climate change. [18] In the convention document’s comments, the CRC Committee urged states to center children’s health concerns because of the immense threat climate change poses to their well-being. [19] Additionally, the plaintiffs cite the CRC’s protection of children’s drinking water from pollution as evidence of this convention guaranteeing children a clean and safe environment. [20]
If the plaintiffs win, it would confirm that this protection is already embedded in the CRC’s language—it then just needs to be enforced as such. Furthermore, unlike past climate change litigation that failed to acquire legitimate grounds and were ultimately dismissed, Duarte Agostinho was fast-tracked by the European Court of Human Rights. [21] This acknowledgment of the case’s standing demonstrates an increased recognition of the legitimacy of the shared loss suffered by children in the wake of climate change. Despite the Duarte Agostinho case’s potential, there is no telling if the case will ultimately be resolved in favor of the plaintiffs, and what scope the ruling will have for future litigation. Even if the case succeeds and sets a legal precedent, an explicit addition to the CRC is still necessary to safeguard the foreseeably growing amount of litigation from children fighting for protection from climate change. If the CRC were to be amended and ratified to defend children from climate change, legal scholars have argued that it may likely sway nations to legislate policies reflecting their respect for this new protection in international law. [22]
Children’s rights are an essential part of human rights frameworks because children must retain the agency to voice their opinions and fight for their rights. In this context, a CRC amendment is justifiable and necessary, because climate change is a threat that imperils existing children’s rights and discriminates against youth, and because the CRC already implicitly recognizes the benefits of a clean environment for children. Since the violence incurred by climate change is most pressing for children, international human rights law must be revised to explicitly include the right to a clean and safe environment as an inalienable right for all children. Not only will the harmful effects of climate change finally be acknowledged, but children will finally have the legal authority to fight for these rights themselves.
Edited by Joanne Park
Sources:
[1] Office of the United Nations High Commissioner for Human Rights, Convention on the Rights of the Child, OHCHR (1989), online at www.ohchr.org/en/professionalinterest/pages/crc.aspx (visited July 19, 2021).
[2] Katharina Ruppel-Schlichting, Sonia Human, and Oliver C. Ruppel, “Climate Change and Children’s Rights: An International Law Perspective,” Climate Change: International Law and Global Governance, 350 (2013).
[3] Office of the United Nations High Commissioner for Human Rights, Children’s Rights and the Environment: Report to the Human Rights Council on the Rights of Children and the Environment, OHCHR (2018), online at www.ohchr.org/en/issues/environment/srenvironment/pages/environmentandrightschild.asp, (visited July, 21 2021).
[4] Juliana v United States, 947 F3d 1159, 5 (9th Cir. 2020).
[5] Id at 11.
[6] Id.
[7] Armando Ferrão Carvalho and Others v. The European Parliament and the Council, T-330/18, 13 (European Court of Justice 2018).
[8] Office of the United Nations High Commissioner for Human Rights, Model Form for Submission of Individual Communications to the Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, OHCHR (2014), online at www.ohchr.org/Documents/HRBodies/CRC/ModelCommunicationForm_en, (visited July, 21 2021).
[9] Id.
[10] Juliana v United States, 947 F3d 1159, 5 (9th Cir. 2020).
[11] Sean D. Murphy, "The Concept of International Law," Proceedings of the Annual Meeting (American Society of International Law), 166 (2009).
[12] Ruppel-Schlichting, Human, and Ruppel, “Climate Change and,” 350.
[13] Id.
[14] Id at 350.
[15] UNICEF, United Nations Children’s Fund, A Brighter Tomorrow: Climate Change, Child Rights and Intergenerational Justice, UNICEF (2009),
online at www.unicef.org.uk/wp-content/uploads/2010/09/intergenerationaljustice (visited July 21, 2021).
[16] United Nations Environment Programme, Joint Statement of United Nations Entities on the Right to Healthy Environment, United Nations Environment Programme (2021), online at https://www.unep.org/news-and-stories/statements/joint-statement-united-nations-entities-right-healthy-environment, (visited July, 21 2021).
[17] Id.
[18] Claudia Duarte Agostinho and Others v. Portugal and 32 Other States, 29371/20, 1 (European Court of Human Rights 2021).
[19] Id at 2.
[20] Id.
[21] Juliane Kippenberg, Katharina Rall, Child-led Court Case Will Scrutinize Europe's Climate Response, Human Rights Watch (2021), online at https://www.hrw.org/news/2021/04/22/child-led-court-case-will-scrutinize-europes-climate-response#, (visited July, 21 2021).
[22] Ruppel-Schlichting, Human, and Ruppel, “Climate Change and,” 350.