Authors: Raas Nabeel, Zarwa Jamal
The United Nations Convention on the Rights of the Child (CRC) aims to provide a comprehensive rights framework for children under the age of eighteen. It outlines these rights as State obligations that each signatory State must fulfil through positive measures, such as legislation and the creation of dedicated institutions. Expanding on these rights, the United Nations Committee on the Rights of the Child published General Comment No. 26, establishing a right to a ‘clean, healthy, and sustainable environment’ in relation to various established children’s rights. This General Comment expands upon the rights under the CRC and provides further details on the types of State obligations imposed. The following essay will expand on General Comment No. 26 and explore the implementation of its objectives and principles in jurisprudence around the world.
The General Comment reflects the growing rights-environment nexus that is particularly relevant in a world characterised by exacerbated human-induced climate change. The Comment makes note of ‘unprecedented environmental crises’ that are having an effect on the realisation of children’s rights under the CRC (paragraph 9). The Comment also draws upon the increased role of children in litigating greater environmental rights through their respective States’ human rights legal frameworks, along with a growing worldwide recognition of the rights-environment nexus as a successful litigation strategy (paragraph 10).
Overview of the Comment
General Comment No. 26 draws upon the input of 16,331 children from 121 countries. It establishes a connection between certain rights in the CRC with a right to a ‘clean, healthy, and sustainable environment.’ The Comment approaches the CRC from the perspective of principles, substantive rights, and State obligations.
The main principle emphasised in General Comment No. 26 is the principle of intergenerational equity. This refers to the idea that the earth, with its natural resources, is inherited from previous generations and will be inherited by future generations as well. Consequently, it is incumbent upon present generations to ensure that its resources are used sustainably, and its condition preserved adequately, for future generations to enjoy a reasonable standard of living. Intergenerational equity is a central tenet of climate litigation around the world, with jurisprudence holding that States have an obligation to protect both present and future generations from environmental harm. This is a unique principle as it specifically advocates for greater protection for children, serving as a gateway for rights-based protection as well.
Furthermore, the Comment makes note of the precautionary principle (paragraph 69), which ‘compels society to act cautiously if there are certain – not necessarily absolute – scientific indications of a potential danger’; to engage in inaction would ‘inflict harm’ (Lievens, 134). This is particularly with reference to due diligence requirements that States must observe, with specific attention to the impacts of State and business actions on children. The precautionary principle inherently relies upon other basic principles of international environmental law, such as the prevention principle, to ensure that reasonably foreseeable environmental harm is prevented as far as possible.
General Comment No. 26 draws a specific climate nexus to 12 rights in the CRC. The most pertinent of these are the ‘best interests’ of the child, the right to life, survival and development, the right to the highest attainable standard of health, and the right to be heard.
The connection with the ‘best interests of the child’ under Article 3 exemplifies this as a core tenet of the child rights framework. The General Comment highlights that impacts on children of environmental laws, policies, regulations and other decisions should be a primary consideration. This translates into procedural obligations, such as the inclusion of harms specific to children when conducting an environmental impact assessment (paragraph 17).
Similarly, the nexus drawn with the right to life, survival and development under Article 6 exemplifies the higher likelihood of adverse impacts on the lives of children caused by environmental degradation and its impacts. Their greater susceptibility to harmful effects due to their younger age and physical development must be taken into account when State actors or private actors under State regulation carry out potentially environmentally harmful activities.
Closely related to the right to life, survival and development is the right to the highest attainable standard of health under Article 24. Children are more susceptible to the health risks caused by a degraded environment. This right ensures that the State invests in access to medicines, potable water, healthcare facilities and the like that are specifically targeted to children.
The Comment also highlights the importance of the right to be heard under Article 12 of the CRC. Most legal jurisdictions prevent those under 18 from voting and public participation, which disenfranchises an important stakeholder in decisions involving the environment. The reinforcement of the right to be heard is an important acknowledgement of the beneficial participation that children can make in environmental decisions, particularly in public consultations. This is closely linked to the freedom of expression, association and peaceful assembly protected under Articles 13 and 15 of the CRC, allowing children the right to express their discontent against their governments and to ‘engage in protests on environmental matters’ (paragraph 30).
The General Comment outlines specific types of state obligations that must be fulfilled to ensure the right to a clean, healthy and sustainable environment to children under the CRC framework.
Firstly, it is upon each signatory State to ‘ensure a clean, healthy and sustainable environment in order to respect, protect and fulfil children’s rights’ (paragraph 68). These include positive legislative, regulatory and institutional mechanisms (paragraph 71), as well as the allocation of adequate resources (paragraph 72) and due diligence obligations (paragraph 69). Adopting this into the rights framework outlines a greater role that States must play in their domestic legal regimes.
The Comment also emphasises specific child rights impact assessments. While there is a duty to conduct environmental impact assessments (EIAs) under international environmental law, child rights impact assessments ensure a primary consideration of the effects of activities on children. This also ensures the right to be heard for children, as well as their rights to express discontent with policies with environmental impacts.
The Comment recognises the role of the business sector in protecting and guaranteeing children’s rights, as well as their role in causing ‘significant environmental damage, contributing to child rights abuses’ (paragraphs 78-9). This adds additional obligations of due diligence on the State to regulate business activities that harm the environment and emphasises duties to conduct child rights impact assessments. This is a particularly positive development considering the disproportionate impact that the business sector has on human rights and environmental violations, particularly towards the younger generations.
Access to justice and remedies is a crucial obligation upon States. This mandates States to provide accessible complaint mechanisms and remove barriers that prevent children from becoming stakeholders in seeking remedies for environmental harms. This also includes providing free legal representation for lawsuits commenced by children, and mandating businesses to develop internal grievance mechanisms, and appropriate reparation mechanisms (paragraphs 87-89).
Finally, States are obliged to participate in international cooperation to protect children’s rights and the right to a clean, healthy and sustainable environment. There is particular emphasis on developed States to facilitate the transfer of climate finance and green technology to help developing States guarantee environmental rights, particularly to children. Projects and donations should be more rights-based, with an emphasis on the protection of children’s rights through a proactive approach.
It is pertinent to analyse the role that children have played in litigating and fighting for environmental rights through national and international human rights frameworks.
Sacchi Et Al v Argentina, Brazil, France, Germany & Turkey – Committee of the CRC (2019)
In this case, sixteen children filed a communication to the United Nations Committee on the Rights of the Child, arguing their right to life, right to the highest attainable standard of health, and the right to enjoy culture (Articles 6, 24, and 30) under the CRC were violated by their respective countries. They claimed that these rights were violated by States failing to reduce their greenhouse gas emissions as well as failing to reduce the emissions of corporations within their regulatory jurisdiction. Despite ratifying the CRC and signing the Paris Agreement, the respondents had arguably failed to effectively decrease the chances of temperature rise exceeding 2oC. The petitioners claimed the respondents had violated their obligations to apply the precautionary principle and to ensure intergenerational justice by failing to prevent the fatal consequences of climate change.
By making this claim to the Committee on the Rights of the Child, the petitioners were demanding that a connection be drawn between children’s rights and the right to a clean, healthy and sustainable environment – a fundamental aspect of which is the obligation to reduce greenhouse gas emissions. Nevertheless, the Committee made important findings pertaining to the children’s rights and environmental protection nexus.
Firstly, the Committee agreed that continued greenhouse gas emissions exacerbating climate change did pose a threat to the rights to life, health and culture guaranteed under the CRC. They also found that States have extraterritorial obligations to reduce carbon pollution due to its transboundary nature. However, a claim may only be brought if the harm caused by transboundary pollution leads ‘to a real detrimental effect on matters such as, for example, human health, industry property, environment or agriculture in other States… measured by factual and objective standards’ (paragraph 10.13). The Committee found that the authors of the complaint ‘sufficiently justified… the impairment of their Convention rights as a result of the State party’s acts or omissions regarding the carbon emissions originating within its territory was reasonably foreseeable’ (paragraph 10.14).
However, the petition was dismissed on procedural grounds, as the petitioners had not exhausted all possible domestic remedies before submitting a complaint to the Committee. Under Article 7(e) of the Optional Protocol to the CRC on a communications procedure, a person wishing to lodge a complaint to the Committee against their State for a violation of their CRC rights must have exhausted all possible domestic remedies before doing so. Thus, while the Committee was unable to provide direct relief to the petitioners on procedural grounds, it was able to elaborate on the important connection between children’s rights and the right to a clean, healthy and sustainable environment.
Ali v Federation of Pakistan – Pakistan (2016)
Ali v Federation of Pakistan is a constitutional petition alleging the violation of several fundamental rights related to climate protection. In this case, Rabab Ali, a 7-year-old resident of Karachi, challenged the approval and development of coalfields near her residence. She claimed that the carbon dioxide emissions from the burning of coal for electricity violated her right to life and right to dignity under the Constitution. The petition invoked the concepts of intergenerational equity and the public trust doctrine, arguing that the approval for the coalmines ignored ‘the long-term adverse consequences they are bringing upon both current and future generations of Pakistanis, in violation of their Fundamental Rights” (Petition, paragraph 23).
This case reflects a trend of invoking fundamental rights for climate litigation that is common in the Global South, particularly where climate and environmental protection legislation is underdeveloped. Despite the decision on this petition still pending, it is an important example of the role that children can play in rights-based climate litigation
Juliana v United States – United States (2015)
Juliana v US was a groundbreaking lawsuit initiated in 2015 by 21 youth plaintiffs, represented by Our Children’s Trust, against the US government for its role in contributing to climate change. The petitioners alleged a violation of the rights to life, liberty and property guaranteed under the US Constitution (paragraph 8). They alleged that the US government was aware of the harmful effects of fossil fuel extraction and excessive CO2 levels in the atmosphere (paragraph 5), but continued to promote and subsidise the use of fossil fuels. The petition also acknowledges the ‘especially vulnerable’ position of children, resulting in an ‘unbearable’ climate ‘unless Defendants take immediate action to rapidly abate fossil fuel emissions and restore energy balance at a lower atmospheric CO2 concentration’ (paragraph 10).
The case has gone through several procedural hurdles and continues to be litigated today. The Ninth Circuit Court of Appeals exercised considerable judicial restraint and held that ‘ordering the federal government to adopt “a comprehensive scheme to decrease fossil fuel emissions and combat climate change” would exceed a federal court’s remedial authority’. This decision was widely criticised, particularly in light of the US government’s continued motions to dismiss the petition altogether. Despite this, the majority opinion recognised the threat posed by the continuous exploitation of fossil fuels and carbon dioxide
Oposa vs Factoran – Philippines (1993)
This landmark judgment concerned the issuance of timber license agreements by the Department of Environment and Natural Resources of the Philippines government. The petition was filed by several minors who were represented by their parents and guardians. They claimed that they had constitutional rights to a balanced and healthful ecology and to health (Article II, sections 16 and 15 of the Philippines Constitution) and that they represented both present and future generations. These rights were being violated by the Department’s issuance of timber license agreements for the logging of forests.
The Philippines Supreme Court held in favour of the petitioners, claiming that they had a generational right to a balanced and healthful ecology. It also declared the issuance of timber license agreements allowing for the logging of the forests unconstitutional, and a violation of the government’s duty to protect the environment for both present and future generations. This landmark judgment reinforces the importance of intergenerational equity and the rights-environment nexus instrumental in litigating for greater climate protection, particularly for children.
Pandey vs Union of India and Central Pollution Control Board – India (2017)
In this petition, Ridhima Pandey, a nine-year-old resident of Uttarakhand, raised a claim with the National Green Tribunal of India. She argued that as the world’s third-largest greenhouse gas emitter, India must commit to greater mitigation measures to implement its commitments to the Paris Agreement, the public trust doctrine and its legislation (paragraph 5). The petitioner cited the principles of intergenerational equity, sustainable development, and precaution as the basis for her claim, arguing that she had the right to a healthy environment which was disproportionately being affected by the government’s lack of implementation.
Although the case was dismissed in 2019 on the grounds that the recommendations were already reflected in the Government’s policies, it highlighted an important gap in legislative commitments and implementation efforts in greenhouse gas mitigation (paragraphs 2-3). It also reinforced the right to be heard for minors, particularly under the principle of intergenerational equity.
The CRC General Comment No. 26 comes at a crucial point in environmental rights advocacy. With growing global consensus on the nexus between environmental protection and human rights, the General Comment elaborates upon the obligations of States towards their youth populations, both present and future. It highlights the unique position of the youth in inheriting a world marked by rising temperatures, frequent high-intensity weather events, and growing climate-related social inequalities. By drawing a specific nexus to rights under the CRC, the General Comment mandates both greater protection of children’s rights as well as stronger environmental protection obligations on States. Altogether, this is a positive development in both international human rights law and international environmental law, and reflects the recent history of rights-based environmental litigation in various States initiated by youth parties.