States are responsible for negative impact of carbon emissions on rights of children: UN

The United Nations (UN) Committee on the Rights of the Child (CRC) issued a historic ruling on Sunday that a state can be found responsible for the negative impact of its carbon emissions on the rights of children both within and outside its territory.

The ruling comes in the wake of news last week that the UN Human Rights Council recognised access to a clean and healthy environment as a fundamental right.

The decision was made after 16 children from around the world — including Ayakha Melithafa from SA — filed a petition claiming Argentina, Brazil, France, Germany and Turkey had failed to take necessary preventive measures to protect and fulfil children’s rights to life, health and culture.

The committee held five oral hearings with the children’s legal representatives and representatives of the states’ parties between May and September. It also heard the children directly. This was also a procedural “first” as the committee has not previously held oral hearings under its complaints procedure. Complaints are usually received and considered in writing.

The University of Pretoria’s Prof Ann Skelton is a member of the UNCRC and chairperson of the complaints procedure.

According to her statement, the children argued the climate crisis is not an abstract future threat and the 1.1°C increase in global average temperature since pre-industrial times has already caused devastating heat waves, fostering the spread of infectious diseases, forest fires, extreme weather patterns, floods and rising sea levels.

“As children, they claimed to be among the most affected by these life-threatening impacts, both mentally and physically.”

Arriving back in SA from Geneva, Switzerland, as news of the case hit the headlines, Skelton explained a key finding by the committee: “This is that emitting states are responsible for the negative impact of the emissions originated in their territory on the rights of children, even those children who may be located abroad.

“The collective nature of the cause for climate change cannot absolve a state from its individual responsibility that may derive from its emissions.”

She said it was necessary for there to be a causal link between the harm and the state's acts or omission, and the harm must be foreseeable.

In this case the committee determined that Argentina, Brazil, France, Germany and Turkey had effective control over the sources of emissions that contribute to the causing of reasonably foreseeable harm to children outside their territories.

“It concluded that a sufficient causal link had been established between the harm alleged by the 16 children and the acts or omissions of the five states’ parties for the purposes of establishing jurisdiction, and that the children had sufficiently justified the harm they had personally suffered was significant.

“The committee, however, considered the petition inadmissible as the children had not taken their case to local courts in the states they were complaining about.”

Skelton said there was a requirement to exhaust legal remedies that may be available and effective in the countries concerned before bringing their complaint to the committee.

“The committee was therefore unable to examine the merits of the case and adjudicate whether the states’ parties had violated their obligations to the Convention on the Rights of the Child and its Optional Protocols.”

The CRC wrote an open letter to the authors of the petition in which they explained the case in simplified language. Their message to the children was the committee hoped they would feel empowered by what they had managed to achieve through their case and would continue with their advocacy work on climate change.

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