In October 2021, the UN Committee on the Rights of the Child (“Committee”) published its “historic ruling” on a complaint brought against five states - Argentina, Brazil, France, Germany, and Turkey - by sixteen children and young people, including climate activist Greta Thunberg. This ruling forms part of a growing trend of strategic litigation which seeks to hold States and corporations accountable for inadequate climate action based on constitutional and human rights. The petitioners utilised the third Optional Protocol (“Optional Protocol”) to the Convention on the Rights of the Child (“CRC”) to bring their communication to the attention of the Committee. Whilst the Committee ultimately found the complaint inadmissible due to the failure to exhaust domestic remedies, the decision was nonetheless ground-breaking for its finding that a state party could be held responsible for the negative impact of its carbon emissions on the rights of children both within, and outside, its territory.
THE COMPLAINT
Submitted by children and young people from twelve different countries, Sacchi et al. v. Argentina, Brazil, France, Germany & Turkey is the first climate change case to be filed by individuals from around the world to an international human rights body. The complaint is additionally significant as it represents the first attempt to hold several state parties responsible for human rights violations in relation to climate change.
The central element of the complaint was that by “recklessly causing and perpetuating life-threatening climate change,” the five states had failed to take the necessary preventive and precautionary measures to respect, protect, and fulfil the petitioners right to life (article 6), right to the highest attainable standard of health (article 24) and right to enjoy culture (article 30), as contained in the CRC. The petitioners additionally put forward that “the best interests of the child” (article 3) should be a primary consideration in any decision taken to address climate change.
These claims were advanced alongside a diverse range of statements which illustrated how the children and young people had been personally affected by climate change. For instance, the petitioners explained how the rising sea levels in Micronesia had negatively impacted their mental health, which in turn had violated their right to health. Similarly, climate change was preventing reindeer herding traditions from being passed down the generations in northern Sweden, which infringed upon their right to culture.
Most significantly, the petitioners argued that whilst many states collectively contributed to the negative impact of global warming, it should nevertheless be possible to deem one state as individually responsible. They further contended that a state should be held responsible for the negative effects of climate change on the rights of children who lived both within, and outside the boundary of a state – this would represent one of the key decisions before the Committee.
THE DECISION
When presented with a complaint, the Committee must follow the rules outlined in the Optional Protocol; they will therefore begin by deciding whether a case is admissible. In Sacchi, this decision generated two issues: (1) whether the complaint was “within the jurisdiction of the state party” and (2) whether the petitioners had exhausted all domestic remedies.
On jurisdiction, the problem was that the majority of the petitioners were not within the geographical boundaries of any of the five states. Nevertheless, the Committee followed the Inter-American Court of Human Rights 2017 Advisory Opinion OC-23/17 and held that the CRC did give rise to extraterritorial obligations. As such, children are held to be under the jurisdiction of a state if there is a “causal link between the acts or omissions of the state in question and the negative impact on the rights of children located outside its territory, when the state of origin exercises effective control over the sources of the emissions in question”. The Committee additionally held that any alleged harm suffered by the victims “needs to have been reasonably foreseeable to the state party at the time of its acts or omissions,” and that the “collective nature of climate change does not absolve the state party of its individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location”. Following this reasoning, the Committee found that the complaint in Sacchi satisfied the jurisdiction requirement.
However, the petitioners were not successful on the issue of the exhaustion of domestic remedies. Whilst the petitioners acknowledged that they had not exhausted domestic remedies, they argued that the exception to this rule (article 7(e) of the Optional Protocol) should apply due to the general challenges faced by children and young people in accessing remedies for rights violations; this included a lack of resources, difficulties in engaging with complex legal processes, and the need to rely on adults, among many other challenges. The petitioners further argued that the exhaustion of domestic remedies in all five jurisdictions would be unduly burdensome as in addition to the great cost, it was unlikely that each domestic court could provide the same remedy. Nevertheless, the Committee highlighted that there had been no attempt to bring a case in any of the five states, and that “mere doubts or assumptions about the success or effectiveness of remedies does not absolve the petitioners from exhausting them”. Accordingly, the Committee ultimately found the communication in Sacchi to be inadmissible.
A SUCCESS?
The decision by the Committee has received mixed responses. As such, whilst many legal commentators have celebrated the decision as “ground-breaking” and “historic”, one of the child claimants tweeted that the decision was “a delusional ruling and turn of events,” and the complaints’ legal representatives described it as a “hollow victory”. Despite this, there are several positives which can be drawn from the Committee’s decision.
To begin with, the decision substantially expanded the understanding of jurisdiction by recognising that states have extraterritorial obligations with regards to climate change. Accordingly, in addition to accepting that children’s rights to life, health and culture are impacted by climate change, and that children’s best interests should be a primary consideration in any decision-making related to climate change, the Committee held that states can now be held accountable for the negative impact of their carbon emissions on children’s rights which is arguably a big success. Furthermore, as stated by the Committee, the decision in Sacchi also serves as a reminder to states that the Committee expects states to sign the Optional Protocol so that children can make domestic complaints, as well as ensure that such domestic complaints are handled appropriately.
The Committee has also utilised Sacchi as a “springboard” to announce their decision to write a General Comment on children’s rights and the environment, with a special focus on climate change; further positive developments can therefore be expected in the future. It is additionally notable that the Committee has invited the petitioners of the Sacchi complaint to be involved with the drafting process of the General Comment – this speaks to the potential of human rights litigation to trigger developments beyond a particular case.
Finally, Sacchi also represents a victory for the future of child-friendly justice. Not only is the complaint an example of how young people can take an active role in addressing global issues, but the Committee has used the opportunity to champion new procedural innovations. For example, the inaugural use of a closed-door hearing provided the petitioners with the chance to directly explain their arguments to the Committee. In addition, the publication of an open letter from the Committee to the petitioners – which included a simplified, child-friendly explanation of the case – demonstrates how climate change litigation can be made more accessible for children and young people. Overall, these developments are welcome and should hopefully inspire further child-centric innovations in future climate litigation.
Mariam graduated with a First-Class Law Degree from Durham University in July 2021. She is currently a Legal and Advocacy Intern at the Consortium for Street Children and a volunteer for the Refugee Council. Mariam is also a member of the Amnesty International UK Youth Collective.