Court:
UN Committee on the Rights of the Child
Date:
8 October 2021
CRC Provisions:
CRC, Article 3 (best interests of the child)
CRC, Article 6(1)-(2) (right to survival and development)
CRC, Article 24 (right to health)
CRC, Article 30 (child of minorities or indigenous populations)
OPIC, Article 5(1) (individual communications)
OPIC, Article 7(e), (f) and (g) (admissibility)
Domestic provisions:
Constitution of Argentina, Articles 41 and 43
General Environment Act
Code of Civil Procedure
Case summary:
Background:
Sixteen children and young people brought a complaint to the Committee on the Rights of the Child alleging that five States had violated their rights to survival and development, health, the rights of indigenous and minority children and the best interests of the child by failing to prevent and mitigate the consequences of climate change.
The complaint alleged that the acts and omissions of the States had contributed to climate change and that the harm would worsen as the world continues to warm. The complainants claimed to have been personally affected by smoke from wildfires, heat related pollution causing asthma to worsen, the spread and intensification of diseases, extreme heat waves, drought threatening water security, extreme storms and flooding, a risk to subsistence level of life for the indigenous authors, rising sea levels threatening the possibility of life on pacific islands and threats to mental health through climate anxiety.
Issue and resolution:
Admissibility. The Committee had jurisdiction over the alleged rights violations, but the complaint was inadmissible as the applicants had not exhausted domestic remedies.
Court reasoning:
Jurisdiction
The Committee adopted the test that has been developed by the Inter-American Court of Human Rights in its Advisory Opinion on the Environment and Human Rights which would be applied when considering whether a State had jurisdiction over environmental harm to children outside of its own borders.
In effect, this means that where a child is harmed by actions or omissions of one State while outside of its borders – for example because the State is producing pollution or emissions – the Committee will consider that the State has jurisdiction where it has effective control over the sources of the emissions. The harm caused to the victims must also be reasonably foreseeable to the State at the time of its actions or omissions.
The Committee held that carbon emissions originating in the State have an adverse effect over the enjoyment of children’s rights within and beyond the country’s borders. It also held that because the State had the ability to regulate the activities that are the source of these emissions and to enforce these regulations, it has effective control over those emissions. The Committee also found the potential harm caused by emissions was reasonably foreseeable, citing the fact that the State signed the UN Framework Convention on Climate Change in 1992, the Paris Agreement in 2016 and in light of existing scientific evidence.
Victim status
With regard to the applicants the Committee held that the authors had sufficiently justified, for the purposes of establishing jurisdiction, that the impairment as a result of the States’ acts or omissions was reasonably foreseeable.
Exhausting domestic remedies
The Committee reiterated its previous findings that applicants must make use of all judicial or administrative avenues that may offer them a reasonable prospect of redress. Applicants are not required to exhaust domestic remedies where they objectively have no prospect of success. The Committee held that doubts or assumptions about the success or effectiveness of domestic remedies do not absolve complainants from exhausting those remedies.
The Committee noted that the complainants had not attempted to initiate any domestic proceedings in the State, though Argentina’s constitution expressly recognises the right to a healthy environment, the writ of amparo in environmental cases that the General Environment Act contained several provisions that enable actions in environmental matters.
The Committee dismissed the applicants’ argument that domestic courts would be likely to dismiss their claims requiring international cooperation on the basis that foreign policy is non-justiciable as it was insufficiently established that this remedy was necessary to bring effective relief.
The Committee rejected the argument that foreign sovereign immunity would prevent the applicants from exhausting domestic remedies, as this had not been sufficiently established.
The Committee noted the applicant’s argument that pursuing remedies in all of the States involved in the complaint would be unreasonably prolonged, but held that in the absence of any specific information that domestic remedies would be ineffective or unavailable and in the absence of any attempt to initiative domestic proceedings, the applicants had failed to exhaust domestic remedies.
Excerpts citing CRC:
Consideration of admissibility
10.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the claim is admissible under the Optional Protocol.
Jurisdiction
10.2 The Committee notes the State party’s submission that the communication is inadmissible for lack of jurisdiction. The Committee also notes the authors’ argument that they are within the State party’s jurisdiction as victims of the foreseeable consequences of the State party’s domestic and cross-border contributions to climate change and the carbon pollution knowingly emitted, permitted or promoted by the State party from within its territory. The Committee further notes the authors’ claims that the State party’s acts and omissions perpetuating the climate crisis have already exposed them throughout their childhoods to the foreseeable, life-threatening risks of climate change caused by humans.
10.3 Under article 2 (1) of the Convention, States parties have the obligation to respect and ensure the rights of “each child within their jurisdiction”. Under article 5 (1) of the Optional Protocol, the Committee may receive and consider communications submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in the Convention. The Committee observes that, while neither the Convention nor the Optional Protocol makes any reference to the term “territory” in its application of jurisdiction, extraterritorial jurisdiction should be interpreted restrictively.14
10.4 The Committee notes the relevant jurisprudence of the Human Rights Committee and the European Court of Human Rights referring to extraterritorial jurisdiction.15 Nevertheless, that jurisprudence was developed and applied to factual situations that are very different to the facts and circumstance of this case. The authors’ communication raises novel jurisdictional issues of transboundary harm related to climate change.
10.5 The Committee also notes Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights on the environment and human rights, which is of particular relevance to the issue of jurisdiction in the present case as it clarified the scope of extraterritorial jurisdiction in relation to environmental protection. In that opinion, the Court noted that, when transboundary damage occurs that affects treaty-based rights, it is understood that the persons whose rights have been violated are under the jurisdiction of the State of origin if there is a causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory (para. 101). The exercise of jurisdiction arises when the State of origin exercises effective control over the activities that caused the damage and consequent human rights violation (para. 104 (h)). In cases of transboundary damage, the exercise of jurisdiction by a State of origin is based on the understanding that it is the State in whose territory or under whose jurisdiction the activities were carried out that has the effective control over them and is in a position to prevent them from causing transboundary harm that impacts the enjoyment of human rights of persons outside its territory. The potential victims of the negative consequences of such activities are under the jurisdiction of the State of origin for the purposes of the possible responsibility of that State for failing to comply with its obligation to prevent transboundary damage (para. 102). The Court further noted that accordingly, it can be concluded that the obligation to prevent transboundary environmental damage or harm is an obligation recognized by international environmental law, under which States may be held responsible for any significant damage caused to persons outside their borders by activities originating in their territory or under their effective control or authority (para. 103).
10.6 The Committee recalls that, in the joint statement on human rights and climate change that it issued with four other treaty bodies,16 it noted that the Intergovernmental Panel on Climate Change had confirmed in a report released in 2018 that climate change poses significant risks to the enjoyment of the human rights protected by the Convention such as the right to life, the right to adequate food, the right to adequate housing, the right to health, the right to water and cultural rights (para. 3). Failure to take measures to prevent foreseeable harm to human rights caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations (para. 10).
10.7 Having considered the above, the Committee finds that the appropriate test for jurisdiction in the present case is that adopted by the Inter-American Court of Human Rights in its Advisory Opinion on the environment and human rights. This implies that when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated for the purposes of article 5 (1) of the Optional Protocol 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 considers that, while the required elements to establish the responsibility of the State are a matter of merits, the alleged harm suffered by the victims needs to have been reasonably foreseeable to the State party at the time of its acts or omissions even for the purpose of establishing jurisdiction.17
10.8 The Committee notes the authors’ claims that, while climate change and the subsequent environmental damage and impact on human rights it causes are global collective issues that require a global response, States parties still carry individual responsibility for their own acts or omissions in relation to climate change and their contribution to it. The Committee also notes the authors’ argument that the State party has effective control over the source of carbon emissions within its territory, which have a transboundary effect.
10.9 The Committee considers that it is generally accepted and corroborated by scientific evidence that the carbon emissions originating in the State party contribute to the worsening of climate change, and that climate change has an adverse effect on the enjoyment of rights by individuals both within and beyond the territory of the State party. The Committee considers that, given its ability to regulate activities that are the source of these emissions and to enforce such regulations, the State party has effective control over the emissions.
10.10 In accordance with the principle of common but differentiated responsibilities, as reflected in the Paris Agreement, the Committee finds that the collective nature of the causation 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.18
10.11 Regarding the issue of foreseeability, the Committee notes the authors’ uncontested argument that the State party has known about the harmful effects of its contributions to climate change for decades and that it signed both the United Nations Framework Convention on Climate Change in 1992 and the Paris Agreement in 2016. In the light of existing scientific evidence showing the impact of the cumulative effect of carbon emissions on the enjoyment of human rights, including rights under the Convention,19 the Committee considers that the potential harm of the State party’s acts or omissions regarding the carbon emissions originating in its territory was reasonably foreseeable to the State party.
10.12 Having concluded that the State party has effective control over the sources of emissions that contribute to causing reasonably foreseeable harm to children outside its territory, the Committee must now determine whether there is a sufficient causal link between the harm alleged by the authors and the State party’s actions or omissions for the purposes of establishing jurisdiction. In this regard, the Committee observes, in line with the position of the Inter-American Court of Human Rights, that not every negative impact in cases of transboundary damage gives rise to the responsibility of the State in whose territory the activities causing transboundary harm took place, that the possible grounds for jurisdiction must be justified based on the particular circumstances of the specific case, and that the harm needs to be “significant”. 20 In this regard, the Committee notes that the Inter-American Court of Human Rights observed that, in the articles on prevention of transboundary harm from hazardous activities, the International Law Commission referred only to those activities that may involve significant transboundary harm and that “significant” harm should be understood as something more than “detectable” but need not be at the level of “serious” or “substantial”. The Court further noted that the harm must lead to a real detrimental effect on matters such as, for example, human health, industry, property, environment or agriculture in other States, and that such detrimental effects must be susceptible of being measured by factual and objective standards.21 Victim status
10.13 In the specific circumstances of the present case, the Committee notes the authors’ claims that their rights under the Convention have been violated by the respondent States parties’ acts and omissions in contributing to climate change and their claims that said harm will worsen as the world continues to warm up. It notes the authors’ claims: that smoke from wildfires and heat-related pollution has caused some of the authors’ asthma to worsen, requiring hospitalizations; that the spread and intensification of vector-borne diseases has also affected the authors, resulting in some of them contracting malaria multiple times a year or contracting dengue or chikungunya; that the authors have been exposed to extreme heatwaves, causing serious threats to the health of many of them; that drought is threatening water security for some of the authors; that some of the authors have been exposed to extreme storms and flooding; that life at a subsistence level is at risk for the indigenous authors; that, due to the rising sea level, the Marshall Islands and Palau are at risk of becoming uninhabitable within decades; and that climate change has affected the mental health of the authors, some of whom claim to suffer from climate anxiety. The Committee considers that, as children, the authors are particularly affected by climate change, both in terms of the manner in which they experience its effects and the potential of climate change to have an impact on them throughout their lifetimes, particularly if immediate action is not taken. Due to the particular impact on children, and the recognition by States parties to the Convention that children are entitled to special safeguards, including appropriate legal protection, States have heightened obligations to protect children from foreseeable harm.22
10.14 Taking the above-mentioned factors into account, the Committee concludes that the authors have sufficiently justified, for the purposes of establishing jurisdiction, that 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. It also concludes that the authors have established prima facie that they have personally experienced real and significant harm in order to justify their victim status. Consequently, the Committee finds that it is not precluded by article 5 (1) of the Optional Protocol from considering the authors’ communication. Exhaustion of domestic remedies
10.15 The Committee notes the State party’s argument that the communication should be found inadmissible for failure to exhaust domestic remedies. It also notes the State party’s argument that article 41 of the Constitution expressly recognizes the right to a healthy environment, that article 43 recognizes the environmental writ of amparo, and that the General Environment Act contains several provisions that enable actions in environmental matters (writ of redress for collective environmental damage). It further notes the State party’s argument that the Office of the Chief Public Defender and the Office of the Ombudsperson for the Rights of Children and Adolescents have the mandate to provide free legal aid and representation to children in environmental litigation. Furthermore, it notes the State party’s argument that, under domestic law, collective rights or rights with a collective impact are recognized and that, depending on the type of remedy sought, directly or indirectly injured parties, the ombudspersons, civil society organizations and national, provincial and municipal authorities have standing to bring claims for environmental damage, thus eliminating barriers to access to justice in environmental matters.
10.16 The Committee notes the authors’ claim that the defence of arraigo under article 348 of the Code of Civil Procedure would bar the authors domiciled abroad from pursuing any kind of litigation in the State party. It also notes their argument that the remedy of amparo is ill-suited to their technically complex case involving demands for policy changes and international cooperation as such proceedings do not allow for extensive debate or evidence, or a declaration that particular laws, decrees or ordinances are unconstitutional. It further notes the authors’ argument that an action for environmental remediation under article 30 of the General Environment Act, while broader and allowing for debate and evidence, can address only past or existing and localized harms, and that it therefore is not a suitable vehicle for transforming the State party’s national and international policies. Moreover, the Committee notes the authors’ argument that the Office of the Chief Public Defender, the Office of the Ombudsperson for the Rights of Children and Adolescents, and the Office of the Ombudsperson are discretionary remedies and therefore unlikely to be effective.
10.17 The Committee recalls that authors must make use of all judicial or administrative avenues that may offer them a reasonable prospect of redress. The Committee considers that domestic remedies need not be exhausted if, objectively, they have no prospect of success, for example in cases where under applicable domestic laws the claim would inevitably be dismissed or where established jurisprudence of the highest domestic tribunals would preclude a positive result. Nevertheless, the Committee notes that mere doubts or assumptions about the success or effectiveness of remedies do not absolve the authors from exhausting them.23
10.18 In the present case, the Committee notes that the authors have not attempted to initiate any domestic proceeding in the State party. The Committee also notes the authors’ argument that they would face unique obstacles in exhausting domestic remedies as it would be unduly burdensome for them, unreasonably prolonged and unlikely to bring effective relief. It further notes their argument that domestic courts would most likely dismiss their claims, which implicate the State’s obligation to engage in international cooperation, because of the nonjusticiability of foreign policy and foreign sovereign immunity. Nevertheless, the Committee considers that the State party’s alleged failure to engage in international cooperation is raised in connection with the specific form of remedy that the authors are seeking, and that they have not sufficiently established that such a remedy is necessary to bring effective relief. Furthermore, the Committee notes the State party’s argument that legal avenues were available to the authors in the form of an environmental writ of amparo under article 43 of the Constitution as well as in the form of a writ of redress for a collective environmental damage under the General Environment Act. It also notes the State party’s argument that the authors could have approached the Office of the Chief Public Defender and the Office of the Ombudsperson for the Rights of Children and Adolescents in filing such environmental actions under the General Environment Act, and that legal aid would be available for such litigation. The Committee notes the authors’ arguments that the defence of arraigo under article 348 of the Code of Civil Procedure would bar the authors domiciled abroad from pursuing any kind of litigation in the State party. Nevertheless, it notes that the State party has refuted that claim, and that the authors have not provided any examples of non-domiciled plaintiffs being barred from accessing the specific remedies referred to by the State party in filing proceedings similar to the remedies sought by the authors in their specific case. The Committee also notes the authors’ argument that the Office of the Chief Public Defender and the Office of the Ombudsperson for the Rights of Children and Adolescents are discretionary remedies and therefore unlikely to be effective. Nevertheless, it notes that the authors did not make any attempt to engage these entities in filing a suit on their behalf, and it considers that the fact that the remedy may be discretionary in itself does not exempt the authors from attempting to engage these entities in pursuing a suit, especially in the absence of any information that would demonstrate that this remedy has no prospect of success and in light of existing suits filed on the issue of environmental degradation in the State party. In the absence of any further reasons from the authors as to why they did not attempt to pursue these remedies, other than generally expressing doubts about the prospects of success of any remedy, the Committee considers that the authors have failed to exhaust all domestic remedies that were reasonably effective and available to them to challenge the alleged violation of their rights under the Convention.
10.19 Regarding the authors’ argument that foreign sovereign immunity would prevent them from exhausting domestic remedies in the State party, the Committee notes that the issue of foreign sovereign immunity may arise only in relation to the particular remedy that the authors would aim to achieve by filing a case against other respondent States parties together with the State party in its domestic court. In this case, the Committee considers that the authors have not sufficiently substantiated their arguments concerning the exception under article 7 (e) of the Optional Protocol that the application of the remedies is unlikely to bring effective relief.
10.20 The Committee notes the authors’ argument that pursuing remedies in the State party would be unreasonably prolonged. It also notes that, while the authors cite some examples of environmental cases in which the State party’s courts took several years to reach a decision, they do not provide any further specific information on the length of such proceedings in the State party. It also notes that the State party likewise provides examples of cases of environmental litigation in the State party which were resolved within a reasonable time frame. The Committee concludes that, in the absence of any specific information from the authors that would justify that domestic remedies would be ineffective or unavailable, and in the absence of any attempt by them to initiate domestic proceedings in the State party, the authors have failed to exhaust domestic remedies.
10.21 Consequently, the Committee finds the communication inadmissible for failure to exhaust domestic remedies under article 7 (e) of the Optional Protocol.
Citation:
Communication No. 104/2019 (CRC/C/88/D/105/2019)
Link to Full Judgment:
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2FC%2F88%2FD%2F104%2F2019&Lang=en
This summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.