Countries bear cross-border responsibility for harmful effects of climate change, rules UN child rights committee

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Two years ago, 16 young climate activists from around the world, including Greta Thunberg and Ayakha Melithafa from Eerste River in Cape Town, submitted a groundbreaking 100-page legal complaint to the UN Committee on the Rights of the Child, demanding immediate action on the climate crisis.  

In their petition, they argued that five G20 countries — Argentina, Brazil, France, Germany and Turkey — were violating their rights to life, health and culture under the Convention on the Rights of the Child by failing to curb greenhouse gas emissions to levels that would limit global warming to 1.5°C, a target set by climate science and the Paris Agreement.

The UN committee, after examining the petition, has now issued a historic ruling on the harmful effects of climate change on children’s rights; the ruling stipulates that a state party can be found responsible for the negative effects of its carbon emissions on the rights of children, both in and outside its territory. 

“One of the committee’s key findings 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,” said Ann Skelton, a professor at the University of Pretoria. Skelton is a member of the committee and currently the chairperson of the complaints procedure. 

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

The committee determined that the five countries had effective control over the sources of emissions that contribute to causing 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 that the harm they had personally suffered was significant.

But the committee has considered the petition inadmissible, because the children did not take their case to local courts in the states they were complaining about. “There is a requirement to exhaust legal remedies that may be available and effective in the countries concerned before bringing their complaint to the committee,” Skelton said. 

“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.”

Melithafa, who is now 19, said in a statement that she was disappointed with the committee’s decision, but was “more determined than ever to use every platform available to me to keep fighting for my future”. 

“We are on the verge of an abyss and our political leaders must change course immediately — young people should not need to bring legal claims seeking to hold them to account for promises made,” she said, adding that governments must deliver action at the upcoming UN COP26 climate talks in Glasgow “that is of the scale and speed we need”.

In their petition, the children had argued that the climate crisis is not an abstract future threat and that the 1.1°C increase in global average temperature since pre-industrial times had already caused devastating heat waves, the spread of infectious diseases, forest fires, extreme weather patterns, floods, and sea-level rise. As children, they claimed, they were among the most affected by these life-threatening effects, both mentally and physically.

Nicole Loser, an attorney at the Centre for Environmental Rights, told the Mail & Guardian that the UN committee’s ruling was a mixed bag. “I think it’s pretty significant to have the committee essentially confirm that countries can be held responsible for harms that manifest outside their borders by virtue of the fact that their own emissions, something that they can themselves directly control, are contributing to the harm,” she said. “It remains to be seen what kind of knock-on effect that will have.”

That the committee had found that the children should have first exhausted their domestic remedies is somewhat unfortunate, Loser said. “This is in the sense that it disregards the difficulties of these individuals then having to institute litigation in each country — the time, the capacity and the resources that would be needed for something like that in the context of a climate emergency, which is having devastating impacts for these children, as they highlighted, and as the committee itself acknowledged.” 

The 16 young people — from Argentina, Brazil, France, Germany, India, the Marshall Islands, Nigeria, Palau, South Africa, Sweden, Tunisia and the US — are being represented by Earthjustice, a nonprofit environmental law organisation, and global law firm Hausfeld.

The committee, Earthjustice and Hausfield said, had “turned its back” on the climate change petition by instructing the young people to each file claims in five countries, “squander years in procedural delays” and then return to the UN after they’ve lost in national courts. 

“The message to children is ‘you’re on your own’. In dismissing the case, the committee told children that climate change is a dire global emergency, but the UN’s doors are closed to them.” 

The petitioners had won on several of the most challenging legal issues in climate litigation. “The committee accepted their arguments that states are legally responsible for the harmful effects of emissions originating in their territory on children outside their borders. The fact that all states are causing climate change, the committee held, does not absolve states of individual responsibility to reduce their own share of emissions,” the law firms noted. “The committee also found that the youth are victims of foreseeable threats to their rights to life, health, and culture.”

But this was a “hollow victory”, they stated. “The committee also held that the petitioners must first bring lawsuits in each of the five state’s national courts — despite tomes of case law and expert evidence showing that none of those cases would succeed. 

“In the cases of Germany and Turkey, for example, the committee disregarded national court decisions that would deny foreign nationals the right to bring environmental claims. In effect, the committee instructed the youth to squander years waiting for inevitable dismissal.” 

Scott Gilmore, lead counsel from Hausfeld, told the M&G: “We expect to take further action at the UN in the coming weeks. The fact remains that the climate crisis is a global emergency, requiring a global solution.”

In an open letter to the petitioners, the committee acknowledged the importance of their actions in bringing this historic case to their attention. “Although you acted on your own behalf, we are aware that many children around the world are experiencing the same effects and concerns that you are. 

“We want you to know that the committee spent many hours discussing your case, and we struggled with the fact that, although we entirely understood the significance and urgency of your complaint, we had to work within the limits of the legal powers given to us under the optional protocol on a communications procedure. 

“We hope that you will be empowered by the positive aspects of this decision, and that you will continue to act in your own countries and regions and internationally to fight for justice on climate change.”