Children's Environmental Rights and Climate Litigation
In several reports, the Intergovernmental Panel on Climate Change (IPCC) has highlighted that warming caused by anthropogenic emissions will persist for centuries and will continue to impact the climate system (IPCC, 2014, 2018, 2022) hinting at the intergenerational nature of climate change. Despite this, very little attention is paid on the impact of climate change on those inheriting the earth – children - who also happen to be the most vulnerable group to the climate crisis due to their behavioural patterns, sensitivity to exposure and dependence on caregivers (Ebi & Paulson, 2007).
Despite these vulnerabilities and the intergenerational nature of climate change, equally as little consideration is placed on children's environmental rights, as children are not explicitly represented in the environmental law-making discourse (Makuch et al., 2020). The environmental rights of children are instead linked to other rights and standards including those introduced by the 1989 United Nations Convention on the Rights of the Child (UNCRC) (Makuch, 2019). In fact, the UNCRC does not explicitly include a right to environment making children’s environmental rights very indirectly guaranteed to the extent to which these can be construed from the UNCRC.
In the UK in 2013, Ella Kissi-Debrah died as a direct result of air pollution - she was 9 years old and was later described as a canary in a coalmine. In 2022, the UK’s Green Party proposed what is called “Ella’s Law” to codify the right to clean air. Nonetheless, there is not a single mention of children and young people in the proposed law.
To fill this gap, human rights-based litigation has become a means of promoting children's environmental rights, as 33 rights-based climate cases involve plaintiffs who are children (Donger, 2022). However, the extent to which a human rights-based climate litigation approach is beneficial for incorporating children's environmental rights will depend on our interpretation of the aim of the law and the position we wish to place children in as stakeholders in the sustainability discourse. While such an approach may be impactful, it is the case that issues of agency, causation, and the ethical concerns of placing the burden on children to ensure their sustainable futures, often taint the potential thereof.
Human rights-based climate litigation brought by children raises several questions on the link between human rights and environmental harm, particularly where a complaint looks to future harms or is cross-border in nature (Lewis, 2021). In Juliana, 21 young people alleged violations of their constitutional rights and sought declaratory relief and an injunction ordering the US government to implement a plan to "phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide]" (Juliana). The plaintiffs were found to be injured parties as the Court held that the US government actively and passively contributed over 25% of global emissions by 2012.
Similar to this is the argument made by the petitioners in Duarte, where the petitioners claim that the failure of 33 European countries to cut greenhouse gas emissions (GHG emissions) is a violation of their rights under the ECHR – specifically the right to life and enjoyment of family life (Duarte). Unlike Juliana, this case extends itself to states' failures to prevent anticipated harm. Similar to Duarte is Sacchi – a claim brought by 16 children to the Committee on the Rights of the Child where it was argued that their rights to life, health, and culture under the UNCRC are being violated by the respondent states due to their failure to take stronger action to reduce GHG emissions (Sacchi).
Unlike Juliana and in part Duarte, the argument made in Sacchi sees the children as foreseeable victims. Nonetheless, the Committee opined that due to the impact on children and the recognition by States to the Convention that children are entitled to special safeguards, states have heightened obligations to protect children from foreseeable harm - concluding that the children have sufficiently established the impairment of their Convention rights (Sacchi).
Distinct from Juliana, Duarte, and Sacchi are cross-border in nature, as they argue that the states are aware of the impact that climate change will have on people's human rights outside their territory (Sacchi). The Committee in Sacchi found that the communication is inadmissible and argued that extraterritorial jurisdiction should be interpreted restrictively (Sacchi).
This is an inherent weakness in human rights-based cases as the inability of the petitioners to show that a respondent owes them a duty to protect their human rights will deem the case inadmissible (Lewis, 2021). Arguably, a nuanced interpretation of extraterritorial jurisdiction has the potential open floodgates of litigation by placing international bodies in a position of governance that may curb sovereign states' autonomy. This remains to be seen in the ECtHR's opinion in Duarte, which may depart from Sacchi due to its regional interests.
Rights and duties
Lewis (2021) argues that in the absence of a standalone right to a healthy environment, the next best claim is one on the state's duty to take preventative action due to the risk of foreseeable future harm (Lewis, 2021). Unlike Juliana, Sacchi and Duarte are pursued in international and regional human rights systems, which are argued to adopt a supervisory role, consistent with the doctrine of subsidiarity within international human rights law (Lewis, 2021; Benson, 2016; Neuman, 2015), therefore placing states as the primary guarantors for human rights. At a European level, this is represented as the margin of appreciation doctrine – leaving matters of policy to the States (Lewis, 2021; Spielman, 2014). In response to this, Lewis argues that domestic courts are better placed to assess the issues of substance and implementation of climate policies (Lewis, 2021).
The reasoning and dissent in Juliana illustrate where this thinking fails. The Court found that the case is non-justiciable due to its political nature. Relying on Rucho (2019) the majority opined that upholding the plaintiffs' request would be stepping out of their judicial role and into policymaking, implicating the traditional understanding of separation of powers. On the other hand, District Judge Staton argued in his dissenting opinion that history has seen "widespread, programmatic changes in government functions ushered in by the judiciary's commitment to requiring adherence to the Constitution" (Juliana, p. 58). This dissent is not only representative of the politicisation of climate change which plagues not only the US environmental agenda but those of many other governments.
In the traditional legal systems, children plaintiffs lack agency and need to be represented by their guardians; as they are not political agents in their own capacity but form an independent group of climate victims, it may be argued that an orthodox interpretation of the balance of powers doctrine – as mentioned in Juliana and as implied in the Committee's opinion in Sacchi – is inappropriate where children are involved, as their political interests are not represented by elected governments, making the international legal system the appropriate medium for redress.
So, how impactful are child-led climate litigation cases?
The nature of these cases evidences the ways that a legal system founded on positivism is inappropriate where children lack a form of political and individual agency. This approach to climate litigation asks which legal system is the most appropriate medium for redress if we assume that the current systems can effectively solve issues of morality. Redress sought at an international level may become more appropriate in resolving transboundary issues, as domestic courts are bound by outdated notions of balance of powers that have been designed on draconian assumptions of agency that are no longer appropriate for resolving contemporary issues. However, such a radical transformation does not come without its pitfalls, as this international accountability must be balanced with state sovereignty. Further, rethinking children's agency may be placing the burden on children themselves to ensure their own sustainable futures, which may ethically taint the potential of this transformation.
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