Today, 15 Children from across the world (Argentina, Brazil, France, Germany, India, Marshall Islands, Nigeria, Palau, South Africa, Sweden, Tunisia and the US) filed a complaint under the Third Protocol of United Nations Convention on the Rights of the Child (UNCRC). The complaint is against the five highest polluting nations from among those that have ratified the Third Protocol; namely, Germany, France, Brazil, Argentina and Turkey. This is one of the first actions taken under International Law to address climate change and is a historic step, whatever the outcome. However, it isn’t really clear what this means.
The UNCRC entered into force in September 1990 and was intended to address grave and systematic violations of children’s rights such as those that occur due to human trafficking, sexual exploitation, family separation and to protect children from participating in armed conflict. It enshrines the right to life, health, freedom of thought, conscience, religion and expression; it also talks about how states must ensure access to information and regulate adoptions. Every single UN Member nation has ratified this treaty except for the United States, but only 45 have signed on to the Optional Protocol under which this complaint was filed.
Notably, the UNCRC does not mention the right to a clean environment – so what is the purpose of this complaint? Unfortunately, neither the UNICEF Press Release, nor the subsequent Press Conference shed much light on the legal status of this complaint. Hence, we tried to decipher it for ourselves.
Article 5 of the optional Third Protocol allows a child or their representative to file a complaint against their home nation for a breach of their rights under the Convention or the Optional Protocols on prostitution, pornography and armed conflict. Such a ‘communication’ will be submitted to a Committee and if it meets the jurisdictional criteria, the Committee can make an inquiry and submit a report to the General Assembly based on their findings. On a bare reading of the UNCRC, it is clear that the intent was to safeguard children from the most grave abuses of their rights and to ensure that every child is given fair treatment under the law. It does not envisage a complaint based on states’ failure to address Climate Change. In a 2016 Report, even the Committee on the Rights of the Child had to admit that there is currently no legal link between child rights and the effects of climate change. Assuming a little interpretative liberty, if the Committee accepts the complaint, Turkey will instantly be excluded. It will not be subject to the Committee’s jurisdiction considering none of the 15 children who filed this complaint are from Turkey. Presumably, they were unable to get a Turkish child to join the complaint as Turkey has not even participated in the COP21 exercise of submitting Nationally Determined Contributions (NDCs) and any participation might open it up to liability.
This leaves four nations – Argentina, Brazil, France and Germany.
Each of these nations has been an active participant in the international legal framework on Climate Change. Right from the Kyoto Protocol and the UN Framework Convention on Climate Change in the 90s to the Paris Climate Agreement, each of these nations has signed and ratified all of the primary environmental instruments. In doing so, they have made that promise to the next generation to accept that Climate Change is real and have agreed to adhere to international obligations to prevent it. Thus, they have already made all possible commitments within the existing framework of International law. France and Germany are members of the EU which has already committed to reducing emissions beyond the promises made at COP21. Brazil says it has already reduced emissions to below 2005 levels and has committed to a further reduction. Although new President, Jair Bolsonaro made noises about leaving the Paris Climate Agreement, he has not yet done so and with international pressure mounting in the wake of the Amazon Fires, it is unlikely that he will. Argentina has also committed to NDCs that put it on track to reduce emissions to pre-2005 levels. The fifteen children who filed this complaint argue that that these commitments are not enough, but considering that the NDCs themselves are not binding, it will not make a difference.
Considering the framework of the UNCRC Optional Protocol and that each of these nations have committed, as far as International Law will allow them, to take steps to address Climate Change, this is more of a symbolic gesture that is unlikely to yield any fruit. However, this complaint does highlight two systematic problems with the framework of International Environmental Law:
- These are unenforceable environmental instruments;
- There is a general lack of global consensus on a more far-reaching treaty.
This complaint was filed as part of the global ‘School Strike for Climate Change’ movement started by 16 year old Swedish activist, Greta Thurnberg. The school strike last Friday saw participation from a 170 nations, including India and as the movement grows, we hope that it moves beyond platitudes and begins to use the legal and strategic tools that are available in a modern society to truly push nations to adopt a fresh framework for environmental law, both at the domestic and international level. Although symbolic, this complaint is a creative and impactful tool to make the world pay attention to the legal framework (or lack thereof) of international environmental law. We hope that the Committee accepts the complaint and submits a report to the General Assembly that makes the first link between the rights of the Child and Climate Change. Unless children have access to a clean and healthy environment and live in a world that is prepared for Climate Change, their rights under the UNCRC may be rendered meaningless.