UNCRC climate decision is a missed opportunity – A response to Muhumuza and Wepukhulu

Author: Elsabé Boshoff 
 PhD Fellow, Norwegian Centre for Human Rights, University of Oslo

Author: Samrawit Getaneh Damtew
Human Rights Advisor, GIZ Ethiopia and Djibouti

The UN Children’s Rights Committee (CRC) received its first Communication on climate change-induced child rights violations in Sacchi, et al. v. Argentina, et al. In its admissibility decision, the CRC confirmed that climate change has child right impacts and states have extraterritorial responsibility for harmful effects of emissions. However, the Committee declared the Communication inadmissible for failing to exhaust local remedies. In their article on AfricLaw, Muhumuza and Wepukhulu argue that this decision was the right one. We argue why the Communication should have been admissible.

Criteria for exhausting domestic remedies

The above-mentioned article argued that the decision is in line with the settled rules of exhaustion of domestic remedies. While this may be a general rule, it has exceptions. The CRC Optional Protocol in article 7(3) provides that exhaustion of local remedies is not required where the remedy is “unreasonably prolonged or unlikely to bring effective relief”.

Unlikely to bring effective relief

The extraterritorial nature of climate change and the fact that those who stand to lose the most are the least polluters, raises the question of identification of the right forum for seeking relief. While the majority of historical and current emitters are in the global North, those who are most affected by the negative impacts of climate change are in the global South. So which forum is available and accessible for citizens of vulnerable countries to hold the perpetrators of climate change accountable? In Africa, where three of the Petitioners are from, national and regional courts would not have jurisdiction over the major emitters. 

The alternative would be to bring the cases before national courts in the respondent states. However, as argued by the children in this case, “separation of powers, standing, and other grounds” are some of the reasons why cases brought before the courts of the Respondent states are highly likely to be unsuccessful. Nationals of African countries are unlikely to have standing in some domestic tribunals of European countries. In the Sacchi case, the applicants from South Africa or Nigeria cannot make use of the local remedies available in Germany or Brazil. In some jurisdictions, because of separation of powers, courts are “unlikely or unable to order the legislative and executive branches to comply with their international climate obligations by reducing their emissions”. Treaty bodies of the UN system, and in particular the CRC where children have standing, may be the only forums in which the most vulnerable victims of climate change and the mighty polluters can meet, and victims find justice.

Unduly prolonged 

By rejecting the Communication for not exhausting local remedies, the Committee is basically telling the children to litigate in the local courts of all the five respondent states. Besides the challenges already identified with this, if these children are to take on that task collectively, it may take them at least a decade, if not more, to actually seek justice in all the different territories. On the other hand the, science tells us that if urgent action is not taken to limit global warming to 1.5°C by 2030, devastating and possibly irreversible damage will take place. Because every year and every action matters when it comes to climate change, exhaustion of local remedies should be regarded as an unduly prolonged procedure.

A purposive reading

Exhaustion of local remedies is aimed at giving states the opportunity to address violations at their level, “lack of awareness of an alleged violation by the State deprives it the opportunity to address such a violation”. Hence a purposive reading of this requirement would suggest that where a state is aware of the violation and takes no steps to remedy it, the state was not deprived of an opportunity to address it and exhaustion of domestic remedies should not be required. This is the case with climate change – it is not that states do not know the human implications or do not know what is required of them, they just fail to do it.

Paris agreement and state sovereignty

The above-mentioned article argued that inline with state sovereignty and based on the approach informing the Paris Agreement, “states must be given latitude in designing, adjudicating and executing their climate response policies”. However, we are already seeing the failings of the Paris Agreement approach, in that as a result of each state setting their own goals, we are on course for at least 3-4°c of warming, which is much higher than the 1.5-2°c limit above which catastrophic consequences, including for human rights, are likely to arise. Thus the “flexible, bottom-up approach” of the Paris Agreement and arguments about state sovereignty do not counter human rights obligations arising from the effects of climate change. International human rights standards exist as independent standards against which state conduct can and should be measured. A decision on the merits from the CRC would have set important guidelines to states in their policies to follow a child rights based approach to climate policies, which does not infringe state sovereignty or ability to design their own policies.

No nation in the world can single-handedly reverse the existential threat posed by climate change. Hence the right forum to seek justice for such a planetary problem is on a global scale where there is a possibility to set global precedents. Nevertheless, the response given by the Committee screams “business as usual”. In our view, the procedures of the CRC provide for, and the circumstances necessitate that this case should have proceeded to the merits stage.

About the Authors:

Elsabé Boshoff is a PhD Candidate at the Norwegian Centre for Human Rights, University of Oslo, writing on the right to development and sustainable development in the African human rights system. Elsabé is an alumni of the Centre for Human Rights, University of Pretoria, LLM in Human Rights and Democratisation in Africa, class of 2016 

Samrawit Getaneh works as a human rights advisor at GIZ Ethiopia and Djibouti, where she focuses on ensuring the implementation of a human rights based approach in development cooperation projects, among other things. Samrawit is an alumni of the Centre for Human Rights, University of Pretoria, LLM in Human Rights and Democratisation in Africa, class of 2016