UNCRC climate decision is a missed opportunity – A response to Muhumuza and Wepukhulu
Posted: 9 February, 2022 Filed under: Elsabé Boshoff, Samrawit Getaneh | Tags: climate change, climate change litigation, Domestic remedial mechanisms, emissions, global warming, international human rights law, local remedies, national courts, Paris Agreement, positive change, public international law, renewable energy, UN children’s rights committee Leave a comment
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”.
The ball is in our court: Why the UN Children’s Rights Committee decision on climate change was the right one.
Posted: 24 January, 2022 Filed under: Khatondi Soita Wepukhulu, Nimrod Muhumuza | Tags: climate change, climate change impact assessment, climate change litigation, climate response policies, coal-fired power plants, Domestic remedial mechanisms, Earthlife Africa, emissions, global warming, international human rights law, Kyoto Protocol, legitimacy deficit, local remedies, national courts, Neubauer, Paris Agreement, positive change, public international law, renewable energy, Sharma, UN children’s rights committee, Urgenda Leave a comment
Author: Nimrod Muhumuza
LL.D. candidate, Dullah Omar Institute, University of the Western Cape
Author: Khatondi Soita Wepukhulu
Reporter, openDemocracy, Uganda
In a ground-breaking decision, the UN Children’s Rights Committee recently found that states are legally responsible for the harmful effects of emissions originating in their territory on children outside their borders. The fact that climate change is a global problem does not absolve individual states of their responsibility to reduce their share of emissions. Nonetheless, it found the authors’ complaint inadmissible for failure to exhaust local remedies. The decision was welcomed in some quarters and criticised in others.
The rules on exhaustion of local remedies within public international law and international human rights law are settled. The requirement serves as a manifestation of a state’s sovereignty – that states should be allowed to deal with a claim brought against it using the judicial and administrative mechanisms within their domestic legal order. In human rights law, exhaustion of local remedies is premised on the principle of subsidiarity. The primary avenues for remedying human rights violations are states’ judicial, quasi-judicial and administrative bodies. Only when these domestic avenues are ‘objectively’ considered unavailable, ineffective, unduly burdensome or only obtainable after inordinate delays can the complainants turn to international human rights mechanisms for recourse.
AfricLaw 