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Greta’s strategic litigation before the UN Committee on the Rights of the Child and what it could mean for child rights advocates

This is the first time that children have filed a formal complaint on climate change before international or regional human rights bodies.

Lamin Khadar, Pro Bono Manager, Dentons

Last week Greta Thunberg and 15 other children from around the world submitted a pioneering complaint to the United Nations Committee on the Rights of the Child, protesting the failure of governments to take action on the climate crisis. 

This blog by Lamin Khadar, Pro Bono Manager, Dentons and Global Adjunct Professor, NYU and Margaux Merelle Pro Bono Trainee, Dentons explores the legal grounds of this complaint and its implications for future child rights advocacy.

The complaint (a “communication” in UN jargon) was filed against five of the world’s major carbon polluters and G20 members - Argentina, Brazil, France, Germany and Turkey. This is the first time that children have filed a formal complaint on climate change before international or regional human rights bodies.

They alleged that “by recklessly causing and perpetuating life-threatening climate change, the respondents states have failed to take necessary preventive and precautionary measures to respect, protect and fulfill the petitioner’s right to life (Article 6 CRC), health (Article 24 CRC) and culture (Article 30 CRC). In general, the defendant states were alleged to be knowingly causing and perpetuating the climate crisis while undermining international cooperation.

The Optional Protocol  
Since entering into force in 2014, the Third Optional Protocol to the United Nations Convention on the Rights of the Child (CRC) on a communication procedure (OPIC) has empowered children (and their representatives) by enabling them to file communications with the UN Committee on the Rights of the Child (the Committee) about alleged violations of their rights under the CRC.

Since its entry into force, this mechanism “has not received that much attention yet” from child rights advocates, according Juliane Kippenberg, the associate director of Human Rights Watch’s children’s rights division. Although the CRC is “the most ratified human rights treaty”, the OPIC has only been ratified by 45 States, meaning 135 States have yet to take any action (signature or ratification).

In order to file a communication with the Committee, there are a number of legal standing and admissibility requirements, most importantly:

-    All available domestic remedies must have been exhausted (i.e. a case must have been appealed up to the highest court in the relevant domestic legal systems) unless pursuing domestic remedies has been unreasonably prolonged or is unlikely to bring effective relief (Article 7(5) OPIC). 

-    The communication must be made by or on behalf of an identified individual or group of individuals claiming to be the victims of a violation of any of the convention rights (Article 5(1) OPIC).
In fact, the children’s complaint did not exhaust domestic remedies. It is equally interesting to note that they request that the Committee consider the communication (from all 16 identified victims and against all five states) jointly. Let’s explore why.

Exhaustion of domestic remedies
One interesting aspect of this communication is that the authors failed to exhaust domestic remedies i.e. they did not first pursue their cases through the national legal systems of Argentina, Brazil, France, Germany and Turkey as is required by Article 7(5) OPIC. The 16 children, skipped this step and went directly to the Committee, arguing that exhausting domestic remedies in all five respondents’ jurisdictions would be:

(1) costly and unduly burdensome because of the multinational character of the claim
(2) unlikely to bring effective relief, and
(3) unreasonably prolonged.

The authors of the complaint also pointed to barriers to children accessing justice (e.g. due to their dependent status, limited understanding of the law and limited financial resources) as justifications for not being required to exhaust domestic remedies.

The requirement to exhaust domestic remedies could be criticised in that it creates a significant obstacle for those wishing to access regional and international human rights bodies. Arguably, obstacles of accessing legal expertise and associated costs, are even more profound when we are talking about children, who already operate at a significant distance from the legal system. Nevertheless, the requirement exists for good reason: to reinforce the idea that the UN human rights system is “subsidiary” (i.e. secondary in nature) to the domestic legal systems, where rights should be protected first and foremost. Put another way, it reinforces the presumption that that there is indeed (and should be) a remedy available for children in their domestic legal systems. 
It is important to recall here that, during the drafting of OPIC, many states expressed strong resistance to the idea that children would be able to introduce individual communications before the Committee without having to exhaust domestic remedies. Undoubtedly, the respondent states will seek to have the communication deemed inadmissible on the basis of failure to exhaust domestic remedies. It will therefore be very interesting to see how the Committee resolves this particular pickle. A favourable ruling could potentially open the door for a number of child rights issues and advocates. Arguably, the same justifications for not exhausting domestic remedies could be applied to children whose rights have been violated as a consequence of the migrant crisis or even the failure of governments to effectively regulate social media.  

Request to consider the communication jointly
A second interesting aspect of the children’s communication is that the petitioners requested that the Committee consider the communication (which actually consisted of 16 different victims complaining against five separate states) jointly, since the complaints arose from common facts: the respondent states’ contributions to the life-threatening impacts of climate change.

Here it is important to recall that during the drafting process of OPIC, several states were strongly against the idea of “collective communications” i.e. the possibility of complaints being made to the Committee without a named and identifiable victim (“actio popularis”). Collective communications are not permitted under OPIC, and so, there needs to be an identified victim.

States that were in favour of collective communications argued that it would expand the protection of children’s rights under the Convention and allow cases to be brought that would otherwise not come before the Committee. It would allow cases to come before the committee where victims were not easily identifiable or, where the pool of victims is vast. For example, victims of child pornography, child prostitution or… climate change. The idea of a collective communications procedure was ultimately withdrawn to reach consensus for the adoption of OPIC.

In reality, of course, climate change affects all children and especially future generations. But as there is no collective communications procedure, the children’s communication had to be made in the name of identified children. Again, it will be interesting to see how the Committee decides to proceed. If cases of this nature can be successfully brought before the Committee, it will create enormous opportunities for child rights advocates to bring these kinds of broad public interest cases against multiple states simultaneously and on behalf of multiple victims.  
Collaboration in the public interest
From an organizational point of view, what makes the complaint interesting is the collaboration between several child activists, a commercial law firm, a public interest organisation (NGO) and a leading academic (all acting in a pro bono capacity), providing a great example of collaborative public interest advocacy. The communication was prepared and filed on behalf of the children by the international law firm Hausfeld LLP and the nonprofit environmental public interest law organization Earthjustice, with additional support provided by Professor Jon Cerone. This type of pro bono public interest collaboration (involving the private sector and the “third” sector), long a familiar practice in the United States and Australia, is becoming increasingly common in Europe too (see here, for example). It is this vein that our law firm, Dentons, has partnered with Eurochild to provide ongoing pro bono legal support to the Eurochild Secretariat and all of the Eurochild members across Europe. 

If the Committee considers the communication admissible, it will submit its views and possibly also recommendations. In the present case, it could also compel the five countries to cooperate with other UN members nations to reduce greenhouse-gas emissions. While recommendations are not legally binding, the countries will now have to submit a response within six months as their obligations spelled out under the CRC are binding.

The potential success of this complaint might set an important precedent for strategic child rights litigation and raise awareness of international recognition of children as rights holders especially during the year of the 30th anniversary of the CRC. Regardless of its success, such a complaint is already an effective and symbolic answer to the call of Committee “for children to be embraced as active participants and owners of decisions being made that will impact on their future well-being.”  

Learn more about the Third Optional Protocol to the UN CRC here