Our take: The CRC's first climate justice decisions
The Committee on the Rights of the Child has published its decisions in its first climate justice cases. Read our take on what they could mean for the struggle for climate justice.
On 11 October, the Committee on the Rights of the Child published its decisions in its first climate change cases. The response they received has been dramatically divided. While some campaigners have seen these cases as a victory, others, including some of the children and young people directly involved, have been highly critical of the outcome.
Following the decisions, there has been a lot of great legal commentary and we recommend the responses from Aoife Nolan, John Knox as well as the summaries published by Leiden University’s children’s rights observatory and Child Rights Connect.
We’ve been reflecting on the decisions and are publishing our take on what these decisions could mean for the fight for climate justice, including by children and young people. This article is not intended as a case summary or an overly legal analysis of the complaint, but our perspective on the decisions.
Not a clear win or loss for climate justice
First, these decisions aren’t an outright win or loss for children’s rights or for climate justice.
Importantly, we have to recognise that the children and young people who brought this complaint ultimately did not get the result they strove for: the Committee did not consider or decide whether the States involved had violated their rights and so was not able to order remedies.
Many of the litigants were clearly frustrated by the outcome, and the sense that legal proceedings are moving too slowly and too rigidly for the urgency and severity of the climate crisis comes across clearly.
That said, there are still a lot of positive things that can come from these decisions. For the first time, the Committee was clear that States can be responsible for climate harm that happens beyond their borders. This is a significant greenlight for future litigation before the Committee.
The Committee also clearly set out what anyone bringing a future complaint on climate change must prove to be successful. Anyone planning litigation involving the Committee on this issue now has a much clearer idea of how to make it successful.
And finally, the Committee has given a clear steer on when it will be able to consider climate complaints. This is important for activists, advocates and organisations planning climate justice litigation on where they are likely to have the greatest impact.
National or international complaints?
The most controversial part of the decisions for climate justice advocates has been the requirement to exhaust domestic remedies - to use any national courts or complaints mechanisms before filing a complaint with the Committee on the Rights of the Child. This is where this complaint ultimately fell short.
In our view, the Committee had little choice on this issue; it is bound by the treaty that created the complaint mechanism. While there is absolutely space for the Committee to consider complaints directly where there is no means of effectively challenging violations of children’s rights at the national level, doubts or assumptions about the effectiveness of national complaints are not enough.
This is mainly a legal question, but it is also important from a practical perspective. The complaints procedure of the Committee on the Rights of the Child is one of last resort. If the Committee undermines the requirement to make complaints through national systems first, it would make the complaints process unworkable. The number of complaints it receives would rise astronomically and the delay for all complaints would become interminable. This would have negative consequences for everyone approaching the Committee on every issue - whether that is children being deported to countries where they would be at risk of persecution, those trying to return home from detention in displacement camps in northern Syria or children seeking protection from domestic violence.
It could also have a negative impact on litigation that is currently underway in the countries that these decisions before the Committee focus on if the Committee were to say that national legal systems are unable to address violations of children’s rights in the context of the climate crisis.
So where does this leave us?
First, it is a message that the Committee won’t be replacing national litigation on climate change.
That said, we are at an early stage in the development of the Committee’s complaint mechanism - at the time this complaint was received, it had only given its views on nine cases. There have been relatively few cases about when it is possible to bring a complaint directly to the Committee without using national courts and complaints mechanisms first.
We can expect much more debate on this after this complaint and there may be some specific climate justice cases where there are no means of challenging children’s rights violations nationally where it might be possible to come directly before the Committee.
Part of a bigger picture
Perhaps more than in any other human rights issue, there is an overwhelming - and wholly justified - feeling that there is no time to lose in the struggle against the climate crisis. Every setback can feel like it’s pushing back a solution until it’s too late. But we need to see each campaign, opportunity and tactic as part of the broader picture.
No single action and no single court case is going to fix the climate crisis - the scale of change needed is simply too big. That is not to say that litigation can’t be effective in pushing things forward, but we have to have a realistic expectation of what each case can achieve and how it fits into the broader movement for climate justice. At CRIN, we believe the Committee on the Rights of the Child can and must be a meaningful part of this process and after these decisions, we now have a clearer picture of the role it can play.
Whatever your view on these decisions, none of this should take anything away from the brilliant and dedicated activists who brought this complaint. Yet again, it is young people pushing the boundaries of what is possible in the fight for climate justice.
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