Recent developments on children’s rights and climate litigation
As we move towards the end of 2024, CRIN is looking back at the year in child rights climate litigation and looking ahead to what might come next. These reflections include State obligations to prevent harm caused by climate change under the European Court of Human Rights and in the International Court of Justice, growing national litigation related to environmental justice and the challenges children still face.
It has been a busy year for children’s rights climate litigation. The European Court of Human Rights (ECtHR) handed down its first climate crisis decisions, the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ) started work on their advisory opinions and countless litigators nationally broke new ground in the struggle for climate justice.
There has undeniably been progress, but we have also seen setbacks and new challenges emerging. As we move towards the end of 2024, CRIN is looking back at the year in child rights climate litigation and looking ahead to what might come next.
Breaking new ground at the European Court of Human Rights
At the regional level, we have recently witnessed landmark rulings on environmental rights in Europe, as the ECtHR tackled, for the first time, the obligation of States under the European Convention on Human Rights to prevent harm caused by climate change. In April 2024, the Court ruled that State inaction on climate change is a violation of human rights, meaning that States are obliged to act on climate change and, if they fail to do so, they can be held accountable.
Simultaneously, the court ruled on the case Duarte Agostinho and Ors. v. Portugal and 32 other States, brought by six young people against 32 countries for violating human rights by failing to take sufficient action on climate change and consequently placing a greater burden on younger generations. This case was dismissed because domestic remedies had not been exhausted. However, the Court made it clear that climate change is an intergenerational issue “affecting most vulnerable groups, which need special protection from the authorities”.
This case is an important contribution, paving the way for enforcing children's environmental rights; it is to be hoped that we will soon hear its repercussions on the resolution of other cases brought by children before the ECtHR (e.g. Engels v. Germany (no. 46906/22) and Soubeste and 4 other applications v. Austria and 11 other States (nos. 31925/22, 31932/22, 31938/22, 31943/22 and 31947/22), which were pending the resolution of the aforementioned cases.
In addition to the above, the environmental rights of children and future generations have been brought before the Court of Justice of the European Union in Armando Ferrão Carvalho and Others v. The European Parliament and the Council (‘People’s Climate Case’), albeit unsuccessfully. The Court considered that the applicants did not have standing since they were not sufficiently and directly affected by the policies enacted by States.
Similarly, children are using the regional mechanisms available to them in other parts of the world to demand the enforcement of their rights. This is the case, for example, with a group of Haitian children and their Petition to the Inter-American Commission on Human Rights Seeking to Redress Violations of the Rights of Children in Cité Soleil, Haiti.
Advisory opinions: A new frontier
Advisory opinions are also a new front when it comes to establishing States' obligations and guaranteeing environmental rights, including those of children. The ICJ has recently been asked to give an advisory opinion on the obligations of States towards present and future generations in this regard, and on the legal consequences for States that have contributed to environmental damage (whether through their acts or omissions).
Another example, at the regional level, is the case of the IACtHR. The IACtHR recognised the right to a healthy environment as a human right, addressing the obligation of States to prevent environmental damages, cooperate and provide information, justice and public participation in this matter, including with regards to children. This year, the court received another request for an advisory opinion, this time with the aim of clarifying the extent of State obligations to address the climate emergency within the framework of the Inter-American Convention on Human Rights. The request focused on the unique effects of this emergency on individuals from various regions and demographic groups, with particular emphasis on children and future generations.
Growing national litigation
Environmental litigation for children's rights has taken place at the national level in a number of countries. Children and young people have taken the lead in suing their State governments to ensure that States adopt adequate measures to address climate change and environmental harm, and that they enforce existing commitments and targets.
This has been the case, for instance:
in Austria (e.g. Children of Austria v. Austria)
in Australia (e.g. Sharma and others v. Minister for the Environment)
in Canada (e.g. Environnement Jeunesse v. Canada, Mathur et al. v. Her Majesty the Queen, La Rose v. Her Majesty the Queen, Raincoast Conservation Foundation v. Canada)
in Colombia (e.g. Future Generations v. Ministry of the Environment and Others)
in Ecuador (e.g. Herrera Carrion et al. v. Ministry of the Environment et al. or Caso Mecheros)
in Germany (e.g. Neubauer v. Germany, Otis Hoffman, et al. v. State of Mecklenburg-Vorpommern)
in India (e.g. Ridhima Pandey v. Union of India
in Indonesia (e.g. Indonesian Youths and others v. Indonesia)
in the Netherlands (e.g. Urgenda v. The State of the Netherlands)
in Pakistan (e.g. Rabab Ali v. Federation of Pakistan)
in the Philippines (e.g. Minors Oposa v. Secretary of the Department of Environment and Natural Resources)
in South Korea (e.g. Do-Hyun Kim et al. v. South Korea)
in Sweden (e.g. Anton Foley and others v. Sweden)
and the United States (e.g. Juliana v. United States, Held v. State of Montana, Navahine F. v. Hawai‘i Department of Transportation).
There have been interesting developments at the national level exploring different ways of securing justice. For example, in Navahine F. v. Hawai‘i Department of Transportation, a settlement agreement was reached, confirming that young people have constitutional rights to a clean and healthy environment and that the State of Hawai’i has an obligation to protect young people’s interests. The State pledged to cut greenhouse gas emissions from its state transportation system based on the “best current scientific evidence” as determined by experts.
Regardless of their success, these cases have brought a child rights-based approach to the issue of climate change and environmental damage. They have reminded States of their obligations on this issue, particularly towards children, and are paving the way for enforcing children's environmental rights.
Challenges and setbacks
Despite the growing number of cases, especially at the national level, children still face challenges in accessing justice in most jurisdictions - such as the cost of litigation and lack of access to legal aid, the lack of independence and status, the burden of proof, the deference of courts to the executive and legislative branches of government when ruling, the lack of standing and the lack of access to information in general.
As these court cases are decided, new challenges arise and have to be overcome, including when it comes to the implementation of these decisions. Making allegations of “judicial activism” on the part of the ECtHR in the Verein Klimaseniorinnen Schweiz and Others v Switzerland case, the Swiss Parliament released a statement suggesting that the Court had gone beyond the appropriate bounds of judicial interpretation of the European Convention of Human Rights as a “living instrument”. The Swiss Parliament’s lower house requested that the Federal Council notify the Council of Europe’s Committee of Ministers that Switzerland deemed its current climate policy enough to satisfy the standards set down in the ECtHR ruling.
What next?
Climate litigation and children's rights cases are gaining relevance at international, regional and domestic levels, as courts are increasingly recognising the connection between the environment, climate change and human rights (including children's rights). The need to take immediate action to prevent environmental harm and to address children’s particular vulnerability to the effects of climate change have been brought to the attention of the global community, both through child and youth advocacy and legal action.
While these cases are helping to set legal precedents and build pressure to avert climate catastrophe, however, the courts alone will never be enough. The scale of the climate crisis is too large for any one case or any single campaigning technique. All the same, courts and child rights strategic litigators continue to prove themselves to be a vital part of the struggle for climate justice - whether moving into the next year or in the years to come.