The UN Committee on the Rights of the Children Sets Extraterritorial Jurisdiction Standards for Climate Litigation

19-10-2021

Idil Aydinoglu

International Justice and Human Rights Researcher,

Global Human Rights Defence

Back on 23 September 2019, 16 children had initiated a communication arguing that Argentina, Brazil, France, Germany, and Turkey were failing their obligation to protect, promote and fulfill Article 6 (right to life), Article 24 (right to health), Article 30 (right to culture) in conjunction with Article 3 (best interest of the child) of the UN Convention of the Rights of the Child (CRC), by “recklessly causing and perpetuating life-threatening climate change”. [1] Even if the Committee on the Rights of the Child (Committee) found the communication, Sacchi et al v. Argentina et al., inadmissible on October 8, 2021, the decision is historic, [2] as it sets the applicable standards on establishing extraterritorial jurisdiction which is a major step for the future of climate litigation.

Authors, who are mainly residence and citizens of states other than the respondents, claimed that the CRC should be interpreted under the UN Framework Convention on Climate Change (UNFCCC) and respondents were under the obligation to prevent both domestic and extraterritorial violations caused by the climate change; to cooperate internationally for this purpose; to take precautionary measures in order prevent deathly results even in the face of uncertainty, and to ensure intergenerational justice for children. While the author from Nigeria argued that she was hospitalized repeatedly due to the asthma crisis, authors from Sweden and Marshal Islands asserted that climate change is creating severe and existential threats to their culture, respectively. Respondent states, in summary, challenged the extraterritorial jurisdiction claim and the causal link between authors’ complaints and their actions.

With respect to jurisdiction, the Committee noted that the case raised “novel jurisdictional issues of transboundary harm” compared to those addressed by the Human Rights Committee and the European Court of Human Rights. It referred to the Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights on the Environment and Human Rights, according to which a person is in the jurisdiction of a state when it causes transboundary damages violating that person’s human rights with a causal link. [2] According to the Committee this link is established if a state has the effective control over the source of emissions; there is a causal link between acts or omissions of the state and the harm faced by children outside of its territory; and the state can foresee this outcome.

Upon establishing that respondents had effective control as they had the power to regulate the gas emission activities, the Committee concluded that “the collective nature of climate change does not absolve the State party of its individual responsibility”. According to the Committee, the respondents could foresee the consequences of these acts as they have signed the UNFCCC and the Paris Agreement. However, the Committee did not agree with authors who have not exhausted the domestic remedies arguing that they would not have provided an effective remedy and be subjected to a significant delay. In this regard, it concluded that the mere suspicion of their effectiveness does not absolve authors from exhausting them and that the prolonged duration claim is not substantiated by their submissions. The lack of differentiated assessment with respect to authors from small islands who might lose their houses in a 10-15 year time period because of climate change has been criticized by scholars. [3]

Sources and further reading:

[1] UN Committee on the Rights of the Child (Committee), 8 October 2021,), Communication 104/2019 Chiara Sacchi et al. v. Argentina et al., CRC/C/88/D/104/2019, https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/ARG/CRC_C_88_D_104_2019_33020_S.pdf

[2] UN OHCHR Press Statement, 11 October 2021,”UN Child Rights Committee rules that countries bear cross-border responsibility for harmful impact of climate change΅, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27644&LangID=E

[3] Wewerinke-Singh, M., “Communication 104/2019 Chiara Sacchi et al v. Argentina et al”, https://www.childrensrightsobservatory.nl/case-notes/casenote2021-10