7.1 Introduction
Young people alive now and future generations have overlapping, albeit distinctive interests. In this chapter, we zoom in on a legal case study where young people speak on their own behalf, while also using a framing where they seem to speak on behalf of all children impacted by climate change – now and in the future – thus constituting a striking example of proxy representation that lies squarely within the central theme of this book.Footnote 1 We focus on one specific complaint (‘communication’) brought under the complaints mechanism of the UN Convention on the Rights of the Child (CRC) (1989): the communication by 16 children to the UN Committee on the Rights of the Child (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019). This communication argued that Argentina, Brazil, Germany, France, and Turkey violated the children’s rights to life, health, and culture by failing to cut greenhouse gas emissions sufficiently or to encourage other high-emitting countries to do so.
This human rights case study in the context of Representation of Future Generations is timely because proactive and innovative lawyers, activists, and scholars are now testing opportunities to evolve human rights law to better protect future people in the climate emergency. While there are inherent limitations to using a human rights framing, in that it is inherently anthropocentric, improving or repurposing existing legal frameworks through incremental changes may be more efficient than initiating new frameworks. Moreover, there has arguably been a greening of human rights law, with human rights scholars increasingly acknowledging the inherent interdependence of social-human and ecological systems. Further, some countries have extended rights language to non-human nature (Gellers Reference Gellers2021), and several court cases stress the threat of environmental harm to human rights (see Peel & Osofsky Reference Peel and Osofsky2018). Many countries include the right to a safe climate, environment, or future in their constitution or legislation (UN Special Rapporteur on Human Rights and the Environment 2019); the right to a healthy environment is now also recognised by the UN Human Rights Council (UNHRC 2021a) and by the UN Committee on the Rights of the Child Convention (hereafter ‘the Committee’) in its General Comment 26 (UNCRC 2023). Human rights language focuses public attention on the human consequences of climate change and puts a ‘human face’ on the climate disaster (Peel & Osofsky Reference Peel and Osofsky2018: 40).
The global character of human rights institutions is a second key attraction for including a human rights case study. On a national scale, people have already used human rights law successfully to protect their future, such as in the famous The State of the Netherlands v Urgenda case decided by The Hague Court of Appeal in 2018, and subsequently upheld by the Supreme Court of the Netherlands on 20 December 2019 in The State of the Netherlands v Urgenda Foundation. And increasingly, international courts also speak about the threat climate change poses to future generations, such as in the Verein Klimaseniorinnen v Switzerland decision of the European Court of Human Rights (ECtHR 2024: para 420). As seeking justice on a national level is costly, unpredictable, and time consuming to repeat in different national jurisdictions, the communication procedure discussed in this chapter offers another avenue for children to seek justice for a global problem on a global scale, with the possibility of setting global precedents.
Finally, the communication procedure is one of the few international legal mechanisms where children can seek justice directly, offering a powerful voice to people who usually do not even have a seat at the table: it creates public awareness that children – not abstract entities – are harmed by climate change today; and is inherently future looking, since foreseeable harms are also considered by the Committee.
This case study provides an analysis of the complaints system under the CRC, and the Sacchi case in particular, as an example of proxy representation of future generations. An analysis is made of the democratic legitimacy and effectiveness of the communication procedure illustrated by the Sacchi case, using the criteria developed in Chapter 4.
As the impact of this case on substantive justice is inherently uncertain, we focus our analysis mostly on procedural justice. Nevertheless, an analysis is also made of this case in terms of its potential contribution to substantive justice, using a concept of intergenerational justice based in human rights as set out in (Section 3.4.1). It will be recalled that this conception of intergenerational justice entails the idea that, regardless of when a person is born, they are entitled to enjoy the full spectrum of human rights necessary to lead a decent life.
In the remainder of this chapter, I will, first, elaborate on the complaints procedure generally and the children’s communication in Sacchi, specifically (Section 7.2), then assess the democratic legitimacy and effectiveness of the procedure (Section 7.3), before drawing conclusions (Section 7.4), which includes a discussion of reform options.
7.2 The Communication
On 19 December 2011, the UN General Assembly (UNGA) adopted an Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (Third Optional Protocol) (2011). Article 5 of this Protocol allows children to make a communication to the Committee when they believe their rights, as outlined in the CRC, have been violated by the actions or omissions of a state. After a communication is lodged, both the state or states, other stakeholders, and, in turn, the petitioners can set out their response to the complaint by filing additional documents with the Committee; they can also make oral submissions to the Committee. Once all information is in, the Committee decides on whether the communication is admissible and, if so, formulates recommendations to the states about whether the Committee finds that rights were violated and/or the states should change their policies or behaviour. The states are under no obligation to implement the recommendations, but are obliged to submit a written response justifying the extent to which they implemented the recommendations (Third Optional Protocol 2011: art. 11(1)).
While the Committee merely has power to make recommendations, and the influence of the procedure on substantive justice is uncertain and limited, this procedure could nevertheless help build the momentum of climate litigation. For example, by making authoritative recommendations, the Committee can help overcome legal hurdles related to, for example, causation, jurisdiction or standing that are now often faced by young climate litigants. This could help build other legal cases globally (Gubbay & Wenzler Reference Gubbay, Wenzler, Alogna, Bakker and Gauci2021). More broadly, the procedure gives children a genuine voice – as victims of climate change, and as activists and litigants – holding states accountable (Rogers Reference Rogers2019, Reference Rogers and Richardson2020). It offers a pathway for groups of young petitioners from around the world to file communications collectively. The perspectives of children in the communication may influence states’ laws and policies; it can also influence societal narratives more broadly.
7.2.1 Children Claim Their Future
On 23 September 2019, 16 children from 12 different countries filed a communication under the Third Optional Protocol with the CRC Committee (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019). The children alleged that five countries (Argentina, Brazil, France, Germany, and Turkey) violated their rights to life (Third Optional Protocol 2011: art. 6), health (art. 24), and culture (art. 30), and the requirement to act in the children’s best interest (art. 3). While all UN members, except for the United States, are parties to the CRC – making it the most rapidly and widely endorsed treaty to date – only 52 countries have ratified its Third Optional Protocol. So, only these 52 countries are subject to the compliance mechanism of the CRC. The plaintiffs chose to bring their case against these five countries because of their disproportionate emissions. The children argued that these countries violated their rights by insufficiently cutting greenhouse gas emissions, and insufficiently encouraging other high-emitting countries to do so.
The 16 children are from 12 diverse countries. Their communication (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019: paras 96–167) explained in clear and emotive language how each of them had been impacted by climate change related events. For example, 12-year-old Nigerian Debby Adegbile has been hospitalised repeatedly over the past years for her asthma, as hotter temperatures in her city worsen air quality. Marshallese David Ackley III contracted Chikungunya, a new mosquito-borne disease that was not present on his island until global warming. Argentinian Chiara Sacchi’s neighbourhood was destroyed during an unprecedented windstorm. Tunisian Raslen Jbeili survived a wildfire approaching his home; his neighbours did not.
These examples demonstrate powerfully the impact of climate change on the children’s physical health and safe living conditions. The petition also describes the impact on children’s mental health. For example, Swedish well-known climate activist Greta Thunberg was so disturbed by climate change she fell into a depression and stopped eating. It is noteworthy that most of the 16 plaintiffs do not live in one of the five countries, but all children claim to have been impacted by the high emissions of these five countries.
Next to addressing the impacts of climate change on the children’s right to health and life, the communication also describes the impact of rising temperatures, extreme weather events, and rising sea levels on Indigenous cultures. Seventeen-year-old Palauan Carlos Manuel witnessed waves breaching sea walls and crashing into homes on his low-lying island in the Pacific. And in Northern Sweden, the reindeer food supply is being destroyed by climate change, preventing Sami Ellen-Anna from learning the subsistence way of life of her Indigenous community – reindeer herding. When climate change substantially alters the living conditions of Indigenous communities – sometimes even making their lands uninhabitable, as in the case of communities living on low-lying islands in the Pacific – this threatens these communities’ ability to live with their culture and to pass on their culture to future generations.
The language in the petition can be construed as framing the claim on behalf of all children impacted by climate change now and in the future, thus implying that, in this respect, the petitioners are acting as proxy-representatives for future children, in addition to acting on their own behalf. The petition emphasises that the government respondents, by supporting policies that delayed decarbonisation, are ‘shifting the enormous burden and cost of climate change on to children and future generations … and in doing so … had breached their duty to ensure the enjoyment of children’s rights for posterity, and failed to act in accordance with the principle of intergenerational equity’ (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019: para 28). The petition also points to the principle of intergenerational equity as used in the United Nations Framework Convention on Climate Change (UNFCCC) (1992), and to the notion that states function as ‘stewards of public commons held in trust for the good of future generations’ as recognised by several UN human rights treaty bodies (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019: para 194). This concept of stewardship is strikingly similar to the concept of proxy representation elaborated in Chapter 2 of this book.
Needless to say, this well thought through petition was not initiated by the 16 children who happened to run into each other. Rather, a proactive community of public interest lawyers looked for suitable plaintiffs for their case. In this way, children who would otherwise have lacked the resources or knowledge to seek legal representation were now empowered to share their story and seek political and legal change. Also, by selecting the most suitable plaintiffs, the lawyers increased their chances of establishing global precedents and further adding to the momentum of climate change litigation that has exploded over the last years (Setzer & Byrnes Reference Setzer and Byrnes2019).
To minimise future rights violations, the petitioners asked the Committee to find that climate change impacts children’s rights, that the states knowingly perpetuate the climate crisis, and therefore that the states violated the children’s rights. The children also asked that the Committee recommend to the five countries that they accelerate climate mitigation and adaptation efforts, initiate cooperative international climate action, and ensure children’s political participation in climate policy-making (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019: 96–7). On 1 May 2020, David R. Boyd and John H. Knox (Reference Boyd and Knox2020), the current and former UN Special Rapporteurs on the Issue of Human Rights and a Healthy Environment, submitted an amicus curiae brief to the Committee, arguing in favour of the children’s case.
On 20 January 2020 Germany, France, and Brazil replied to the communication, arguing the petition was inadmissible because: (a) the Committee lacked jurisdiction; (b) the petition was ill-founded and unsubstantiated; and (c) that the petitioners had not exhausted domestic remedies. They reiterated these points during the oral hearings in May 2021 (UNCRC 2021a). The petitioners responded to these arguments (see Sacchi et al. Reference Sacchi2020). The replies from the states clearly showed that these governments were not willing to take responsibility for the climate crisis under the communication procedure, as they highlighted exclusively procedural obstacles aimed at preventing a consideration of the case on the merits.
In October 2021, the Committee published its decision (UNCRC 2021a, 2021b, 2021c, 2021d, 2021e). It found the communication inadmissible under Article 7(e) of the Third Optional Protocol, stating that the children had failed to exhaust domestic remedies. This was not the result the petitioners had hoped for. In the remainder of this chapter, I highlight both the value and shortcomings of the communication procedure generally, and this decision in particular.
7.3 Democratic Legitimacy and Effectiveness of the Communication Procedure
As explained in Chapter 4, at the most general level, legitimacy of the communication procedure rests on the consent of states, particularly the consent given to the treaty which established it. This consent was clearly present, since the five state respondents voluntarily became parties to the CRC and its Third Optional Protocol. Representatives of all these state parties explicitly consented to recognise the powers of the Committee, pledged to protect the rights outlined in the Convention, and promised to allow citizens to submit petitions to the Committee. The Committee is a well-respected and independent expert body; the CRC is the most rapidly and widely ratified human rights treaty in history. Moreover, as the Committee has merely non-binding powers, it cannot override democratically made decisions at the national level. This means that the source-based legitimacy of any policies – including potential policy changes inspired by the recommendations of the Committees – still lies at a national governmental level of each country.
Questions around the legitimacy of the communication procedure extend much further than this. In Chapter 4, we set out five criteria for analysing the democratic legitimacy of international institutions for future generations. In the following four sections, we analyse the communication procedure – and, specifically, the complaint by Sacchi et al. – following these criteria: procedural legitimacy entailing inclusive and fair representation (Section 7.3.1); accountability, transparency, and deliberation (Section 7.3.2); source-based legitimacy, including discourse, expertise, and resources (Section 7.3.3); and substantial legitimacy or effectiveness and equity (Section 7.3.4). While the Committee is not a judicial body and its findings are non-binding, it nevertheless operates on a quasi-judicial basis, with its decisions influencing interpretation of the CRC and national decisions. It is therefore appropriate to apply the criteria for democratic legitimacy of international tribunals to this case study.
7.3.1 Procedural Legitimacy: Inclusive and Fair Representation
Democratic legitimacy of international tribunals requires that they be responsive to the demos/public and that they demonstrate impartiality and fairness in their procedures. In Chapter 4, we argued that this responsiveness should be extended to include a responsiveness to future generations, given the existential threat posed by climate change, and we called this future legitimacy.
At a general level, the communication procedure displays a responsiveness to future generations. Petitions can be made by children purporting to speak on behalf of future generations; the Committee could, consistent with its mandate, have considered the petitions as proxy-style complaints on behalf of future generations. The normative framings of solidarity, vulnerability, and intergenerational justice (set out in Chapter 3) would provide arguments in favour of this approach: by bringing a complaint, children living now express their solidarity with children who will be alive in the future. Children living now are amongst the most vulnerable in terms of climate impacts, and this vulnerability will increase as climate impacts worsen.
The Third Optional Protocol opens the door for petitioners to speak on behalf of others. Article 5(2) provides that ‘where a communication is submitted on behalf of an individual or group of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent’. Following this requirement, the Committee could have taken the view that the petitioners justifiably could not seek consent of future generations (since future generations are not yet born) but were nevertheless legitimate representatives of future generations, given the substantial overlapping interests. The Committee could then have gone on to draw some conclusions about states’ obligations towards future generations under the CRC. The Committee’s reasoning could have been extended to the responsibility of states for violations of children’s human rights into the future, based on the foreseeability of harm and control of harmful activities within the originating states. While one concern here could have been nervousness about recognising the human rights of persons not yet born, this could be addressed by indicating that persons, upon being born, possess human rights and that this is sufficient to ground international legal obligations relating to human rights into the future. An example of this is the 2024 ECtHR judgement in Verein Klimaseniorinnen v Switzerland, where the Court acknowledged the increased burden of climate change on future generations, which – combined with the short-term bias of today’s policy-making – was found to justify judicial review in light of intergenerational risks (ECtHR 2024: para 420). Nevertheless, the Committee interpreted its role narrowly in terms of focusing on the impact of human rights violations on the children existing now and, in this sense, demonstrated a lack of responsiveness to the interests of future generations.
But while the Committee has not (yet) taken the step of explicitly permitting petitioners to speak on behalf of future generations, there are other ways for this procedure to increase its procedural legitimacy: it can be more inclusive, transparent, impartial, participatory, evidence based, and non-discriminatory. Many of these characteristics are present in the communication procedure. For example, it allows individuals from marginalised communities and children to file petitions. This gives a formal voice to a wide variety of individuals who might otherwise not have a voice (because, for example, they are undocumented or below voting age). In addition, some inherent characteristics of the procedure make it fairer for individuals seeking to use it. For example, the Committee consists of a wide variety of independent experts from different nationalities, genders, and backgrounds, suggesting that, on the face of it, the decision-making process is impartial. The Committee does not merely consider the petition itself, but also submissions by the respondent countries and a second reply by the petitioners, as well as allowing for amicus curiae briefs from other stakeholders, thereby allowing many affected groups (and those speaking on their behalf) to influence the final decision.
As discussed in Chapter 4, inclusiveness is strongly connected to the All Affected Principle (AAP), a foundational principle of democracy, according to which all those affected by a decision should be able to have a say in making it. Children are particularly vulnerable to, and disproportionally affected by, climate change policies, but often do not have a say in shaping these policies. This communication procedure gives children a voice. This is very special, since in most decision-making, children either do not have a voice – they cannot vote, they cannot become politicians – or their input is not very impactful.
The communication procedure also gives a voice to Indigenous children. These children do not only speak about how climate change impacts them now but also about how climate change threatens their cultural practices, traditions, and connection with their country going into the future. Most Indigenous peoples do not have a (Western) linear conception of time, where the past is in the past, the future is still to come, and the present is where we are now. Instead, they conceptualise time as a loop, circle or spiral, where the past and future are integral to the present (Winter Reference Winter2022: 17–8). This means that, conceptually, protecting Indigenous practices and culture for people who are not yet alive is just as important as protecting it for the current generation: the future is no less than the present or past. In other words, these Indigenous children could be considered proxy representatives for as yet unborn Indigenous peoples.
Furthermore, blurring conceptual binaries – between children and future generations, but also between human and non-human nature, or between one and another jurisdiction – may be essential to fully understand the amorphous complexity of climate change (Earth System Governance; Kotzé Reference Kotzé2019). Therefore, offering a platform for stories that counter these dichotomies and creating legal precedents that acknowledge, for example, the validity of a non-linear conception of time, is extremely valuable.
In addition to speaking for themselves – and, as could be argued, also as proxy representatives for future generations who are similar to them – the plaintiffs were aided by their legal team to articulate their stories and present their evidence in the strongest way possible. Further, amicus curiae briefs could be submitted by experts to strengthen the petitioners’ claims. Thus, the current and previous UN Special Rapporteurs for Human Rights and the Environment, David Boyd and John Knox (Reference Boyd and Knox2020), filed an expert statement supporting the communication.
Lawyers and other representatives often come from the dominant culture of wealthy countries in the Global North, while most petitioners do not. For this reason, we might expect them to have a bias that could hinder them from adequately representing the needs of vulnerable future persons. While this mismatch in power between the plaintiffs and their proxy representatives should be treated with caution, it also offers opportunities. Since the needs of children and future generations clearly require action to ensure that their rights are protected from the impacts of climate change, representatives working with the children in this case can use their position of power to further the children’s cause.
The fairness of any procedure also requires that it be non-discriminatory. At first glance, the communication procedure might appear inherently non-discriminatory because of the CRC’s explicit commitment to granting all human beings equal rights (Preamble para. 1). In the Sacchi case, the children’s communication also emphasises that, if countries do not take urgent and serious climate action, ‘the devastating effects of climate change will nullify the ability of the Convention to protect the rights of any child, everywhere’ (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019: 6). As we have seen, the Committee did not interpret the Protocol as permitting claims to be made by proxy representatives on behalf of future generations of children, so the temporal discrimination against future generations is still present in the procedure. Moreover, no claim can be brought against states that are not a state party to the Convention and its Third Optional Protocol. This excludes many young people from harnessing the communication procedure and perpetuates an asymmetric power imbalance that strongly favours the sovereignty of the state. Additionally, no claim can be made by people outside the jurisdiction of state parties. However, legal precedents that acknowledge a global jurisdiction in cases of harms related to excessive emissions of a state could overcome these hurdles. (This is addressed in Section 7.3.4.1.)
A further limitation of the communication procedure which reflects its state-centric nature is that it cannot be used to bring direct claims against non-state actors (such as fossil fuel companies), thus perpetuating the structural bias of the international law system. Although the findings of the Committee can speak about the responsibility of states for emission-related harms within their territory, many polluting multinationals escape the binding obligations that are needed to curb their emissions.
Finally, overarching shortcomings of the human rights treaty body system also negatively impact the fairness of the communication procedure. For example, as elaborated in the following sections, states often do not engage with the human rights treaty system, or only do so in a superficial way, either due to lack of capacity or political will. At the same time, the wider public (outside specialist circles) is often unaware of the communication procedure; if they are aware, they perceive it as inaccessible and ineffective (Limon Reference Limon2018). This is particularly true for countries outside Europe: over half of the parties are European countries, while over 90 per cent of communications are brought against European countries (Child Rights Connect 2024). This low level of engagement and belief by individuals and states in the treaty body system as a whole – and the communication procedure, specifically – makes it inherently less accessible and inclusive as a pathway for change. In other words, reforming the communication procedure to ameliorate these shortcomings (for example, by increasing transparency or access) would not only improve its effectiveness, but also its fairness towards currently living and future generations.
7.3.2 Accountability, Transparency, and Deliberation
Accountability to persons not yet born can only occur indirectly. For example, the mandate of a proxy representative can reflect the interests of future generations; independent non-governmental organisations (NGOs) can check whether the proxy representative acts consistently with this mandate (see Chapter 4). Some dimensions of the communications procedure would work in the direction of such accountability, including the possibility of amicus curiae briefs by experts, which have the potential to factor into proceedings the interests of future generations; for example, by making explicit projected climate impacts on future generations.
Accountability depends on transparency – and the process could certainly be more transparent. Under the current system, most written documents are not made public until the Committee has made its recommendations, limiting the capacity of those able to engage with a particular case to create awareness or learn from it. Given the overlap of interests between young people living now and future generations, the recent increased level of consultation between the Committee and young people certainly works in favour of increased accountability of the Committee towards future generations.
Deliberation is a key element of any democratic process, but its importance is often only minimally present in international legal institutions. Informed, in-depth discussions between the parties involved under favourable circumstances happen in the communication procedure, mostly through submissions written by lawyers. However, there is a page limit for all written documents, which does not allow plaintiffs to do justice to their case on paper. Similarly, the Committee’s recommendations are often brief. This brevity is a limitation for activists, legal scholars, lawyers, policy-makers, and others who wish to use the evidence, arguments or analysis in these documents for future cases. Also, as mentioned earlier, most written documents are not made public until the Committee has made its recommendations, limiting those willing to engage with the case to create awareness or learn from it.
Most importantly, deliberation about the substance of the problem articulated in this communication (the climate emergency and ensuing human rights violations) was completely avoided by the five countries in their responses – the vast majority of which related to the admissibility criteria and was therefore purely procedural and not substantive. The five countries did not need to respond to the substantive legal arguments of the children and were able to avoid in-depth discussion about, and accountability for, their part in causing the possible rights violations of the children.
7.3.3 Source-based Legitimacy: Discourse, Expertise, and Resources
Next to this lack of direct deliberation between the children and the states, it is questionable whether the necessary format and discourse – written documents, often written by lawyers in Western countries, using a human rights discourse – truly represents the heart of the climate debate. This has consequences for the source-based legitimacy of the process. The children’s perspectives did get a place in their written submissions, including their personal stories about how climate change has negatively impacted their lives. But these stories were selected and shaped to make a positive legal outcome most likely, and had to be written using a narrative of human rights law. While the human rights instruments were not developed with climate change in mind, in recent years, the discourse of human rights has increasingly been adapted to the climate emergency. The use of a well-established discourse and international legal framework offers significant benefits to climate action and bolstered the legitimacy of the claims being made.
Furthermore, the expertise and resourcing of the Committee potentially enhance its source-based legitimacy. The Committee consists of independent experts from different nationalities, elected by state parties from amongst their nationals and serving in their personal capacities with a range of genders and backgrounds, on the face of it showing impartiality in the decision-making process (OHCHR 2024). We can still question how independent and expertise driven the Committee members are. As the Committee covers such a wide variety of cases, we cannot expect that these members are experts on all (or even some) of the topics strongly relevant to a particular case. They might not, for example, understand climate science or how climate change drastically impacts future people – and might not have time to brush up on this knowledge.
Linked to this, the human rights committees have been criticised for not having adequate resources to handle such a high caseload. There is a major backlog of petitions – active cases doubled between 2018 and 2022 – which delays justice for the petitioners (Child Rights Connect 2022a). Because of this, it can take a very long time to receive a response from the Committee. On average, it takes three and a half years for the Committees to reach its final views; in case of complicated communications, it can take up to seven years (Limon Reference Limon2018).
7.3.4 Substantial Legitimacy: Effectiveness and Equity
A final way to improve the legitimacy of a person, process, or institution is through its outcomes: that is, whether an institution is seen as doing a good job, such as producing economic growth or promoting social justice (Bodansky Reference Bodansky, Bodansky, Brunnée and Hey2007). The European Union (EU), for example, is criticised for having a democratic deficit partly due to its high reliance on expert committees and minimal transparency. However, the basis of the EU’s legitimacy lies in its success in promoting peace and prosperity in Europe, so not at the level of its transparent and inclusive procedures, but of their outcomes. In this section, we analyse whether the communication procedure is a good vehicle for promoting intergenerational justice (bearing in mind the link between effectiveness and equity or justice), and whether it contributes to addressing causes of short-termism and to the strengthening international law on climate change. (For our definition of effectiveness, see Section 4.2.3.) We do so in two parts: addressing first, whether it is accessible to use (Section 7.3.4.1); and, second, when used, whether it is likely have an impact and be effective (Section 7.3.4.2). Given that greater accessibility will likely increase the chance of effectiveness, these two elements are interconnected.
7.3.4.1 Accessibility
For a communication to have an impact in the real world, there must first be a communication. This raises the question of how feasible and accessible it is for children to file a communication with the Committee, when seeking intergenerational justice. This question is threefold: (i) how easy is it to lodge the communication; (ii) what are the obstacles to writing a communication that the Committee will likely find admissible; and (iii) what are the obstacles and opportunities for the Committee to make recommendations that would promote intergenerational justice? These questions related to the procedures of the communication procedure will be addressed in this section, and the potential impact of ‘positive’ recommendations by the Committee will be addressed in Section 7.3.4.2.
(1) How accessible is it to make a claim? Individual complaints mechanisms under the UN human rights treaty bodies tend to be ‘widely unknown’ (see references in Steinert Reference Steinert2024: 4). Those seeking justice are thus unlikely to know that this pathway exists and therefore be unlikely to use it. In the case of the petitions by the children in the Sacchi case, it took a group of proactive lawyers to bring together a group of plaintiffs, to gather information through research and contacting experts, to find evidence of the harms that were done, to write a promising communication, and to manage other correspondence with the Committee. Indeed, a study of the individual complaints mechanisms under the UN human rights thematic and country-specific mandates found that marginalised groups and poorer countries were systematically under-represented, while acknowledging that further research is required to test whether the conclusions of this study would apply to other human rights mechanisms (Steinert Reference Steinert2024: 13–14).
Many people, while not categorically excluded from using the procedure, find the CRC complaints procedure inaccessible (for example, because of the cost, time commitment, knowledge requirements, or legal skills involved) and this disproportionally affects historically oppressed populations and young people. While still costly, the communication procedure does have a major benefit compared with traditional legal pathways. In many countries, plaintiffs run the risk of having to pay all the legal costs of the other party, thus creating a significant barrier to bringing public interest cases. Under the communication procedure, the Committee cannot order this, making this pathway significantly less risky in terms of costs.
(2) What are the obstacles to writing a communication that the Committee will likely find admissible? A very large proportion of communications are found to be inadmissible. As of September 2019, the Committee had received more than 300 individual complaints; only 99 of these were registered, with the rest failing admissibility requirements (Children Rights Connect 2022b). Therefore, it is crucial that those writing a communication receive help from lawyers or NGOs with appropriate expertise.
Article 7 of the Third Optional Protocol sets out when communications are admissible. Most of the conditions we could reasonably expect to be met by the children’s communication: the communication must not be anonymous (art. 7(a)); the communication must be in writing (art. 7(b)); all countries must have ratified the CRC and its Third Optional Protocol (arts. 1(3) and 7(c)); the same matter must not already have been examined by the Committee (art. 7(d)); the communication must be timely (art. 7(g)); the communication must be in the children’s best interest (art. 3(2)); and the children must have consented to lodge the communication (art. 5(2)).
This leaves three options for why the Committee could find the communication inadmissible, as described by Germany, France, and Brazil in their reply to the children’s petition. First, the state parties argued that the petition was unsubstantiated and unfounded. The children argued against this convincingly, and the Committee rejected the States’ argumentation. In their decision, the Committee confirms that the children ‘have personally experienced real and significant harm in order to justify their victim status’ (UNCRC 2021d: para 10.13).
Second, according to France and Germany, the Committee lacked jurisdiction. While some of the 16 children live in one of the 5 countries, the majority does not: they live in countries with lower emissions and/or countries that have not ratified the CRC or its Third Optional Protocol. However, Article 2(1) of the CRC and Article 5(1) of the Protocol do not mention the word ‘territory’ but refer to ‘jurisdiction’. As mentioned by the Committee (UNCRC 2023: para 39), the CRC ‘does not limit a State’s jurisdiction to “territory”.’ States have obligations when their domestic acts are causally responsible for an extraterritorial harm that could ‘in a direct and foreseeable manner’ impact people’s rights, and this responsibility remains intact also in the case of a shared contribution to a harm.
To substantiate their claim on jurisdiction, the plaintiffs needed to show the causal link between the behaviour of the countries, climate change impacts, and the harms done to the plaintiffs (Gubbay & Wenzler Reference Gubbay, Wenzler, Alogna, Bakker and Gauci2021: 360ff). While showing causation between a state’s behaviour and a plaintiff’s harms is generally uncomplicated in human rights cases, it would be impossible to relate the specific emissions of one state to a specific human rights violation of a child. However, affirming a test adopted by the Inter-American Court of Human Rights (IACtHR) in its Advisory Opinion of 15 November 2017 (Advisory Opinion OC-23/17 (IACtHR)), the Committee found that:
when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated … if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, when the State of origin exercises effective control over the sources of the emissions in question
This is hopeful, but since then the European Court of Human Rights (ECtHR) in the 2024 Duarte Agostinho and Others case (ECtHR 2024: paras 181–213) rejected arguments asserting responsibility for extraterritorial climate change related harms.
Following this, there are three causal relationships that the plaintiffs had to address. First, anthropogenic greenhouse emissions must be shown to have been responsible for climate change. This has been shown extensively by climate science (Intergovernmental Panel on Climate Change [IPCC] 2023), so it was not an obstacle. Second, the causes of the rights violations of the children, such as extreme weather events or temperature change, had to be a result of anthropogenic climate change and not merely a natural occurrence. While attribution science – the science linking specific changes in the Earth’s climate to emissions – is evolving rapidly, it is not conclusive (Burger Wentz, & Horton, Reference Burger, Wentz and Horton2021). For the Committee to find this causal link sufficiently substantiated, it needed to accept minor scientific uncertainty with regard to some of the causes of the children’s (future) rights violations; for example, based on the precautionary principle (UNFCCC 1992: art. 3(3)). However, the causes of the children’s alleged rights violations were likely linked to climate change, and without drastic mitigation, further emissions would unavoidably – directly and foreseeably – impact future people’s rights. The plaintiffs had to show that these impacts were the result of the behaviour or omissions of the states. As all five states were high emitters, their emissions were causally responsible for the climate change impacts that harmed the children, albeit only a proportion of the cause. The Committee found that, since a state can regulate the high-emitting sectors within its territory, it has effective control over the emissions within its territory. The Committee also found that, despite the collective nature of climate change, each state party had: ‘individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location’ (UNCRC 2021d: para 10.10). In short, the decision set another global precedent acknowledging the global character of climate change and the corresponding need to understand jurisdiction in a more global way.
Finally, the responding countries argued that the petitioners had not exhausted all domestic remedies. And this is true; they had not. However, Article 7(3) of the Third Optional Protocol states that this does not impact the admissibility of the communication if ‘the application of the [domestic] remedies is unreasonably prolonged or unlikely to bring effective relief’. The children argued that filing separate domestic lawsuits would have been futile, as it would have been very costly and would have caused unreasonable delays (Sacchi et al. Reference Sacchi, Lorenzo, Ivanova, Ackley, Anjain, Kabua, Islands, Adegbile, Manuel, Melithafa, Thunberg, Smith and Villaseñor2019: 91ff). Moreover, independent domestic lawsuits would not have provided the type of far-reaching international relief needed to combat climate change. However, since the petitioners did not clarify well enough why they believed the available national remedies would not lead to effective relief, or that they would lead to an unreasonably long timeframe, the Committee concluded that the communication was inadmissible on the ground that the petitioners had failed to exhaust domestic remedies.
In summary, the Committee found that the plaintiffs had not exhausted all domestic remedies but found in their favour in terms of causation and jurisdiction, thus paving the way for successful similar cases in the future. So that while some of the overarching obstacles to accessibility to this procedure remain, the legal obstacles are by no means insurmountable.
(3) What are the obstacles and opportunities for the Committee to make recommendations that would promote intergenerational justice? Even though the Committee did not find the communication admissible, and therefore did not analyse the communication on its merits, the Committee could (and, to some extent, did) still speak about an intertemporal and intergenerational dimension. For example, when discussing the victim status of the plaintiffs, the Committee confirmed that each plaintiff suffered ‘real and significant harm’ (UNCRC 2021d: para 10.14). As children, the plaintiffs are particularly impacted by climate change, not just now but ‘throughout their lifetimes, in particular if immediate action is not taken’ (UNCRC 2021d: para 10.13). Because of this foreseeable harm, children are entitled to ‘special safeguards’ and states have a ‘heightened obligation’ to protect children from future harm (UNCRC 2021d: para 10.13).
The decision of the Committee in the Sacchi case needs to be seen in the context of a trend of mounting pressure on the UN human rights committee system to respond to the climate change emergency. In September 2019, two years before the Sacchi decision, five human rights committees, including the Committee on the Rights of the Child, issued a joint statement on human rights and climate change (United Nations Office of the High Commissioner of Human Rights (OHCHR) 2019). In this statement, they argued that ‘climate change poses significant risks to the enjoyment of the human rights … among others, the right to life, … the right to health … and cultural rights’ (OHCHR 2019: para 1.3). Children are especially ‘at heightened risk of harm to their health, due to the immaturity of their body systems’ (para 1.3). They also acknowledged that human rights mechanisms are important to prevent climate inaction, that states should ‘dedicate the maximum available resources’ to mitigation measures, and that states ‘must guarantee [children and other persons the] human right to participate in climate policy-making’ (paras 1.7–2.1). Further, states must prevent discrimination in their mitigation and adaptation efforts. The five committees gave an assurance that, in their future work, they would keep a close watch on the influence of climate change on human rights and ‘provide States parties with guidance on how they can meet their obligations’ (para 18). In other words, the Committee had – prior to Sacchi – generally acknowledged that climate change impacts the human rights of people, and had offered recommendations on how states should prevent further rights violations and give young people a voice in climate law-making. In October 2021, this was further strengthened by the Human Rights Council’s recognition of the right to a safe, clean, healthy and sustainable environment (UNHRC 2021a), and the establishment of a Special Rapporteur on the promotion and protection of human rights in the context of climate change (UNHRC 2021b).
Since the Sacchi decision in 2021, the link between human rights and climate change has been further substantiated. In 2023, the Committee issued a ‘General Comment No. 26 on children’s rights and the environment, with a special focus on climate change’ (UNCRC 2023). This General Comment was the result of an extensive consultation procedure, involving an advisory team comprising 12 advisers aged between 11 and 17 years, with more than 16,000 contributions from children from 121 countries (UNCRC 2023: para 2). On the positive side, this General Comment clarified that children have the right to a clean, healthy, and sustainable environment (UNCRC 2023: para 63). It also clarified states’ due diligence obligations to take appropriate preventive measures to protect children against reasonably foreseeable environmental harm (UNCRC 2023: para 69), and that states must ensure mechanisms are in place for children’s views to be heard at all stages of environment decision-making processes at all levels (para 27).
However, in terms of intergenerational justice and the rights of children, the General Comment was a missed opportunity (Nolan Reference Nolan2023). The Committee recognised ‘the principle of intergenerational equity and the interests of future generations’, but no attempt was made to define intergenerational equity, nor was any attempt made to address the relationship between future generations’ interests and those of current generations, including children (Nolan Reference Nolan2023). The General Comment states that, ‘While the rights of children who are present on Earth require immediate urgent attention, the children constantly arriving are also entitled to the realisation of the human rights to the maximum extent’ – yet, no attempt was made to link this to the responsibility of states, beyond a vague statement that ‘States bear the responsibility for foreseeable environment-related threats arising as a result of their acts or omissions now, the full implications of which may not manifest for years or even decades’ (UNCRC 2023: para 11). The General Comment pleads for increased access to justice to enable children to access the legal system (UNCRC 2023: paras 82–86), but makes no mention of possible standing for children to bring claims on behalf of future generations.
These recent developments give hope that the Committee’s decisions in response to communications such as those of the children in the Sacchi case – if found admissible – could include at least a partial finding of a human rights violation and a (non-specific) recommendation on how to remedy this. That said, it is also clear that there are some practical and legal limitations to accessing the communication procedure and using it as an avenue of representation, both for children who are currently living, and even more so for children of future generations.
7.3.4.2 Impact/Effectiveness
This section analyses the potential impact of the Sacchi decision and the communication system more generally on climate politics, future litigation, and the wider public. First, if the Committee had proceeded to make a decision on the merits in response to this petition, the decision would have merely been advisory. States do not have an obligation to implement the Committee’s recommendations: while they do have an obligation to respond to the recommendations and justify why they choose to (not) implement them, there is no compliance mechanism to enforce this. Overall, states’ implementation of the Committee’s recommendations appears to be very poor. While precise information on this question is scarce, existing studies suggest that only one-quarter to one-third of decisions by human rights treaty bodies have been effectively implemented (Principi Reference Fox Principi2017; Limon Reference Limon2018). One might wonder, then, if a high-emitting state has not changed its behaviour after the joint statement of the committees, its commitments made under the Paris Agreement, numerous IPCC reports, and massive bottom-up activism addressing its inadequate climate policies, can we really expect another non-binding recommendation to have any impact?
On top of the poor implementation rate, states often do not justify why they choose to not remedy the rights violations. While there is a high response rate of states to the recommendations of the committees, the quality of the responses from states varies considerably. In an analysis of 100 communications, researchers showed that, in nearly half of the cases, states either rejected the recommendations without offering any substantive justification or failed to address the recommendations at all (Limon Reference Limon2018). This failure even to justify why a state does not change its policies after being called out on a human rights violation shows that the communication procedure leaves the current power imbalance intact. The power to initiate climate action, for example, remains with national-level governments – which are influenced by many causes of harmful short-termism (MacKenzie Reference MacKenzie, González-Ricoy and Gosseries2016). A UN Committee calling out a human rights violation will not be the silver bullet to change this. On the other hand, a positive recommendation from the Committee could contribute to a tipping point. It might not drive the change, but it could help build momentum to hold governments accountable.
What is promising about the communication procedure is that it helps lawyers, activists, legal scholars, and others globally with their future climate litigation. The procedure creates official documents with evidence and arguments supporting climate change related rights violations, which is available for all future communication procedures and other litigation. Especially in states with national human rights frameworks, a decision by a Committee about causality and jurisdiction (as occurred in this case) is regarded as authoritative and can be used by litigants in national and international tribunals globally.
Finally, it is essential to acknowledge that, even without ambitious recommendations of the Committees – and even if the petitions are not found admissible – the communication already has an influence on policy-makers and the wider public, simply by being lodged. Communications are often accompanied by media campaigns, and every step of the communication – lodging it, states replying, plaintiffs replying, Committees recommending, states responding – can serve as a hook for proactive NGOs, activists, scholars, and others to spread the message. The media coverage of these communications, in which children from all over the world are portrayed as victims of climate change, as well as litigants and activists keeping adults accountable (Rogers Reference Rogers and Richardson2020), can change the hearts and minds of the wider public.
7.4 Conclusion
Throughout this chapter, we have mentioned limitations and opportunities of the complaints system generally and, specifically, in relation to the children’s communication in Sacchi et al. The communication procedure offers a pathway for children’s interests to be recognised and represented, and for children’s voices to be heard. This procedure is one of the few pathways accessible to children to take international legal action related to climate change. However, future generations cannot participate (as they are not yet born) and the Committee has not been responsive to the idea that they be represented by proxies. While there is room to explicitly consider the interests of future generations – for example, in the Committee’s decision, or in the proposed mandate of the newly established Special Rapporteur on the issue of human rights and a healthy environment – they are currently left out. On the one hand, we might argue that explicitly including the needs of future generations is not needed, as their needs largely overlap with those of children currently alive: these children are already suffering serious impacts from climate change now, making children the preferred plaintiffs. On the other hand, finding a way to grapple with human rights violations in the long-term future, especially where the needs of children might be different from those of future generations, might be needed for future cases.
Interestingly, the Committee seems to be lagging behind the thinking of young people on this point. A recent global survey of climate litigation brought by young people found that, in the vast majority of cases, the claimants purported to speak on behalf of future generations – demonstrating solidarity with them and emphasising the importance of intergenerational equity (Donger Reference Donger2022). Indeed, in national court decisions, intergenerational equity has increasingly been given weight (see Section 6.7).
When focusing on the potential substantive justice impact of the communication procedure, the analysis is grimmer. Even if the communication of the children had been found to be admissible, and even if the decision of the Committee had advised states to change their behaviour, it is unlikely to have had a large impact on states’ behaviour directly. The asymmetry in power, where the interests of adults in national governments tend to overpower those of young people and future generations, is hard to overcome in international human rights law.
However, the Committee’s decision with regard to causation and jurisdiction constitutes a modest but significant step forward. Human rights law has the potential to better deal with the uncertain global and intergenerational character of climate change; precedents, such as the one discussed in this chapter, help to build momentum for future climate litigation globally and for minimising state-centrism.
