Children as Agents of Change

The Committee on the Rights of the Child (Committee) has recently published its new General Comment No. 26 (GC26) on Children’s rights and the environment with a special focus on climate change. In GC26, the Committee links the specific rights under the UN Convention on the Rights of the Child (UN CRC) to the environment, emphasizing that all kinds of rights within the UN CRC – civil, political, social, economic, and cultural rights – are affected by the environment. The right to a clean, healthy and sustainable environment is thereby recognized as both a human right itself (para. 63) and as the necessary prerequisite for the full enjoyment of all children’s rights (para. 8). In the following, I will discuss key highlights of GC26.

Even if the scope of human rights-based orientation on climate protection is becoming more and more condensed, this GC26 will play a crucial role: Among all UN human rights treaties, the UN CRC and the ICESCR (see Art. 12, para. 2 (b) ICESCR) are the only treaties with an explicit reference to environmental issues and their relation to human rights (see. Art. 24, para. 2 (c) and Art. 29, para. 1 (e) UN CRC). Thus, from a human rights perspective, climate protection has been a children’s rights topic from the origins of children’s rights protection, which explains the Committee’s urgency in focusing on this topic. In an inclusive process, the Committee has involved 16331 children from 121 different countries in the development of the GC26 (para. 2). This is one of largest participation processes at the UN level, and the wealth of knowledge and expertise of the children underscores the value of GC26.

To fully understand the new GC26, it is important to grasp its scope and purpose. GC26 is not a mere summary of existing relevant understandings of states’ legal obligations regarding climate change in the context of international human rights law (IHRL). It is rather an attempt to offer a human rights-based orientation and authoritative guidance on environmental issues, while also establishing new approaches. I see substantial potential in the new GC26.

A Holistic Approach to the Environment

Despite its name, GC26 goes beyond addressing climate protection and claims validity for all environmental challenges (para. 5). It applies to the triple planetary crisis (para. 1), comprising the climate emergency, the collapse of biodiversity, and pervasive pollution. This remarkably holistic approach to the environment takes into account that, since the adaption of the Paris Agreement, international debates have extended beyond the issue of reducing greenhouse gas emissions. Addressing the triple planetary crisis through a human rights lens requires more than just fulfilling the obligations under the Paris Agreement (see para. 65 for relevant action).

Appreciation for Child Human Rights Defenders

Undoubtedly, much of the national and international action on climate protection is due to the determined commitment of young people in this area. This topic is highly important for children, and their voices are a powerful global force (para. 26). Nevertheless, children’s engagement faces restrictions and intimidations in many states (para. 30), couples with negative social attitudes (para. 70). The Committee clearly opposes these developments and appreciates children’s engagement, reminding states to respect their rights (para. 29) and recognize the positive contributions of children to environmental sustainability and climate justice (para 30.). These children are environmental human rights defenders (para. 30), and, in this role, act as agents of change (para. 4) and agents of their own destiny (para. 66). This clarification is important, because it triggers states’ obligations toward human rights defenders, especially the obligation to create social, economic, and political conditions  conducive to the effective enjoyment of all human rights (see Art. 2 UN Declaration on Human Rights. Defenders). Therefore, states are not only obligated to respect children’s rights, they must also make an active contribution. Empowering children through human rights education (para. 51. et sqq.) and providing free, active, meaningful and effective participation possibilities for children (para. 27) are of utmost importance in this regard.

Article 3 UN CRC: Shifting the Standard of Proportionality

In recent years, many national constitutional courts and international human rights courts or bodies have ruled on climate protection litigation (see the Global Climate Litigation Report), and the cases always revolve around the question of proportionality. Although young people are the most affected group of the climate change, these rulings have rarely made an explicit reference to children’s rights. This is astonishing, because, from a legal perspective, the UN CRC, especially Art. 3 UN CRC  has the potential to be a strong tool for climate litigation.

Art. 3 UN CRC stipulates that, in all actions concerning children, their best interests must be assessed and determined, and must be considered as a primary consideration in the subsequent balancing process. Art 3 UN CRC therefore shifts the standard of proportionality, elebating the child’s best interests above other considerations. Decisions to the detriment of children are only possible if other public interests of paramount importance are in potential conflict with the child’s best interests. Very high demands must be placed on this, followed by strict standards for the burden of presentation and proof (see GC14 on the right of the child to have his or her best interests taken as a primary consideration).

With its impact on the standards of proportionality, Art. 3 UN CRC can play a huge role in upcoming climate litigation cases. The Committee reminds everyone that environment decisions generally concern children, and therefore, Art. 3 UN CRC must be applied to these issues (para. 16.). With respect to climate litigation, this approach represents a re-framing, where every environmental issue should be viewed primarily as a children’s rights issue, bringing the legal power of Art. 3 UN CRC to the table. This is already happening in many legal contexts, and it is time for this to happen as a matter of course in the climate protection context as well.

A Form of Structural Violence Against Children

The Committee has categorized environmental degradation, along with the harm it inflicts on children’s rights, as a form of structural violence against children (para. 35): Structural violence in this sense is a form of violence where one or several social structures or institutions harm people by preventing them from meeting their basic needs. Notably, this perspective was absent from the initial draft of the GC26, and it is obvious that the Committee has taken into account the clear views of the involved children here (see p. 17 et seq. of the Report of the first Children and Young People’s Consultation). This alignment with children’s perspectives seems logical, as environmental degradation can – literally – have a forceful impact, destroying villages, buildings, institutions, as well as non-material things like plans and projects. All of this is related to human rights.

Additionally, the Committee highlights another crucial issue in this context: Eco-anxiety (para. 41). Worth noting is that this marks the first explicit reference to eco-anxiety by a UN human rights treaty body, despite prior discussions in the context of IHRL. Eco-anxiety is the distress caused by climate change, and it significantly affects all other freedoms and the extent to which children dare to claim their rights. That is indeed a typical characteristic of structural violence.

One should not underestimate the importance of the categorization of environmental degradation as a form of structural violence against children: This triggers all obligations  arising from the right of the child to freedom from all forms of violence according to Art. 19 UN CRC (see especially GC13 on the right of the child to freedom from all forms of violence). Upcoming climate litigation should undoubtedly consider this approach.

In a former blog post, I called the Committee a human rights seismograph. With respect to the new GC26, I find this analogy still apt!