{"id":30327,"date":"2026-11-12T14:00:02","date_gmt":"2026-11-12T13:00:02","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=30327"},"modified":"2026-11-11T23:52:39","modified_gmt":"2026-11-11T22:52:39","slug":"before-or-after-the-violation","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/before-or-after-the-violation\/","title":{"rendered":"Before or After the Violation?"},"content":{"rendered":"

International law typically engages with climate change-displaced children only after the consequences of state inaction have become visible.\u00a0By then, a family has already been uprooted, education has been interrupted, access to healthcare has deteriorated, or children have been exposed to separation and exploitation, consequences reflected in\u00a0UNICEF’s analysis<\/u><\/a> of climate-related child displacement, which\u00a0shows that displacement can disrupt education and healthcare, separate children from caregivers, and increase their exposure to trafficking.<\/p>\n

Climate change-related displacement is rarely entirely unforeseen. Floods, droughts, storms, wildfires and slow-onset environmental changes often follow identifiable patterns of climate risk<\/u><\/a>. Between 2016 and 2021, weather-related disasters<\/u><\/a> caused an estimated 43.1 million internal displacements of children across 44 countries. These movements should not, however, be treated as solely climate-caused, since environmental pressures typically interact with wider social, economic, and political drivers of displacement, as reflected in literature on climate-related mobility<\/u><\/a>. The legal question should therefore arise before displacement,\u00a0at the point when the risk of movement or\/and its associated rights violations becomes reasonably anticipated. What preventive obligations do the states facing climate change-related displacement risk, as well as states hosting displaced children, have to prevent exposure, reduce the need to move, or prevent displacement from causing further violations of children’s rights?<\/p>\n

Climate change jurisprudence has begun to focus\u00a0on the phase before the harm materialises; this also involves the period before displacement produces further violations. In Verein KlimaSeniorinnen Schweiz v Switzerland<\/em><\/u><\/a>, the European Court of Human Rights held that Article 8 requires effective state protection against serious adverse climate effects and found deficiencies in Switzerland’s regulatory framework. In Billy and Others v Australia<\/em><\/u><\/a>, the Human Rights Committee concluded that Australia’s inadequate and delayed adaptation measures failed to protect the applicants’ homes, private lives and minority culture from foreseeable climate impacts, violating Articles 17 and 27 ICCPR (paras 8.12 and 8.14).\u00a0Similarly, the Committee on the Rights of the Child recognised in Sacchi and Others v Argentina<\/em><\/u><\/a> that states may exercise jurisdiction where emissions originating within their territory cause reasonably foreseeable harm to children outside their territory, although it declared the communication inadmissible for failing to exhaust domestic remedies.<\/p>\n

These decisions do not establish a separate legal doctrine that complements states\u2019 preventive obligations, including the customary obligation to prevent environmental harm, the due diligence standard developed in international jurisprudence, and the duty under Article 3(3) of the UNFCCC<\/u><\/a> to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects. They nevertheless demonstrate the growing importance of foreseeability and timely intervention. The Committee reinforces this reasoning in its General Comment No. 26 on the Rights of the Child, which requires states to adopt preventive and precautionary measures to address environmental harm and the specific consequences of climate change for children’s rights.<\/p>\n

This post examines how states’ preventive obligations can interrupt the pathways from climate risk to displacement and from displacement to subsequent violations of children\u2019s rights. I argue that international law requires assessing state conduct by considering not only whether a state directly caused a climatic event, but also whether reasonable, timely, and child-sensitive measures could have prevented foreseeable displacement-related harm. The following sections therefore consider how existing duties of prevention, due diligence, and positive protection can operate as forms of causal interruption, before reflecting on the limits of translating that approach into international legal responsibility for children.<\/p>\n

Preventive Obligation as Causal Interruption<\/strong><\/p>\n

The language of prevention is well established across international law, with duties to prevent transboundary harm<\/u><\/a>\u00a0(\u00a0ILC Draft Articles on Prevention of Transboundary Harm, art 3), to protect individuals from foreseeable rights violations<\/u><\/a>\u00a0(ICCPR, art 6, as interpreted in General Comment No 36, paras 7 and 21 ) and to anticipate or mitigate serious environmental risks under the UN climate framework<\/u><\/a>. The International Court of Justice has treated the obligation to prevent environmental harm as a matter of due diligence, requiring states to adopt appropriate rules, exercise vigilance in their enforcement, and respond to evolving risks. In Pulp Mills on the River Uruguay<\/em><\/u><\/a>, the Court linked prevention to a duty of continuing vigilance. It recognised environmental impact assessment as a requirement of general international law where proposed activities risk significant transboundary harm.\u00a0Additionally,\u00a0the International Tribunal for the Law of the Sea concluded that states must exercise a stringent standard of due diligence<\/u><\/a> in taking measures to prevent, reduce, and control marine pollution caused by anthropogenic greenhouse gas emissions.<\/p>\n

International human rights law employs a comparable anticipatory approach. Human Rights Committee in\u00a0General Comment No. 36, states that the duty to protect life extends to “reasonably foreseeable threats and life-threatening situations that can result in loss of life” and may be breached even where those threats do not ultimately result in death (para 7). The Committee further explains that states are under a due diligence obligation to adopt “reasonable, positive measures” in response to reasonably foreseeable threats to life (para 21).The Committee’s position may explain when<\/em> a preventive duty may arise, but it does not always identify with precision what <\/em>the required measures were meant to prevent. The ICJ\u2019s Advisory Opinion on climate change<\/u><\/a> shows elements of this reasoning.\u00a0The ICJ held that \u201cthe standard of due diligence for preventing significant harm to the climate system is stringent\u201d and that climate change requires \u201ca heightened degree of vigilance and prevention\u201d (para 138). The Advisory Opinion further then confirmed that the duty to prevent environmental harm applies in the climate context\u00a0(para 139). Regarding mitigation, it required States to adopt and implement measures capable of giving effect to their NDCs (paras 253\u2013254). This shifts attention from the existence of preventive measures to whether they can alter the trajectory of foreseeable harm.<\/p>\n

With this in mind for climate-displaced children, the question is therefore not whether a state could prevent the climatic event itself, but whether timely mitigation, adaptation, or protective measures could have interrupted the foreseeable pathway from climate risk to displacement and subsequent rights violations.<\/p>\n

The inquiry is therefore inherently counterfactual. As debates on causation in law<\/u><\/a> show, it requires asking whether the harm would still have occurred had the state taken the legally required\u00a0preventive measure. For climate change-displaced children, this means testing whether the omitted measure could realistically have changed the course or severity of the resulting climate-displacement-related violation.<\/p>\n

Fail<\/strong>ure to Act before the V<\/strong>iolation<\/strong><\/p>\n

International law contains no freestanding treaty obligation expressly requiring States to protect climate-change-displaced children. That does not mean, however, that the relevant primary obligations are absent. As already stated, Article 3(3) of the UNFCCC expressly calls for precautionary measures to prevent the causes of climate change and mitigate its adverse effects. Climate-induced displacement has subsequently been incorporated into this framework through the Cancun Adaptation Framework<\/u><\/a>, which addresses displacement (para 14(f)). The UNCRC supplies the corresponding rights-based obligation using Article 4. Article 4 requires States to undertake \u201call appropriate legislative, administrative, and other measures\u201d to implement Convention rights. In other words the General Comment No. 26 clarifies that this rights-based obligation extends to foreseeable environmental harm and climate change-related displacement. This relationship has also received judicial support. In Billy v Australia<\/em><\/u><\/a>, the Human Rights Committee found violations of Articles 17 and 27 of the ICCPR with respect to the prohibition of arbitrary interference in private, family and home life arising from inadequate climate adaptation and reaffirmed positive State party obligations to prevent interference in their enjoyment (Section 8.9, 8.10). Similarly, the Inter-American Court of Human Rights (IACtHR)<\/u><\/a> expressly required States to adopt measures to prevent climate-induced forced displacement (paras 422\u2013423). In essence, the relevant violation is therefore not displacement itself, but a failure to discharge existing climate and human-rights obligations where foreseeable environmental risk develops into displacement and consequent rights violations.<\/p>\n

Preventive obligations become vital for climate change-displaced children when the alleged breach is a failure to act. In such cases, proving that a State directly caused the flood, drought, or sea-level rise contributing to displacement is often difficult because climate causation claims<\/u><\/a> involve diffuse and cumulative harm, while climate displacement<\/a> itself is shaped by multiple interacting drivers. International responsibility may nevertheless arise where a State fails to take reasonable preventive measures capable of reducing foreseeable harm to children before or after displacement.<\/p>\n

Scholarship on causation and omissions<\/u><\/a>, draws a similar distinction, separating the\u00a0physical causation of harm from being legally responsible for allowing preventable harm to occur. International law accommodates this distinction through the ILC Articles on States Responsibility<\/u>,<\/u><\/a>\u00a0which recognises internationally wrongful conduct may arise from either an action or an omission (Article 2). For climate change-displaced children, the causal inquiry is therefore whether a legally required measure, such as adaptation, disaster preparedness, or protection of essential services, could reasonably have interrupted the pathway from climate risk to displacement and subsequent rights violations. Scholarship on Causation in State responsibility<\/u><\/a> reinforces this point by showing that causation becomes more complex where harm results from multiple interacting conditions, because it is harder to isolate the legal significance of any single act or omission.<\/p>\n

For climate change-displaced children, the object of prevention is not always the climatic event itself, but the rights-related consequences that follow. The Committee on the Rights of the Child in \u00a0General Comment No. 26<\/a> requires adaptation measures to protect livelihoods, schools, health infrastructure and water systems, and specifically directs states to address climate-induced migration and displacement (para 103). The Guiding Principles on Internal Displacement<\/a> similarly place duties on authorities to minimise displacement and protect rights where movement occurs. This reflects McAdam\u2019s argument that climate-displacement responses should centre the rights and needs of affected persons<\/u><\/a>, while K\u00e4lin situates prevention, protection and solutions<\/u><\/a> across the displacement process. Preventive obligations therefore do not shift attention away from preventing or mitigating climatic hazards. They broaden the inquiry to ask whether States must also take timely measures to prevent those hazards from resulting in displacement and, where movement occurs, from producing further violations of children\u2019s rights<\/p>\n

The Limits of Causal Interruption<\/strong><\/p>\n

The difficulty of translating preventive obligations into legal responsibility is already evident in climate change litigation. In KlimaSeniorinnen v Switzerland<\/em><\/a>, the ECtHR acknowledged that the causal relationship between a State\u2019s acts or omissions and climate harm may be more \u201ctenuous and indirect\u201d than in conventional environmental cases (para 439). In BZ (Tuvalu) v Chief Executive of the Ministry of Business, Innovation and Employment<\/em><\/u><\/a>, the New Zealand Immigration and Protection Tribunal treated climate-related water insecurity, food availability, and concerns for three children\u2019s future as relevant humanitarian circumstances in an appeal against deportation, granting the family resident visas. The case did not determine responsibility for the underlying climate harm, but it illustrates how climate change-related risks to children can become legally important after displacement even where the question of preventive State responsibility remains unresolved.<\/p>\n

This interpretative difficulty persists even in recent youth climate litigation. In Genesis B v EPA<\/em><\/a>, decided in April 2026, the United States Court of Appeals for the Ninth Circuit held that the youth applicants\u2019 account of how federal policies caused their climate injuries was too \u201cspeculative and tenuous\u201d to satisfy standing requirements. Their alleged injuries included displacement and educational deprivation. These cases expose the challenge of causal interruption. Courts may recognise climate vulnerability and the consequent harms to rights while remaining cautious about linking them to a particular preventive failure. The main issue is therefore whether an existing preventive obligation provides a sufficiently concrete legal bridge between the State’s failure and the harm the child experiences.<\/p>\n

Conclusion<\/strong><\/p>\n

Understanding climate change displacement through states\u2019 preventive obligations shifts attention from causation alone to the points at which foreseeable harm could still have been averted. This does not mean that every failure to prevent climate-related injury gives rise to international responsibility. A credible claim must still identify an applicable legal obligation, a foreseeable risk, a reasonable preventive measure, and a sufficiently plausible link between the omission and the resulting harm. Seen this way, this approach shows that displacement and subsequent violations of children\u2019s rights are not always inevitable consequences of climate change. Such outcomes\u00a0may also reflect failures to act at moments when timely, child-sensitive measures could have reduced exposure, prevented displacement, or stopped displacement from developing into further rights violations. The analysis therefore raises a broader, but difficult procedural question for international law:\u00a0how should courts determine when a State\u2019s failure to take reasonable preventive measures is sufficiently connected to the later harm suffered by a climate change-displaced child to engage international responsibility?<\/p>\n","protected":false},"excerpt":{"rendered":"

International law typically engages with climate change-displaced children only after the consequences of state inaction have become visible.\u00a0By then, a family has already been uprooted, education has been interrupted, access to healthcare has deteriorated, or children have been exposed to separation and exploitation, consequences reflected in\u00a0UNICEF’s analysis of climate-related child displacement, which\u00a0shows that displacement can […]<\/p>\n","protected":false},"author":41,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3792,3934],"article-categories":[3572],"authors":[8159],"doi":[],"class_list":["post-30327","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-climate-change","tag-displacement","article-categories-symposium","authors-michael-oghenetega-abu"],"acf":{"subline":"Preventive Obligations of the State and Causation: Climate Change-Displaced Children\r\n"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30327","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/41"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=30327"}],"version-history":[{"count":4,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30327\/revisions"}],"predecessor-version":[{"id":30338,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30327\/revisions\/30338"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=30327"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=30327"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=30327"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=30327"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=30327"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=30327"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}