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Case Note 2021/10

Communication 104/2019 Chiara Sacchi et al v. Argentina et al

Between Cross-Border Obligations and Domestic Remedies: The UN Committee on the Rights of the Child’s decision on Sacchi v Argentina

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Introduction

The UN Committee on the Rights of the Child (CRC Committee) has delivered its long-awaited admissibility decision on Sacchi et al v. Argentina et al. The case results from a communication submitted by sixteen children (‘the authors’) under the third Optional Protocol to the Convention on the Rights of the Child (CRC OP3) on 23 September 2019, the day of the UN Climate Action Summit. The child authors claimed that the five respondent States - Argentina, Brazil, France, Germany, and Turkey – had breached their obligations under the Convention on the Rights of the Child (CRC) by causing and perpetuating the climate crisis, resulting in ongoing violations of their Convention rights. The case forms part of a growing trend of cases in which plaintiffs seek to hold States or corporations to account for inadequate climate action based on constitutional and human rights. As of October 2021, 83 such cases have been filed before domestic bodies with an additional 19 cases filed before regional or international bodies, including the present case. Sacchi et al. marked the first attempt to hold multiple States Parties to an international human rights treaty responsible for human rights violations related to climate change. It is also the first climate case filed before an international human rights body on behalf of individuals from different regions of the world. While the CRC Committee found the complaint inadmissible for failure to exhaust domestic remedies, its decision breaks new ground in climate litigation and will almost certainly inform future efforts to protect children’s rights against climate impacts.

This case note first discusses the communication, the arguments submitted by the respondent States, the authors’ responses to those arguments, and the CRC Committee’s decision. It then analyses the Committee’s decision in the broader context of climate change litigation before domestic, regional and international bodies, with particular attention to its standard-setting potential. The analysis also unpacks author Alexandria Villasenor’s criticism of the decision, underscoring that the Committee had failed to ‘hold anyone accountable for their emissions’, and the authors’ lead counsel’s statement that the ‘legal battle for the climate now returns to national courts’.

The communication

The authors set out the alleged violations of the CRC by the five respondent States in a single communication of 97 pages, with four Appendices containing testimonies from the authors, scientific evidence about impacts and drivers of climate change and emissions reduction scenarios.

In a nutshell, the communication developed the argument that the respondent States were breaching their respective obligations under the CRC by failing to prevent dangerous anthropogenic interference with the climate system. Specifically, the respondent States had allegedly failed to take the necessary measures to respect, protect, and fulfil the children’s rights under Article 6 (right to life), Article 24 (right to health) and Article 30 (right to culture) under the CRC. Finally, the authors alleged that the respondents were shifting the enormous burden and costs of climate change onto children and future generations in violation of Article 3 (best interest of the child).

The authors claimed that the CRC must be interpreted in light of the obligations of the respondent under international environmental law, including their obligations under the UN Framework Convention on Climate Change (UNFCCC). They asserted that respondents have four related obligations under the UNFCCC: (i) to prevent foreseeable domestic and extraterritorial human rights violations resulting from climate change; (ii) to cooperate internationally in the face of the global climate emergency; (iii) to apply the precautionary principle to prevent deadly consequences even in the face of uncertainty; and (iv) to ensure intergenerational justice for children and posterity (para 175).

The communication was supported by statements from the authors outlining how they have been personally affected by a wide range of climate impacts, including: smoke from wildfires and heat-related pollution causing some of the authors’ asthma to worsen, requiring hospitalisation; the spread and intensification of vector-borne diseases resulting in some of the authors contracting malaria several times a year or contracting dengue fever and chikungunya; exposure to extreme heat waves causing a range of adverse health effects; drought threatening the water security of some of the authors; exposure to extreme storms and flooding; threats to the indigenous authors’ subsistence level of life; the risk of the Marshall Islands and Palau becoming uninhabitable within decades due to sea level rise; and mental health impacts including climate anxiety resulting from climate change.

The authors sought relief in the form of various findings and recommendations, most notably: a declaration that climate change is a children’s rights crisis; a recommendation that the respondent States review, and where necessary, amend their national and subnational laws and policies to ensure that mitigation and adaptation efforts are being accelerated to the maximum extent of available resources and on the basis of the best available scientific evidence; and a recommendation that each respondent State initiate cooperative international action to establish binding and enforceable measures to mitigate the climate crisis, prevent further harm to the authors and other children, and secure their inalienable rights (paras 324-329). Finally, the authors asked the CRC Committee to recommend that the respondent States ensure the child’s right to be heard and to express their views freely (Article 12 CRC), in all international, national and subnational efforts to mitigate or adapt to the climate crisis and in all efforts taken in response to this communication (para 330).

Authors’ submissions on admissibility

Article 5(1) CRC OP3 sets out that communications may be submitted ‘by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in … the Convention’. This provision reflects Article 2(1) CRC, which provides that ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction’. In addition, Article 7 CRC OP3 (‘Admissibility’) sets out several conditions for admissibility. These include that: the communication must not be manifestly ill-founded or unsubstantiated; that the facts that are the subject of the communication must have occurred after the state party ratified CRC OP3, unless those facts continued after that date; that domestic remedies must be exhausted, unless it can be established that the application of the remedies is unreasonably prolonged or unlikely to bring effective relief; and that the same matter has not already been examined or is being examined under another procedure of international investigation or settlement.

The communication anticipated challenges to several of these conditions for admissibility. Regarding jurisdiction, these challenges related primarily to the fact that most of the child authors were neither nationals nor residents of any of the respondent States. While emphasising that certain authors were within the jurisdiction of certain respondents by virtue of their nationality or residence, the authors advanced the broader argument that all authors were within the jurisdiction of each respondent State because they were all ‘victims of the foreseeable consequences of the carbon pollution knowingly emitted, permitted or promoted by each respondent from within their respective territory’ (para 241). This argument built on the rule that a State has sovereign, territorial jurisdiction over acts occurring in its territory, and the interpretation of the jurisdictional requirement as (merely) requiring that causation is established (i.e., ‘that the State’s wrongful act caused or contributed to the violation’) (para 244). In other words, the authors invited the CRC Committee to conceive of sovereignty as a basis for human rights obligations rather than as a shield against human rights accountability.

Regarding the non-retroactivity of treaties, the authors argued that because ‘the respondents continue to perpetuate climate change through their acts or omissions’ the violations of the authors’ rights are continuing and therefore within the temporal scope of the Committee’s competence. According to the authors, this is so even if the respondent States’ ‘excess emissions commenced long before [CRC OP3] entered into force’ (para 318).

Concerning subsidiarity, the authors admitted that domestic remedies have not been exhausted and argued that the exception to the rule must apply. Specifically, they highlighted difficulties they would face in accessing the domestic justice system due to the complexity of the system and their reliance on adults who may lack awareness of children’s rights or fail to understand how to best support children. More fundamentally, pursuing redress domestically would be unduly burdensome because ‘no single court could provide the same remedy sought in this petition against these five sovereigns’ (para 311). Further, attempting to exhaust remedies through the domestic court systems of each of the respondents would be so costly for the authors ‘as to make any potentially available legal remedies an impossibility’ and would cause unreasonable delay (para 311). Moreover, the complaint concerned legal questions that are often assumed to be outside of the scope of domestic courts’ mandates, most notably relating to diplomatic relations (para 314).

Finally, the petition addressed the question of parallel international proceedings by pointing out that there are no such proceedings pending (para 323).

Respondent States’ objections and authors’ responses

The respondent States all objected to the admissibility of the petition based on three principal grounds: First, that the authors were not within their (extraterritorial) jurisdiction; second, that the communication was manifestly ill-founded or unsubstantiated; and third, that the authors did not exhaust domestic remedies.

On jurisdiction, all States argued that the authors did not fall within the scope of their (extraterritorial) jurisdiction. France’s specific argument was that the authors were neither within its territory nor within its ‘effective control’. Further, it argued that the emissions driving climate change are not ‘a localized “pollution” directly attributable to a given country’. Along similar lines, Argentina argued that ‘the causal link between actions or omissions that could be attributable to the State party’ and extreme weather events occurring elsewhere was not established, and that the communication did not provide any evidence to support claims about climate change impacts affecting Argentinian author Sacchi within Argentina. Germany, in contrast, challenged extraterritorial jurisdiction based on the argument that the emission of greenhouse gases ‘does not directly and foreseeably impair the rights of people in other States’ but did not dispute jurisdiction for author Ivanova, who holds German nationality and resides in Germany. Turkey, finally, argued that there was no evidence of ‘a causal link between alleged harm to the authors and the State party’s actions or omissions’. In response to these arguments, the authors reiterated that they were directly and foreseeably injured by greenhouse gas emissions originating in the States’ respective territories. They further stressed that States were not absolved from responsibility for their own contributions to these injuries by virtue of the contributions of other States. And while emissions ‘are local in their origins, they are global in their impact’ and attributable to the respondents by virtue of their capacity to prevent them (para 24).

Brazil, France, Germany and Turkey further submitted that the communication was manifestly ill-founded or unsubstantiated, arguing that the authors had failed to identify the direct and specific harms they allegedly suffered and instead only alleged generalised impacts of climate change suffered in their respective reasons. The authors responded with the argument that they are ‘suffering direct and personal harms now and will suffer in the foreseeable future’, citing climate science establishing ‘a causal chain that links each harm to climate change’ and to ‘emissions resulting, in substantial part, from Respondents’ climate policies and their failure to protect children from the emissions of other States and private industries’ (para 14). This failure, they argued, constitutes cognisable violations of the CRC and is substantiated by multiple lines of evidence (para 61).

Finally, all States argued that the authors’ decision not to pursue domestic remedies rendered the communication inadmissible. To substantiate this argument, each of the States provided detailed information about its domestic legal system and available remedies the authors arguably could have pursued. In their response, the authors reiterated that they faced unique obstacles to effective relief at the domestic level, including foreign State immunity and non-justiciability doctrines (para 15). Moreover, they argued that the ‘globe-spanning litigation’ that would be required if they needed to file ‘80 claims in 5 jurisdictions, against each Respondent in isolation’ would last ‘years’, while time was already running out (para 15). According to the authors, exhaustion of domestic remedies would therefore be futile.

The CRC Committee’s findings on admissibility

On 11 October 2021, the CRC Committee published its ruling on admissibility in five largely identical separate decisions – one for each of the five respondent States. The decisions were accompanied by an open letter to the authors and a simplified explanation of the case. In sum, the Committee ruled that the authors have successfully established jurisdiction and victim status, but failed to exhaust domestic remedies.

On jurisdiction, the CRC Committee broadly accepted the authors’ submissions and dismissed those of the respondent States. In three critical sentences, the decision notes jurisprudence from the Human Rights Committee and the European Court of Human Rights on extraterritorial jurisdiction and proceeds to distinguish it, stating that the factual situations in those cases were ‘very different’ to the facts and circumstances of the present case, which raises ‘novel jurisdictional issues of transboundary harm related to climate change’. It then finds that the appropriate test for jurisdiction can be found in Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights on the Environment and Human Rights, which clarified that persons whose rights have been violated as a result of transboundary damage are under the jurisdiction of the State of origin if there is ‘a causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory’. In applying this test to climate change, the Committee interprets the causation requirement as consisting of three distinct elements: first, the State on whose territory the greenhouse gas emissions originated must exercise effective control over the sources of those emissions; second, there needs to be a causal link between the acts or omissions of the State of origin and the negative impact on the rights of children located outside its territory; third, the alleged harm suffered by the victims needs to have been reasonably foreseeable to the State at the time of its actions or omissions. On the facts of the case, the Committee then finds that the States had effective control over the sources of the emissions based on their ability to regulate activities that are the sources of these emissions and to enforce such regulations. It further finds that in accordance with the principle of common but differentiated responsibilities, ‘the collective nature of climate change does not absolve the State party of its individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location’. Foreseeability is established based on the authors’ uncontested argument that each of the States has ‘known about the harmful effects of its contributions to climate change for decades’ and signed the UNFCCC and the Paris Agreement. Further, the Committee cites ‘scientific evidence showing the impact of the cumulative effect of carbon emissions on the enjoyment of human rights, including rights under the Convention’ (para 10.11).

The remaining part of the causal chain is addressed in conjunction with the victim status requirement. The CRC Committee first notes the authors’ claims about the various ways in which they are personally affected by climate change, and then proceeds to make an important pronouncement: ‘Due to the particular impact on children, and the recognition by States parties to the Convention that children are entitled to special safeguards, including appropriate legal protection’ States have ‘heightened obligations to protect children from foreseeable harm’ (para 10.13). Based on these considerations, the Committee finds that both the jurisdiction and the victim status requirements have been met.

On subsidiarity, the CRC Committee recites the States’ arguments about available domestic remedies in their respective jurisdictions, as well as the authors’ arguments that pursuing such remedies would not offer them a reasonable prospect of success. It proceeds to note that ‘mere doubts or assumptions about the success or effectiveness of remedies does not absolve the authors from exhausting them’. In each of the decisions, the Committee notes that the State’s alleged failure to engage in international cooperation ‘is raised in connection with the specific form of remedy that [the authors] are seeking, and that they have not sufficiently established that such remedy is necessary to bring effective relief’. The Committee then finds that in the absence of further reasoning from the authors ‘as to why they did not attempt to pursue these remedies, other than generally expressing doubts about the prospects of success of any remedy’ domestic remedies have not been exhausted, and the applicability of the exception under article 7(e) of CRC OP3 has not been established (para 10.18). It also rejects the authors’ argument that pursuing domestic remedies would be unreasonably prolonged, citing a lack of specificity and substantiation.

Commentary

Following its release, the CRC Committee’s decision was promptly hailed by legal commentators as ‘ground-breaking’, with the Office of the UN High Commissioner for Human Rights (OHCHR) characterising it as ‘historic’ in a press release. The euphoria in the legal community is justified, as the Committee’s reasoning on jurisdiction and victim status not only breaks new ground, but also does so in a way that is replicable and scalable.

First, the CRC Committee’s ruling endorses the Inter-American Court of Human Rights’ approach to extraterritoriality, with its emphasis on foreseeable harm, as the applicable standard for establishing jurisdiction in climate change-related cases. It explicitly holds that a narrow reading of the ‘effective control’ test is inapplicable in the climate change context, thus rejecting the respondent States’ (in particular France’s) arguments that establishing jurisdiction would require the person invoking a violation of its rights to reside in a territory over which the State has effective control. It also adopts a flexible approach to the foreseeability requirement, whereby it relies on ‘general acceptance’ that is ‘corroborated by scientific evidence’ that climate change has adverse effects on the enjoyment of rights within and outside a State’s territory. This acceptance, coupled with the authors’ own testimonies, is sufficient to establish that the State’s acts or omissions would result in foreseeable impairment of the authors’ Convention rights. As the Committee draws on international jurisprudence and readily available scientific evidence, this approach is replicable in other rights-based climate cases in which plaintiffs face a jurisdiction requirement as part of the admissibility conditions set out in a human rights treaty or protocol. This replicability is hugely significant, as the issue of extraterritoriality needs to be confronted head-on to grapple with the global justice dimension of climate change – a dimension that remains under-addressed in rights-based climate litigation. An important caveat here is that the ruling is confined to admissibility, and it remains to be seen to how causation and foreseeability are handled by human rights bodies at the merits stage of rights-based climate cases.

Second, the CRC Committee’s admissibility ruling reflects important procedural innovations that could inspire more child-centric approaches in climate litigation. These include the first-ever oral hearing with child authors of a complaint under CRC OP3, in accordance with new rule 19 of the rules of procedure. This closed-door hearing provided the child authors with an opportunity to explain how climate change had already affected the enjoyment of their rights under the CRC, and to share their expectations of the Committee’s handling of the case. The issuance of an open letter to the authors and a simplified explanation of the case, mentioned above, is another innovation which raises awareness in relation to the potential and limitations of invoking children’s rights to address climate change, also beyond the authors of the case. Finally, the Committee’s decision to use the communication as a springboard for a new General Comment on children’s rights and the environment with a special focus on climate change signals the potential of human rights litigation to contribute to normative development beyond a specific case. The Committee’s invitation to the child authors to share their views during the drafting process of this General Comment underscores the success of the case in raising awareness about the impact of climate change on children’s rights, including within the Committee itself. Courts and quasi-judicial bodies around the world could use similar innovations to ensure children’s right to be heard in the face of the climate crisis, even where procedural obstacles stand in the way of substantive redress for rights violations.

Now to the procedural obstacles themselves. While reduced to an afterthought in the OHCHR’s coverage of the decision, the bitter disappointment and worry expressed by several of the authors themselves following the decision signal that these obstacles merit unpacking. Is it correct to characterise the ruling as ‘a hollow victory’, as the authors’ legal representatives did in a press release, based on their understanding that the CRC Committee ‘instructed the youth to squander years waiting for inevitable dismissal’ of domestic lawsuits brought in each of the five state’s national courts? Or was the Committee’s refusal to hear the complaint on the merits the only plausible outcome against the broader context of CRC OP3’s still rather low level of ratification; a situation which might have been exacerbated by a lack of deference to domestic legal systems? Aoife Nolan is of the latter view, arguing that ‘[t]here was simply no way of admitting these complaints without effectively gutting the [CRC OP3] exhaustion of domestic remedies requirements’. And yet the Committee’s suggestion that it would have exceeded ‘the limits of the legal powers’ by agreeing to hear the complaints is questionable, especially for the authors whose home States do not themselves contribute significantly to global greenhouse gas emissions. As the current and former Special Rapporteurs on Human Rights and the Environment pointed out in their joint amici curiae brief, the authors from small island States face the risk of permanently losing their homes within a time frame that the UN Human Rights Committee recently acknowledged could be as short as 10 to 15 years. Expecting these children to experiment with largely untested, highly complex and expensive transnational litigation strategies in order to satisfy the exhaustion of domestic remedies requirement suggests that the Committee will only hear complaints when it is almost certainly too late to prevent the most serious violations of their rights.

This is not to suggest that the Committee should have endorsed all of the rather sweeping claims concerning domestic remedies submitted by the authors’ legal representatives, but rather points at the possibility of a more nuanced analysis whereby account is taken of the different circumstances of each of the authors. Admitting claims of authors for whom the Committee truly offered the only realistic chance of a timely remedy would have been in line with both the letter and the spirit of CRC OP3. Emphasising the unique and challenging circumstances of such authors would have protected the Committee against criticism that it had inadvertently opened the floodgates to any and all cases that raise issues under the CRC. And the resulting clarification of the obligations of States vis-à-vis those authors would have benefited all children, including those pursuing remedies at the national level.

Fortunately, the CRC Committee’s ruling on jurisdiction does provide a robust basis for further guidance on States’ climate obligations in future cases, as well as in its forthcoming General Comment. The eyes of the world will thus remain on the Committee as it continues to grapple with its important role in protecting children’s rights in the face of the climate crisis.

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