Children’s Rights and the Environment
Law, as a common feature across humanity, is evolutionary in nature. Developing international law norms and standards, the UN Human Rights System has been advancing toward greater clarity on the human rights dimensions of the environment. This process has been delayed for centuries by philosophical notions of human/nature dualism, rooted in the Old Testament and championed by Western thinkers, alienating humankind from the natural world. Environmental events amid climate change and scientific facts may be rendering such an ideological dichotomy unsustainable.
Ahead of the 27th Conference of Parties to the climate-change conventions (CoP27) in 2021, the Human Rights Council recognized a human right to a safe, clean, healthy and sustainable environment. The General Assembly followed suit in July 2022 with a resolution (161 in favor, none against, with eight abstentions and 24 nonvoting) recognizing the human right to a clean, healthy and sustainable environment (omitting “safe” at the insistence of France over potential nuclear-power controversies).
Those important statements of both the UN’s highest human rights policy body and its highest authority, are nonetheless declaratory. What is still needed is an authoritative interpretation of this newly agreed-upon human right, specifying its normative content, sources in law, corresponding state obligations and defining violations and other responsibilities of international organizations, etc. That needed specificity is usually found in General Comments and recommendations of authorized monitoring and interpretive bodies overseeing a treaty that enshrines the particular right. Others have contributed to ever-increasing clarity, including UN Special Rapporteur on human rights and the environment John H. Knox, whose 2018 report set out 16 framework principles of state obligations in human rights law related to the enjoyment of a healthy environment. However, the core human rights conventions do not codify an explicit human right to environment…with one potential exception.
The Convention on the Rights of the Child stipulates that States Parties shall pursue full implementation of the child’s right to the highest attainable standard of health (24.2(c)) and, in particular, shall take appropriate measures…taking into consideration the dangers and risks of environmental pollution.
Under the Convention, States Parties also agree that the education of the child shall be directed to the development of respect for the natural environment (29.1(e)) [(29.1(هـ))].
In November 2022, the UN Committee on the Rights of the Child (CRC), acting under its authority to interpret the Convention, issued its draft General comment No. 26 on children’s rights and the environment with a special focus on climate change. In response to the Committee’s call for commentary on the draft, HIC-HLRN contributed to this norm-setting process by complementing the Committee on the draft as a welcome complement to the declaratory recognition [by the Human Rights Council and General Assembly and an important and influential source of law for all states. (All states in the UN System are parties to the CRC, except the United States of America.)
HIC-HLRN noted that, in the context of environment and climate change, the over-arching state party obligations under the Convention remain to (1) to protect the child from harm arising from environmental hazards and disasters, including those related to climate change, and (2) serve the best interests of the child in that context.
HIC-HLRN joined other inputs to the Committee, acknowledging that states must do more to uphold the rights of children accordingly, while recognizing the role of children in the preparation of the draft as agents of environmental protection and in:
- Combatting climate change,
- Defining current and longer-term interests of the child in that context,
- Specifying environmental-hazard and climate-change effects on child rights, and
- Contributing normative content to the newly recognized right to environment and corresponding state obligations.
HIC-HKLRN’s input anticipates that the GC should further emphasize that the scope of state parties’ obligations requires all organs of the state to respect the rights of the child; protect against violation by third parties, both internal and external to the state and its territory of effective control; and fulfill those rights by promoting, facilitating and assisting their realization through concrete steps and measures.
Extraterritorial obligations
Some states’ commentaries to the Committee have cautioned against the GC ascribing new obligations, in particular, extraterritorial obligations, referring to the ostensibly limiting reference to “jurisdiction” (article 2.1). However, HIC-HLRN points out that the CRC’s Preamble also refers to a source in law for child rights in article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which instrument has no territorial limitation. Moreover, in the spirit of international cooperation (articles 27.4 and 28.3 of CRC) and the very nature of human rights and the environment and climate-action fields, state obligations addressed in the GC are simultaneously individual, collective, domestic and extraterritorial. Such binding, prior and permanent territorial and extraterritorial obligations under the CRC align with those arising from other human rights and environmental treaties, as well as the voluntary, non-binding and temporary commitments assumed by states under global policies.
Accordingly, the draft does clarify that states “should cooperate to ensure that business enterprises operating transnationally comply with applicable environmental standards aimed at protecting children’s rights from climate-related harm” (para. 116). This is wholly consistent with the obligation to protect, requiring the state regulate territorial and extraterritorial business activities consistent with human rights protection and interests of the child (para. 92). However, the draft’s reference to extraterritoriality (para. 100) may need to qualify the obligation to fulfill the rights of the child outside the state’s territorial jurisdiction as limited to certain circumstances.
The best-available science
Already 50 years ago, the international community recognized the imperative that:
man must use knowledge to build, in collaboration with nature, a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind...(para. 6). HIC-HLRN’s input reminds the Committee that the purposeful first principle of the Stockholm Declaration recognizes also that man “bears a solemn responsibility to protect and improve the environment for present and future generations.”
Sustainable development v. resilience
The Convention enshrines the obligation to pursue the goal of the child’s social integration and individual mental, moral, social, cultural and spiritual development (paras. 23.3, 27.2–3 and 32.1). The draft recognizes also the importance of pursuing sustainable development in the interest of the child (para. 101). It recognizes the need for states to “foster not only the resilience, [but] progressively the sustainable development and continuous improvement of living conditions of children and their communities” (para. 101).
This distinction between the contemporary usage of the term “resilience” and sustainable development is crucial, noting, as the draft does, the sustainable-development concept’s normative content with its three interlinked economic, social and environmental pillars (para. 12).
Moreover, resilience provides for only a return to the status quo ante, regardless of the level of wellbeing prior to the shock. However, sustainable development aligns with the “progressive realization” of human rights and the state’s obligation to ensure “continuous improvement of living conditions” enshrined in ICESCR (Articles 2.1 and 11, respectively) and cited in the draft (para. 101).
In the context of human settlements, for example, resilience refers to the capability of a person, household or community to recuperate after a shock involving loss or damage of home or landed property, and/or displacement from a habitual residence. HIC-HLRN pointed out to the Committee that the burden of such adaptations cannot be expected of a child.
Urbanization and adaptation
CRC provides that states parties “provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing” (article 27). Regarding new and future generations, children’s sustainable development requires the fulfillment of a bundle of her/his intertwined substantive and process human rights. HLRN-India added that housing and habitat development must include spaces for children to play, access adequate education, healthcare, water and sanitation and to be able to grow in a safe and hygienic environment.
Housing itself significantly impacts environmental impact and contributes to climate change, through construction, urban sprawl, sealing soil, energy consumption, water use, pollution, deforestation, desertification and biodiversity loss. For current and future children’s sake, timely and effective transformation of the housing sector is urgently needed, including improved energy efficiency and electrification, sustainability through enforceable building standards and codes, green building, low-carbon construction methods and materials, more-equitable use of existing housing stock, and integrating climate adaptation and resilience into urban planning and development.
Consequently, international cooperation, including through financial support and investment, is necessary to achieve a green transition that upholds the rights of the child. In the housing field, current and future built-environment priorities require diligence in upholding child rights, especially in cases of displacement in the context of environmental hazards, disasters and climate change.
Environment- and climate-related displacement
HIC-HLRN’s input to the Committee noted that nearly half the world’s children (approximately 1 billion) live in countries at “extremely high risk” of climate-change impacts, auguring an intersectional housing and child’s rights crisis. Women and girls are at particular risk during climate events, being more likely to have insecure tenure and exposure to discrimination, and fearing harassment and violence in shelters. Affected children experience multiple and transversal disadvantage and require special programs to ensure their protection, as well as respect, protection and fulfillment of their rights.
As CRC recognizes, “the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and, particularly, children should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community” (CRC, Preamble). Therefore, it is essential that states ensure family unification throughout displacement and resettlement operations, including climate-change-related environmental and climate-change-related displacement and refugee processing.
The UN’s recognition of a clean, healthy and sustainable environment as a human right casts environment and climate action in the new light of corresponding state obligations vis-à-vis that human right of each child. In this context, HIC-HLRN’s inputs celebrated the development of clear, authoritative standards for implementing the human right to the environment, but emphasized also that the alignment of SDG progress with human rights norms and obligations is still needed.
Photo: Children learning how to maintain a clean environment. Source: Shutterstock.
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