Unravelling Greta Thunberg’s communication to the Committee on the Rights of the Child concerning State obligations on the reduction of CO2 emissions

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Unravelling Greta Thunberg’s

communication to the Committee on the

Rights of the Child concerning State

obligations on the reduction of CO2

emissions

Ashley Stoffel stoffel.ashley@orange.fr Student Number: 2680699

LLM International and European Law: Public International Law Supervised by Prof. Yvonne Donders

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Abstract

This thesis is greatly inspired by the communication of Greta Thunberg and fifteen other children before the Committee on the Rights of the Child. Their claim raises the question whether States owe a duty to reduce their CO2 emissions under children’s rights such as the right to life (Article 6), to health (Article 24), to culture (Article 30) and the best interests of the child (Article 3). Another added consideration is non-discrimination (Article 2).

The main question is whether States owe a duty to reduce their CO2 emissions in regards to children’s rights under the CRC; and if not, whether they are enforceable under other legal frameworks. The negative answered both of these questions. This excluded from its scope procedural issues such as admissibility, nor extraterritoriality.

To interpret the scope of the rights, the VCLT was used including the teleological method as well as the international legal context of today. Differences were made between different state obligations in relation to international human rights such as positive and negative, respect, protect and fulfil and the 4Ps were described.

In interpreting the scope of the rights, the recurrent hurdle the petitioners would face is that the rights obligations only established an obligation of conduct, not of result. Therefore, States must prove that they are reasonably trying to reduce their emissions but have no duty that their efforts actually result in a decrease. Since all the rights aforementioned were unsuccessful, Article 2 on non-discrimination cannot be applied because it is dependent on another right of the CRC. In terms of enforceability, no other option was found to be viable. The following legal systems were assessed: The Articles on State Responsibility for Internationally Wrongful Acts, the International Environmental legal system, the European Court of Human Rights and a national jurisdiction.

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Introduction

“HOW DARE YOU?!” These words echoed all over the world as the sixteen-year-old Swedish climate activist, Greta Thunberg, scolded world leaders for their inactions in regards to climate change.1 It was not the first time that the teenager addressed the international community to raise awareness about the urgency to act upon climate change. Amongst the media campaigns, the attendance of international summits and the school strike for the climate, she added to her arsenal a communication to the Convention on the Rights of the Child Committee alongside fifteen other child climate activists under Article 5 of the Third Optional Protocol to the CRC.2 The UN Convention on the Rights of the Child 1989 (CRC) is the primary international children’s rights treaty. It is the most wide-ranging human rights treaty which has radically challenged the conceptions surrounding childhood.3 The CRC provides protection for children of the full range of human rights: civil, political, economic, social and cultural. The CRC established an expert body, the Committee on the Rights of the Child (CRC Committee) which monitors state compliance with obligations under the CRC.4 The CRC has been ratified by all States except for the United States.5

The children’s lawyers filed their claim as a petition rather than a traditional communication. Indeed, the children originate from twelve different countries but filed against only five of them: Argentina, Brazil, France, Germany and Turkey. The notable issue is a procedural one

1_{The Guardian, ‘If world leaders choose to fail us, my generation will never forgive them:}

Greta Thunberg’ 23 September 2019

https://www.theguardian.com/commentisfree/2019/sep/23/world-leaders-generation-climate-breakdown-greta-thunberg

2_{UNICEF, ’16 children, including Greta Thunberg, file landmark complaint to the United}

Nations Committee on the Rights of the Child’ 23 September

2019

https://www.unicef.org/press-releases/16-children-including-greta-thunberg-file-landmark-complaint-united-nations

3_{Geraldine Van Bueren, Children’s rights in Daniel Moeckli, International Human Rights Law}

(Third Edition OUP 2018) 326

4_{CRC, Article 43}

5_{Geraldine Van Bueren, Children’s rights in Daniel Moeckli, International Human Rights Law}

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5 concerning admissibility to the CRC Committee. Indeed, for such a claim to even be considered before the Committee, the communication must be admissible. According to Article 7(e) OPIC, the claimants must have exhausted all available domestic remedies unless the application of remedies is unreasonably prolonged or unlikely to bring effective relief.6 For our purposes, the procedural issues will be set aside to be able to sufficiently cover the substance of the communication. In addition, extraterritoriality will not be discussed.

The substance of their argument in relation to children’s rights refers to the idea that each of the involved countries actions are causing and perpetuating the climate crisis and violating the petitioner’s rights. They argue that the States are exacerbating the deadly and foreseeable consequences of climate change, violating the petitioner’s right to life under Article 6 CRC; that States are exacerbating the deadly and foreseeable consequences of climate change, violating the petitioner’s right to health under Article 24 CRC; that the respondent’s actions perpetuating the climate crisis are violating the indigenous petitioners’ right to culture under Article 30 CRC and finally that they have failed to make the best interests of children a primary consideration in their climate action under Article 3 CRC.7_{These accusations raise the question}

whether those arguments are convincing in the respect of legal interpretation of these rights and if, at all, the CRC Committee has touched upon the subject.

The children’s communication, referred to as the Sacchi et al communication, is the starting point and basis of this piece of work and it will be its task to attempt to reply to the issue arising from such a claim. The central question is whether States owe a duty to reduce their CO2 emissions in regards to children’s rights under the CRC; and if not, whether they are enforceable under other legal frameworks. The research method used is essentially doctrinal where the description of the obligations and duties of States will be made through the Vienna Convention on the Law of Treaties (VCLT) rules of interpretation such as General Comments and caselaw. It will then systematically be analysed in relation to the communication of Sacchi et al. Since all the elements of this thesis are interlinked, this thesis will have eight chapters to reply to the central question.

6_{Optional Protocol to the Convention on the Rights of the Child on a communications}

procedure, Article 7 (e)

7_{Communication to the CRC Committee, Sacchi et al v Argentina, Brazil, France, Germany}

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6 The interpretation of International Human Rights in the light of the VCLT (Chapter I) and general theory on State obligations will be stated (Chapter II) to assess the relevant following rights. The scope of children’s rights will be touched upon and will be divided into sub-questions: whether the duty of decreasing CO2 emissions is owed to children in relation to : the right to life (Chapter III), the right to health (Chapter IV), the right to culture (Chapter V), the best interests of the child (Chapter VI) and non-discrimination (Chapter VII). Finally, the issue of whether other legal systems could provide enforceability will be discussed (Chapter VIII).

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Chapter I: Interpretation of International Human Rights

The VCLT is relevant for the interpretation of international human rights. Indeed, it is the basis for interpretation of public international law provisions, including international human rights law.8 This instrument applies to all treaties. A ‘treaty’ is defined as being an international agreement concluded between States in written form and governed by international law.9 Thus, it applies to the CRC. The method of interpretation of international human rights is rooted within the interpretation of general international law.10 In terms of general rules of interpretation:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”11

The International Law Commission (ILC) clarified that in respect to treaty interpretation, weight must be given to the text itself as the expression of the intention of the parties, a subjective element distinct from the text and the general object and purpose of the treaty.12 For instance, the European Court of Human Rights (ECtHR) focused on the text of the European Convention of Human Rights (ECHR) read in light of its object and purposes, the principle of effectiveness, general principles of law and harmonious interpretation with other rules of international law.13_{It has been pointed out that this interpretative approach is not deviating}

from the methods of general international law.14_{However, one must be aware that teleological}

interpretation - interpretation in the light of the object and purpose of the treaty - should not trespass over the intention of the parties, thus allowing a militant judge to empower himself of

8_{Jonas Christoffersen, Impact on General Principles of Treaty Interpretation} _{(OUP 2009)}

39-42

9_{VCLT, Article 2.1 (a)}

10_{Jonas Christoffersen, Impact on General Principles of Treaty Interpretation (OUP 2009)}

39-42

11_{VCLT, Article 31(1)}

12_{UN, Yearbook of the International Law Commission 1966 II, 218 [1]} 13_{Ibid 41}

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8 legislative functions.15 In other words, an interpretation may become a revision of a treaty due to ‘wishful thinking’.

Moreover, sources of interpretation must be defined. Attention should be given to Articles 31 to 33 VCLT which enunciate general accepted principles of international law.16 In Article 31 VCLT, any agreement or instrument relating to the treaty which was made between all the parties in connection with the conclusion of the treaty, would serve as context for the purpose of interpretation.17 In addition, any subsequent agreements, practice or relevant rules of international applicable in the relations between the parties should be taken into account in context.18 It permits the interpreter to examine other international jurisdictions for inspiration but also national jurisdictions for subsequent practices. It should be noted that the distinction between primary and supplementary means of interpretation (Article 31 and 32 respectively) do not entail a rigid line as there is a general link between the provisions due to the unity of the process of interpretation.19_{Few examples of those commonly used are the jurisprudence from}

the ECtHR, the Inter-American Court of Human Rights and the African Commission on Human Rights, but also national jurisprudence and state practice such as the Supreme Court rulings like the Urgenda case mentioned below.20

Coming back to the CRC, its object and purpose was identified as being the protection of the most basic rights of children.21 This should be borne in mind whilst interpreting the convention in terms of CO2 emissions and State obligations.

15_{Richard Gardiner, Treaty Interpretation (2}nd_{ed. OUP 2015)}

16_{Golder v. United Kingdom, App No 4451/70 (21 February 1975) [29]} 17_{VCLT, Article 31(2)}

18_{Ibid (3)}

19_{Jonas Christoffersen, Impact on General Principles of Treaty Interpretation (OUP 2009) 40} 20_{Ministry of Economic Affairs and Climate Policy v Stichting Urgenda, Supreme Court of the}

Netherlands, No 19/00135 (20 December 2019)

21_{William A. Schabas, 'Reservations to the Convention on the Rights of the Child' (1996)}

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Chapter II: General Theory on State Obligations

In international human rights law, the general theory on State obligations is categorised under several headings: positive and negative, ‘respect, protect and fulfil’, conduct and result. Furthermore, in terms of children’s rights, due to their vulnerable status, the 4Ps were established: protection, prevention, provision and participation. Although it is not always easy to put an obligation under a certain category, it is essential to keep them in mind whilst interpreting human rights obligations.

A negative obligation is when a State is required to refrain from engaging in the practices concerned, either directly through its agents’ acts or indirectly by its agents’ omissions when there is a duty to act.22 For instance, the prohibition of torture is primarily a negative obligation.

Positive obligations have been constituted by international jurisprudence and extensively in

the ECtHRs’. In the Court’s view, the main feature of a positive obligation is that it requires national authorities to take necessary measures to safeguard a right or to adopt reasonable and suitable measures to protect the rights of the individual.23

In addition, according to the typology, states must respect, protect and fulfil human rights. States have a duty to respect human rights. Therefore, States have a negative obligation not to take any measures that result in a violation of a given right. They should not voluntarily violate human rights through their organs nor agents.24_{Additionally, States must protect individuals}

from human rights violations. The State needs to proactively ensure that persons within its jurisdiction do not suffer from violations at the hand of third parties or in preventable environmental disasters. The State is thus liable for failures that can be traced back to its shortcomings in protecting individuals from others.25 This is defined as the indirect horizontal effect of human rights.26_{Moreover, the obligation to fulfil human rights emphasises that States} 22_{Nigel S. Rodley, Integrity of the Person in Daniel Moeckli, International Human Rights Law}

(3rd ed. OUP 2018) 173

23_{Jean-François Akandji-Kombe, ‘Positive obligations under the European Convention on}

Human Rights’ Human Rights Handbooks No.7,7

24_{Frédéric Mégret, Nature of Obligations in Daniel Moeckli, International Human Rights Law}

(3rd ed. OUP 2018) 97

25_Ibid 26_{Ibid 98}

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10 should take positive steps which have triggers a greater enjoyment of rights. This obligation encompasses a duty to adopt appropriate legislation that would implement their international engagements.27 For instance, the incorporation of international human rights into domestic law such as the Human Rights Act 1998 incorporating the ECHR into UK law. Treaty bodies have clarified that such obligation also includes an obligation to adopt, not only legislative measures, but also judicial, administrative, educative and other appropriate measures. States also have an obligation to organise the structure of the state system to ensure the full exercise of human rights.28

Each of the ‘respect, protect and fulfil’ obligations contain obligations of conduct and result.29 On the one hand, an obligation of conduct requires action reasonably assessed to achieve the enjoyment of a right. On the other hand, the obligation of result compels States to accomplish specific targets to satisfy a detailed substantive standard. For instance, the right to health includes the adoption and implementation of a plan of action to reduce maternal mortality (obligation of conduct) and requires the reduction of maternal mortality to levels agreed at international conference (obligation of result).30

Since children are more vulnerable than adults in terms of human rights violations, children’s rights are more extensive. The CRC has a framework named the 4Ps: protection, prevention,

provision and participation.31 It is indicative in terms of the scope of rights afforded by the CRC. Protection refers to protection from discrimination and all forms of harm and exploitation, the right to special protection in armed conflicts and protection from abuse in the criminal justice system.32 Prevention concerns prevention of harm to children. 33 There is a notable overlap between protection and prevention. The main difference is that prevention

27_Ibid 28_Ibid

29_{The Johns Hopkins University Press 'The Maastricht Guidelines on Violations of Economic,}

Social and Cultural Rights' (1998) 20 Hum Rts Q 691, 694

30_Ibid

31_{Geraldine Van Bueren, Children’s Rights in Daniel Moeckli, International Human Rights}

Law (3rd ed. OUP 2018) 333

32_Ibid 33_{Ibid 334}

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11 requires that a system is implemented to protect children from abuse. 34 It is particularly utilised in relation to violence against children (Article 49 CRC) which obliges States to take all appropriate measures to prevent such violence.35 ‘Prevention’ and ‘precaution’ must be also be distinguished. Precaution relies on the concept that scientific uncertainty should not be used as a reason to postpone necessary protective measures, whereas prevention requires action only when there is certainty to the harm.36 Precaution is extensively used in the context of the right to life in specific cases but is not part of general State obligations for all human rights.37

Provision applies to provision of assistance such as the resources, skills and other requirements

mandatory for survival and full development of the child. 38 This includes education, leisure, play and culture as well as special protection and assistance for children who cannot be looked after their own family.Finally, participation entails recognition that children are entitled to the freedom to express opinions and to have a say in matters affecting their political, social, economic, cultural and religious life.39_{It is illustrated by the right to hold beliefs and express}

opinions and for those opinions to be heard, the right to information and freedom of association. International human rights, especially children’s rights, have general State obligations to ensure that they are protected. It is essential to be mindful of them while interpreting the alleged children’s rights violations in the petitioners’ communication to the CRC.

34_Ibid 35_Ibid

36_{Mónika Ambrus, Risk and the Regulation of Uncertainty in International Law (OUP 2017)}

103

37_{Ibid 103-106}

38_{Geraldine Van Bueren, Children’s Rights in Daniel Moeckli, International Human Rights}

Law (3rd ed. OUP 2018) 335

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Chapter III: Right to Life – Article 6 CRC

The petitioners are accusing the respondent States to exacerbate the deadly and foreseeable consequences of climate change that violates the petitioner’s right to life.40_{This relates to the}

central question in whether CO2 emissions are a threat to the life of children.

Article 6 CRC provides that States recognise that every child has the inherent right to life. The CRC Committee has not issued any general comments on the right to life in the context of the CRC so guidance from the Human Rights Committee (HRC) will be used as an interpretative inspiration. The right to life is a ‘supreme right’ from which no derogation is permitted. Its effective protection is the prerequisite for the enjoyment of all other human rights.41 The negative duty to refrain from a conduct that results in the arbitrary deprivation of life is also owed to children by States.42 Additionally, States have a positive duty to protect against deprivation of life by private persons or by other states.43 The right to life essentially consolidates all the other human rights enshrined in the Convention such as the right to health, education, adequate standard of living, social security and rest, leisure and play.44 The HRC extended States obligations to ‘reasonably foreseeable threats and life-threatening situations that can result in loss of life’.45_{States violate the right to life by exposing victims to a real risk}

of the deprivation of life even if threats and situations do not amount to death.46 Accordingly, States should take appropriate measures to address the general conditions in society that give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity.47

These conditions include the degradation of the environment as well as the deprivation of land, territories and resources of indigenous peoples.48 The Inter-American Commission on Human Rights went as far as acknowledging the special relationship between indigenous people and

40_{Sacchi et al [260]-[275]}

41_{UNHRC, General Comment No. 36, CCPR/C/GC/36 [2]} 42_{Ibid [7]}

43_{Ibid [21]-[22]}

44_{Manfred Nowak, Article 6: The Right to Life, Survival, and Development (Martinus Nijhoff}

Publishers 2005) 2

45_{UNHRC, General Comment No. 36, CCPR/C/GC/36 [7]} 46_Ibid

47_{Ibid [26]} 48_Ibid

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13 their land as being essential for their subsistence in relation to the right to life.49 This is precisely the case of some of the children petitioners that is discussed in relation to the right to culture below. However, it is also relevant to the right to life as indigenous children are dependent of the land for survival.

To substantiate their argument, the petitioners also used the Portillo Caceres v Paraguay case. The HRC Committee found that the government violated the right to life of the victims by failing to protect them from toxic environmental effects of agro-chemicals. It held that Paraguay did not exercise adequate checks over illegal polluting activities, which amounted to foreseeable threats to life.50 However, this event was caused by the intentional spilling of toxic substances into the environment which is distinct from the issue of climate change as it was a direct man-made action.

In General Comment 36, the HRC established climate change as one of the ‘most pressing and serious threats to the ability of present and future generations to enjoy the right to life’.51_{It also}

stated that the implementation of the right to life depended on measures preserving the environment and protection against harm, pollution and climate change induced by private and public actors. States should pay attention to the precautionary approach of the right to life.52 The petitioners argue that the precautionary principle prevents States from invoking scientific uncertainty to justify its failure to take all available measure to prevent the effects of climate change on children. They explain:

“When a State takes dangerous actions with uncertain but foreseeable fatal consequences and

accepts the risks of those foreseeable consequences, that constitutes in many jurisdictions ‘depraved indifference’, ‘reckless endangerment’ or ‘dolus eventualis’. And it is a violation of the right to life under Article 6.”53

49_{Inter-American Commission on Human Rights, Indigenous and Tribal People’s Rights over}

their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System (30 December 2009) [56]

50_{HRC, Portillo Caceres v Paraguay CCPR/C/126/D/2751/2016 (8 August 2019) [7.5]} 51_{HRC, General Comment No. 36 [62]}

52_Ibid

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14 They declared that the respondents’ acts and omissions are causing and perpetuating the climate crisis that has already exposed children to life-threatening risks of climate change such as extreme temperatures, floods, storms, droughts, diseases and polluted air. They concluded that the respondents recklessly caused and perpetuated climate change and failed to take necessary preventive and precautionary measures to guarantee the petitioners’ right to life and are violating Article 6(1) CRC.54

This suggested interpretation would require a wide scope of article 6 which would lead to controversy. In addition, the examples brought up by the petitioners are mostly domestic based, one cannot apply one legal system or school of thought to other jurisdictions without the prior consent of states. Moreover, general comments are written by human rights treaty bodies. They set out their understanding of the scope, applicability and content of their respective treaties.55 The General Comment is a tool to interpretation reflecting the practice of the CRC Committee as well as States; it cannot be used as a stretching method of the right to life for ‘wishful thinking’. Indeed, such stretch may amount to an accusation that the CRC Committee is trespassing over the intention of the parties and acting as an activist rather than interpreter of the CRC.

In Urgenda, the Dutch Supreme Court interpreted the right to life of the ECHR. The question was whether the Dutch state is obliged to reduce the emission of greenhouse gases from Dutch territory by at least 25% compared to 1990. 56 Article 2 ECHR, the right to life, has already been a nest for the inclusion of environmental disasters in its interpretation. States are obliged to take appropriate steps if there is a real and immediate risk to life and the state is aware of that risk.57 The Court explained that the risk to life must be genuine and imminent. The imminence of the risk must directly threaten the victims and it does not refer to a short time restriction as Article 2 also encompass risks that will materialise in the longer term. States bear the obligation to take preventive measures to counter the danger even in the event of uncertainty of the

54_{Ibid [275]}

55_{Christine Chinkin, Sources in Daniel Moeckli, International Human Rights Law (3}rd_{ed. OUP}

2018)

56_{Ministry of Economic Affairs and Climate Policy v Stichting Urgenda, Supreme Court of the}

Netherlands, No 19/00135 (20 December 2019) [5.6.3]

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15 danger.58 The Court acknowledged that the ECtHR has not issued any judgements in relation to climate change or decided upon the dangers of the global emissions of greenhouse gases. The question was whether global CO2 emissions and their consequences entered the scope of Article 2 and 8 ECHR. And if so, whether these provisions imposed any obligations on the Netherlands.59 The Court concluded that the State was in breach of its obligations under the ECHR as the threat of climate change cannot be left unnoticed.

However, not only is the ECHR inapplicable to several of the State respondents in Sacchi et al, it also has had a different interpretation from the international right to life interpreted by the HRC. Indeed, the HRC has not set the ‘real and immediate risk to life’ as a prerequisite for the violation of Article 6 CRC. It cannot be found in General Comment 36. Nevertheless, the ECHR’s test is still used as a method of interpretation in the context of the CRC by scholars.60

Another relevant case is Osman v UK where a young boy was stalked by his school teacher that resulted in the injury of the child and the death of his father.61_{Although the authorities were}

contacted at an early stage of the harassment, the police had failed to take necessary measures to protect the life of the boy under Article 2 ECHR. However, the ECtHR did not proclaim a violation as the authorities did not know or ought to have known that the lives of the Osman family were at real and immediate risk. Thus, the ECtHR raised the standard of due diligence in relation to preventive measures. States are required to respect an obligation of conduct in preventing threats to the lives of children. It does not have, however, an obligation of result.62 Despite the recognition of the precautionary principle in the international human rights law context, the issue of directness and imminence of the threat to life seems too far-fetched to be convincing in relation to climate change. In the ECHR’s caselaw, the imminence of the threat is much stricter and suggests to be interpreted in terms of timing of the risk which pictures

Urgenda as a domestic exceptional case. The CRC Committee would probably not dare to

58_{Ibid [5.3.2]} 59_{Ibid [5.6.3]}

60_{Manfred Nowak, Article 6: The Right to Life, Survival, and Development (Martinus Nijhoff}

Publishers 2005) 26

61_{ECtHR, Osman v UK, App No 23452/94 (28 October 1998)}

62_{Juliet Chevalier-Watts ‘Effective Investigations under Article 2 of the European Convention}

on Human Rights: Securing the Right to Life or an Onerous Burden on a State?’ EJIL 21 (2010), 701–721, 712

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16 extend the right to life in such a way to include climate change but would certainly welcome Member States to apply it by their own will, similarly to the Urgenda case.63

63_{OHCHR, ‘Bachelet welcomes top court’s landmark to protect human rights from climate}

change’ (20 December 2019)

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25450&LangID= E

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Chapter IV: Right to Health – Article 24 CRC

The general question of this thesis is whether States owe duties to children to reduce CO2 emissions as it may be violating their rights. One of the possible rights that is directly affected by the consequences of climate change is the right of the child to the enjoyment of the highest attainable standard of health under Article 24 CRC. This section will examine whether the right of children to health includes the duty to prevent climate change and take precautionary measures to reduce CO2 emissions for States parties to the CRC. To reply to this question, a closer look will be taken at the General Comment provided by the CRC Committee.

Article 24 CRC requires States to pursue full implementation of the right of the child to the enjoyment of the highest attainable standard of health. Accordingly, States are obliged to take appropriate measures to ‘diminish infant and child mortality’ and ‘combat disease and malnutrition’ by protecting against the ‘dangers and risks of environmental pollution’. One should note that ‘to diminish child mortality’ appears to be an obligation of result but it is not. This is explained by the fact that States have an obligation of result for civil, political rights whereas social, economic and cultural rights only require an obligation of conduct.64 Therefore, States should strive to attain the highest standard of health for children but are not required to make it happen.

The ‘highest attainable standard of health’ is defined in General Comment 15 CRC as including the child’s biological, social, cultural and economic preconditions and the State’s available resources.65_{This is referred to as a non-exhaustive list as implied by the word ‘includes’, so}

this definition has a wide scope which is open to future interpretation by the CRC Committee which may be interesting in the petitioners’ case.

In General Comment 15 CRC, the Committee defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.66 The Committee has acknowledged that climate change is a threat to children’s health,67_{and it must} 64_{Urban Jonsson, 'An Approach to Assess and Analyse the Health and Nutrition Situation of}

Children in the Perspective of the Convention on the Rights of the Child' (1997) 5 Int'l J Child Rts 367, 373

65_{CRC, General Comment 15 [23]} 66_{Ibid [4]}

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18 be addressed through ‘evidence-based interventions’.68_{Therefore, States must “put children’s}

health concerns at the centre of their climate change adaptation and mitigation strategies”.69

In addition, the CRC Committee declared that states should put in place a process to identify and address other issues relevant to children’s right to health. It required: ‘an in-depth analysis

of the current situation in terms of priority health problems and responses’ and the

determination and implementation of evidence-informed policies that tackle key determinants and health problems.70 If we apply this to the context of children’s health and the consequences of climate change, States would have the duty to at least identify those consequences in relation to children’s health and try to quash them with relevant policies.

Article 24 also directly cites the ‘dangers and risks of environmental pollution’ in relation to the provision of adequate nutritious foods and clean drinking water.71_{States must ensure the}

access to nutritionally adequate, culturally appropriate and safe food to children.72_However,

the CRC Committee has not detailed what those concepts mean. This interpretation may relate to the petitioner’s, especially the indigenous children, who struggle to fish according to their cultural traditions due to environmental pollution. The Committee continued by stating that States must introduce internationally agreed standards into domestic law concerning children’s health particularly focusing on early childhood such as school food and child obesity.73 The Committee goes deeper in relation to environmental pollution. It requires that States should take measures to address such dangers that local environmental pollution poses to children’s health. They should regulate and monitor the environmental impact of business activities that compromise children’s health.74_{The Committee mentions climate change as being one of the}

biggest threats to children’s health and explains that States should centre children’s health concerns when discussing their climate change adaptation and mitigation strategies. It is not

68_{Ibid [16]} 69_{Ibid [50]} 70_{Ibid [32]} 71_{CRC, Article 24 (2) (c)} 72_{CRC, General Comment 15 [43]} 73_{Ibid [47]} 74_{Ibid [49]}

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19 more specific in its statement, it merely ‘draws attention’ to the matter and does not impose any concrete duties on States to tackle the issue.75

Sacchi et al accuses the respondent States of exacerbating the deadly and foreseeable

consequences of climate change, violating the petitioner’s right to health, based on Article 24 CRC.76 The petitioners argue that the climate crisis has already physically harmed them and poses an imminent and foreseeable physical threat.77 They mention wildfires, the intensification of vector-borne diseases, the frequency of extreme heat waves and droughts as well as the sea-level rise which are threatening the indigenous petitioners’ subsistence way of life making them shift their diet to less nutritious food.78

They also claim that the climate crisis has a psychological impact on children. They state that the children are suffering from climate-related emotional trauma such as anxiety, mental trauma, sleep deprivation and desperation.79_{Indeed, the consequences of such dramatic events}

cannot go unnoticed. A study in India, after a cyclone hit Orissa in 1999, showed that 30.6% of children and adolescents suffered post-traumatic stress disorder (PTSD), with a further 13.6% showing symptoms of trauma.80 Moreover, after the 2010 floods in Pakistan, 73% of schoolchildren showed high levels of PTSD and only 3% showed no signs of trauma.81 Since the States only have an obligation of conduct, they could have tried to reduce their national CO2 emissions to prevent such disasters. For example, the respondents ratified the UN Framework Convention on Climate Change (Paris Agreement) in 2016. They are legally bound to hold the increase in global average temperature to well below 2°C above pre-industrial levels

75_{Ibid [50]}

76_{Sacchi et al p.83} 77_{Ibid [278]} 78_{Ibid [279]-[283]} 79_{Ibid [284]}

80_{Nilmadhab Kar et al., ‘Post-traumatic stress disorder in children and adolescents one year}

after a super-cyclone in Orissa, India: exploring cross-cultural validity and vulnerability factors’ in BMC Psychiatry, February 2007, 7

81_{Nasir Ahmad, Tayyab Alam Bukhari and Nargis Munir, ‘The prevalence of post-traumatic}

stress disorder (PTSD) among flood-affected school children in Pakistan,’ The Interdisciplinary Journal of Contemporary Research in Business Vol 3, No 2, June 2011

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20 and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.82 Its Protocol (Kyoto Protocol) sets the respondents’ quantified emission limitation and reduction commitments.83 Those targets were not complied with by the respondents within the timeline.84 However, some respondents have managed to reduce emissions which could satisfy the obligation of conduct depending on the States’ efforts. For instance, France reduced its emissions from 377 Mt CO2 in 1990 to 332 in 2016 showing a reduction of 12%.85 This is perhaps reasonably complied with the obligation of conduct but this is subjective.

The petitioners concluded that by recklessly causing and perpetuating life-threatening climate change, the respondents have failed to take necessary preventive and precautionary measures to guarantee the children’s right to health and are thus violating Article 24 CRC.86_Terminology

is important here. The petitioners claim that the right to health entails precautionary measures but it is not mentioned in its General Comment nor academic literature concerning children’s rights. In comparison, the right to life mentioned the precautionary principle in its General Comment and is extensively dealt in literature. This refers back to the argument above that social, economic and cultural rights do not involve an obligation of result. However, States have an obligation of conduct in preventing illnesses which is mentioned numerous times in the General Comment.

It seems that the Committee recognises the health consequences of a drought on children for instance but shies away into linking the core driver, CO2 emissions,87 which actually caused that specific natural disaster. One should note that although the Committee addresses environmental issues, it does not refer to global environmental pollution that would encompass greenhouse gases. In fact, it is not its task to do so; it should only interpret children’s rights of the CRC and leave a margin of appreciation to states for implementation.88 It mentions the

82_{Paris Agreement, Article 2(1)(a)}

83_{Kyoto Protocol to the Paris Agreement Annex B} 84_{Sacchi et al. [21]}

85_{Ministère de la Transition écologique et solidaire, Datalab Chiffres clés du climat : France,}

Europe et Monde (2019) 26

86_{CRC, General Comment 15 [285]}

87_{Gabriel Blanco, 2014: Drivers, Trends and Mitigation in Ottmar Edenhofer Climate Change}

2014: Mitigation of Climate Change (Cambridge University Press) 355

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21 responsibility of the State in regulating the environmental effects of third parties which translates into positive obligations. This means keeping an eye on environmental disasters carried out by businesses, such as food and water contamination in relation to children’s rights. Essentially, the Committee addresses environmental pollution but in a careful way so that the responsibility of States is not engaged in relation to global pollution, although it points directly at specific events which may be detrimental to children’s health where its power is established. Additionally, the Committee requires States to contribute to global implementation of the children’s right to health through international cooperation.89_{States should guide all}

international activities related directly or indirectly to children’s health and must identify the major health problems affecting children.90 It mentions that international cooperation should support national health systems which focus more on the aftermath of a natural disaster rather than its main causes. This leaves the door ajar for the petitioners to argue that States are required to recognise that climate change affects children’s health negatively and since it is affecting children on a global scale, international cooperation should be sought after by the respondent States. In a general section, they have argued that the duty to cooperate internationally in the face of climate emergency was violated.91_{They state that it is required under the Paris}

agreement but also in the circumstances of life-threatening actions. However, as aforementioned, climate change does not constitute a direct threat to life so this argument is not convincing in terms of the children’s right to life. Perhaps if they had argued international cooperation under the right to health of children, it would have been more successful due to its wider scope.

The impact of the environment on the realisation of human rights is generally illustrated in relation to actual or potential detriments to human health.92 Teleological interpretation is commonly applied in relation to human rights provisions which offers the possibility to include environmental issues.93 This approach offers the opportunity to adapt human rights standards to social change or in this event, current times where environmental disasters are more frequent.

89_{Ibid [86]} 90_{Ibid [87]}

91_{Sacchi et al [184]-[188]}

92_{Pierre-Marie Dupuy and Jorge E.Viñuales, International Environmental Law (Cambridge}

University Press 2nd edition 2019) 363

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22 Not including the consequences environmental disasters into the interpretation of Article 24 CRC, would thus be inconsistent with the Committee’s previous work on children’s health. The CRC Committee tiptoes around the issue of CO2 emissions by addressing the consequences of climate change but not its drivers. It essentially recognises its negative impacts on the right to health of children through food, water and risks of dangerous environmental pollution. The Committee does not point out climate change or CO2 emissions as directly responsible for these issues as it is not its role. The mental health consequences of climate change are not contested but States only have an obligation of conduct and have tried to reduce their emissions. The efforts made by States can only be assessed in a subjective way and would be too speculative to be accepted as a valid argument in terms of Article 24 CRC.

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23

Chapter V: Right to Culture – Article 30 CRC

The petitioners are further claiming that the respondent’s actions perpetuating the climate crisis are violating the indigenous petitioner’s right to culture under Article 30 CRC. Article 30 CRC guarantees children the right to enjoy their culture. Ethnicity, religion, language or indigenous origins are included within the scope of Article 30.94 In General Comment 11, the Committee has established that this right is closely associated with the use of traditional territory and the use of its resources.95 Indeed, the use of traditional land is of significant importance to the development and enjoyment of culture of indigenous children. The Committee added that States should consider the cultural significance of the traditional land and the quality of the environment whilst securing the children’s right to life, survival and development to the maximum extent.96

The HRC Committee also recognised the special relationship between indigenous peoples and their ancestral land as well as its connection to the right to culture. The Lubicon Lake Band case was used by the petitioners to substantiate their argument. They are authorised to do so under Article 31(3)(c) VCLT as it is subsequent practice in the application of a treaty relating to the CRC. In Lubicon, the claimants alleged that the government had deprived them from their mean of subsistence and their right to self-determination by selling oil and gas concessions on their lands.97 It held that the concessions, in addition to historic inequities, threatened the way of life and culture of the community and thus Canada had violated Article 27 ICCPR.98_Another

leading case used by the petitioners is in the Inter-American system. In Awas Tingni v

Nicaragua, close ties of indigenous people and their land were emphasised. It was

acknowledged as the fundamental basis of their culture, spiritual life, integrity and their economic survival. The traditional land is a material and spiritual component which must be

94_{CRC, Article 30 CRC}

95_{CRC, General Comment No 11 on Indigenous children and their rights under the Convention}

(12 February 2019) CRC/C/GC/11 [19]

96_{Ibid [35]}

97_{HRC, Bernard Ominayak and the Lubicon Lake Band v Canada, Communication No}

167/1984 (26 March 1990) CCPR/C/38/D/167/1984

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24 preserved for their cultural legacy and future generations.99 What the petitioners tried to demonstrate is that indigenous communities have a close tie to their land due to their culture, therefore any changes to it, including climate change, is a threat to their traditions but also their subsistence. The petitioners argue that if the States involved continue their current emissions, the world would heat up enough to decimate indigenous cultures throughout the world and cite how indigenous petitioners have been affected by global warming. One of the petitioners is part of the Yupiaq of Akiak in Alaska. She elaborates on how the heat has prevented her from accessing traditional hunting grounds and the setting of fish traps has become more tedious.100 More specific to our situation is Yakye Axa, where the Court found that Paraguay’s failure to legally recognise and protect traditional lands of indigenous peoples had a negative effect on the right of the community to a decent life due to their lack of access of their traditional means of subsistence.101 In Saramaka v Suriname, the Court expanded on why the environment must be protected under the right to property as the purpose of special measures required on behalf of the communities is to ensure that they maintain their traditional ways, their cultural identity, social structure, economic system, customs, beliefs and traditions.102

The right to culture is generally considered under the group of economic, social and cultural rights as demonstrated by Article 27 ICESCR. As aforementioned, those rights do not oblige an obligation of result but rather an obligation of conduct. States are working towards climate change, whether their efforts are reasonable is subjective and left for politics to decide.

To summarise, Article 30 CRC could be a basis to argue that indigenous children are severely impacted by the negative effects of climate change produced by the continuing CO2 emissions by the respondents. However, whether the respondents have reasonably fulfilled their obligation of conduct is up for debate.

99_{Mayagna (Sumo) Awas Tingni Community v Nicaragua, ICtHR Series C No. 79, Judgment}

(31 August 2001) [149]

100_{Sacchi et al [293]-[295]}

101_{ICtHR, Yakye Axa Indigenous Community v Paraguay (ser. C) No 125 (17 June 2005) [168]} 102_{ICtHR, Saramaka v Suriname Series C No 172 Judgment (28 November 2007) [121]}

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25

Chapter VI: Best Interests of the Child - Article 3 CRC

The general question of this thesis is whether States owe a duty to children to reduce CO2 emissions in light of children’s rights. Article 3 CRC is another provision under which Sacchi

et al brought their petition. They argue that each respondent has failed to make the best interests

of children a primary consideration in their climate actions.103 This section raises the question whether Article 3’s scope includes climate actions taken by States, such as the decision to produce a certain level of greenhouse emissions. The petitioners refer to the principle of intergenerational equity under the Paris Agreement. The Urgenda case will be mentioned as a way to interpret Article 3CRC. These references are possible due to the Article 31 (2)(a) and (3)(b) VCLT respectively. The Paris Agreement is an agreement relating to the CRC as it mentions future generations and intergenerational equity. The Urgenda case fits under any subsequent practice in the application of the ECHR that is also related to the CRC.

Article 3(1) provides that the best interests of the child shall be a ‘primary consideration’ in all actions concerning children.104 The principle “is aimed at ensuring both the full and effective

enjoyment of all the rights recognised in the CRC and the holistic development of the child.”105

States ought to apply the principle of best interests in a manner that is consistent with each of the rights of the child. They must give due regard to the child’s right to participate in decisions which affects both the child as an individual and children as a group. The principle has a reinforcing legal effect as the exercise of best interests principle aims to reinforce and strengthen children’s rights.106

The Committee underlines it as a threefold concept: a substantive right, an interpretative principle and a rule of procedure.107 A child has the right that its best interests will be a primary consideration for decision-makers which creates an intrinsic obligation for States, directly applicable and invocable before a court.108 As an interpretative principle, it provides that where

103_{Sacchi et al p.89} 104_{Article 3 (1) CRC}

105_{CRC Committee, General Comment 14, CRC/C/GC/14 (29 May 2013)}

106_{Geraldine Van Bueren, Children’s rights in Daniel Moeckli, International Human Rights}

Law (Third Edition OUP 2018) 330

107_{CRC Committee, General Comment 14, CRC/C/GC/14 (29 May 2013) [6]} 108_{Ibid (a)}

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26 a legal provision is open to different interpretations, the best interests of the child should be chosen.109 The procedural aspect of best interests requires an assessment of the impact of a decision on a child. It also demands a detailed provision of how the best interests principle has been considered in the decision-making process. This is applicable in broad matters of policy and individual cases. The concept is ‘complex’, ‘flexible’ and ‘adaptable’ and:

“It should be adjusted and defined on an individual basis, according to the specific situation

of the child […], taking into consideration their personal context, situation and needs.”110

The Committee has provided a non-exhaustive list of factors to be taken into account when assessing a child’s best interests such as the child’s views; the child’s identity; the preservation for the family environment and maintaining relations; care, protection and safety of the child; situations of vulnerability; the child’s right to health; and the child’s right to education.111_Since

the list is non-exhaustive, it demonstrates that even the CRC Committee is predicting that more factors could be found in the future. The principle has had significant support by states and most reservations to the CRC have endorsed it rather than rejected it. 112_{The principle of the}

best interests of the child, as one of the primary considerations in every action concerning a child, has even reached the status of customary international law. 113

Interestingly, the best interests principle has served as an interpretative principle to other treaties, which do not expressly enshrine this principle, for instance the ECHR.114 In addition, in the African Children’s Charter, this concept was pushed further as Article 4 states that the best interests of the child are not a primary consideration but the primary consideration in all action concerning children.115 The interpretation of Sacchi et al differs from the African Children’s Charter in the way that the best interests of the child in the CRC is one of many primary considerations. Additionally, the General Comment 15 CRC on the right to health referred to the children’s best interests and emphasised that it must be at the centre of all

109_{Ibid (b)}

110_{CRC Committee, General Comment 14, CRC/C/GC/14 (29 May 2013) [32]} 111_{Ibid [52]-[79]}

112_{Geraldine Van Bueren, Children’s rights in Daniel Moeckli, International Human Rights}

Law (Third Edition OUP 2018) 331

113_Ibid 114_Ibid

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27 decisions affecting their health. It should specifically influence the policies to regulate actions that deter the physical and social environments in which children live.116

Under the scope of the state obligations, the Committee established three different types of obligations: the obligation to ensure the child’s best interests are appropriately integrated and consistently applied in every action taken by a public institution which directly or indirectly impact on children; the obligation to ensure all decisions concerning children demonstrate that the child’s best interests have been a primary consideration and finally the obligation to ensure that the interests of the child have been evaluated and taken into primary consideration in private sector-made decisions.117 This shows that the States have positive obligations to ensure. However, the status of obligations of conduct and result under Article 3CRC is unclear and neither the CRC Committee nor academics clarified it. However, if one looks closely at the obligations set forth and understands the meaning of the best interests of the child, one can conclude that an obligation of conduct and result is requested from States. States must consider the best interests of the child whenever a child is concerned (obligation of conduct). They also must pick the best interests of the child over any other considerations (obligation of result). According to General Comment 14, the best interests of the child is one of the fundamental values of the CRC.118 The Committee has identified it as one of the four general principles of the CRC for interpreting and implementing all the rights of the child. It is applied as a dynamic concept that needs an appropriate assessment to the given context.119

When interpreting Article 3(1), a few words should be highlighted such as ‘in all actions’ and ‘concerning’ children. ‘All actions’ is defined as including decisions, acts, conduct, proposals, services, procedures and other measures. Omissions and failures to act are also included.120 Any acts or omissions of the state could apply so a States’ measures and decisions on CO2 emissions decisions would be covered. A more problematic interpretation would be that of ‘concerning’. According to the Committee, any decisions and actions that directly or indirectly affect children would be within the scope of Article 3. ‘Concerning’ refers to measures and decisions directly concerning a child, children as a group or children in general, and to other measures that have

116_{CRC, General Comment 15 [13]}

117_{CRC Committee, General Comment 14, CRC/C/GC/14 (29 May 2013) [14]} 118_{Ibid [1]}

119_Ibid

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28 an effect on an individual child, children as a group or children in general, even if they are not direct targets of the measure.121 Thus, ‘concerning’ is understood in a ‘very broad sense’ as it is believed that all actions taken by a state affect children in one way or another.122 The Committee clarifies that not every governmental action should take into consideration the best interests of the child but if this decision will have a major impact on children, the best interests should be assessed.

Climate change causes harm to children due to the effects of global CO2 emissions. However, this is not solely one measure or decision per say but the general actions of states in relation to climate change. It is rather a consequence of decisions that States have put in place such as the setting of inadequate CO2 emission targets. At first glance, those targets do not affect children, but their effects do, particularly in terms of health issues. Since the Committee has used a wide approach of the best interests of the child, there is a possibility that CO2 emissions, one of the main drivers of climate change would be considered as an issue that directly impairs the best interests of children worldwide. Indeed, the Committee itself described climate change as being one of the biggest threats to children’s health and exacerbates health disparities.123_{Since the}

Committee views climate change in such a way, it would be an inconsistent interpretation to deem CO2 man-made emissions any different, as they are one of the main drivers of climate change. In other words, greenhouse gases contribute to climate change, climate change is seen as a threat to children’s rights, thus greenhouse gases would be considered as a threat to children. In full coherence, the Committee would interpret greenhouse gases as threats to the best interests of children.

In 2019, a national case led the way towards an interpretation of intergenerational equity in international environmental law. The Urgenda case was a historical landmark where the Dutch Supreme Court ruled on the ECHR concerning Article 2, the right to life and Article 8, the right to private and family life. The ECHR was interpreted in the light of international environmental law under the systematic interpretation method of Article 31VCLT. The issue at hand was whether the Dutch State is obliged to reduce, by the end of 2020, the emission of greenhouse gases emanating from the Dutch territory by at least 25% compared to 1990 and whether the

121_{Ibid [19]} 122_{Ibid [20]}

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29 courts can order the State to do so.124 Concerning the dangers of climate change, both parties endorsed the view that there is a genuine threat in the coming decades. They reasoned that the emission of greenhouse gases is leading to a higher amount of those in the atmosphere which retain the heat produced by Earth. Climate scientists and the international community agree that global warming must be limited to no more than 2°C otherwise this will have dire consequences such as extreme weather, disruption of ecosystems, which would negatively affect food supply and sea-level rising. Therefore, climate change jeopardises the lives, welfare and environment of people all over the world, including in the Netherlands.125

According to ECtHR’s caselaw, member states are under obligation through Article 2 and Article 8, to take appropriate measures if a real and immediate risk to people’s lives and welfare exists and the state is aware of that risk. This also applies to environmental hazards as illustrated by Budayeva.126 The Court mentions that the Netherlands are a party to the Paris Agreement which aims to maintain the concentration of greenhouse gases in the atmosphere to a level at which a disruption of the climate system through human action can be prevented. Each country is responsible for its own share, which means that the state is obliged to reduce greenhouse gases from its jurisdiction in relation to its shared responsibility. The Netherlands must do ‘its part’ under obligations emanating from Article 2 and 8, as there is a grave risk that dangerous climate change will happen endangering the lives and welfare of Dutch people. 127

Sacchi et al also mention the intergenerational equity principle as part of the section on

environmental law duties.128 It is defined as:

“a duty on current generations to act as responsible stewards of the planet and ensure the rights

of future generations to meet their developmental and environmental needs.”129

Netherlands, No 19/00135 (20 December 2019)

125_{Ibid [4.1] - [4.8]}

126_{Budayeva and others v. Russia, ECtHR App No 15339/02 (2008)}

Netherlands, No 19/00135 (20 December 2019) [5.6] - [5.8]

128_{Sacchi et al [193]-[195]}

129_{OHCHR, Analytical Study on the relationship between climate change and the full and}

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30 In Urgenda, this principle was cited under Article 3(1) of the Paris Agreement as being an objective that the Netherlands agreed to pursue.130 The Supreme Court used systematic interpretation of the VCLT to interpret the ECHR in the light of the Paris Agreement. It concluded that the Netherlands was under duty to reduce its emissions of greenhouse gases. This was because of the duties emanating from the ECHR read with the intergenerational principle. This method is also applicable to the best interests of the child. Article 3 CRC can be interpreted in the light of the Paris agreement. Indeed, the intergenerational principle is relevant to the CRC as it concerns present and future generations of children. This concept also parallels the best interests of the child. Thus, triggering positive obligations as well as obligations of conduct and result. By delaying the reduction of greenhouse gases, the States’ climate decisions have under-valued children’s health and treated their present and future interests as lesser considerations. Therefore, the best interests of children as a whole must be taken into consideration when states are taking climate change decisions. Those decisions can amount to a violation of Article 3CRC, in particular of ‘respect, protect and fulfil’ obligations.

However, there is an important issue that needs further consideration. Urgenda is a national Dutch case of interpretation of the ECHR. Although it fits under ‘subsequent practice’ of Article 31(3)(b), this case was the first of its kind and has not been reproduced by courts in any other jurisdiction.131 Similar claims have been brought in other jurisdiction but are pending or were not a success.132 This interpretation also was not confirmed by the ECtHR either. Despite a successful claim under the Dutch Supreme Court, it is unlikely for the CRC Committee to interpret it in such a way since this method is not developed enough on the international stage.

Netherlands, No 19/00135 (20 December 2019) [5.7.3]

131 _Urgenda, _Landmark _decision _by _Dutch _Supreme _Court

https://www.urgenda.nl/en/themas/climate-case/ last accessed 23 July 2020

132_{Urgenda, Global Climate Litigation}

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31

Chapter VII: Non-Discrimination – Article 2 CRC

One argument that the petitioners did not raise but should be pointed out is based on the non-discrimination principle (Article 2 CRC) which is at the heart of the CRC. Indeed, indigenous children are more vulnerable and exposed to the effects of climate change. Climate change imposes a distributive justice issue as indigenous people bear a disproportionate share of the negative consequences of the CO2 emissions.133 Moreover, people of colour and people with lower incomes are found to be disproportionately affected in terms of health and environmental risks.134

The State should not treat children differently on the basis of race, sex or any other grounds. If it does so, it will impair the full enjoyment of all of their rights provided by the CRC.135 In the context of climate change, indigenous children, children of colour or children of lower income families are more susceptible to be affected by the effects of climate change. For instance, for Arctic indigenous children, climate change has serious negative health effects such as changes in diet and nutritional health as well as exposure to air-, water- and food-borne contaminants.136 Such effects can be paired to the right to health under Article 24 CRC. The non-discrimination principle also incorporates indirect discrimination which seems to be the case under climate change. Indirect discrimination is defined as:

“(a) an apparently neutral provision (b) that puts members of one race (or sex, etc.) at

a disadvantage in comparison to members of the other race (or sex, etc.), and (c) that

133_{Erika M Zimmerman, 'Valuing Traditional Ecological Knowledge: Incorporating the}

Experience of Indigenous People into Global Climate Change Policies' (2005) 13 NYU Envtl LJ 803, 807

134_{Robert R. Kuehn ‘A Taxonomy of Environmental Justice’ (2000) 30 Envtl. L. Rep. (Envtl.}

L. Inst.) 10,681, 10,684

135_{Bruce Abramson, Article 2: The Right of Non-Discrimination (Martinus Nijhoff Publishers}

2008) 18

136_{Erika M Zimmerman, 'Valuing Traditional Ecological Knowledge: Incorporating the}

Experience of Indigenous People into Global Climate Change Policies' (2005) 13 NYU Envtl LJ 803, 812

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32

cannot be objectively justified by having a legitimate aim, and by using a means that is appropriate and necessary for achieving that aim”.137

The non-discrimination obligation expects States actively to identify individual children and groups of children the recognition and realisation of whose rights may demand special measures.138 For instance, the need for data collection to be dissected to enable discrimination to be identified. Here again, an obligation of conduct is required but not of result.

If we translate this concept into our context, the neutral provision would be the respondent’s respective national CO2 emission measures established in accordance of the Paris Agreement and the Kyoto Protocol. For example, the measures taken by the respondents in relation to their total national emissions and the provisions taken concerning businesses. Those were unsuccessfully implemented according to the petitioners. As previously specified, these neutral provisions are putting indigenous members at a disadvantage in comparison to non-indigenous members.

The non-discrimination principle is different as it has a wider scope. Indeed, not only does it entail an obligation of conduct, it also requires an obligation of result with positive and negative obligations.139 It is similar to Article 2 ICCPR as Article 2 CRC is a directly justiciable clause and is an immediately realisable right.140 The difficulty here is that Article 2 CRC is not independent and must be paired up with another right of the convention. So far, none of the articles mentioned would be a convincing enough to be successful for this aim. For instance, the right to health only entails an obligation of conduct that is arguably complied with. The reasonableness of those efforts is subjective which would be up for debate on the international stage and is not the aim of this paper.

137_{Bruce Abramson, Article 2: The Right of Non-Discrimination (Martinus Nijhoff Publishers}

2008) 67

138_{CRC, General Comment No. 5 on General Measures of Implementation of the Convention}

on the Rights of the Child, 27 November 2003, CRC/GC/2003/5 [12]

139_{Samantha Besson, 'The Principle of Non-Discrimination in the Convention on the Rights of}

the Child' (2005) 13 Int'l J Child Rts 433, 446-7

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33 Although traces of discrimination are apparent, Article 2CRC is not applicable, as it must be taken in conjunction with another right of the CRC. Indeed, none of the rights in the CRC have proved to be convincingly successful.

Unravelling Greta Thunberg’s communication to the Committee on the Rights of the Child concerning State obligations on the reduction of CO2 emissions