On 20 September 2019 an unprecedented four million people marched in villages, towns and mega-metropolises of 140 countries as part of the global Climate Strike. On 27 September, they were joined by another two million. On the crest of this rising rebellion, child activist Greta Thunberg addressed the UN Climate Summit on 23 September.

The 16-year-old girl gave substance to the phrase “speaking truth to power” when she told presidents and prime ministers, including climate-wrecker Donald Trump, that “you have stolen my dreams and my childhood with your empty words” and lambasted them for talking “only of money and fairy tales of eternal economic growth”.

With such verve and ambition, young people have in recent months succeeded in raising awareness of the climate crisis dramatically, turning it into one of the biggest political issues facing the world, while insisting it cannot be disconnected from fundamental issues of inequality and social injustice.

It looks like climate-wreckers and denialist governments hoping this movement will peter out are going to wait in vain. The Fridays For Future (FFF) movement, Extinction Rebellion (XR) and others are sussed. They are not limiting their protest to marches, school strikes and civil disobedience. In many countries, school and community mobilisation is accompanied by public interest litigation that is suing states, cities and private companies for their complicity in pollution and climate change.

In keeping with this, within hours of castigating “immature” leaders at the UN, Thunberg and 15 other young people took a step almost unprecedented in international law: they filed a communication with the UN Convention on the Rights of the Child (CRC), against five of its member states – Argentina, Brazil, Germany, France and Turkey. These countries, the 16 child-petitioners argue, “are knowingly causing and perpetuating the climate crisis” with “foreseeable consequences” that violate children’s rights. “Ultimately, at stake are the rights of every child, everywhere.”

The communication, known as Sacchi et al v Argentina et al, is named after Chiara Sacchi, a 17-year-old girl from Haedo in Argentina. A young South African woman, Ayakha Melithafa, from Eerste River in Cape Town, is among the 16 petitioners. The youngest petitioner is Ridhima Pandey, an 11-year-old girl from India.

More than a party-trick

The children’s petition to the CRC is much more than just sound and fury, a party-trick or gimmick. It is a bold legal move in the globally coordinated campaign against climate change. Depending on what the CRC does with it (and how young people mobilise around it), it may become a watershed moment for international human rights law.

The 16 petitioners have a strong hand to play. The CRC, on which they have centred their complaint, is the most widely ratified treaty in international law. By September 2019 it had been ratified by 196 countries – that is, every country in the world except the US.

When countries ratify the CRC they accept that they are bound by its clauses; they accept they have a duty to incorporate its provisions into their domestic laws; they accept they must subject themselves to the scrutiny and jurisdiction of an expert Committee on the Rights of the Child (CoRC), established by the CRC and elected by states.

However, as we all know, governments are good at signing international agreements that they then ignore at the local level. South Africa is no exception. Seizing on and exposing this sad reality, in their communication the child petitioners first record that all five states they complain about have ratified the CRC as well as all the major UN climate change agreements: namely the 1994 Framework Convention on Climate Change (FCCC), the Kyoto Protocol of 2001 and, later, the 2016 Paris Agreement. By doing so they remind these states how they have ensnared themselves in a series of binding legal obligations.

Under the heading “The climate crisis is already here and harming children”. the complaint patiently lays out pages and pages (32 in fact) of “incontrovertible” scientific evidence of the climate crisis. It describes how fires, severe storms and rising temperatures have affected each one of the petitioners personally, exposing them “to life-threatening dangers, harming their health, and disrupting their cultural traditions”.

Melithafa, for example, refers to the drought in Western Cape, the threat of Day Zero in Cape Town and how she witnessed the drought’s impact on communities’ access to water: “There are other people who grow their own food where I live, and it was really hard on them. It was hard to see them unable to feed their families because of the water restrictions.”

Having set out the facts, the children argue “the climate crisis triggers human rights obligations informed by environmental law” and show how each of the five states has failed to take the action required and thus violated their rights under the CRC, particularly rights to life, health, culture and the duty of states to “make the best interests of children a primary consideration in their climate actions.”

What do they want? Relief

Sacchi and her comrades are not seeking individual compensation. They say: “No amount of money could compensate for the harm children are and will be suffering from climate change, both now and in the future.”

The relief they seek is divided into six distinct demands and it is here that their petition is potentially most ground-breaking. Thunberg and her fellows ask the CoRC – the international guardian of children’s rights – to make a series of findings and recommendations that would clarify the duties and legal obligations that fall on the respondent states to take concrete action to reduce carbon emission and greenhouse gasses.

Their first request is that the CoRC “find climate change is a children’s rights crisis”. To Daily Maverick readers this might seem a modest and obvious request. However, if the CoRC were to make such a finding it has the potential to be a global game-changer.

Why?

Most immediately because of what lawyers term its “persuasive power” in other courts, i.e. that it could strengthen the hand of activists in the many countries of the world that have made children’s rights justiciable in their laws. In South Africa, for example, our Constitution says, when interpreting the Bill of Rights, courts “must consider international law”.

The petitioners’ second ask is that the CoRC find that “each respondent, along with other states, has caused and is perpetuating the climate crisis by knowingly acting in disregard of the available scientific evidence regarding the measures needed to prevent and mitigate climate change”.

Were the CoRC to make such a finding – and if the evidence is really “incontrovertible” one would have thought it has no choice – it could potentially open governments to damages claims by people harmed by the climate crisis. Were that to happen, it might quickly make the cost of polluting the atmosphere with carbon dioxide far greater than the cost of mollifying the fossil fuels industry.

Following this, they ask the CoRC to recommend that “the respondents review and, where necessary, amend their laws and policies to ensure that mitigation and adaptation efforts are accelerated to the maximum extent of available resources and on the basis of the best available scientific evidence to (i) protect the petitioners’ rights and (ii) make the best interests of the child a primary consideration, particularly in allocating the costs and burdens of climate change mitigation and adaption.”

Sceptics might say that ultimately the CoRC only has the power to make “recommendations” to states. However, there is an expectation that signatories to the CRC will carry out and report back on what they have done to fulfill its recommendations. If this were to happen, it would be a further means for children and climate activists to monitor and hold their states accountable.

Finally, even if they are only recommendations and hard to enforce, they could still carry weight before domestic courts, thereby strengthening the hands of activists at national levels – including in South Africa where big cases challenging environmental pollution are already underway.

The first hurdle: admissibility

The children’s petition presents the five governments with a conundrum. They have not yet commented publicly but it seems probable they will oppose the relief being sought. Under the rules of the CoRC, states that are the subject of individual complaints must submit written responses as soon as possible and within six months.

So, what next?

Ann Skelton, founder and former director of the Centre for Child Law at the University of Pretoria, is one of the 18 elected expert members of the CoRC, which is currently in session in Geneva. Last week Skelton confirmed the committee had received the petition but could not discuss its substance. Nonetheless, she did confirm that the first issue the CoRC would have to look at would be the “admissibility” of the petition.

What does this mean?

Generally, under UN international human rights treaties, complaints about states can only be brought by other states. However, Optional Protocol 3 of the CRC, which entered into force in 2014 (and has been ratified by only 45 countries, South Africa not one of them), creates circumstances in which individuals can make complaints directly against states.

Two requirements must be met before this can happen. The first is that OP3 has been ratified by a state, as all five have done in this case; the second is that complainants have first “exhausted domestic remedies” – that they have first brought their complaints through local courts and tribunals – which the children haven’t.

Is this a dead-end?

The child petitioners argue not. They counter that OP3 allows complaints to be heard if “the application of the remedies is unreasonably prolonged or unlikely to bring effective relief”. In their case, they say, because they are children they could not afford to pursue costly litigation: “Take for example the petitioners from the Marshall Islands. In order to protect their human rights … they would need to initiate legal proceedings in all five … states with legal teams in each of these jurisdictions.”

They add that the climate crisis involves cross-territorial disputes and diplomatic relations beyond the reach of domestic courts. For example, “While petitioner Chiara Sacchi could potentially challenge Argentina’s climate policies in an Argentinian court, she could not challenge Argentina’s failure to use diplomatic means to protect her from US emissions…”

Nonetheless, we live in a world where adult logic and law prevails so, in the first instance, the petition will have to jump the hurdle of admissibility. If it does – which would in itself be a great precedent for the rights of children to have their voices heard – the formal hearing will be able to commence.

If and when that happens the children’s climate crisis complaint could become one of the greatest political trials in history and one of the most portentous.

Pushing back on populism

We must watch carefully.

Should the CoRC deem the complaint to be admissible, it is likely that this new front opened up by Greta Thunberg and her 15 comrades will become one of the most important tests of international human rights law seen for decades. In the age of nationalism and attacks on multi-lateral systems, it could go a long way to restoring to the UN and international covenants a relevance and importance they have surrendered in recent years.

This petition could be an example for millions of poor people worldwide of the possibilities inherent in the UN human rights system – if only activists are willing to take advantage of the procedures and systems of international human rights law.

In the short term, not to put too fine a point on it, the petition places in the hands of the 18 expert members of the CRC the lives of three billion under-18 people the world legally defines as children.

Not a small responsibility. DM

In coming months Maverick Citizen will continue to report on progress with this and other legal challenges that are being brought in South Africa and internationally to try to mitigate the climate crisis.