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UWC Law Professor involved in landmark UN children’s rights case

Recent research shows that children born in this decade are seven times more likely to be exposed to extreme weather events such as heat waves, flooding and wildfires, than children who were born 60 years ago. With global warming, extreme weather conditions will continue to intensify, putting more children at risk of being affected mentally and physically. Undoubtedly the climate change crisis is a child rights crisis.

In response to this escalating threat, a group of 16 children from around the world – including Ayaka Melithafa, from Eerste River in Cape Town – filed a petition with the United Nations Child Rights Committee (CRC) against Argentina, Brazil, France, Germany and Turkey in 2019. Swedish climate change activist Greta Thunberg was also one of the petitioners.

On 11 October, the UN Committee on the Rights of the Child (CRC) issued its ruling on the admissibility of the case; the first child rights and climate-change related decision of any UN human rights treaty body. Benyam Dawit Mezmur, Professor of Law at the Dullah Omar Institute for Constitutional Law and Human Rights at the University of the Western Cape, as a member of the CRC, had the opportunity to serve as a Case Rapporteur on this landmark collective decision by an 18-member Committee.

The CRC held five oral hearings between May and September this year, with presentations from the children’s legal representatives and parties from the States. In what was a procedural first for the Committee, it also considered oral representations from the children themselves. Usually complaints of this nature are considered in writing.

They argued that these countries had known about the impact of climate change, yet had done little to curb carbon emissions. In their submission, the children posited that climate change is not an abstract concept and that children will be most affected by the devastating impacts of global warming.

The Committee found that emitting countries are responsible for the negative impact of their emissions. “The UN Child Rights Committee’s decision is a child-led effort to get a key UN Human Rights Treaty Body to pronounce itself on the human rights obligations that states have to their people and to children in particular both within and outside their territory,” said Prof Mezmur. “The fact that climate change is a global problem (caused by the actions of a number of entities – states and corporations) does not absolve any particular state from their responsibility to reduce its share of emissions.”

The CRC therefore determined that the countries had effective control over the sources of emissions that contribute to the causing of reasonable foreseeable harm to children. It concluded that a sufficient causal link was established between the harm alleged by the 16 children and the acts or omissions of the five States. The children had sufficiently justified that the harm they had suffered was significant.

However, the CRC found that the petition was inadmissible as the children had not first taken their cases to the local courts in the countries they were complaining about. After all, this quasi-judicial international procedure, which operates on the basis of pre-established rules, does not replace the role of national authorities and processes to provide access to remedies to violations. The Committee was therefore unable to adjudicate on whether the States parties in this specific case had violated their obligations to the Convention on the Rights of the Child.

Prof Mezmur said the next step for the petitioners could be to approach these courts to try and exhaust local remedies. “If that is not possible, or if it is unduly prolonged or appears to be ineffective, they can still come back to the Committee.” He explained that the implication of the case is also that other parties who had considered to approach the Committee but felt that the Committee might decide as having no jurisdiction would be emboldened by this decision and might decide to approach the Committee once they have approached the local courts.

Already, the petition procedure is subscribed to by 48 States around the world. Fortunately, its positive impact is being felt increasingly. There are multiple examples of successful implementation of decisions in respect of merits and interim measures by States which include Spain’s decision to allow Moroccan children to attend public school; Denmark’s decisions not to deport girls at the risk of being subjected to female genital mutilation; Switzerland’s decision to grant a residence permit to a Syrian refugee family; and Argentina’s decision not to deport a mother of three young children who had already completed her sentence for a drug offence. It is important that other African countries than the four that have already signed on to it- namely Benin, Seychelles, Togo, and Tunisia- do so as soon as possible.

The Committee applauded the “courage and determination” of the authors to bring the issue to the only international complaints procedure dedicated to children’s rights. It also noted that children’s rights to life and health are affected by climate change.

“I agree with the UN Secretary General that underscored that we need to end our suicidal war with nature. The decision is one small but significant step towards holding states accountable for their commitments to slow and stop global warming. It is likely to spur more human-rights related claims at the national level towards that objective and its relevance for the African continent in particular deserves reflection,” concluded Prof Mezmur.

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