Between Cross-Border Obligations and Domestic Remedies: The UN Committee on the Rights of the Child’s decision on Sacchi v Argentina (Part 1)

by | Oct 29, 2021

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About Margaretha Wewerinke-Singh

Margaretha Wewerinke-Singh is an Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies (Leiden University), an Adjunct Senior Lecturer in Environmental Law at the Pacific Centre for Environment and Sustainable Development (University of the South Pacific) and an Attorney at Blue Ocean Law, a boutique international law firm specialising in human rights, self-determination and environmental justice.

The UN Committee on the Rights of the Child has delivered its long-awaited admissibility decision on Sacchi et al v. Argentina et al. The case results from a communication submitted by sixteen children  under the third Optional Protocol (OPIC) to the Convention on the Rights of the Child (CRC). The child authors claimed that the five respondent States – Argentina, Brazil, France, Germany, and Turkey – had breached their obligations under the CRC by causing and perpetuating the climate crisis, resulting in ongoing violations of their Convention rights. The case forms part of a growing trend of cases in which plaintiffs seek to hold States or corporations to account for inadequate climate action based on constitutional and human rights.

In its decision on admissibility, the Committee ruled that the authors had successfully established jurisdiction and victim status but failed to exhaust domestic remedies. The decision was promptly hailed by legal commentators as ‘ground-breaking’, with the OHCHR characterising it as ‘historic’. The euphoria in the legal community is justified, as the Committee’s reasoning on jurisdiction and victim status not only breaks new ground, but also does so in a way that is replicable and scalable.

First, the Committee’s ruling endorses the Inter-American Court of Human Rights’ approach to extraterritoriality, with its emphasis on causation and foreseeable harm, as the applicable standard for establishing jurisdiction in climate change-related cases. As the Committee draws on international jurisprudence, readily available scientific evidence and the authors’ own testimonies to establish causation and foreseeability, this approach is replicable in other rights-based climate cases. This replicability is hugely significant, as the issue of extraterritoriality needs to be confronted head-on to grapple with the global justice dimension of climate change – a dimension that remains under-addressed in rights-based climate litigation. An important caveat here is that the ruling is confined to admissibility, and it remains to be seen to how causation and foreseeability are handled by human rights bodies at the merits stage.

Second, the Committee’s admissibility ruling reflects important procedural innovations that could inspire more child-centric approaches in climate litigation. These include the first-ever oral hearing which provided the authors with an opportunity to explain how climate change had already affected the enjoyment of their rights under the CRC, and to share their expectations of the communication. The issuance of an open letter to the authors and a simplified explanation of the case is another innovation which contributes to awareness of the potential and limitations of invoking children’s rights to address climate change.

Finally, the Committee’s decision to use the communication as a springboard for a new General Comment on children’s rights and the environment with a special focus on climate change signals the potential of human rights litigation to contribute to normative development beyond a specific case. The Committee’s invitation to the child authors to share their views during the drafting process of this General Comment underscores the success of the case in raising awareness about the impact of climate change on children’s rights, including within the Committee itself.

This blog post is part of a short series examining Sacchi v Argentina. Part 2 criticising the failure to grant admissibility can be found here. A longer version of these arguments can be found at the Leiden Children’s Rights Observatory

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