Children’s environmental rights: conceptual framework and normative background
The right to a safe, clean, healthy, and sustainable environment
The right to a safe, clean, healthy, and sustainable environment (henceforth the right to a healthy environment) is a prerequisite for the effective implementation of all other rights contained in the Universal Declaration of Human Rights (UDHR, 1948) and in the United Nations Convention on the Rights of the Child (UNCRC, 1989).1
With the current deterioration of biodiversity and the environment worldwide, it has become essential to pay attention to children’s environmental rights and ensure that an environmental lens is introduced in the design and implementation of projects whose primary objective is to improve children’s and youth’s wellbeing. The right to live and grow in an ecologically safe environment constitutes a prerequisite for children’s physical and mental health.
Today, millions of children suffer from pollution of air, water and soil. Another important factor contributing to environmental degradation is climate change, happening at a global level and locally impacting children’s and young people’s lives. Climate change affects the future of the planet as well as the full implementation of the rights of children right in the present.2
Whilst governments and international organisations seek to come to agreements on how to counteract environmental damage (with environmental legislation and international agreements), it is important to continue to emphasise and focus on the rights of children and young people as enshrined in the UDHR and the UNCRC. This is especially important since in several policy and decision-making fora, the private sector seeks agreement with governments, leaving children and young people out of the discussion, despite they represent the group which is hit the hardest by the negative effects of climate change and environmental degradation. Moreover, it is important to protect the rights of all children and young people, without discrimination due to their age, gender, ethnicity, disability status, etc., and to the country or region where they live in. To do so, in parallel to protecting the rights of children and young people, it is important to continue to promote North-South collaboration and environmental and climate justice: some countries, regions and areas face the effects of climate change and environmental degradation more than others, although contributing to climate change to a reduced extent.
What is environmental degradation?
There is no internationally accepted definition of “environmental degradation” set in stone. We refer to the following concepts by Schroeder (2011)3:
“All human activities have an impact on the environment. […] Taken together, environmental degradation generally stems from one of two main causes:
Use of resources at unsustainable levels,
Contamination of the environment through pollution and waste at levels beyond the capacity of the environment to absorb them or render them harmless.”
Zooming in on climate change and children’s rights
Climate change currently constitutes one of the main drivers of environmental harm and the urgency of the situation calls for prompt intervention on behalf of governments and international actors. The business sector must be regulated and comply with rules and regulations, in their own countries and in transboundary activities. The global Community and civil society may also join efforts with governments and the private sector by raising awareness and making demands, reducing consumption and changing daily habits. However, they have limited reach.
Below, see some selected publications containing more information on climate change and children’s rights:
Advocacy and possibilities to protect ECR
Two parallel paths of advocacy work can be undertaken to protect the rights of children with respect to the environment:
Including references to children in environmental laws and treaties at the local, national and international level;
Referring to the environment in international human rights and children’s rights bodies of law.
Concerning the first point, three international environmental law documents mention children, even though they do not explicitly connect children’s rights and the environment:
the Johannesburg Declaration (2002) and relative Plan of Implementation4;
the Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007)5; and
the Sustainable Development Goals (SDGs)6.
Within the child rights framework, although the right to a healthy environment is not explicitly recognised in the United Nations Convention on the Rights of the Child (1989), many of its articles are implicitly and explicitly linked to the environment. Therefore, the UN Committee on the Rights of the Child (the Committee) has “the opportunity to define an emerging children’s right to a healthy environment.”7
At the time of writing of this document, the Committee was finalising the first draft of General Comment No. 26 which will address these issues and will be published in 2023. tdh was a main player in demanding a General Comment in this area, and now is supporting consultations processes with children, adults, the global community, academia, the UN system and other relevant actors, as well as contributing to the drafting process of the document. The hope is that the upcoming General Comment will “refine the critical nature of an ecologically sound environment to the realisation of the rights in the UNCRC as a whole. [And] elaborate the implementation and operationalisation of a child-rights approach to environmental protection and sustainable development.”8
Within the human rights framework, the work of the Human Rights Council and of the Special Rapporteur on Human Rights and the Environment (SR) have been fundamental to enhance children’s rights and the environment, by focusing on those rights that are primarily affected by environmental harm (rights to life, health and development, right to an adequate standard of living, and rights to play and recreation) and on the State obligation to involve children in environmental decision-making processes. This joint work led to the adoption, on the 8th of October 2021, of the Human Rights Council resolution 48/13 recognising that a clean, healthy and sustainable environment is a human right. It also led to the establishment of a Special Rapporteur on the promotion and protection of human rights in the context of climate change.
Concerning the implementation of the law at the national level, each state incorporates international legal instruments in its national legislation in different ways. In relation to children’s environmental rights, the SR has reported that many states “have taken innovative steps to recognise and protect children’s rights to live in a healthy environment.”9 For instance, Bolivia, El Salvador, Mexico and Paraguay have ratified national laws that recognise the right of children to a healthy environment. Also, Denmark, Saudi Arabia and Slovenia have all adopted specific measures to protect children’s health from environmental degradation and chemicals.10 Overall, more than 150 countries recognise and protect the right to a healthy environment through their constitutions, national laws, judiciaries or ratification of international instruments.
The national and international legal frameworks are extremely helpful when it comes to concrete action on the ground, raising awareness and advocacy work. According to those documents, children and young people can address their local and national authorities and demand the implementation of their rights – to which their government has agreed.
How does environmental harm affect children?
The SR’s report on children’s rights and environmental protection11 classifies the types of environmental harm that affect children’s rights into five main groupings:
Chemicals, toxic substances and waste
The loss of biodiversity and access to nature.
The effects of environmental harm on children are hence multiple and highly diversified depending on the geographical area one considers and other intersecting elements such as poverty, gender etc.12 Moreover, age constitutes a key factor since the younger a child is, the more likely they are to suffer harm from environmental degradation.13 As noted by the SR on Human Rights and the Environment, “[e]nvironmental harm has especially severe effects on children under the age of 5. […] Childhood exposure to pollutants and other toxic substances also contributes to disabilities, diseases and premature mortality in adulthood.”14
Which child rights are affected?
The impact of environmental degradation on children’s rights is extremely wide as it virtually encompasses all aspects of their lives. However, it is possible to categorise15 some key groupings of rights on which the impact is particularly far-reaching:
Rights which satisfy basic needs (right to life, right to health, right to water, right to food and right to housing);
Specific children’s rights (right to be cared for by parents, right to education and rights to play, leisure and access to culture);
Participation rights (right to active participation, right to freedom of expression, association and assembly, accountability and right to an effective remedy);
Civil and political rights (right to nationality, right to birth registration and right to preservation of identity, right to equal protection against discrimination, right to privacy and family life, and right to property).
Overall, states have the obligation to safeguard children within their jurisdiction and provide an ecologically and sustainably sound environment. This calls for “proper resourcing of environmental policy and programming to ensure that the specific needs of children are adequately addressed.”16 However, most of the negative impacts of environmental degradation and climate change have a transboundary dimension meaning that they do not respect sovereign national borders, which makes the situation even more complex.17 It is often the case that children and youth living in the global South are more likely to suffer harsher consequences of environmental degradation and climate change rather than those in the global North. Therefore, it is important to call for international cooperation and ensure North-South collaboration for the protection of the right of a healthy environment across contexts and promote environmental and climate justice. International efforts should furthermore hold national and international private companies accountable for their own direct and indirect impacts to environmental degradation.
The right to a healthy environment has been used in climate litigation before and, in certain cases, it has been successful.18 However, there are several problems with the implementation of the right of the child to a healthy environment and these include:
Economic, social and cultural rights are extremely difficult to enforce, in particular if connected to the environment;
Environmental rights are collective rights, meaning their fulfillment is more complex due to their communal dimension;
The environmental harm is often constituted by a threat, not a damage per se, meaning that it will be very difficult to prove in a court setting;
The burden of proof falls on the victim and it is extremely difficult to fulfill especially in cases of transboundary environmental harm;19
International bodies, such as the Committee on the Rights of the Child, may be too far from those children and youth who are victims of environmental degradation and the negative consequences of climate change. Also, some children and youth are not aware of their rights and would rather use more localised authorities – who do not always have the protection of children’s rights as their primary objective.
Where can children go when their rights are violated?
In terms of international avenues for children to enforce their environmental rights, where can children go when their rights are violated?
The most important supervisory body for children’s rights remains the UN Committee on the Rights of the Child. The Committee has two fundamental ways to develop children’s environmental rights: (i) through its state reporting processes; (ii) through individual communications available under the 2011 Optional Protocol to the UNCRC that provides for an individual complaints mechanism.20
The Universal Periodic Review procedure of the Human Rights Council offers another option although its accessibility for children remains limited in scope.
At the local level, children can contact local authorities. However, these do not always know about children’s rights and may not always act towards the protection of children and youth against environmental degradation. The support of local organisations and peer networks is often key to ensure children’s and youth’s access to remedies.
The Human Rights Committee Complaint Procedure: Children take action
On the 11th October 2021, the Committee published its decisions regarding a complaint brought against 5 State parties – Argentina, Brazil, France, Germany and Turkey – by 16 children under the Optional Protocol to the Convention on the rights of the Child. Ultimately, the Committee found that a State party “can be held responsible for the negative impact of its carbon emissions on the rights of children both within and outside its territory.”
Child-rights based approaches to programming
From the point of view of programming, it is crucial to always include a child-rights approach in activities. This is a way to implement children’s rights and ensuring that children’s perspective is included in different areas of work.
On one hand, a child-rights approach “recognises children as autonomous rights-holders and stresses their role as victims of environmental degradation and as pioneers in environmental policy. [On the other hand] A child rights-based environmental and sustainability policy is centred on the basic needs of children and guarantees that children are informed and heard on questions affecting “their” environment.”21 The child rights-based approach is adopted as an underlying pillar which seeks to bridge the gap between theory and practice.
The examples of good practices presented in tdh’s Green Lights have efficiently and successfully implemented environmental children’s rights, particularly in 4 key areas: campaigning and media engagement, child and youth participation, environmental education and awareness raising, and protection of the environment.
1 Center for International Environmental Law, Written Submission to the Committee on the Rights of the Child, August 2016, p4.
2 See Human Rights Council resolution 32/33, which recognised that children are among the most vulnerable to climate change; Human Rights Council resolution 35/20, which highlighted that climate change negatively impacts some children more than others, including children with disabilities, children living in poverty, and indigenous children; IPCC, Sixth Assessment Report (AR6), August 2021, available at: www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.pdf (latest report on the current state of climate throughout the world).
3 Schroeder, Christopher H., ‘Defining the Environment and Its Characteristics’, in: Shelton, Dinah L./ Anton, Donald K., Environmental Protection and Human Rights, Cambridge University Press, 2011.
4 United Nations. Report of the World Summit on Sustainable Development. 2002. Johannesburg Declaration on Sustainable Development and Plan of Implementation of the World Summit on Sustainable Development. digitallibrary.un.org/record/478154
5 United Nations General Assembly. 2007. Resolution adopted by the General Assembly [without reference to a Main Committee (A/61/L.67 and Add.1)] 61/295. United Nations Declaration on the Rights of Indigenous Peoples. www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html
6 Sustainable Development Goals. sustainabledevelopment.un.org/sdgs
7 Kaime, Thoko, ‘Children’s Rights and the Environment’, p21 in U. Kilkelly, T. Liefaard (eds.), International Human Rights of Children, International Human Rights, doi.org/10.1007/978-981-10-3182-3_20-1
8 Kaime, Thoko, ‘Children’s Rights and the Environment’, pp20-21 in U. Kilkelly, T. Liefaard (eds.), International Human Rights of Children, International Human Rights, doi.org/10.1007/978-981-10-3182-3_20-1
9 Human Rights Council resolution 37/58, para 9.
11 Human Rights Council resolution 37/58, paras 15-30.
12 Some effects are less noticeable than others. For instance, child labour is often forgotten amongst them. See Terre des hommes – International Federation, ‘The Neglected Link - Effects of Climate Change and Environmental Degradation on Child Labour’, Child Labour Report 2017. www.terredeshommes.org/wp-content/uploads/2017/06/CL-Report-2017-engl.pdf
13 See The Lancet, ‘Lancet Countdown: Tracking Progress on Health and Climate Change’, www.lancetcountdown.org/2019-report/
14 Human Rights Council resolution 37/58, para 15.
15 Sanz-Caballero, Susana, ‘Children’s rights in a changing climate: a perspective from the United Nations Convention on the Rights of the Child’, Vol. 13: 1–14, 2013, pp2-3. doi: 10.3354/esep00130.
16 Kaime, Thoko, ‘Children’s Rights and the Environment’, p8 in U. Kilkelly, T. Liefaard (eds.), International Human Rights of Children, International Human Rights, doi.org/10.1007/978-981-10-3182-3_20-1
17 As noted by the Special Rapporteur: “Many environmental challenges, such as climate change, ozone depletion, the loss of biological diversity, long-range air pollution, marine pollution, plastic pollution and trade in hazardous substances, have global or transboundary dimensions.” In: United Nations General Assembly, Resolution 73/188, para 19.
18 de Vilchez Moragues, Pau and Savaresi, Annalisa and Savaresi, Annalisa, The Right to a Healthy Environment and Climate Litigation: A Mutually Supportive Relation? (April 18, 2021). Available at SSRN: ssrn.com/abstract=3829114 or dx.doi.org/10.2139/ssrn.3829114
19 Terre des hommes - Germany, ‘Protecting Environmental Child Rights’, 2021, pp20-following. www.terredeshommes.org/wp-content/uploads/2013/01/tdh_Environmental-Child-Rights_2012-11-final.pdf
20 Kaime, Thoko, ‘Children’s Rights and the Environment’, p19 in U. Kilkelly, T. Liefaard (eds.), International Human Rights of Children, International Human Rights, doi.org/10.1007/978-981-10-3182-3_20-1 See also Child Rights International Network (CRIN), ‘Submission to the UN Committee on the Rights of the Child in advance of the 2016 Day of General Discussion on "Children’s rights and the environment"’, July 2016.
21 Terre des hommes - Germany, ‘Protecting Environmental Child Rights’, 2021, p26. www.terredeshommes.org/wp-content/uploads/2013/01/tdh_Environmental-Child-Rights_2012-11-final.pdf