The UN’s response to the Greta Thunberg complaint came out just yesterday. Back in 2019, Thunberg and other teenage activists brought a headline case to the Committee on the Rights of the Child, seeking to prove that inaction on climate change violates children's rights.
It was a hard issue of law and human rights: something that has long been resisted when it comes to the environment, which has always been seen as a peripheral issue.
That's why the decision was ground-breaking. Though it couldn’t formally rule on the complaint, the panel accepted that a state actor can be held responsible for the negative impact of carbon emissions on children – both within and outside the territory.
This reasoning means that a girl living on an island in the Indian Ocean, which will disappear due to climate change, could sue the United States for violating her rights.
I am sure the reader can appreciate the far-reaching legal consequences this thinking could have on future climate litigation.
Right approach, wrong target
The argument in the case is not that climate change is bad. We know that. The argument is that states contributing to climate change are negatively affecting the rights of children in a legally sanctionable way.
The countries that bore the international public slap in the face in this case, however, were Argentina, Brazil, France, Germany, and Turkey. But these are not the world’s biggest emitters and polluters.
They were selected as a target of the case by Thunberg et al, not over the worst climate impact, but simply because they have ratified the Optional Protocol of the UN Convention on the Rights of the Child: allowing cases to be brought directly against them by minors.
The world’s biggest polluters haven't. So it's a bit of a ‘catch whoever you can’, and that should be borne in mind in the ensuing discussions.
The countries in the UN Greta case are the classical international law countries (Europe and Latin America) who have agreed that their human rights practices can be reviewed and challenged.
The biggest carbon emitters, on the other hand, haven't. Even the US hasn't even ratified the Convention on the Rights of the Child (arguably the only functioning country in the world that hasn’t), let alone the Optional Protocol.
I used to work in OHCHR, the UN division responsible for Treaty Bodies: panels set up to decide on cases like this. One of the most common hurdles to accepting a new case, which we saw on a daily basis, was the fact that a given state had not accepted the Optional Protocol of a human rights treaty, thus allowing an individual to complain directly.
Very often, the biggest violators don’t accept the competence of a UN committee to review their conduct. On the other hand, states that are better at upholding human rights, like Sweden, for example, submit themselves willingly to review.
In some cases, in the early years of the UN human rights mechanisms, this would lead to absurdities – such as Sweden becoming the country with the most human rights violations recorded in the world.
Early UN ruling is just the beginning
The Thunberg complaint is also very important as a test case: one that develops, for the first time, the nexus between human rights law and climate. It strengthens the principles of this reasoning and the legal parameters.
The cross-border element is key. Traditionally in human rights law, citizens were only able to sue their own countries for human rights violations at the UN level.
This case changes that principle, and leaving aside the fact that the panel can’t yet pass judgment because the activists have not exhausted domestic measures, we still saw major developments.
The biggest take-away, however, is that we should remember the five singled-out countries are not the bad guys when it comes to climate change.
The case is valid in principle, but it highlights a well-known truth of international law: countries that buy into the principles engage in the process, while violators don’t want to be subjected to scrutiny.
Iveta Cherneva is a Bulgarian author focusing on security policy, human rights and sustainability. She has worked at five UN agencies over the course of 10 years and was a 2020 finalist for the post of UN Special Rapporteur on Freedom of Speech.