Committee on the Rights of the Child

Decision adopted by the Committee under the Optional Protocol to the Convention on the Rights of the Child ona communications procedure, concerning communication No. 106/2019 * , **

Communication submitted by :Chiara Sacchi et al. (represented by counsel Scott Gilmore et al., of Hausfeld LLP, and Ramin Pejan et al., of Earthjustice)

Alleged victim s :The authors

State party :France

Date of communication :23 September 2019 (initial submission)

Date of adoption of decision :22 September 2021

Subject matter:Failure to prevent and mitigate the consequences of climate change

Procedural issues :Jurisdiction; victim status; failure to exhaust domestic remedies; substantiation of claims

Substantive issues:Right to life; right of the child to the enjoyment of the highest attainable standard of health; right of the child to enjoy his or her own culture; best interests of the child

Articles of the Co nvention :6, 24 and 30, read in conjunction with article 3

Articles of the Optional Protocol:5 (1) and 7 (e)–(f)

1.1The authors of the communication are Chiara Sacchi, a national of Argentina; Catarina Lorenzo, a national of Brazil; Iris Duquesne, a national of France; Raina Ivanova, a national of Germany; Ridhima Pandey, a national of India; David Ackley III, Ranton Anjain and Litokne Kabua, nationals of the Marshall Islands; Deborah Adegbile, a national of Nigeria; Carlos Manuel, a national of Palau; Ayakha Melithafa, a national of South Africa; Greta Thunberg and Ellen-Anne, nationals of Sweden; Raslen Jbeili, a national of Tunisia; and Carl Smith and Alexandria Villaseñor, nationals of the United States of America. At the time of the submission of the complaint, the authors were all under the age of 18 years. They claim that, by failing to prevent and mitigate the consequences of climate change, the State party has violated their rights under articles 6, 24 and 30, read in conjunction with article 3, of the Convention. The Optional Protocol entered into force for the State party on 29 December 2017.

1.2On 20 November 2019, pursuant to article 8 of the Optional Protocol and rule 18 (4) of the Committee’s rules of procedure under the Optional Protocol, the working group on communications, acting on behalf of the Committee, requested the State party to submit its observations on the admissibility of the communication separately from its observations on the merits.

Facts as submitted by the authors

2.The authors claim that, by causing and perpetuating climate change, the State party has failed to take the necessary preventive and precautionary measures to respect, protect and fulfil the authors’ rights to life, health and culture. They claim that the climate crisis is not an abstract future threat. The 1.1°C rise in global average temperature is currently causing devastating heatwaves, forest fires, extreme weather patterns, floods and sea level rise, and fostering the spread of infectious diseases, infringing on the human rights of millions of people globally. Given that children are among the most vulnerable, physiologically and mentally, to these life-threatening impacts, they will bear a far heavier burden and for far longer than adults.

Complaint

3.1The authors argue that every day of delay in taking the necessary measures depletes the remaining “carbon budget”, the amount of carbon that can still be emitted before the climate reaches unstoppable and irreversible ecological and human health tipping points. They argue that the State party, among other States, is creating an imminent risk as it will be impossible to recover lost mitigation opportunities and it will be impossible to ensure the sustainable and safe livelihood of future generations.

3.2The authors contend that the climate crisis is a children’s rights crisis. The States parties to the Convention are obliged to respect, protect and fulfil children’s inalienable right to life, from which all other rights flow. Mitigating climate change is a human rights imperative. In the context of the climate crisis, obligations under international human rights law are informed by the rules and principles of international environmental law. The authors argue that the State party has failed to uphold its obligations under the Convention to: (a) prevent foreseeable domestic and extraterritorial human rights violations resulting from climate change; (b) cooperate internationally in the face of the global climate emergency; (c) apply the precautionary principle to protect life in the face of uncertainty; and (d) ensure intergenerational justice for children and posterity.

Article 6

3.3The authors claim that the State party’s acts and omissions perpetuating the climate crisis have already exposed them throughout their childhoods to the foreseeable, life-threatening risks of climate change caused by humans, be they in the form of heat, floods, storms, droughts, disease or polluted air. A scientific consensus shows that the life-threatening risks confronting them will increase throughout their lives as the world heats up by 1.5°C above the pre-industrial era and beyond.

Article 24

3.4The authors claim that the State party’s acts and omissions perpetuating the climate crisis have already harmed their mental and physical health, with effects ranging from asthma to emotional trauma. The harm violates their right to health under article 24 of the Convention and will become worse as the world continues to warm up. Smoke from the wildfires in Paradise, California, in the United States caused Alexandria Villaseñor’s asthma to flare up dangerously, sending her to hospital. Heat-related pollution in Lagos, Nigeria, has led to Deborah Adegbile being hospitalized regularly due to asthma attacks. The spread and intensification of vector-borne diseases has also affected the authors. In Lagos, Deborah now suffers from malaria multiple times a year. In the Marshall Islands, Ranton Anjain contracted dengue fever in 2019. David Ackley III contracted chikungunya, a disease new to the Marshall Islands since 2015. Extreme heatwaves, which have increased in frequency because of climate change, have been a serious threat to the health of many of the authors. High temperatures are not only deadly; they can cause a wide range of health impacts, including heat cramps, heatstroke, hyperthermia and exhaustion, and can also quickly worsen existing health conditions. Drought is also threatening water security for many petitioners, such as Raslan Jbeili, Catarina Lorenzo and Ayakha Melithafa.

Article 30

3.5The authors claim that the State party’s contributions to the climate crisis have already jeopardized the millenniums-old subsistence practices of the indigenous authors from Alaska in the United States, the Marshall Islands and the Sapmi areas of Sweden. Those subsistence practices are not just the main source of their livelihoods, but directly relate to a specific way of being, seeing and acting in the world that is essential to their cultural identity.

Article 3

3.6By supporting climate policies that delay decarbonization, the State party is shifting the enormous burden and costs of climate change onto children and future generations. In doing so, it has breached its duty to ensure the enjoyment of children’s rights for posterity and has failed to act in accordance with the principle of intergenerational equity. The authors note that, while their complaint documents the violation of their rights under the Convention, the scope of the climate crisis should not be reduced to the harm suffered by a small number of children. Ultimately, at stake are the rights of every child, everywhere. If the State party, acting alone and in concert with other States, does not immediately take the measures available to stop the climate crisis, the devastating effects of climate change will nullify the ability of the Convention to protect the rights of any child, anywhere. No State acting rationally in the best interests of the child would ever impose this burden on any child by choosing to delay taking such measures. The only cost-benefit analysis that would justify any of the respondents’ policies is one that discounts children’s lives and prioritizes short-term economic interests over the rights of the child. Placing a lesser value on the best interests of the authors and other children in the climate actions of the State party is in direct violation of article 3 of the Convention.

3.7The authors request that the Committee find: (a) that climate change is a children’s rights crisis; (b) that the State party, 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; and (c) that, by perpetuating life-threatening climate change, the State party is violating the authors’ rights to life, health and the prioritization of the best interests of the child, as well as the cultural rights of the authors from indigenous communities.

3.8The authors further request that the Committee recommend: (a) that the State party review and, where necessary, amend its 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 protect the authors’ rights and make the best interests of the child a primary consideration, particularly in allocating the costs and burdens of climate change mitigation and adaption; (b) that the State party initiate cooperative international action – and increase its efforts with respect to existing cooperative initiatives – to establish binding and enforceable measures to mitigate the climate crisis, prevent further harm to the authors and other children, and secure their inalienable rights; and (c) that pursuant to article 12 of the Convention, the State party ensure the child’s right to be heard and to express his or her views freely, in all international, national and subnational efforts to mitigate or adapt to the climate crisis and in all efforts taken in response to the authors’ communication.

State party’s observations on admissibility

4.1On 23 January 2020, the State party submitted its observations on the admissibility of the complaint. First, it recalls its long-standing commitment to the fight against climate change, recognizing that scientific conclusions are clear concerning the origin of global warming and the ongoing collapse of biodiversity. The State party also recalls that, when it adopted the Energy and Climate Act in November 2019, Parliament declared an “ecological and climate emergency”. That Act and the bill on waste reduction and a circular economy aim to accelerate the reduction of greenhouse gas emissions and commit France to a carbon neutral trajectory by 2050. In December 2018, the State party adopted its second national plan on adaptation to climate change and is working to establish “heatwave plans” to deal with the extreme heat that is expected in future decades. The State party therefore welcomes citizens’ increased awareness of climate change and shares the authors’ concern.

4.2However, the State party maintains that the present communication is inadmissible. With regard to the allegation of a violation of article 30 of the Convention, the State party recalls that it has made a reservation to this article. As for the allegations based on articles 6 and 24 of the Convention, read in conjunction with article 3, the State party argues that they are inadmissible for lack of jurisdiction and lack of exhaustion of remedies and because they are manifestly ill-founded and insufficiently substantiated.

4.3With regard to lack of jurisdiction, the State party does not dispute that in certain specific cases, the Convention may have extraterritorial application. The European and inter-American human rights systems and the Committee defend the notion that, while extraterritorial application of the Convention exists, it must be reserved for exceptional situations – when, for example, the person invoking a violation of her or her rights is in a territory over which the respondent State has effective control, through its agents or the control it exercises over a non-State entity. Nevertheless, the State party argues that regarding Iris Duquesne – a French national who indicates that she experienced the 2003 heatwave early on in life – the State party has no jurisdiction as, since 2019, she no longer resides in France but in the United States. As regards the other authors of the communication, they do not reside on French territory and do not come under the extraterritorial jurisdiction of France. The State party does not exercise any effective control over these persons or over the States in which they reside. Moreover, extraterritorial jurisdiction is not applicable in the sense of the concept developed in the Human Rights Committee in its general comment No. 36 (2018), according to which a State has the obligation to guarantee the right to life of all persons, including persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner. The State party argues that the communication does not concern, for example, the impact of construction of infrastructure in other countries (transboundary damages). It argues that climate change is a complex phenomenon characterized by interlinked causes and a multiplicity of actors, the result of a global phenomenon originating in human activity and involving greenhouse gases that have been emitted since the beginning of the industrial era by several State and non-State actors. Climate change cannot therefore be considered as localized “pollution” directly attributable to a given State and, as the authors acknowledge, the respondent States parties are not the main emitters of greenhouse gases.

4.4The State party further argues that the communication is inadmissible for lack of exhaustion of domestic remedies. The authors could have brought a case before the administrative court in order to engage the responsibility of the State party for its alleged inaction against climate change, yet decided not to do so. The mere assertion that a remedy has a low chance of success cannot exempt the authors from bringing their claims before the national courts. In particular, regarding atmospheric pollution, Administrative Courts such as those of Paris, Lyon and Lille have already examined cases of State responsibility and compensation for damage caused to individuals. Likewise, the French Council of State has noted the State party’s failure to combat atmospheric pollution and urged the Prime Minister and the Minister of Ecology, Sustainable Development and Energy to take all the necessary measures to implement air quality plans. Moreover, regarding climate change, in the so-called Case of the century, which was before the Administrative Court of Paris at the time of submission of the complaint, several associations were asking the court to recognize the environmental obligations of the State party, to note its shortcomings with regard to combating climate change and to put an end to it. In addition, the Council of State is examining another complaint requesting the French authorities to take all useful measures to reduce greenhouse gas emissions. The State party also indicates that the concept of ecological damage has been recognized in national law since the adoption of Act No. 2016-1087 of 8 August 2016 for the recovery of biodiversity, nature and landscapes. With regard to the allegedly excessive cost of proceedings before the administrative courts, the State party indicates that, depending on their income, any person may benefit from legal aid. Regarding the processing time, the average time for processing a case before the administrative courts is, from first instance to cassation, 26 months and 25 days, which does not constitute an unreasonable delay.

4.5Lastly, the State party argues that the communication is insufficiently substantiated with regard to the alleged complaints, as it focuses on general current and future consequences of climate change, rather than demonstrating that the authors have been directly harmed. Moreover, the communication is manifestly ill-founded and does not seek to establish violations of the authors’ rights, but to induce the Committee to pronounce itself in general on the existence and consequences of climate change.

Authors’ comments on the State party’s observations on admissibility

5.1On 4 May 2020, the authors provided their comments on the State party’s observations on the admissibility of the communication. They maintain that the communication is admissible and reiterate their arguments that the Committee has jurisdiction to examine the complaint, that the complaint is sufficiently substantiated and that the pursuit of domestic remedies would be futile.

5.2Regarding the issue of jurisdiction, the authors argue that the State party has effective regulatory control over emissions originating in its territory. Only the State party can reduce those emissions, through its sovereign power to regulate, license, fine and tax. Given that the State party exclusively controls these sources of harm, the foreseeable victims of their downstream effects, including the authors, are within its jurisdiction. Concerning the State party’s argument that climate change is a global issue for which it cannot be held responsible, the authors argue that customary international law recognizes that when two or more States contribute to a harmful outcome, each State is responsible for its own acts, notwithstanding the participation of other States. In article 47 of the articles on responsibility of States for internationally wrongful acts, the International Law Commission provides that: “Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act.” In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.

5.3The authors reiterate that they have established that each of them has been injured and exposed to a risk of further irreparable harm as a result of climate change caused in substantial part by the State party’s failure to reduce emissions. The consequences of the State party’s acts and omissions in relation to combating climate change directly and personally harm the authors and expose them to foreseeable risks. Their assertions of harm from climate change do not constitute an actio popularis, even if children around the world may share their experiences or be exposed to similar risks.

5.4The authors further reiterate that pursuing domestic remedies would be futile as they would have no real prospect of success. They argue that domestic courts cannot adjudicate their claims implicating the obligation of international cooperation, and they cannot review whether the State party has failed to use legal, economic, and diplomatic means to persuade other Group of 20 member States and fossil fuel industries to reduce their emissions. The State party cannot provide a domestic forum for the claims raised in the communication and remedies sought, which involve transboundary human rights violations caused by multiple States across multiple borders. State immunity vitiates any possible remedy for transboundary harm caused by other States. The authors argue that the remedies they seek are non-justiciable or very unlikely to be granted by courts. Domestic courts would be unlikely or unable to order the legislative and executive branches to comply with their international climate obligations by reducing their emissions. Moreover, domestic courts are likely to provide wide discretion to the legislative and executive branches to determine what constitutes an appropriate climate policy. The remedies here also implicate political decisions in international relations. Domestic courts could not enjoin the Government to cooperate internationally in the fight against climate change. In summary, no court would impel the Government to take effective precautionary measures to prevent further harm to the authors.

5.5Regarding the domestic remedies available to the authors referred to by the State party, the authors argue that their claims would be non-justiciable in France. The French administrative courts will not enforce the rights to life and health under the Convention because that instrument does not have direct effect in the French legal system. The French Constitution does not protect the right to life, and even if the authors asserted their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), no French court has ever recognized the rights to life or health in the context of environmental protection. The authors argue that there are many other obstacles to effective remedies in French courts. France applies a strong separation of powers, which prohibits the judicial branch from exercising a general power of discretion and decision, such as that given to Parliament, and requires “judicial deference” to the political branches. Courts also afford the State broad discretion to undertake positive obligations stemming from international conventions, including human rights treaties. In addition, French administrative courts cannot review Parliament’s failure to introduce or enact legislation and courts have only held the executive branch responsible in the environmental context when the Administration has been held to have a specific legal obligation to act, which is not the case with respect to climate change. If the authors managed to clear all these hurdles, they still would have little prospect of success on the merits because French administrative courts apply a heightened causation standard in environmental cases. The State party could be held responsible for violating their rights only if the State party’s inadequate climate policies were the “preponderant cause” of the harm they have suffered. It is unlikely that any climate change litigant could prevail against the State party under this standard, because multiple States contribute to climate change and neither France, nor any other State, is the sole preponderant cause.

5.6The authors further argue that the unique circumstances of their case would make domestic proceedings unreasonably prolonged as they would have to pursue five separate cases, in each respondent State party, each of which would take years. The State party could not ensure that a remedy would be obtained within the necessary time frame, since any delay in reducing emissions depletes the remaining carbon budget and places the 1.5°C limit on warming further out of reach.

5.7The authors note the State party’s argument that its reservation to article 30 of the Convention prevents the Committee from reviewing any claims against it alleging a violation of the right to culture. Its reservation reads as follows: “The Government of the Republic declares that, in the light of article 2 of the Constitution of the French Republic, article 30 is not applicable so far as the Republic is concerned.” The authors argue that the reservation is incompatible with the object and purpose of the Convention and, if it applies at all, would apply only to French citizens.

5.8The authors note that article 51 of the Convention expressly states that “a reservation incompatible with the object and purpose of the present Convention shall not be permitted”. On the issue of reservations to treaties, the International Law Commission, has stated: “A reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general thrust, in such a way that the reservation impairs the raison d ’ être of the treaty.” More specifically, such “an ‘essential element’ may be a norm, a right or an obligation which, interpreted in context, is essential to the general thrust of the treaty and whose exclusion or amendment would compromise its raison d ’ être”. A State may not use its domestic law as a cover for not actually accepting any new international obligation, even though the treaty’s aim is to change the practice of States parties to the treaty. The authors argue that cultural rights are central to the object and purpose of the Convention. In the preamble to the Convention, it is recognized that a central objective is to provide for “the full and harmonious development” of the child. In ensuring such development, States parties should take “due account of the importance of the traditions and cultural values of each people”. Pursuant to article 4, States parties are to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention, including the right to culture. Specifically, with regard to economic, social and cultural rights, States parties should take such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation. In paragraph 5 of its general comment No. 11 (2009), the Committee noted that the specific references to indigenous children in the Convention are indicative of the recognition that they require special measures in order to fully enjoy their rights. The authors argue that, in analysing the Committee’s general comments and the Convention “as a whole, in good faith, in its entirety”, it is evident that a child’s right to culture is an essential element of the Convention. They note that the Committee has made several recommendations to the State party to withdraw its reservation to article 30. Even if the Committee were to recognize the reservation, it must limit its application to nationals of the State party in France and its territories. The reservation should not abolish the obligation of France under the Convention to respect and ensure the right to culture of indigenous and other peoples outside of its territory over which it may have jurisdiction.

Third-party intervention

6.On 1 May 2020, a third-party intervention was submitted before the Committee by David R. Boyd and John H. Knox, the current and former holders of the mandate of Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.

State party’s observations on the third-party intervention

7.1On 30 July 2020, the State party provided its observations on the intervention. It reiterates its argument that the communication is inadmissible. It also expresses its disagreement with the principle developed by the Human Rights Committee in its general comment No. 36 (2018), according to which a State has the obligation to guarantee the right to life of all persons, including outside its territory, if they are affected in a direct and reasonably foreseeable manner by its military or other activities.

7.2The State party reiterates that French greenhouse gas emissions are not the direct cause of climate change, climate change being the result of multiple factors. Furthermore, the State party maintains that, while it is true that France has made commitments to combat climate change, in particular within the framework of the Paris Agreement, it does not fall within the competence of the Committee to verify compliance with these commitments.

Oral hearing

8.1Following an invitation by the Committee and pursuant to rule 19 of its rules of procedure under the Optional Protocol, legal representatives of both parties appeared before the Committee on 17 September 2021 by way of videoconference, answered questions from Committee members on their submission and provided further clarifications.

Authors’ oral comments

8.2The authors reiterate their claim that they would not have access to an effective remedy in the State party. They argue that two landmark French cases have made it clear that the judiciary cannot require the Government to adopt emission reduction targets in line with a reduction to 1.5°C. All that a court can do is determine if the Government is meeting its own climate targets. First, in the “Case of the century”, non-governmental organizations sued the Government, seeking one of the central remedies sought by the authors in their communication before the Committee. The non-governmental organizations asked the Administrative Court of Paris to order the Government to reduce emissions in line with the 1.5°C limit. However, the court could determine only if the State party was meeting its own domestic targets and the targets set by the European Union. The authors argue that State party courts cannot review the adequacy of those targets under human rights law because the State party does not give direct effect to the rights enshrined in the Convention on the Rights of the Child, including the principle of the best interests of the child. The authors note that in the Grande-Synthe case, a municipality sued the Government, asserting that its failure to further reduce emissions violated the European Convention on Human Rights and other provisions of domestic and European Union law. In its first decision in November 2020, the Council of State held that it lacked competence to order the Government to enact more ambitious climate legislation and that it was competent only to determine if the Government was meeting its own climate targets under the energy code of France and European Union regulations. Later, in its decision on the merits of July 2021, the Council of State found that the State party had fallen short of its own regulations and ordered the Government to take all necessary measures to comply with the 40 per cent emission reduction target set forth in French and European Union law. The authors argue that, while a 40 per cent reduction might sound significant, in reality that target would lead to a devastating 3–4°C of global warming under fair share models. Even the European Union’s more ambitious targets announced in the 2020 revised nationally determined contributions and the 2021 European Climate Law are on a pathway to 3°C of warming. Meeting domestic and European Union climate targets would therefore not eliminate the State party’s excess emissions and would not halt its contribution to the harm being done to the authors.

State party’s oral comments

8.3The State party notes that, while it shares completely the concerns of the authors regarding the effects of global warming, the individual complaints procedure is not the appropriate legal framework for dealing with the consequences of global warming for children.

8.4The State party reiterates its argument that the communication should be found to be inadmissible for lack of jurisdiction. It argues that jurisdiction is primarily territorial and that recognition of extraterritorial jurisdiction must remain exceptional. It notes that none of the authors of the communication reside in France and argues that the State party is not exercising effective control over any of the authors. It notes that, in its general comment No. 36 (2018), the Human Rights Committee indicated that a person could be under the jurisdiction of a State, even when he or she is outside any territory effectively controlled by the State, but when his or her right to life is nevertheless directly and reasonably foreseeably affected by one of the State’s activities. The State party recalls that it strongly opposes this interpretation of extraterritorial jurisdiction, given that: (a) the criteria used are vague and imprecise and therefore a source of legal uncertainty; (b) such an interpretation would ensure a quasi-universal application of international conventions, going far beyond the commitment made by States; and (c) it would lead to a massive flow of communications against States that have accepted the individual communications procedure which would otherwise be the responsibility of States that have not accepted it. The State party argues that the authors have not established a causal link between the acts and omissions of the State party and the alleged harm suffered by them that could be considered to be direct and reasonably foreseeable, employing the wording of general comment No. 36 (2018) (para. 22).

8.5The State party further reiterates its argument that the communication should be found inadmissible for failure to exhaust domestic remedies. It notes that several administrative suits have been successfully brought in the State party concerning global warming, demonstrating that there are effective domestic remedies that the authors of the communication should have used prior to referring the matter to the Committee. It refers to two cases initiated in 2019, which it argues demonstrate that effective domestic remedies are available in the State party: a decision of 3 February 2021 of the Administrative Court of Paris, which found the State liable for its partial failure to meet its greenhouse gas emission reduction targets for the period 2015–2018, and a decision of 1 July 2021 of the Council of State, in which it enjoined the Government to take additional measures by 31 March 2022 to ensure that the Government meets its commitments to reducing its greenhouse gas emissions. It notes that administrative procedures are examined within a reasonable time frame, on average 26 months and 25 days, including the appeal stages. The filing of such a suit is free of charge and representation by counsel is not compulsory in the absence of any claim for compensation or in the context of an application to annul an act undertaken by an administrative authority. Legal aid is also available. Children, while represented by their parents, can also file suits before the administrative courts. The State party contends that, while international relations per se cannot be subject to judicial control, the judiciary does control the implementation of international obligations undertaken by the State party, including the Convention, even if those obligations have not been transposed into national law, provided that they have direct effect. It notes that the Council of State, by establishing an obligation to interpret national law in the light of the Paris Agreement, gave direct effect to the agreement. The State party reiterates its argument that its reservation to article 30 of the Convention cannot be considered to go against the object and purpose of the Convention.

Oral hearing with the authors

9.Following an invitation by the Committee and pursuant to rule 19 of its rules of procedure under the Optional Protocol, 11 of the authors appeared before the Committee on 28 May 2021 by way of videoconference in a closed meeting, without the presence of State representatives. They explained to the Committee how climate change had affected their daily lives and expressed their views about what the respondent States parties should do about climate change and why the Committee should consider their complaints.

Issues and proceedings before the Committee

Consideration of admissibility

10.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the claim is admissible under the Optional Protocol.

Jurisdiction

10.2The Committee notes the State party’s submission that the complaint is inadmissible for lack of jurisdiction as the authors of the communication do not reside on French territory and do not come under the jurisdiction of the State party, as it does not exercise effective control over them. It also notes the State party’s argument that climate change cannot be considered as localized “pollution” directly attributable to a given State and, as the authors acknowledge, the States party is not one of the main emitters of greenhouse gases. The Committee further notes the authors’ argument that they are within the State party’s jurisdiction as victims of the foreseeable consequences of the State party’s domestic and cross-border contributions to climate change and the carbon pollution knowingly emitted, permitted or promoted by the State party from within its territory. The Committee notes the authors’ claims that the State party’s acts and omissions perpetuating the climate crisis have already exposed them throughout their childhoods to the foreseeable, life-threatening risks of climate change caused by humans.

10.3Under article 2 (1) of the Convention, States parties have the obligation to respect and ensure the rights of “each child within their jurisdiction”. Under article 5 (1) of the Optional Protocol, the Committee may receive and consider communications submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in the Convention. The Committee observes that, while neither the Convention nor the Optional Protocol makes any reference to the term “territory” in its application of jurisdiction, extraterritorial jurisdiction should be interpreted restrictively.

10.4The Committee notes the relevant jurisprudence of the Human Rights Committee and the European Court of Human Rights referring to extraterritorial jurisdiction. Nevertheless, that jurisprudence was developed and applied to factual situations that are very different to the facts and circumstance of this case. The authors’ communication raises novel jurisdictional issues of transboundary harm related to climate change.

10.5The Committee also notes Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights on the environment and human rights, which is of particular relevance to the issue of jurisdiction in the present case as it clarified the scope of extraterritorial jurisdiction in relation to environmental protection. In that opinion, the Court noted that, when transboundary damage occurs that effects treaty-based rights, it is understood that the persons whose rights have been violated are under the jurisdiction of the State of origin if there is a causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory (para. 101). The exercise of jurisdiction arises when the State of origin exercises effective control over the activities that caused the damage and consequent human rights violation (para. 104 (h)). In cases of transboundary damage, the exercise of jurisdiction by a State of origin is based on the understanding that it is the State in whose territory or under whose jurisdiction the activities were carried out that has the effective control over them and is in a position to prevent them from causing transboundary harm that impacts the enjoyment of human rights of persons outside its territory. The potential victims of the negative consequences of such activities are under the jurisdiction of the State of origin for the purposes of the possible responsibility of that State for failing to comply with its obligation to prevent transboundary damage (para. 102). The Court further noted that accordingly, it can be concluded that the obligation to prevent transboundary environmental damage or harm is an obligation recognized by international environmental law, under which States may be held responsible for any significant damage caused to persons outside their borders by activities originating in their territory or under their effective control or authority (para. 103).

10.6The Committee recalls that, in the joint statement on human rights and climate change that it issued with four other treaty bodies, it noted that the Intergovernmental Panel on Climate Change had confirmed in a report released in 2018 that climate change poses significant risks to the enjoyment of the human rights protected by the Convention such as the right to life, the right to adequate food, the right to adequate housing, the right to health, the right to water and cultural rights (para. 3). Failure to take measures to prevent foreseeable harm to human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations (para. 10).

10.7Having considered the above, the Committee finds that the appropriate test for jurisdiction in the present case is that adopted by the Inter-American Court of Human Rights in its Advisory Opinion on the environment and human rights. This implies that when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated for the purposes of article 5 (1) of the Optional Protocol if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, when the State of origin exercises effective control over the sources of the emissions in question. The Committee considers that, while the required elements to establish the responsibility of the State are a matter of merits, the alleged harm suffered by the victims needs to have been reasonably foreseeable to the State party at the time of its acts or omissions even for the purpose of establishing jurisdiction.

10.8The Committee notes the authors’ claims that, while climate change and the subsequent environmental damage and impact on human rights it causes are global collective issues that require a global response, States parties still carry individual responsibility for their own acts or omissions in relation to climate change and their contribution to it. The Committee also notes the authors’ argument that the State party has effective control over the source of carbon emissions within its territory, which have a transboundary effect.

10.9The Committee considers that it is generally accepted and corroborated by scientific evidence that the carbon emissions originating in the State party contribute to the worsening of climate change, and that climate change has an adverse effect on the enjoyment of rights by individuals both within and beyond the territory of the State party. The Committee considers that, given its ability to regulate activities that are the source of these emissions and to enforce such regulations, the State party has effective control over the emissions.

10.10In accordance with the principle of common but differentiated responsibilities, as reflected in the Paris Agreement, the Committee finds that the collective nature of the causation of climate change does not absolve the State party of its individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location.

10.11Regarding the issue of foreseeability, the Committee notes the authors’ uncontested argument that the State party has known about the harmful effects of its contributions to climate change for decades and that it signed both the United Nations Framework Convention on Climate Change in 1992 and the Paris Agreement in 2016. In the light of existing scientific evidence showing the impact of the cumulative effect of carbon emissions on the enjoyment of human rights, including rights under the Convention, the Committee considers that the potential harm of the State party’s acts or omissions regarding the carbon emissions originating in its territory was reasonably foreseeable to the State party.

10.12Having concluded that the State party has effective control over the sources of emissions that contribute to causing reasonably foreseeable harm to children outside its territory, the Committee must now determine whether there is a sufficient causal link between the harm alleged by the authors and the State party’s actions or omissions for the purposes of establishing jurisdiction. In this regard, the Committee observes, in line with the position of the Inter-American Court of Human Rights, that not every negative impact in cases of transboundary damage gives rise to the responsibility of the State in whose territory the activities causing transboundary harm took place, that the possible grounds for jurisdiction must be justified based on the particular circumstances of the specific case, and that the harm needs to be “significant”. In this regard, the Committee notes that the Inter-American Court of Human Rights observed that, in the articles on prevention of transboundary harm from hazardous activities, the International Law Commission referred only to those activities that may involve significant transboundary harm and that “significant” harm should be understood as something more than “detectable” but need not be at the level of “serious” or “substantial”. The Court further noted that the harm must lead to a real detrimental effect on matters such as, for example, human health, industry, property, environment or agriculture in other States, and that such detrimental effects must be susceptible of being measured by factual and objective standards.

Victim status

10.13In the specific circumstances of the present case, the Committee notes the authors’ claims that their rights under the Convention have been violated by the respondent States parties’ acts and omissions in contributing to climate change and their claims that said harm will worsen as the world continues to warm up. It notes the authors’ claims: that smoke from wildfires and heat-related pollution has caused some of the authors’ asthma to worsen, requiring hospitalizations; that the spread and intensification of vector-borne diseases has also affected the authors, resulting in some of them contracting malaria multiple times a year or contracting dengue or chikungunya; that the authors have been exposed to extreme heatwaves, causing serious threats to the health of many of them; that drought is threatening the water security for some of the authors; that some of the authors have been exposed to extreme storms and flooding; that life a subsistence level is at risk for the indigenous authors; that, due to the rising sea level, the Marshall Islands and Palau are at risk of becoming uninhabitable within decades; and that climate change has affected the mental health of the authors, some of whom claim to suffer from climate anxiety. The Committee considers that, as children, the authors are particularly affected by climate change, both in terms of the manner in which they experience its effects and the potential of climate change to have an impact on them throughout their lifetimes, particularly if immediate action is not taken. Due to the particular impact on children, and the recognition by States parties to the Convention that children are entitled to special safeguards, including appropriate legal protection, States have heightened obligations to protect children from foreseeable harm.

10.14Taking the above-mentioned factors into account, the Committee concludes that the authors have sufficiently justified, for the purposes of establishing jurisdiction, that the impairment of their Convention rights as a result of the State party’s acts or omissions regarding the carbon emissions originating within its territory was reasonably foreseeable. It also concludes that the authors have established prima facie that they have personally experienced real and significant harm in order to justify their victim status. Consequently, the Committee finds that it is not precluded by article 5 (1) of the Optional Protocol from considering the authors’ communication.

Exhaustion of domestic remedies

10.15The Committee notes the State party’s argument that the communication should be found inadmissible for failure to exhaust domestic remedies. It also notes the State party’s argument that the authors could have initiated administrative proceedings in the State party and that environmental cases of State responsibility and compensation for harm caused to individuals have already been examined before its Administrative Courts, such as those of Paris, Lyon and Lille. It also notes the State party’s argument that the Council of State has also noted the State party’s failure to combat atmospheric pollution, while the so-called Case of the century, in which several associations are asking the administrative judge to recognize the obligations of the State party in combating climate change, is currently pending before the Administrative Court of Paris. The Committee further notes the State party’s information that any person may, depending on their income, benefit from legal aid in the process of such domestic proceedings and that the average time for processing a case before administrative courts is, from first instance to cassation, 26 months and 25 days. The Committee notes the authors’ submission that their claims would be non-justiciable in France as French administrative courts will not enforce the rights to life and health under the Convention, as the Convention does not have direct effect in the French legal system. It notes their arguments that there would also be many other obstacles to effective remedies in French courts, including the facts that: (a) France applies a strong separation of powers, which prohibits the judicial branch from exercising general power of discretion and decision, such as that given to Parliament; (b) the courts afford the State broad discretion to undertake positive obligations stemming from international conventions, including human rights treaties; and (c) administrative courts cannot review the legislative branch’s failure to introduce or enact legislation and courts have only held the executive branch responsible in the environmental context when the Administration has been held to have a specific legal obligation to act, which is not the case with respect to climate change.

10.16The Committee recalls that authors must make use of all judicial or administrative avenues that may offer them a reasonable prospect of redress. The Committee considers that domestic remedies need not be exhausted if, objectively, they have no prospect of success, for example in cases where under applicable domestic laws the claim would inevitably be dismissed or where established jurisprudence of the highest domestic tribunals would preclude a positive result. Nevertheless, the Committee notes that mere doubts or assumptions about the success or effectiveness of remedies do not absolve the authors from exhausting them.

10.17In the present case the Committee notes that the authors have not attempted to initiate any domestic proceedings in the State party. The Committee also notes the authors’ argument that they would face unique obstacles in exhausting domestic remedies as it would be unduly burdensome for them, unreasonably prolonged and unlikely to bring effective relief. It further notes their argument that domestic courts would most likely dismiss their claims, which implicate the State’s obligation to engage in international cooperation, because of the non-justiciability of foreign policy and foreign sovereign immunity. Nevertheless, the Committee considers that the State party’s alleged failure to engage in international cooperation is raised in connection with the specific form of remedy that the authors are seeking, and that they have not sufficiently established that such a remedy is necessary to bring effective relief. Furthermore, the Committee notes the State party’s uncontested argument that the authors could have brought such proceedings before the administrative courts of the State party. It also notes that in a ruling of 3 February 2021, the Administrative Court of Paris recognized ecological damage linked to climate change and held the State party responsible for failing to fully meet its goals in reducing greenhouse gases in the “Case of the century”. In addition, in a decision of 1 July 2021, the Council of State enjoined the Government to take additional measures by 31 March 2022 to ensure that Government meets its commitments to reducing its greenhouse gas emissions. In the absence of further reasoning from the authors as to why they did not attempt to pursue these remedies, other than generally expressing doubt about the prospects of success of any remedy, the Committee considers that the authors have failed to exhaust all domestic remedies that were effective and reasonably available to them to challenge the alleged violation of their rights under the Convention.

10.18Regarding the authors’ argument that foreign sovereign immunity would prevent them from exhausting domestic remedies in the State party, the Committee notes that the issue of foreign sovereign immunity may arise only in relation to the particular remedy that the authors would aim to achieve by filing a case against other respondent States parties together with the State party in its domestic court. In the authors’ case, the Committee considers that they have not sufficiently substantiated their arguments concerning the exception under article 7 (e) of the Optional Protocol that the application of the remedies is unlikely to bring effective relief.

10.19The Committee notes the authors’ argument that pursing remedies in the State party would be unreasonably prolonged. Nevertheless, it considers that, in the absence of any specific information from the authors in support of this claim, and taking into account the information provided by the State party on the length of domestic proceedings, as well as the absence of any attempt by the authors to initiate domestic proceedings in the State party, the authors have failed to justify that accessing available domestic remedies in the State party would be unreasonably prolonged within the meaning of article 7 (e) of the Optional Protocol.

10.20Consequently, the Committee finds the communication inadmissible for failure to exhaust domestic remedies under article 7 (e) of the Optional Protocol.

11.The Committee therefore decides:

(a)That the communication is inadmissible under article 7 (e) of the Optional Protocol;

(b)That the present decision shall be transmitted to the authors of the communication and, for information, to the State party.