The international human rights system provides a robust framework for monitoring, reviewing, and enforcing climate-related obligations.  As climate change mitigation becomes increasingly urgent, the human rights-based approach (HRBA) to mitigation enforcement has grown in popularity.  Children’s rights are beginning to play a critical role in impact litigation surrounding climate change by shifting our focus to the health of future generations. 

What is the Human Rights Based Approach? 

Climate change impact litigation is an avenue to force governments and private actors to reduce emissions and their adverse effects.  A human rights-based approach to litigation frames the suit around human rights violations instead of contract or tort violations.  

In 2015, the Paris Agreement brought the human rights approach into the climate change debate when it stated that “[p]arties should, when taking action to address climate change, respect, promise, and consider their respective obligations on human rights.”  In October 2021, the United Nations Human Rights Council (HRC) went further than the Paris Agreement when it approved a resolution explicitly recognizing “the right to a safe, clean, healthy, and sustainable environment.”  

Why Are Children’s Rights Relevant?

The people who will suffer the greatest burden to remedy climate change have contributed the least to climate change.  As a result, mitigation efforts are mired in politics about which nations must bear the burden – those who have contributed the most thus far or those who do not yet have infrastructures that would suffer from hamstrung economic development?  Because of this conflict, states tend to agree on macro-level policies – such as global carbon emission reduction levels – but domestic enforcement – like where and how those reductions will take place – is more complicated. 

Instead of concerning itself with socio-economic disparities and development concerns, the children’s rights approach alternatively presents a question of equity, rooted in the Convention on the Rights of the Child (CRC):  Do future generations have legal rights?  This loaded question is grounded in the universal idea that all nations have children, and all children’s futures are at risk.  Framing climate change around children’s rights could mobilize a state’s domestic enforcement of its international obligations. 

Current Developments 

Two cases are pending before the European Court of Human Rights (ECHR) about youth rights and climate change: Duarte Agostinho & Others v. Portugal & Others and The People v. Arctic Oil.

In Agostinho, six Portuguese youths filed a complaint relying on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, to privacy, and to not experience discrimination.  The complaint argues that state inaction to combat climate change violates children’s rights because youths are forced to spend more time inside – away from school, friends, and other key developmental activities – due to severe heat waves and forest fires. 

In Arctic Oil, an environmental youth organization in Norway filed a complaint alleging that the expansion of oil and gas extraction in the arctic violated youths’ right to a healthy environment as guaranteed in the Norwegian Constitution. The organization argued that “By licensing continuing exploration for oil and gas in new areas of the Arctic… [Norway] aims to bring new fossil fuels to market…, even though the best available science shows that the emissions from already proven reserves of fossil fuels exceed the remaining carbon budget….” After domestic courts found that Norway was not violating its Constitution, environmental organizations contested the decision, alleging that courts did not consider accurate scientific assessments of the consequences of climate change for coming generations.

Climate change mitigation efforts should reflect the needs of humans in general and, more specifically, the needs of future generations.  Litigating one universal cause – children’s rights – should push the international community to enforce global policy on a domestic level. The outcome of these cases could catalyze a widespread adoption of the children’s rights approach to climate change litigation.