Sacchi et al. v Argentina et al.

A group of 16 children affected by the consequences of climate change filed a complaint against six States for violating their rights by failing to fulfil the States’ international commitments to reduce emissions. The claim was deemed inadmissible for failure to exhaust domestic remedies but recognised the extraterritorial application of human rights obligations in the context of climate change and the victim status of the authors of the complaint.

By Clara Egler

Case Information

Court: Committee on the Rights of the Child (under the Optional Protocol to the United Nations Convention on the Rights of the Child)

Dissenting Judgement: No

Filing Date: 2019

Last Update: 2021

Status: Inadmissible for failure to exhaust domestic remedies

ISSUES

Whether Argentina, Brazil, France, Germany, and Turkey violated children’s rights, as State parties to the United Nations Convention on the Rights of the Child (‘UNCRC’) and the Paris Agreement, by failing to prevent and mitigate the consequences of climate change.[1] 

MATERIAL FACTS/BACKGROUND

With the global temperature increase already at 1.1ºC above pre-industrial levels, the effects of climate change are already noticeable and  it is clear that the impacts are already affecting the daily lives of children across the globe. For example, higher temperatures are significantly impacting children’s health, causing severe asthma symptoms and an increase of tropical diseases transmitted by mosquitoes, wildfires, droughts, heatwaves, extreme storms, floods, and biodiversity loss, amongst other effects.[2] 

Therefore, a group of 16 children (nationals from Argentina, Brazil, France, Germany, India, Marshall Islands, Nigeria, Palau, South Africa, Sweden, Tunisia and the USA), directly affected by the consequences of climate change, have filed a Communication to the Committee under the Optional Protocol of the UNCRC.[3] 

The UNCRC requires States to take all of the possible measures to ensure that the economic, social and cultural rights of children are maintained. The Convention also emphasises the need to put their best interests into primary consideration while developing public policies and other government activities.[4] In addition, the Optional Protocol creates the Committee on the Rights of the Child, which can receive communications from individuals or a group of individuals on the violation of children’s rights.[5]

THE ARGUMENTS OF THE PARTIES

The Claimants’ arguments:

The Claimants argued that each of the respondent States is aware of the effects of climate change, both internally and also beyond their borders. They also argued that said States have been party to the United Nations Convention on Climate Change (‘UNFCCC’) since the early 1990s and have reaffirmed their commitments to reduce their emissions through the Paris Agreement in 2015.[6] Also, as recognised by a Joint Statement from the Committee and four other UN human rights treaty bodies, children are one of the most vulnerable groups to the effects of climate change. As a result, when one of the States fails to tackle its consequences, it could represent a violation of that State’s obligations to protect human rights under the UNCRC. Moreover, the Statement also recognised the extraterritorial responsibility of the States to ensure the protection of the human rights of all peoples.[7] 

Thus, the Claimants affirmed their complaint is under the jurisdiction of the Defendants, even though they are not only nationals from these countries but also victims of the transboundary effects of climate change. In addition, the Claimants argued that the exhaustion of domestic remedies, one of the requirements for submitting a communication to the Committee, would be incredibly lengthy and sometimes not even present in the national legislations of the Defendant States.[8]

The Claimants argued that each respondent has failed to maintain its commitments under the Convention by failing to:

(i) prevent human rights violations caused by the effects of climate change;

(ii) cooperate with the international community to prevent and mitigate climate change;

(iii) put into practice the precautionary principle to protect children’s lives; and

(iv) guarantee intergenerational equity.[9]

Therefore, the Claimants argued that these States violated children’s rights under Articles 6, 24 and 30 of the UNCRC. These articles lay down the right to life, development and survival of children, and their freedom to access health and culture, especially by children from indigenous minorities.[10] In summary, the Claimants asked the Committee to qualify: (1) that climate change as a crisis that is directly affecting children’s rights; and (2) that the Defendants knew about the consequences of climate change and still perpetuated the activities that are causing it, and, in doing so, infringed the children’s rights mentioned above.[11] 

Finally, the Claimants requested a recommendation from the Committee for the Defendants to

1. review their internal legislation to increase their efforts to mitigate and adapt to climate change, especially considering the best interests of children;
2. cooperate internationally to the mitigation of climate change and the protection of children’s rights;
3. assure that every child has the opportunity to fulfil its right to access to justice, established under Article 12 of the UNCRC, in any matter that involves the violation of its rights, both internally and internationally, especially advocating towards the States’ response to the climate change crisis.[12]

The Defendants’ arguments on admissibility:

Each State responded first to the admissibility of the Communication by presenting the following arguments:

• Germany: argued it only has jurisdiction to respond to the complaints made by the author of German nationality, denying the extraterritorial application of the Convention on the remaining authors since climate change results from global greenhouse gas emissions. Among other arguments, Germany also contests the exhaustion of domestic remedies, affirming that the authors can make such complaints under its national legal system.[13] 
• Brazil: defended that there are mechanisms under Brazilian law that would allow the Claimants to seek judicial remedies to ensure their rights, either by filing a complaint individually or working with the competent government authorities to submit a claim on their behalf. The State also argues that there is no concrete evidence of the extent of the damage caused by Brazil specifically and that the Defendant could not be considered responsible for the consequences of the actions of other States.[14]
• France: reiterated its longstanding commitment and effort to mitigate and adapt to climate change and welcomed the Claimants’ concerns. Nevertheless, the State also reaffirmed the inadmissibility of the claim since climate change could not be classified as pollution but as the effect of global economic activities.[15]
• Turkey: further argued that there are domestic remedies in each State that could bring relief to the Claimants’ claims and that they failed to provide concrete evidence of the actual moral and material harm each of them suffered from the consequences of climate change.[16]
• Argentina: also shared the concern of the authors to address the effects and prevent the further development of the climate crisis but argued that it is beyond the competence of the Committee and suggested different actions that could be taken to address these issues. The State also contended the extraterritorial jurisdiction and indicated that the Claimants failed to prove the damage caused by the alleged consequences of climate change. Finally, Argentina also claimed there are domestic remedies under its legislation to be pursued by the authors.[17]

The Claimants’ comments on the Defendants’ observations on the admissibility:

The authors replied to the arguments of the Defendants, stating that each State is responsible for the greenhouse gas emissions happening inside their territory. Therefore, under their sovereignty, they can control their emissions by regulating, licensing and taxing activities causing climate change. The Claimants also argued that States can be held responsible for their own obligations, even though several States cause the harmful act, which is the case of the effects of climate change. Finally, they reiterated that even though domestic remedies are available for pursuing their claims, filing them would be highly burdensome and time consuming. They also highlighted that there is a limitation of the competence of internal courts to influence each State’s climate policy and diplomacy, which would also make pursuing these claims internally ineffective.[18] 

Third-party intervention: 

During the written procedures, a third-party intervention was filed by the current and former Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, David R. Boyd and John H. Knox. In their intervention, they reaffirm that children are more vulnerable to climate change’s harmful effects, especially on their health and by accentuating social inequalities. The interveners also argued that the Claimants are directly affected by the current and foreseeable impacts of climate change, which legitimates their claim against the Defendants. 

The interveners finally concluded their intervention by reaffirming the ineffectiveness of each author to seek domestic remedies for their claims and showed concrete examples of the length of similar domestic cases, such as the Urgenda case in the Netherlands. They also acknowledged that each domestic court’s decision in isolation would not suffice to influence the conduct of other States and contribute to the solution of the climate change crisis. Thus, they argued that the Committee has the competence to make decisions that influence the conduct of several States and to remedy the failure of States to protect children’s rights.[19]

THE JUDGEMENT

The Committee decided on the admissibility of the Communication, taking into account three elements:

• Jurisdiction of the Committee:

The Committee recognised the novelty of the Communication’s claim on the transboundary effects of climate change. To establish its jurisdiction, it referred to an Advisory Opinion of the Inter-American Court of Human Rights,[20] which recognised the extraterritorial jurisdiction of States when transboundary environmental damage affects rights established by an international treaty. Moreover, the Committee referred to the previously mentioned Joint Statement, reaffirming that the consequences of climate change threaten a series of human rights protected under the UNCRC, such as the right to life, the right to health, and cultural rights. Hence, failure to address the causes of climate change that threaten human rights could be considered a violation of the obligations of States to protect children’s rights under the UNCRC.

The Committee also acknowledged that even though the effects of climate change are experienced globally, the individual responsibility of States to contribute to these harmful effects is not excluded since they have the power to control activities inside their territories to reduce greenhouse gas emissions that cause these transboundary effects. Therefore, even though the authors are not all nationals from the Defendant States, if they are affected by the potential adverse impacts of climate change, they fall under the extraterritorial jurisdiction in this context, which would fulfil the jurisdiction criteria for the admissibility of the Communication. Nevertheless, the causal link between the activities and the injury experienced by the authors must be significant and analysed in each case.

• Victim status of the Claimants: 

The Committee emphasised the duty of States to protect children from foreseeable harm, such as the effects of climate change. Thus, it recognised that the Claimants had established a reasonable connection between the Defendants’ acts or omissions to prevent the climate crisis and the harm they have experienced, which found the jurisdiction of the Committee to analyse the conduct of these States and confirmed the Claimants’ victim status.

• Exhaustion of domestic remedies: 

While referencing each State’s comments on the admissibility of the claim, the Committee reaffirmed the need to deplete every judicial and administrative resource before submitting a communication under the Optional Protocol to UNCRC. Hence, doubting and assuming that the domestic remedies to the violations of the Claimants’ rights would be unsuccessful and ineffective is not enough to make this claim admissible. In addition, the Committee notes that none of the authors has initiated any procedure under the domestic jurisdiction of the Defendants nor tried to directly contact the competent authorities that are responsible for ensuring their rights. 

Therefore, the Committee rejected the arguments of the Claimants that exhausting all of the available domestic remedies would be ineffective or burdensome. Regarding the time-consuming statement, it recognises that even though the authors mention some examples of lengthy procedures from each State, the Defendants could also show some cases resolved in a reasonable amount of time.[21] In the case of Brazil, the Committee also pointed out that lengthy procedures are highly common in its internal jurisdiction.[22] In the case of France, the Committee recognised the State’s efforts to increase its commitments to reduce emissions based on recent judicial decisions, which would give the authors a solid ground to present their claim under the national jurisdiction of France.[23]

In conclusion, even though the Committee recognised the extraterritorial jurisdiction of the Defendants and the victim status of the Claimants, it understood that the authors failed to provide specific information on the ineffectiveness of the domestic remedies from each State party and failed to start any internal procedures before submitting their claim. Therefore, the Claimants have been unable to exhaust the domestic remedies in each Defendant State, making the Communication inadmissible under Article 7 of the Optional Protocol to the UNCRC.[24]

All of the decisions of the Committee can be downloaded here.

For a further analysis of the Sacchi v Argentina et al. judgement, please find a commentary piece here.

Last edited on 29 November 2023, with special thanks to the case editors Loeva Georges and Björn Lambrenos.

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