Greta Thunberg is right

Climate crisis and the UN Convention on the Rights of the Child: The children vs. the world

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Greta Thunberg and other children, including a 15-year-old student from Hamburg, have filed an individual complaint with the UN Committee on the Rights of the Child because the states are not doing enough against the climate crisis.

A little over a year ago, the then unknown student Greta Thunberg sat alone in front of the parliament in Stockholm on a Friday and went on strike due to the climate crisis. 13 months later, over four million people in 163 countries around the world are said to have taken to the streets last Friday, inspired by the 16-year-old Swede. In Germany alone there were 1.4 million in countless cities throughout Germany.

But Greta Thunberg not only mobilizes a global movement for more climate protection and gives accusatory speeches to the most powerful and influential people in the world. Greta Thunberg is now also using international law to build up further pressure on the states to finally act decisively.

On Monday, September 23, 2019, 16 children from around the world submitted an individual complaint to the UN Committee on the Rights of the Child. The legal basis is the third additional protocol of the UN Convention on the Rights of the Child on the individual complaint procedure.

However, this complaint is not a lawsuit. At the end of the complaint procedure there is no legally binding decision or conviction, only a recommendation from the UN Committee on the Rights of the Child. But such a recommendation in favor of the young complainants before the eyes of the world can certainly be a means of pressure that induces the states to take the existing obligations under international law seriously.

Children have rights: the UN Convention on the Rights of the Child

The subject of children's rights has been discussed in Germany for years - but these have not yet made it into the Basic Law. On the international law level, on the other hand, the UN Convention on the Rights of the Child was passed by the General Assembly as early as 1989. This international treaty then entered into force on September 2, 1990, thirty days after its 20th ratification by a member state, and has since set standards for the protection of children.

The UN Convention on the Rights of the Child is specifically shaped by four basic principles: The first is the prohibition of discrimination. Children's rights apply to all children without exception. The second fundamental principle is the right to life and personal development. The third, the principle of the best interests of the child, obliges government agencies to take the interests of children into account as a priority in their actions. The fourth principle is the right to participate: children must be involved in government decisions that affect them. The children's opinion must be taken into account.

More states have acceded to the UN Convention on the Rights of the Child than any other UN convention. As a result, it is all UN member states - with the exception of the USA. Most recently, Somalia and South Sudan even ratified this international treaty in October 2015.

The UN Convention on the Rights of the Child is supplemented by three additional protocols. The third additional protocol, which came into force in 2014, finally introduced a corresponding individual complaint procedure before the Committee on the Rights of the Child. Individuals or groups of people are capable of complaining. The subject of the complaint is a violation of a right under the UN Convention on the Rights of the Child and its protocols.

One such individual complaint was filed against Germany on Monday.

Individual complaint against the largest emitters of greenhouse gases

The complainants are 16 children and young people from all over the world. The youngest applicant, a girl from Sweden who belongs to the Sami indigenous people, is only eight years old.

The respondents are Argentina, Brazil, France, Turkey and Germany. The complaint is directed against these countries, as they are, on the one hand, one of the few countries that have submitted to the individual complaint and, on the other hand, are among the world's largest historical and current emitters of greenhouse gases.

"Climate change makes me really sad and it scares me," said the Hamburg complainant Raina Ivanova on Monday in New York. "The adults didn't have to deal with all these problems and questions that we now face. They didn't have to worry about the consequences of climate change in their childhood."

The complaint (brief; attachments) states, among other things, that the climate crisis violates children's rights. The complainants jointly invoke, among other things, the right to life from Article 6 and the right to health from Article 24 of the UN Convention on the Rights of the Child.

The complaint has two aspects. Firstly, the UN Committee on the Rights of the Child should state that the climate crisis is also a crisis in children's rights and that the countries mentioned, including Germany, are responsible for the climate crisis and are thereby continuously violating children's rights. In addition, the UN Committee on the Rights of the Child is to recommend, building on this, that the countries mentioned should realign their national laws to the standards of scientific knowledge in order to counteract the climate crisis.

Process problem: subsidiarity

The UN Children's Rights Committee consists of 18 independent experts on children's rights. These experts can now request statements from the respondents as part of the complaint procedure and then make recommendations. But first the complaint has to be declared admissible - and there is still a problem.

A procedural hurdle still has to be overcome within the framework of the complaints procedure. According to Article 7 of the Additional Protocol, a complaint is inadmissible if all available domestic remedies have not been exhausted beforehand. This regulation corresponds roughly to the principle of subsidiarity known from German constitutional law.

However, the additional protocol allows an exception to this rule. Domestic remedies do not take precedence if the procedure for the use of such remedies takes unreasonably long or no effective remedy can be expected.

It is precisely this exception that the children refer to. The implementation of internal legal remedies is, firstly, unreasonably time-consuming and expensive, so that this is impossible for the complainant. Second, national courts are also generally not in a position to grant appropriate legal protection, since the subject of the complaint encompasses aspects of international law and is therefore not within the national jurisdiction.

And finally, there is simply no time left. Domestic legal remedies are simply too slow to be promising. The consequences of the climate crisis are faster than the procedures according to the procedural rules of the member states.

The author Nico Kuhlmann (@NicoKuhlmann) is a lawyer in Hamburg.