Categories: Climate Article 2

Introduction

The 1992 United Nations Framework Convention on Climate Change (UNFCCC) is a major achievement for the international community from a policy formulation perspective. Tackling the problem of climate change requires pertinent law and policy formulation grounded in science and evidence-based studies. Based on the reports of the United Nations Children’s Fund (UNICEF), the impact of climate change on children and the future generations of mankind would be quite severe. The survival needs and developmental needs of children and future generations are pertinent issues that usually receive insufficient attention at the policy deliberation stage. Adopting a human-rights-based approach to climatechange policy is a significant measure which could reduce the acute impact of climate change on human lives. In the rapidly evolving arena of climate-change policy, the fact that the protection and realisation of human rights could be threatened by the impacts of climate change has slowly begun to gain recognition, and such concerns have started to be addressed within the UNFCCC regime. It is in this context that the need for a deeper understanding regarding children’s rights and climate-change policy emerges.

Children’s rights have emerged as an important concern across the world, as it is recognised that they are the future of mankind. The evolution of the Convention on the Rights of the Child (CRC), 1989, and its acceptance amongst the international community, provides ample evidence regarding the mounting significance of the protection of children’s rights. Climate-change adaptation and mitigation plans and policies need to reflect the concerns of children and future generations, which at present are not given special focus. This paper provides an overview of the obligations under international law which need attention from a policy perspective. For this purpose, the current human-rights concerns being addressed in climate-change policy and law have to be critically analysed to understand how child rights require specific attention at the policy level. The international law obligations under the CRC which pose imperative concerns for climate policy are highlighted. The paper also explores the significance of the right to environment and the inter-generational equity perspective as important policy parameters for climate policy.

The Rights-Based Approach in Climate-Change Policy

In the context of understanding the significance of focusing on children’s rights as part of climate-change law and policy, the present status of human rights in the climate-change law and policy framework becomes important. The human-rights-based approach to climate change helps in placing humans at the centre of climatechange policy making. This is an important shift from the narrow State-centred policy perspective. The humanrights approach is more principle-oriented and has received attention and significant acceptance from civil society organisations as well as the academic community.

The threat of climate change to the whole gamut of human rights has been consistently highlighted by the United Nations Human Rights Council (UNHRC) through a series of resolutions. Resolution 7/3 in 2008 highlighted the possible adverse impact of climate change on human rights. Six more resolutions were passed by the UNHRC after this initial resolution. The need to gain a deeper understanding of the possibility of human-rights impacts due to climate change is evident in all these resolutions. They have paved the way for considering human rights as a key agenda item in the climate-change law and policy landscape. UNHRC resolutions 26/27 (in 2014) and 29/15 (in 2015) identified age as a factor contributing to vulnerability in the case of climate-change impacts but a specific focus on children’s rights was not explicitly mentioned in any of the UNHRC resolutions until 2016. Resolutions 32/34 (in 2016) and 35/20 (in 2017) highlight the responsibility of States regarding the protection of the rights and best interests of children.

UNICEF’s report on the impact of climate change on children’s rights encourages focusing upon the protection of children due to their acute vulnerability (UNICEF, 2014). The rights to health and to education along with other significant rights relating to water, food and housing would be primarily affected. The risk of being exposed to displacement could lead to the exploitative practices of child trafficking and child labour. The Paris Agreement has brought human-rights language into the UNFCCC landscape. Its preamble mentions that “Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights”. This continues a process begun earlier, at the Cancun Conference of Parties, where the adverse impact of climate change upon human rights was highlighted. This linkage is slowly gaining acceptance in the sphere of climate-change policy.

This is a welcome legal and policy development. At the same time, it is important to note that there is a need for a deeper understanding at the law and policy level, especially regarding the special needs of children and future generations. Even though general reference to human rights includes the rights of children, due to the possibility of additional vulnerability in cases of acute climate change, children’s rights warrant specific reference and policy measures. The normative development regarding children’s rights under public international law becomes an important obligation which the international community has to translate into climatepolicy documents.

Obligations under the CRC and Concerns for Climate-Policy Formulation

The CRC has received broad international acceptance, making it an important international legal obligation. However, the key principles of the best interests of the child, participation of children in decision making, and rights regarding education and health have yet to get sufficient attention in policy formulation regarding climate-change adaptation. This becomes more important because of the fact that children require special attention due to the vulnerabilities they face, such as health hazards, displacement, child labour and child trafficking. The best interests of the child, right to life, survival and development of children, right to participate and right to non-discrimination are treated as the guiding principles for the protection of children under the CRC. These guiding principles are important in the context of formulating human-rights-based climate-change law and policy, and their effective inclusion and implementation are a serious challenge for the international community. The obligation of States to protect the rights of children relating to health, food, education and housing is also provided in the CRC in the context of the special needs of children. The CRC principle of focusing on the best interests of the child requires States to keep in mind the impact on children in the formulation of any law or policy. At present, however, in climate-change policy the best interests of the child are not being addressed. The competing needs of large numbers of people consequent to the impact of climate make it difficult to focus on the needs of specific groups such as children.

Children’s rights to life, survival and development cast a positive obligation upon States to ensure a favourable situation for the protection of children’s rights. This involves working on the economic situation and infrastructure, as well as providing a conducive environment from the law and policy perspective – an important challenge wherever it arises. In the context of climate change, States face an additional burden in ensuring that children’s rights to health and to education are adequately protected. The Committee on the Rights of the Child have asked States to be aware of the impact on the health of children of climate change, stating, “Environmental interventions should, inter alia, address climate change, as this is one of the biggest threats to children’s health and exacerbates health disparities. States should, therefore, put children’s health concerns at the centre of their climate change adaptation and mitigation strategies”.

Considering the fact that children’s right to health would be critically affected by climate change, the need for intervention and focus have to be reflected in climatechange adaptation and mitigation policies at international and national levels. Educating children could be equally challenging with the increasing adverse impact of climate change. Extreme weather events and natural disasters could create temporary or prolonged lack of access to education for children. Overcoming these hurdles requires adequate preparatory mechanisms from the policy perspective. The education curriculum would also have to be revamped to ensure awareness amongst children regarding climate change and best practices regarding adaptation and mitigation. The Office of the United Nations High Commissioner for Human Rights (OHCHR) report regarding the impact of climate change on child rights recommends that: “Education on environmental stewardship, climate change and disaster risk reduction can prepare children of all ages to better address emerging environmental challenges”.

Due attention to children’s rights to life, survival and development would require States to take all necessary measures to avoid the displacement of children due to climate change, but where they fail in this, to protect displaced children from exploitative practices such as child trafficking and child labour. Economically developed States are in a better position to provide for children’s needs, but developing and leasdeveloped States face major implementation problems regarding safeguarding the right to development of children. The international community would require serious policy deliberations on common but differentiated responsibilities in the context of child rights. This important element of the UNFCCC could be a useful tool in ensuring that States cooperate in funding and policy implementation for the purpose of ensuring that the right to development of children is protected. Children’s rights include the need to be respected. As such they should also participate in decision-making processes pertaining to their interest. Since law and policy formulation for children is usually done by their elders, the voices of children and the interests of future generations may not always be well documented. It is in this context that the right to participation casts an obligation upon the international community to streamline climate-change law and policy by adequately taking into account the viewpoint of children. This obligation comes with the challenge of ensuring that children are equipped to form adequately informed choices regarding climate change.

Concerns for Policy Formulation

The linkage between human rights and the environment has gained significant recognition in recent times. The protection and preservation of the environment is understood to be pertinent for the enjoyment of human rights relating to food, water and protecting the right to life with dignity. UNHRC Resolution 16/11 (2011) called for a detailed study regarding human rights and the environment. The work of John Knox, Special Rapporteur on human rights and the environment, has contributed enormously to evolving the understanding of this linkage. Knox’s report on child rights and the environment elaborates that States have a responsibility towards children by stipulating “substantive environmental standards at levels that would prevent all harmful environmental interference with the full enjoyment of human rights”. 

A growing recognition of the right to a safe, clean, healthy and sustainable environment lays a responsibility upon the international community to shift from the selfinterest-based climate-change law and policy perspectives to accept the significant principles of environmental law such as inter-generational equity and the precautionary principle. The principle of inter-generational equity is an important tool in enabling the implementation of a human-rights approach to climate change. The intergenerational equity principle also helps in bringing the focus towards children’s rights. The principle of inter-generational equity addresses the concerns of future generations and is considered an important element in the concept of sustainable development. The New Delhi Declaration clearly pinpoints that the present generation has the right to use the natural and global resources but with the obligation of avoiding any adverse impacts of such use on the rights of future generations. The inter-generational equity principle is very much present in UNFCCC Article 3.

But at present, the legal and policy framework related to climate change has failed to identify and incorporate this principle into practice. From a climate-justice perspective, there is a need to pro-actively re-orient the climatechange policy and legal framework. Way Forward The international legal obligations arising out of the CRC, major developments such as the right to a safe, clean environment evolving as a strong norm, and the existing principle of inter-generational equity have yet to be evaluated and acted upon by policy makers. The UNFCCC COP as well as the National Adaptation Plans within the climate-change treaty framework could be key starting points in the development of climate-change policies oriented towards children and future generations. At the national level, States need to conduct child-rights impact assessments and evolve national mechanisms to make climate adaptation and mitigation plans with the interests of children and future generations at the forefront.

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