Committee on the Rights of the Child – Climate and Human Rights Litigation Database

Summary:
This case is one of ten separate constitutional complaints and one subsidiary popular complaint supported by the NGO Deutsche Umwelthilfe against ten German States (“Bundesländer”). It was brought by two young people against the German State of Saarland in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. Like in the eleven related cases, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselves against future rights impacts caused by the lack of climate measures.

Saarland does not have a climate law as an initiative from 2015 failed to move forward.

On 18 January 2022, the First Senate of the Federal Constitutional Court dismissed all eleven complaints for lack of adequate prospects of success. In alignment with its argumentation in Neubauer v. Germany, the First Senate recognized that the burden of CO₂emissions reductions must not be unilaterally offloaded onto future generations. However, the First Senate stated the individual legislators of the Bundesländer have not been been given an overall reduction target to comply with, even at the expense of freedom protected by fundamental rights. Thus, according to the First Senate’s decision, a violation of the obligations to protect the complainants from the dangers of climate change cannot be established. As regards to the Bundesländer, the First Senate clarified that they still have a responsibility to protect the climate, particularly by virtue of Article 20a of the German Constitution.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Date of decision:

18 January 2022

Suggested citation:
German Bundesverfassungsgericht, Leonie Frank et al. v. Saarland, Decision of the First Senate of 18 January 2022 – 1 BvR 1565/21 et al.

Related proceedings:
For the other related cases see:

Luca Salis et al. v. Sachsen-Anhalt

Lemme et al. v. Bayern

Emma Johanna Kiehm et al. v. Brandenburg

Alena Hochstadt et al. v. Hessen

Otis Hoffman et al. v. Mecklenburg-Vorpommern

Tristan Runge et al. v. Sachsen

Jannis Krüssmann et al. Nordrhein-Westfalen (NWR)

Cosima Rade et al. v. Baden-Württemberg

Matteo Feind et al. v. Niedersachsen

Links:

For the decision in German, see here.

Summary:
On 23 September 2019, 16 children, among them teenage climate activist Greta Thunberg, filed a petition before the Committee on the Rights of the Child (CRC) alleging that Argentina, Brazil, France, Germany and Turkey had violated their rights under the UN Convention on the Rights of the Child (UNCRC) by making insufficient cuts to greenhouse gases and failing to encourage the world’s biggest emitters to curb carbon pollution. Each of the respondent states has ratified the UNCRC, and all of them have signed the Paris Agreement but, according to petitioners, none have made or kept commitments that align with keeping temperature rise.

The sixteen children petitioned the CRC to declare a violation of their rights due to the respondent states’ perpetuation of climate change. They also petitioned the CRC to recommend actions that the respondents must take to address climate change, specifically mitigation and adaptation measures. Their claims are based on the rights enshrined in the UNCRC, and the argument that the respondents have knowingly caused and perpetuated the climate crisis, thereby triggering the applicability of human rights obligations and duties.

In its inadmissibility decision of 22 September 2021, the Committee declared the Communication inadmissible. This decision is indicative of some of the procedural challenges that climate cases will face in the future. Whereas the Committee recognized that the authors of the Communication had victim status, and established that it had jurisdiction over the case, it found the case inadmissible for failure to exhaust domestic remedies.

Adjudicating Body:
UN Committee on the Rights of the Child

Date:
22 September 2021

Status of case:
Declared inadmissible

Third party intervention:
On 1 May 2020, David R. Boyd and John H. Knox (the current and former UN Special Rapporteurs on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, respectively), submitted a third-party intervention regarding this Communication to the Committee. The text of the intervention is available here.

Hearing in these cases:
There were oral hearings before the CRC in these cases. The parties appeared before the Committee via videoconference at five separate hearings between May and September 2021.

Admissibility:
Arguments by the respondent States:
Three respondent States (Brazil, France and Germany) responded to the petition, arguing that it was inadmissible on the grounds of lack of jurisdiction; lack of substantiation (manifestly ill-founded); and the failure to exhaust domestic remedies.

Reply by the petitioners:
In their reply of 4 May 2020, the petitioners argued that:

1) the Committee had jurisdiction because they (the petitioners) are “directly and foreseeably injured by greenhouse gas emissions originating in the Respondents’ territory;”
2) the claims are manifestly well-founded because the children are currently suffering direct and personal harms due to climate change, and they will continue to do so in the foreseeable future; and
3) the pursuit of domestic remedies would be futile.

Findings of the CRC:
The CRC adopted a separate set of Views for each State party concerned; these will be discussed together here.

In terms of the authors’ victim status, the Committee held that they had “prima facie established that they have personally experienced a real and significant harm in order to justify their victim status.” In doing so, it held that the authors, as children, are particularly impacted by climate change, and that States have “heightened obligations to protect children from foreseeable harm”. As a result, the CRC was not precluded by Article 5(1) of the Optional Protocol from considering the communication.

In terms of jurisdiction, the CRC held, with reference to the Inter-American Court of Human Rights’s Advisory Opinion OC-23/17 on the Environment and Human Rights and its own Joint Statement on Human Rights and Climate Change, that States have effective control over carbon emissions and that they are responsible for transboundary harm caused by these emissions. It found that, even though climate change is “a global collective issue that requires 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.” In 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 considered with regard to each individual respondent State 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”.

Concerning the exhaustion of domestic remedies, the Committee recalled that this requirement does not apply where these avenues do not offer objective prospects of success. In these cases, however, it examined the remedial possibilities in each State in detail, and ultimately reached a finding of inadmissibility, noting that no domestic proceedings had been initiated in the respective States concerned.

In this regard, various arguments made by the authors were unsuccessful. The argument that plaintiffs from other countries were barred from proceedings was disregarded for lack of specific examples (Communication concerning Argentina, § 10.18). The Committee further referred to the existence of discretionary remedies, which the authors had not used. The authors’ “doubts about the prospects of success of any remedy” was not sufficient for the Committee to consider they had exhausted “all domestic remedies that were reasonably effective and available to them to challenge the alleged violation of their rights under the Convention.” The references to environmental cases in which the State parties took several years to reach a decision was not considered sufficient evidence to show that domestic remedies would be unreasonably prolonged.

Merits:
Not examined

Remedies:
Not applicable

Separate opinions:
Not applicable

Implementation measures taken:
Not applicable

Follow-up:
The Committee issued a child-friendly version of its Views in this case. Along with providing a simplified explanation of the case, this document informed the authors of the Sacchi communication that:

“Your case also increased the Committee’s awareness about these issues and highlighted our shared sense of urgency, and therefore we have already announced our decision to write our next General Comment on children’s right and the environment with a special focus on climate change. We plan to consult with children and young people around the world, and we invite you, as the authors of this significant case, to share your views during the processes towards the drafting of the next General Comment.”
Committee on the Rights of the Child, Re: Sacchi et al v Argentina and four similar cases

Following up on this, the Committee on the Rights of the Child issued a General Comment No. 26 on children’s rights and the environment with a special focus on climate change on 22 August 2023.

Keywords:
Admissibility, children’s rights, UNCRC, domestic remedies, transboundary harms, victim status.

Links:
For a summary of the five cases from the UN’s treaty body media service, click here.

For background on the case, click here.

The text of the petition is available on Climate Case Chart, click here to access it.

The full text of the Committee’s Views can be found:

Regarding Argentina, the Views can be found here.
Regarding Brazil, the Views can be found here.
Regarding France, the Views can be found here.
Regarding Germany, the Views can be found here.
Regarding Turkey, the Views can be found here.

Suggested citation for the Communication concerning Argentina:
Committee on the Rights of the Child, Sacchi et al. v. Argentina (dec.), 22 September 2021, CRC/C/88/D/104/2019.