COMMENT Prof. Dr. Thoko Kaime 3 June 2021
This month, the African Legal Studies blog focuses on children’s rights, a topic that tracks very close to my heart. In introducing this month’s series of contributions, I discuss children’s rights in relation to another topic of great interest in my practice as a public international lawyer: environmental governance and sustainability. In this first of two contributions, I make the argument for the normative basis of the child’s right to a healthy environment as a matter of human rights promotion and protection.
A Substantive Right to a Healthy Environment?
Although international law is yet to prescribe a substantive right to environment, a healthy environment is a prerequisite to the enjoyment of all rights (UNEP, 2001). In relation to children, the importance of environmental factors in childhood cannot be overemphasised. There is an intimate link between the physical environment that children occupy and the quality of their childhood. Thus, the quality of housing they access; the water they drink; the air they breathe; the traffic on their streets; and the quality of their schools and neighbourhoods all have impacts on their health, happiness and long term development (Bartlett 2002, 7) As they grow, children are naturally curious about their environment and need to explore their natural surroundings; in so doing, they discover their self-worth and the value of their environment (Schubert 2012, 2). Without a healthy environment, children cannot grow up and become healthy and effective members of society. Without an ecologically sound environment, they cannot enjoy their basic rights.
Since a healthy environment is a prerequisite to the realisation of children’s rights, it is imperative to focus more attention on the environmental dimensions of children’s rights, to strengthen the role that child rights frameworks can play in managing environmental quality (Schubert 2012, 3) In this regard, it is critical to identify the environmental risks to children’s rights, taking into account children’s specific needs and vulnerabilities, their dependence and marginalisation and to articulate the framework for mitigating such risks as well as the promotion and protection of environment-related children’s rights.
International Policy Response
There have been a number of international policy responses to children’s interaction with their environment, particularly in relation to health. The first major international development in children’s environmental health was the Declaration of the Environment Leaders of the Eight on Children’s Environmental Health, issued in Miami in 1997 by the group of highly industrialised nations, the so-called G8. The Miami Declaration expressed the commitment of these nations to children’s environmental health and included specific commitments to remove lead from petrol, to improve air quality, and to improve the quality of drinking-water. The Declaration also called for improvements in the scientific risk assessments that underpin environmental regulations to explicitly incorporate children, and set forth international cooperation for further research on endocrine-disrupting chemicals.
In 2002, the World Health Organisation (WHO) launched an initiative to improve environmental protection of children, reflecting the prominence of the issue at the World Summit on Sustainable Development, which took place in Johannesburg, South Africa. WHO’s then Director-General, Gro Harlem Brundtland (Brundtland 2002) stated thus:
Our top priority in health and development must be investing in the future – in children and the young – a group that is particularly vulnerable to environmental hazards.
She set forth the Healthy Environments for Children Alliance which subsequently managed to co-opt an extensive range of stakeholders including international organisations, states, NGOs and businesses including the United Nations Environment Programme, the World Bank, and the United Nations Children’s Fund amongst others. However, these policy and programmatic initiatives, commendable though they are, have not resulted in comprehensive recognition of children’s environment-related rights. States have tended to regard them as merely hortatory and a nice option to have in their respective baskets of children’s policy-making tools. Such a situation is obviously worrisome given the urgent nature of the environmental threats that many children around the world are facing. It is therefore critical to ensure that responses to the threats that childhood faces from environmental risks and degradation are given a more sound footing in international law and policy.
The CRC’s Normative Value
The Convention on the Rights of the Child (‘the CRC or the Convention’), with its holistic approach to child development, offers an excellent normative basis for strengthening environment-related children’s rights. It contains provisions which make explicit reference to the environment, such as Articles 24 and 29, whilst many other child rights, particularly socio-economic rights, have strong environmental dimensions or may be reinterpreted from an environmental perspective. Thus, the CRC already contains the critical foundations of a legal framework for protecting environment-related children’s rights since without an ecologically sound environment, it is impossible to realise critical rights such as rights to life, health, play or an adequate standard of living for current children or indeed future generations.
The Children’s Rights Committee, which is tasked with monitoring the implementation of the CRC, has taken note of the need to focus on the environment-related problems of children’s and decided to devote its 2016 Day of General Discussion to the issue of children’s rights and the environment (CRC DGD 2016). The overall objective of the Day of General Discussion was to promote understanding of the relationship between children’s rights and the environment and identify what needs to be done for child rights-related laws, policies and practices to take adequate account of environmental issues; and for environment-related laws, policies and practices to be child-sensitive. What was clear from the written submissions and the presentations made in the Day of General Discussion’s plenary sessions was the centrality of the CRC in mediating and guaranteeing the protection of children’s rights in the context of environmental threats and degradation.
An Expansive Framework
It is right that the CRC should be the basis for environment-related children’s rights. The Convention, which applies to ‘every human being below the age of eighteen years’, contains 54 articles, 40 of which make provision for substantive rights ranging from civil and political to economic, social and cultural rights. It includes typical civil and political rights such as protection from discrimination (art 2), right to life (art 6), right to name and nationality (art 7-8), freedom of expression (art 13), religion (art 14), association and assembly (art 15), and the right to privacy (art 16). Amongst the economic, social and cultural rights are the rights to health (art 24-25), social security (art 26), education (art 28-29), and the right to play (art 31). Additionally, the CRC has been further augmented by the adoption of two optional protocols:
the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. In a nutshell, the CRC is a very comprehensive treaty that makes provision for almost every aspect of a child’s life. It may rightly be described as forming the core of the international law on the rights of the child and must therefore be the first port of call in all considerations of environment-related children’s rights.