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Entrenching the CRC’s ‘environmental rights’

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Source: Save the Children International (2020)

COMMENT Prof. Dr. Thoko Kaime 30 June 2021

The CRC does not explicitly guarantee children a right to an ecologically healthy environment. However, within its environment-related children’s rights lies the core content of such a right. Both the interpretive as well as the monitoring functions of the Committee offer the possibility of better defining the relationship between an ecologically healthy environment and the provisions of the CRC. In undertaking this interpretive task, the Committee has the opportunity to define an emerging children’s right to a healthy environment. Through the state reporting procedures and its concluding observations; the individual complaints procedures and the resulting judgements as well as other complementary rights definitional processes, the Committee on the Rights of the Child has the important role of developing international jurisprudence on environment-related children’s rights.

The monitoring mechanisms of Convention on the Rights of the Child CRC provide an opportunity for entrenching environment-related children’s rights. In this regard, the Committee has two principal tools for developing environment-related children’s rights. The first is through its state reporting processes and the second is through individual communications available under the optional protocol to the CRC that provides for an individual complaints mechanism.

State reporting

Under the CRC, states parties are required to report on the actions undertaken to implement the Convention within two years after ratification or accession, and every five years thereafter (Van Bueren, 1995, 22). The Committee is mandated to monitor such implementation actions and to engage in a “constructive dialogue” with states parties on the progress achieved and the obstacles encountered in the realisation of the rights of the child at the national level (Santos Pais, 1997, 393-503). This monitoring is based on the states parties’ reports, which are expected to be comprehensive and self-critical (CRC, art. 43). The Committee regularly holds three sessions each year in Geneva, where it examines the states parties’ reports in consultation with other UN bodies (including UNICEF, ILO, UNESCO, UNHCR, and WHO) and alongside other stakeholders including non-governmental organisations (Santos Pais, 1997, 393). Through this consultation process, the Committee is able to gather sufficient information to assess the situation of children in each country and to prepare for its discussion with the government representatives of each state party. Following this discussion, the Committee produces its “Concluding Observations” in a public session where it highlights the positive factors and the main areas of concern related to children in the specific country and provides a series of recommendations for the state. In implementing the Convention states are expected to give serious consideration to these recommendations, some of which require concrete follow-up and action as well as technical assistance.

Structured environmental reporting

Since there are no explicitly recognised environmental rights in the CRC, emerging environmental risks or indeed cases of environmental degradation are often not referred to systematically in the state reports or the Committee’s Concluding Observations, both of which tend to follow the Articles of the CRC. Consequently, discussions on the quality of the environment are usually undertaken in relation to the right to health in Article 24. However, the state reporting procedure offers a good opportunity to draw attention to serious and structural environmental problems and their impacts on a full range of children’s rights. In particular, a more systematic examination of environment-related children’s rights utilising the framework offered by the general principles could deliver better jurisprudence and more structured recommendations for states.

Individual complaints

The Committee also has the possibility to hear and determine cases brought under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. Under the Protocol’s mechanisms, children have the useful option of claiming their environment-related children’s rights at the international level should domestic enforcement mechanisms not work.  However, the importance of the individual complaint mechanism goes beyond the possibility of a binding decision at the international level. The complaints mechanism serves to articulate the jurisprudence related to environment-related children’s rights. In particular, pronouncements by the Committee would serve to spell out the core content and scope of such rights thereby bringing needed clarity and depth to state action in their domestic implementation plans.

Additional measures

Outside of these two principal monitoring mechanisms, the Committee has also evolved two additional processes for defining and strengthening children’s rights through its ability to organise Days of General Discussion and issue General Comments. In this regard, the Committee has already held a Day of General Discussion on Children and the Environment. This event generated significant interest, particularly from NGOs and children’s rights practitioners, who contributed to debates on the interrelationships between the environment and children’s rights. The Day of General Discussion could be made even more effective through active state participation.

Finally, the Committee often issues General Comments on key provisions or key themes of the CRC. Although it has recognised the importance of environment-related children’s rights, the Committee is yet to issue a General Comment on this theme. Such a General Comment of the Committee on the Rights of the Child could better refine the critical nature of an ecologically sound environment to the realisation of the rights in the CRC as a whole. Additionally, such a Comment could address the legal basis for environment-related children’s rights and establish the obligations of states parties and those of non-state actors in relation to these rights. It could also elaborate the implementation and operationalisation of a child-rights approach to environmental protection and sustainable development. A General Comment that achieved these aims would set the ground for a more systematic treatment of environment-related children’s rights by not only the Committee but also states parties. In short, it would serve as the basis for defining a children’s right to a healthy environment in international law.

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