Intergenerational rights are children's rights: Upholding the right to a healthy environment through the UNCRC
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/09240519231195753 |
| Author | Aoife Daly |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Intergenerational rights are
children’s rights: Upholding the
right to a healthy environment
through the UNCRC
Aoife Daly
School of Law, University College Cork, Ireland
Abstract
This article reflects on intersections between intergenerational equity, children’s rights and the
rights of future generations. Recent climate cases involving children and youth are considered,
and the fact that few rely on the UN Convention on the Rights of the Child (CRC) is analysed.
It is emphasised that intergenerational rights are children’s rights –children are a crucial link
between current and future generations. In particular the principle of the best interests of the
child, which is widespread in national legal systems, should be relied upon more frequently in cli-
mate cases. Arguments can be made that failing to accord sufficient attention to children’s rights
and interests in climate policies violates the best interests principle. Relying on the CRC may
increase the chance of successful outcomes in environmental and climate cases; progressing the
right to a healthy environment for all. It will also ensure that adequate attention for children’s
rights is embedded in such cases.
Keywords
intergenerational equity, children’s rights, rights of future generations, right to a healthy
environment, Convention on the Rights of the Child, best interests principle, climate change,
equality
1. INTRODUCTION
The climate crisis is viewed by many as the largest global threat to human rights. A 2022 report
by the Intergovernmental Panel on Climate Change outlined that global warming due to human
Corresponding author:
Aoife Daly, School of Law, Cork University, Cork, T12 K8AF, Ireland.
Email: aoife.daly@ucc.ie
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2023, Vol. 41(3) 132–154
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activity has already guaranteed irreversible damage.
1
Without adequate mitigation policies, it has
been projected that global warming will accelerate towards 3.2
°
C by the end of the century.
2
Children across the world will be amongst those most seriously affected by this crisis.
3
The
UN International Children’s Emergency Fund (UNICEF) stated in 2015 that ‘[t]here may be
no greater, growing threat facing the world’schildren–and their children –than climate
change.’
4
The impact of the climate crisis on the rights and interests of children
5
is devastating. The sur-
vival of over one billion people under the age of 18 is severely threatened, as they live in countries
at extremely high risk in the climate crisis.
6
Added to this, almost all of those under the age of 18
will be exposed to at least one climate and environmental hazard (that is, shock, or stress related to
heatwaves, water scarcity, cyclones, or flooding).
7
Children born in 2020 will experience an enor-
mous increase in extreme weather events –up to seven times greater than people born in the 1960s.
8
Putting the intergenerational divide into context, youth climate advocate Greta Thunberg remarked
that though the year 2050 feels very distant right now, by then young people such as herself will
likely still have half their lives to go.
9
In spite of this, political action to mitigate the climate crisis is seriously lacking. Only 16 out of
197 countries were recorded in 2018 as currently meeting the climate goals of the 2015 Paris
10
This binding agreement acknowledges climate change as ‘an urgent and potentially
irreversible threat to human societies and the planet’.
11
It aims to ensure that countries collectively
work to limit global warming to well below 2, preferably to 1.5 degrees Celsius. It has provided the
basis for litigants around the world to challenge their governments in court on inadequate climate
mitigation policies. Many have done so using human rights arguments. There have been extensive
efforts to engage international human rights law in relation to the climate crisis –and the environ-
ment more broadly –such as a 2022 UN General Assembly resolution,
12
and a draft General
1. Intergovernmental Panel on Climate Change (IPCC), Climate Change 2022: Impact, Adaptation, Vulnerability,
‘Summary for Policymakers’(IPCC, 2022) < https://www.ipcc.ch/report/sixth-assessment-report-working-group-ii/>
accessed 1 April 2022.
2. UNEP, Emissions Gap Report 2020 (9 December 2020) at xi
accessed 1 April 2022.
3. NickWatts and others, ‘The 2019 Report of The Lancet: Countdown on health and climate change: ensuring that the
health of a child born today is not defined by a changing climate’(2019) 10211 The Lancet 1836.
4. UNICEF, ‘Unless We Act Now: The Impact of Climate Change on Children’(2015)
we-actnow-impact-climate-change-children> accessed 8 March 2022.
5. Although children (under 18s) and youth (15–22 years) intersect greatly, the focus in this article will be on those who are
legally children, that is. those under 18 years.
6. UNICEF, ‘The climate crisis is a child rights crisis: Introducing the Children’s Climate Risk Index’(2021) < https://
www.unicef.org/reports/climate-crisis-child-rights-crisis> accessed 18 June 2022.
7. ibid.
8. Wim Thiery and others, ‘Intergenerational Inequities in Exposure to Climate Extremes’(2021) 374(6564) Science 158.
9. Malena Ernman and others, Our House Is on Fire: Scenes of a Family and a Planet in Crisis (Penguin Books 2020).
10. See Michal Nachmany and Emily Mangan, Aligning National and International Climate Targets (Grantham Research
Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, 2018)
www.lse.ac.uk/GranthamInstitute/publications> accessed 20 June 2020.
11. Paris Agreement (opened for signature 16 February 2016, entered into force 4 November 2016), UK Treaty Series No 4
(2017).
12. Resolution A/RES/76/300 of the UN General Assembly (UNGA) 2022.
Daly 133
Comment of the UN Committee on the Rights of the Child on children’s rights and the environment
with a special focus on climate.
13
The temporal nature of the climate crisis (the most significant threats to human rights will come
in the future) means that litigants in climate cases are increasingly relying on the principle of ‘inter-
generational equity’. It is based on the premise that we have inherited the Earth from previous gen-
erations, and that we have an obligation to pass it on to future generations in good condition.
14
Davies emphasises that ‘consumption now creates costs for future generations.’
15
The principle
of intergenerational equity has a long history across various cultures. It was elaborated in the
context of international law by Brown Weiss in 1989.She describes that the basic premise of
the principle is that:
[A]ll generations are partners caring for and using the Earth. Every generation needs to pass the Earth
and our natural and cultural resources on in at least as good condition as we received them.
16
Because of the existential threat caused by the rapidly worsening climate crisis, intergenerational
equity is probablythe most significant concept in humanrights in this century. ‘Equity’inthe climate
crisis is often used synonymously with justice or fairness.
17
There are nuances to each term, and
others have considered this elsewhere.
18
Nevertheless in this article, which seeks to position chil-
dren’s rights squarely within intergenerationality, the terms intergenerational ‘equity’and ‘justice’
will be taken to mean broadly the same thing –fairness in resource use across generations.
19
International equity (also referred to as intragenerational equity) refers to fairness between
nations, and requires that the international burden of mitigating the climate crisis should be distrib-
uted fairly. It has been perhaps the more prominent concept in practice, as –in the here and now –
the main question is the obligation on each State to curb emissions, considering that countries
‘differ in their contributions to climate change, their vulnerability to the effects of climate
change, and in their ability to mitigate the causes of climate change’.
20
Industrialised, wealthy, nor-
thern States have been responsible for extensive carbon emissions and therefore have a greater obli-
gation to decrease their emissions. Less industrialised countries in the Global South have endured
13. See UN Committee on the Rights of the Child, General Comment No. 26: Children’s Rights and the Environment with a
Special Focus on Climate Change (22 August 2023) CRC/C/GC/26.
14. Mary Robinson Foundation, Meeting the Needs of Future Generations: Applying the Principle of Intergenerational
Equity to the 2015 Processes on Climate Change and Sustainable Development (Mary Robinson Foundation 2015)
the Pursuit of Intergenerational Climate Justice’(2014) 16 Health and Human Rights Journal 19.
15. Gareth Davies and others, ‘Climate Change and Reversed Intergenerational Equity: The Problem of Costs Now, for
Benefits Later’(2020) 10(3) Climate Law 266.
16. Edith Brown Weiss, ‘Climate Change, Intergenerational Equity, and International Law’(2008) 9(3) Vermont Journal of
Environmental Law 615.
17. Peter Lawrence and Michael Reder, ‘Equity and the Paris Agreement: Legal and Philosophical Perspectives’(2019)
31(3) Journal of Environmental Law 511.
18. Some authors have attempted to unpack the meanings of these terms as well as the ‘principle of common but differen-
tiated responsibilities’, see, for example, Lawrence and Reder (n 17).
19. There is a broader body of work considering, for example, responsibilities related to older generations and the duty of the
parents to care for their children. See Laurence Solum, ‘To Our Children’s Children’s Children: The Problems of
Intergenerational Ethics’(2001/2002) 35(1) Loyola Los Angeles Law Review 163, 173.
20. Ziba Vaghri, ‘Climate Change, an Unwelcome Legacy: The Need to Support Children’s Rights to Participate in Global
Conversations’(2018) 28(1) Children, Youth and Environments 104, 106.
134 Netherlands Quarterly of Human Rights 41(3)
colonisation and limited resources and consequently have a lack of mechanisms to cope with the
increasing number of devastating effects derived from global warming, such as drought and
rising sea levels.
21
It is the premise underlying the United Nations Framework Convention on Climate Change
(UNFCCC)
22
which established an international environmental treaty. It was signed by 154
States in 1992, with the aim of combatting ‘dangerous human interference with the climate
system’, including through targeting greenhouse gas emissions.
23
There are of course unanswered
questions about what exactly international equity may entail for each country. Liston outlines that,
when it comes to climate litigation, the lack of clarity in relation to the fair share of each State in this
regard has undermined the ability of litigants to hold States to account in respect of the goal of the
24
Understanding intergenerational equity is however perhaps even more important than inter-
national equity, considering the temporal issues involved in the climate crisis. Yet it is also unclear
what the principle of intergenerational equity actually means in practice. One very notable detail is
the inclusion of children’s rights in intergenerational arguments in climate cases. Perhaps somewhat
surprisingly, the relationship between those two factors has not, however, been elaborated in any
detail either in the cases themselves or in academic literature. There are a number of possible
reasons for this. As ‘children are the future of any society’,
25
they are often seen solely in terms of
their future potential, which tends to diminish the value placed on their present experiences and cap-
acities. Adults frequently struggle to respect them as important actors and rights holders in the
present.
26
Also there has been a tendency to conflate the concept of intergenerational equi ty with
the concept of ‘future generations’which is often taken to mean those ‘yet to be born’.This
concept of future generations is of course vital in the fight against climate catastrophe, and can be
argued to include children. John Knox, then-United Nations Special Rapporteur on human rights
and the environment, stated in a 2018 report that ‘[w]e do not need to look far to see the people
whose future lives will be affected by our actions today. They are already here’.
27
It is argued in this article that greater attention should be accorded to children’s rights and inter-
ests in defining intergenerational equity; the term should not just include those yet to be born, but
also those who are children now. Confusion over the overlapping concepts of intergenerational
equity, future generations, and the position of children runs the risk of failing to include the chil-
dren’s rights framework in climate cases. The principles of the UN Convention on the Rights of the
21. ibid.
22. UN Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS
107 (UNFCCC). See Gibbons (n 14) 27.
23. The Treaty also calls for regular meetings, future policy agreements to tackle climate change, and scientific research.
24. Gerry Liston, ‘Enhancing the Efficacy of Climate Change Litigation: How to Resolve the “Fair Share Question”in the
Context of International Human Rights Law’(2020) 9(2) Cambridge International Law Journal 241.
25. Sumutu Attapatu, ‘Intergenerational Equity: Children’s Rights and Sustainable Development’in Claire Fenton-Glynn
(ed), Children’s Rights and Sustainable Development: Interpreting the UNCRC for Future Generations (Cambridge
University Press 2019) 167.
26. Aoife Daly, ‘Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law (2022)
22(2) Human Rights Law Review ngac011.
27. John Knox, ‘Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe,
Clean, Healthy and Sustainable Environment, Statement’, Statement before Human Rights Council, 37th Session,
(5 March 2018) /www.ohchr.org/sites/default/files/Documents/Issues/Environment/37thHRC_Knox_statement.pdf>
accessed 18 June 2022.
Daly 135
environmental litigation. It is important then to emphasise children as the link between the present
generation and those yet to be born. We must accord due attention to the specific situation, and
overlapping interests (and members), of these groups. Not only will this be important for giving
children’s rights and interests the status they deserve in a context where they are worst affected
by the crisis at hand, it will also likely progress rights-based arguments in climate cases and pos-
sibly increase the chance of successful outcomes.
This article in particular aims to examine the position of children’s rights in intergenerational
justice arguments, and to theorise children’s rights as a vehicle for a more holistic and effective
understanding of intergenerational rights to secure law and policy changes for climate action. In
Section 2, the ways in which the temporalities of the climate crisis create obstacles for legal, pol-
itical, and human rights frameworks are considered. The position of children within these tempor-
ality issues is outlined. Section 3 considers the position of children in the theory of Weiss Brown’s
elaboration of the principle of intergenerational equity, and the ways in which the rights of future
generations have been enshrined in law. In Section 4, the children’s rights framework is outlined,
which will note that the CRC is not often invoked in climate cases. It is argued that greater use
should be made of the framework –and in particular the ubiquitous best interests principle –in
climate cases. Although it is far from the only children’s rights principle, it is particualrly useful
because it is accepted and prominent at the international level and enshrined in the laws of numer-
ous countries. Reliance on the best interests principle in climate lobbying and litigation is important
because it may increase chances of a successful outcome, but also because it is important to take a
children’s rights based-approach in climate action.
2. FUTURE GENERATIONS, CHILDREN AND
THE CLIMATE CRISIS
The concept of intergenerational relationships is not new –many of the world’s cultural, religious
and philosophical traditions place great value on it. A 2013 report of the UN Secretary-General
stated that ‘nearly all human traditions recognise that the living are sojourners on Earth and tem-
porary stewards of its resources.’
28
In particular, Indigenous peoples have placed strong emphasis
on the need to protect the environment across generations. It is often said that Indigenous commu-
nities understand their resources in terms of generations, placing emphasis on ‘seven [generations]
before and seven after’.
29
Various religions, such as Catholicism, also emphasise intergenerational
relationships.
30
In scholarship, however, authors generally struggle with the term ‘generation’. Some use it to
refer to those yet to be born, and refer to the ‘present generation’as those who are here.
31
Scholars frequently give the impression that there is clarity about what the terms ‘generation’or
28. United Nations Secretary-General, United Nations Secretary-General, ‘Intergenerational Solidarity and the Needs of
Future Generations’, A/68/322 (15 August 2013) 4.
29. See Glenn Morris, ‘For the Next Seven Generations: Indigenous Americans and Communalism’in Communities
Directory: A Guide to Cooperative Living (1995, Online)
seven_generations.htm> accessed 18 June 2022.
30. Davies and others (n 15).
31. Otto Spijkers, ‘Intergenerational Equity and the Sustainable Development Goals’(2018) 10(11) Sustainability 3836.
136 Netherlands Quarterly of Human Rights 41(3)
‘intergeneration al’mean.
32
As Spijkers points out, however, laypersons would not consider baby-
boomers and millennials to be part of the same generation. He therefore advocates referring not to
‘generations’but rather to ‘present people and future people’.
33
It seems that an understanding of
the word ‘intergenerational’which does not specifytime parameters is generally preferredin academic
scholarshipand elsewhere. Weston emphasises that a definition of the term intergenerationalwhich is
‘unrestricted in time’appears to be the most accepted.
34
The Earth Charterof 2002 for example, which
is a charter to guide the transition to sustainable development, affirms the need to ‘[s]ecure Earth’s
bounty and beauty for present and future generations’
35
without any temporal perimeters.
There is frequent reference in matters of intergenerational equity therefore to future generations.
Yet this has also proven difficult to define. For the purpose of the Maastricht Principles on the
Human Rights of Future Generations, future generations are defined as ‘those generations that
do not yet exist but will exist and who will inherit the Earth’.
36
A number of academic commenta-
tors, however, consider the definition of future generations to encompass children.
37
In the
Neubauer case the German Supreme Constitutional Court suggested protecting ‘future generations’
involved those alive ten years from the year the case was decided (2021).
38
Other cases have like-
wise encompassed children in the notion of future generations.
39
Slobodian points to an increasing
tendency ‘to include living people as well as the unborn’.
40
One reason for the difficulties in defining future generations is that present and future genera-
tions are not neatly divided, but rather inherently intersecting and interdependent. When children
are born they depend on their elders. Later, those elders will enter old age and depend on the
young.
41
Parfit identified that intergenerational justice is extremely hard to theorise within our nor-
thern, individualist paradigm.
42
The individual legal personality of people present now is the basis
for our laws and morals. Winter outlines Parfit’s point as follows:
32. ibid.
33. ibid.
34. Burns Weston, ‘Climate Change and Intergenerational Justice: Foundational Reflections’(2007) 9(1) Vermont Journal
of Environmental Law 375, 384.
35. See Klaus Bosselmann, ‘In Search of Global Law: The Significance of the Earth Charter’(2004) 8(1) Worldviews:
Environment, Culture, Religion 1, 62.
36. Maastricht Principles on the Human Rights of Future Generations, Article 1, adopted on 3 February 2023. On definitions
of future generations see also Aoife Nolan, ‘The Children are the Future –Or Not? Exploring The Complexities of the
Relationship between the Rights of Children and Future Generations’(EJIL Talk!, 26 May 2022), jiltalk.
org/the-children-are-the-future-or-not-exploring-the-complexities-of-the-relationship-between-the-rights-of-
children-and-f uture-generations/> accessed 27 May 2022.
37. Sigrun Skogly, "The Right to the Continuous Improvement of Living Conditions and Human Rights of Future
Generations - A Circle Impossible to Square?" in Jessie Hohmann and Beth Goldblatt (eds), The Right to the
Continuous Improvement of Living Conditions Responding to Complex Global Challenges, Hart Publishing (2021).
38. BvR 2656/18/1 BvR 78/20/1 BvR 96/20/1 BvR 288/20. See http://climatecasechart.com/non-us-case/neubauer-et-al-v-
germany/ [accessed 9 January 2023].
39. Inigo Gonzalez-Ricoy and Felipe Rey, ‘Enfranchising the Future: Climate Justice and the Representation of Future
Generations’(2019) 10(5) Wiley Interdisciplinary Reviews: Climate Change 598. See also Spijkers (n 31).
40. Lydia Slobodian, ‘Defending the Future: Intergenerational Equity in Climate Litigation’(2019) 24 The Georgetown
Environmental Law Review 569, 588.
41. Hugh McCormick, ‘Intergenerational Justice and the Non-Reciprocity Problem’(2009) 57(2) Political Science 451.
42. Derek Parfit, Reasons and Persons (Clarendon Press 1984). Cited in Christine Winter, ‘The Paralysis of
Intergenerational Justice Decolonising Entangled Futures’A thesis submitted to fulfil the requirements for the degree
of Doctor of Philosophy (Faculty of Arts and Social Sciences University of Sydney 2017) 158.
Daly 137
His argument is that it is significant that my father met my mother. For that is why I am. Without that
synchronicity, I would not be. And while that is now a matter of history, such synchronicity is morally
significant, because it means we cannot predict the individual identities of future generations of
people. Without identities, we cannot form sets of contractual obligations and duties with these
unknown people, even though we know with some certainty, individual people will exist in the
future.
43
In the legal context this has resulted in difficulties with elaborating the specific rights of future
generations, and a reluctance by courts to do this. Claims for restitution are not usually made by
individuals alleging that there will be harms in the future, but rather by those who are the descen-
dants of victims of injustice; for example by those litigating for compensation on the basis that their
relatives or ancestors suffered harm.
44
Litigants recently achieved agreement with the government
of Canada for example to compensate First Nations victims of its discriminatory child welfare
system.
45
Discrete movements focusing on intergenerational justice have been around for some time –
since 1997, Foundations for the Rights of Future Generations
46
was founded by a group of
European students concerned about the future. This movement was not focused on children
but rather issues relating to the future such as the environment and employment.
47
The
climate crisis has, however, undoubtedly brought broader attention to intergenerational issues.
This in turn has prompted deeper consideration of the position of children within intergenera-
tional justice. One catalyst for this has been child and youth climate activism.
Then-16-year-old Greta Thunberg became the figurehead of global youth activist efforts in
2018 when she mobilised the #fridaysforfuture movement,
48
resulting in greater attention to
the position of children as those who will likely inherit a climate catastrophe in the near
future. The prominence of child and youth activism has meant that, as a stand-alone right to a
healthy environment has been given increasing legitimacy at UN level
49
(notably in 2021 by
UN Human Rights Council
50
and in 2022 by the UN General Assembly
51
), the position of chil-
dren has been accorded greater attention.
43. Winter (n 157).
44. Janna Thompson, ‘Historical Injustice and Reparation: Justifying Claims of Descendants’(2001) 112(1) Ethics 114.
45. Anne Levesque, ‘As a Lawyer Who’s Helped Fight for the Rights of First Nations Children, Here’s What You Need to
Know about the $40B Child Welfare Agreements’(The Conversation, 5 January 2022)
a-lawyer-whos-helped-fight-for-the-rights-of-first-nations-children-heres-what-you-need-to-know-about-the-40b-child-
welfare-agreements-174442> accessed 7 June 2022.
46. ‘Who We Are’ (accessed 2 April 2022).
47. ibid.
48. FridaysForFuture Website, Strike Statistics: List of Countries
list-of-countries/> accessed 5 June 2021.
49. Elena Cima, ‘The Right to a Healthy Environment: Reconceptualizing Human Rights in the Face of Climate Change’
(2022) 31(1) Review of European, Comparative & International Environmental Law 1.
50. Resolution 48/13. See UN News, ‘Access to a Healthy Environment Declared a Human Right by UN Rights Council’
(8 October 2021) accessed 20 December 2021.
51. See UN News, ‘With 161 Votes in Favour, 8 Abstentions, General Assembly Adopts Landmark Resolution Recognizing
Clean, Healthy, Sustainable Environment as Human Right’(28 July 2022)
htm> accessed 20 August 2022.
138 Netherlands Quarterly of Human Rights 41(3)
3. INTERGENERATIONAL EQUITY
3.1. THE INFLUENCE OF WEISS BROWN
The reference to future generations (if not intergenerational equity) had already been included in
international agreements before the work of Edith Brown Weiss,
52
yet her work was a turning
point for thinking in the area. In Fairness to Future Generations was published in 1989,
53
and
the approach of Brown Weiss to ‘intergenerational equity’sought to provide contemporary analysis
in relation to the difficulties associated with recognising the rights and interests of future genera-
tions. It aimed to provide a basis for relevant policy decisions relating to legal rights and obliga-
tions, and did this by moving from rhetoric about intergenerational equity to constructing a more
practical framework through which to approach moral obligations to future generations. Brown
Weiss proposed four criteria to guide the development of the principle of intergenerational
equity. First, she argued there should be a fair distribution among generations of the benefits of
using natural resources, so that those in the present are not disadvantaged by a focus on future
needs, and vice versa. Next, she stated that the present generation should not predict the needs
of the future; rather it would be anticipated that those in the future would be assumed to have
their own value system. Third, she opined, the guidelines for action in the present should be rea-
sonably clear and simple. Finally, these guidelines for action should be, in general, acceptable to
different traditions and political systems.
Arising from these four criteria, she proposed what she referred to as conservation ‘principles’.
She believed that intergenerational equity required the conservation of options (that is, a diversity of
the natural and cultural resource base should be maintained to be enjoyed by future generations),
conservation of quality (the conditions of the planet should be maintained between the genera tions),
and conservation of access (the legacy of previous generations should be maintained). Brown Weiss
included these principles for both mitigation and adaptation in the climate crisis. She then elabo-
rated a number of obligations, such as a ‘duty to prevent disasters, minimi[s]e damage and
provide emergency assistance’.
54
As with other authors, ultimately the primary focus in her work is on future generations, and their
rights in that chain of generational relationships.
55
Children are not prominent in her thesis, rather
they appear to be included as part of the category of ‘present people’as a whole. Later, she did
emphasise that ‘children are the first embodiment of the interest of future generations’;
56
that
they have ‘intergenerational rights to a robust environment’; and that adults have a duty to preserve
options for them and to protect the quality of resources. Adults, she added, also have the obligation
to develop ‘a normative framework for protecting the environmental interest of children and
through them the interest of future generations’.
57
Furthermore, Brown Weiss emphasises a ‘fun-
damental belief in the dignity of all members of the human society and in [an] equality of rights,
52. Lydia Slobodian, ‘Defending the Future: Intergenerational Equity in Climate Litigation’(2019) 24(1) The Georgetown
Environmental Law Review 569.
53. Edith Brown Weiss, In Fairness to Future Generations (Transnational Publishers Inc 1989).
54. ibid 70.
55. Fitzmaurice Malgosia, Contemporary Issues in International Environmental Law (Edward Elgar Publishing 2009) 120.
56. Edith Brown Weiss, ‘In Fairness to our Children: International Law and Intergenerational Equity’(1994) 2(1–2)
Childhood 22, 22.
57. ibid 22.
Daly 139
which extends in time as well as space’,
58
expressing human solidarity which clearly encompasses
children and adults in any time period. Brown Weiss describes our environmental obligations as
follows:
[W]e, the human species, hold the natural and cultural environment of our planet in common with all
members of our species: past generations, the present generation, and future generations. As
members of the present generation, we hold the earth in trust for future generations. At the same
time, we are beneficiaries entitled to use and benefit from it.
59
It can be seen here that children could be considered part of either present or future generations. The
paradox of intergenerationality is that it appears to be impossible to put parameters on the terminology
that we use. The position of children in intergenerational equity is likely the best example of this. One
could make a distinction between those who are here at present and those who have yet to be born to
distinguish between present and future generations. Yet approximately 250 children are born per minute
in the world
60
and would therefore have transitioned from one category (those yet to be born) to another
(the present generation) in less time than it takes to read this paragraph! A baby born in 2023 will be part
of the ‘future generation’in 2053 as a 30-year-old; but so too will the 40-year-old who lives to 2053
(they will be 70 years old). These existential points illustrate just how interconnected and interdepend-
ent all humans are on earth and across time. These points also perhaps outline just why relationships
between intergenerational equity, children’s rights, and the rights of those yet to be born are difficult
to elaborate on (although this has been attempted in Figure 1 below).
61
Since Brown Weiss elaborated the concept of ‘intergenerational equity’in 1989,
62
the principle
has become more prevalent in international discourse. It is primarily a political inclination, which
has been the subject of much sociological, philosophical, and political science examination. Yet it
has influenced the drafting of numerous legal instruments, and has received ever greater attention in
the 2020s, with the drafting of various instruments designed to respond to the worsening climate
crisis. Nevertheless, the elaboration of intergenerational justice has generally not extended in a sub-
stantial way to encompass children. Nolan, for example, refers to the ‘thus far under-explored rela-
tionship between children’s rights and future generations’.
63
Relevant literature generally falls into
two camps. It may provide elaboration of what equity means for the future, without specifically con-
sidering children (for example. Brown Weiss). It alternatively takes ‘intergenerational justice’to
refer to the need to mitigate environmental problems to enhance children’s rights, but does not con-
sider a definition of the term, nor what it means for children.
64
The term then appears to serve in this
58. Brown Weiss (n 53) 26.
59. Edith Brown Weiss, ‘Intergenerational Equity and Rights of Future Generations’in Pedro Niken and Antonio Trindade
(eds) The Modern World of Human Rights: Essays in Honour of Thomas Buergenthal (Inter-American Institute of
Human Rights 1996) 603.
60. Lucy Lamble, ‘With 250 Babies Born Each Minute, How Many People can the Earth Sustain?’(The Guardian, 23 April
2018) lobal-development /2018/apr/23/popula tion-how-many-peop le-can-the-earth-
sustain-lucy-lamble> accessed 4 June 2022.
61. See below Figure 1 for a visual of how the different rights intersect in the international law framework.
62. Brown Weiss (n 53).
63. Nolan (n 36).
64. See, for example, Dawn Jourdan and Jani Wertin, ‘Intergenerational Rights to a Sustainable Future: Insights for Climate
Justice and Tourism’(2020) 28(8) Journal of Sustainable Tourism 1245; Anne Sanson and Susie Burke, ‘Climate
Change and Children: An Issue of Intergenerational Justice’(2020) 1(1) Children and Peace 343.
140 Netherlands Quarterly of Human Rights 41(3)
context as a rhetorical device to emphasise the importance for children of a right to a healthy envir-
onment. Such literature is of course important for understanding various elements of environmental
justice. Yet inadequate attention to the nuance of the relationships, intersections, and divergences of
future generations and present children, as pointed out by Nolan, may risk an under-theorisation of
rights both for future generations and children in key areas of international human rights law.
65
This under-theorisation is also evident in more recent international standards. In 2020, as noted
above, the Human Rights Council released a resolution urging States to realise the rights of children
by recognising the right to a healthy environment in domestic legislation, and ensuring the rights of
both present and future generations.
66
In June 2021, the UN CRC committed to the drafting of a
General Comment on children’s rights and the environment with a special focus on climate
change.
67
It was released in 2023.
68
The General Comment aims to provide guidance to States
on what constitutes a child-rights approach to environmental issues and the legislative, administra-
tive, and other measures which must be taken to achieve this. It elaborates substantive, procedural,
as well as heightened obligations pertaining to children, and is informed by the science relating to
climate change and its effects on human rights.
69
Added to this, the UN Committee on Economic,
Social and Cultural Right is drafting a General Comment on sustainable development and the
International Covenant on Economic, Social and Cultural Rights (ICESCR). Both initiatives aim
not just to respect, protect, and fulfil the right to a healthy environment, but also to shed light on
concepts such as intergenerational equity.
70
It is unclear how helpful these documents will be in explicating the position of children in rela-
tion to the concepts of intergenerational equity and future generations. The Human Rights Council
resolution refrained from elaborating on what the term ‘future generations’means in relation to the
right of children to healthy environment. Similarly, the General Comment on children’s rights and
the environment with a special focus on climate change, released in 2023, remains very vague on
definitions. The Committee ‘recognizes the principle of intergenerational equity and the interests of
future generations’,
71
but does not elaborate on the details of the principle. The Committee con-
tinues ‘While the rights of children who are present on Earth require immediate urgent attention,
the children constantly arriving are also entitled to the realization of their human rights to the
maximum extent.’
72
It seems then that the Committee is making clear reference then to the relation-
ship between present children and future children –generations are in constant motion.
Nevertheless it would have been desirable to have a greater elaboration and definition here of
the concept of intergenerational justice and how it relates to children’s rights.
65. Nolan (n 36).
66. UN Human Rights Council (HRC), ‘Rights of the Child: Realizing the Rights of the Child Through a Healthy
Environment’UN Doc A/HRC/RES/45/30 (13 October 2020).
67. Office of the High Commissioner for Human Rights News, The UN Committee on the Rights of the Child Commits to a
New General Comment on Children’s Rights and the Environment with a Special Focus on Climate Change (4 June
2021) s-new-general-comment-childrens-
rights-and-environment?LangID=E&NewsID=27139> accessed 6 June 2022.
68. See n 13.
69. Committee on the Rights of the Child, Concept Note: General Comment on Children’s Rights and the Environment
with a Special Focus on Climate Change (2021)
comment-childrens-rights-and-environment-special-focus-climate-change> accessed 6 June 2022.
70. ibid.
71. General Comment on Children’s Rights and the Environment with a Special Focus on Climate Change, para. 11.
72. ibid.
Daly 141
It could be argued that this General Comment is not the place to elaborate on this, as General
Comments must cover a broad range of issues. Nevertheless, it is notable that greater attention
to children’s environmental human rights is not resulting in a clearer definition of this group in
the context of intergenerational equity. The lack of clarity in these documents arguably constitutes
a missed opportunity to concretise a key concept (and an increasingly important tool) in human
rights law. Even as the notion of the rights of future generations garners greater attention in the
legal arena, still the position of children is neglected, and this may affect whether children’s
rights arguments are used in litigation, as outlined in Section 4.
3.2. FUTURE GENERATIONS AND THE LAW
The reference to future generations (if not intergenerational equity) had already been included in
international agreements before the work of Brown Weiss. As Slobodian notes, ‘future generations
[appear] in treaties, judicial decisions, and national constitutions.’
73
The environment has been on
the international agenda since the 1972 UN Conference on the Human Environment in Stockholm
positioned it as a major global issue. That year, the Stockholm Declaration was adopted, proclaim-
ing the goal of defending and improving the human environment ‘for present and future genera-
tions’.
74
The conference joined the environment and development together as a holistic issue.
75
References to the welfare of ‘future generations’continued to the 1990s. The United Nations
Framework Convention on Climate Change established (as noted above) an international environ-
mental treaty in 1992, with the aim of combatting ‘dangerous human interference with the climate
system’. Article 3(1) states that ‘[t]he Parties should protect the climate system for the benefitof
present and future generations of humankind’.
It was, however, the 1987 report of the UN World Commission on Environment and
Development (WCED), popularly known as the Brundtland Commission Report on Our
Common Future, which gave the concept of intergenerational equity its first concrete meaning in
international law.
76
It stated that in order for socioeconomic development to be sustainable, it
should be ensured that ‘it meets the needs of the present without compromising the ability of
future generations to meet their own needs.’
77
This statement, and the subsequent work of the
WCED, contributed to the development of the 1992 Earth Summit which produced the Rio
Declaration on Environment and Development and its companion Agenda 21.
78
Both documents
refer to the well-being of ‘present and future generations’. There is also a dedicated UNESCO
Declaration on Responsibilities Towards Future Generations,
79
adopted in 1997, which refers to
the obligation ‘to bequeath to future generations an Earth which will not one day be irreversibly
damaged by human activity’. The 2015 Sustainable Development Goals (SDGs) –a collection
73. Lydia Slobodian, ‘Defending the Future: Intergenerational Equity in Climate Litigation’(2019) 24(1) The Georgetown
Environmental Law Review 569.
74. Stockholm Declaration, Preamble.
75. Davies and others (n 15).
76. ibid.
77. UN World Commission on Environment and Development, Report of the World Commission on Environment and
Development: Our Common Future (UN World Commission on Environment and Development, 1987), para. 27.
78. Davies and others (n 15).
79. ‘Declaration on the Responsibilities of the Present Generations Towards Future Generations’GC Res. 31 UNESCO 29th
Sess., UNESCO Doc. 29 C/Res. 31 (12 November 1997).
142 Netherlands Quarterly of Human Rights 41(3)
of 17 global goals to be achieved by 2030 designed to achieve a better and more sustainable future,
established in 2015 by the UN General Assembly –refers to ‘future generations’, where States
express their intention ‘to protect the planet from degradation […] so that it can support the
needs of the present and future generations’.
There is therefore a plethora of references to the rights of future generations across numerous
instruments, some of them binding in nature. Davies and others opine that these references to
the rights of future generations may indicate an emerging norm in customary international law.
80
Added to this, the rights of future generations have arisen in national laws as well. It is estimated
that ‘intergenerational rights to a healthy environment are protected by the constitutions of 74% of
the world’s nations.’
81
Here we also see prevalence of the phrase ‘future generations’. The German
Constitution, for example, makes reference to recognising ‘responsibility toward future genera-
tions.’
82
As we have seen however, ‘future generations’is frequently taken to mean those yet to
be born which risks obscuring the position of children in the generational spectrum. It may also
be downplaying the potential of the rights of children to progress intergenerational justice, particu-
larly in the legal sphere.
The legal obligations which may result from the principle of intergenerational equity (which, as
noted above, is usually taken to mean the rights of future generations) are, for the most part, as yet
unclear. Attapatu points to the fact, however, that equity (that is, justice through equitable
decisions) underlies the principle, and equity is common to many legal systems.
83
The
International Court of Justice has referred to the role of equity in international law in the Jan
Mayen case
84
for example, describing it as a basis for justice, fairness, and legal reasoning. In
the past number of years, litigation has arisen as a route through which to achieve change in
climate policies. Setzer and Higham identified internationally over 2,000 ongoing or concluded
cases on climate change litigation as of May 2022.
85
There have been 103 applications filed
before 15 international or regional bodies.
86
Cases which preceded the current (that is, post-2019) phenomenon of child/youth climate activ-
ism, such as Minors Oposa in the Supreme Court of the Philippines
87
and Demanda Generaciones
Futuras v Minambiente in the Supreme Court of Colombia,
88
relied heavily on arguments relating
80. Davies and others (n 15).
81. Adrian Treves and others ‘Intergenerational Equity can Help to Prevent Climate Change and Extinction’(2018) 2(2)
Nature Ecology & Evolution 204.
82. Basic Law of the German Federal Republic Article 20a (added 1994): ‘Mindful also of its responsibility toward future
generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law
and justice, by executive and judicial action, all within the framework of the constitutional order’. English translation at:
83. Attapatu (n 25) 172. Coomans refers to the universality of human rights as one basis for supporting the rights of future
generations. Fons Coomans, ‘Towards 2122 and Beyond: Developing the human rights of future generations’(2023)
41(1) Netherlands Quarterly of Human Rights 53.
84. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark and Norway) (1993) ICJ 38.
85. Joana Setzer and Catherine Higham, ‘Global Trends in Climate Change Litigation: 2022 Snapshot’Policy Report,
(June 2022) s-in-climate-change-
litigation-2022-snapshot.pdf> accessed 30 June 2022, 2.
86. ibid 9.
87. 33 ILM 173 (1994).
88. Filing Date: 2018 Reporter Info: 11001 22 03 000 2018 00319 00.
Daly 143
to future generations.
89
There have since been increasing references to issues of generational rights
in climate cases taken by those over 18 years. In the domestic German case Neubauer and others v
Germany, applicants argued that the failure of the State to mitigate the climate crisis constituted a
disproportionate burden on future generations.
90
The German Supreme Constitutional Court
agreed.
91
In Earthlife Africa Johannesburg v The Minister of Environmental Affairs and
others,
92
the South African High Court determined that, when conducting an environmental
review of a power plant, climate change is an important consideration. The Court referred to the
constitutional right to have the environment protected ‘for the benefit of present and future genera-
tions, [including by securing] ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development’.
93
There are, therefore, instances
of courts upholding arguments relating to future generations.
Yet using such arguments in litigation remains difficult for several reasons. As noted above, the
law is usually designed to deal with past harms, not projected incidents yet to come.
94
In Teitiota v
New Zealand,
95
for example, the Human Rights Committee held that no violation of the right to life
was established in a case where an island will soon likely be submerged and become uninhabitable.
The Committee accepted that Kiribati would likely be rendered uninhabitable in 10–15 years as a
result of sea-level rise. However, it did not accept that it would be an acceptable limit in terms of a
timeframe sufficient for ‘intervening acts’by the government of Kiribati to protect its citizens. The
Committee opined that this was purely speculative in nature.
Arguing that children’s rights are being violated in the present in such circumstances holds much
potential. Children in the present will possibly have legal standing, and can argue that they have
already suffered harm, even if that harm is a failure in the present to consider their interests in
the future. These are two factors which will usually be necessary for accessing courts and other
climate justice forums. It is therefore important to consider whether greater emphasis should be
placed on the children’s rights framework in climate and other environmental rights cases.
4. INTERGENERATIONAL RIGHTS ARE CHILDREN’S RIGHTS
The term intergenerational justice is used rhetorically even in a legal context, usually to refer to
‘future people’. It is the basis for many climate cases. Research indicates that only around half
(54%) of decided climate cases (outside the US - 245 cases) had outcomes favourable to climate
action.
96
Can the CRC/children’s rights framework be used as a vehicle for a more effective use
of ‘intergenerational rights’to mitigate the climate crisis?
89. In Demanda Generaciones Futuras v. Minambiente, the court accepted the argument that children are members of future
generations. See Climate case chart database
environment-others> accessed 3 June 2022.
90. BvR 2656/18/1 BvR 78/20/1 BvR 96/20/1 BvR 288/20.
91. ibid.
92. [2017], High Court of South Africa Gauteng Division, Pretoria, N.:65662/16.
93. ibid, para. 83.
94. Richard Hiskes, ‘The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational Justice’(2005)
27(1) Human Rights Quarterly 1346.
95. Ioane Teitiota v New Zealand CCPR/C/127/D/2728/2016, UN Human Rights Committee (7 January 2020).
96. Setzer and Higham (n 85) 26. Of course, legal success is not the only outcome which benefits climate action –media
attention can also potentially influence law and policy (ibid 27).
144 Netherlands Quarterly of Human Rights 41(3)
4.1. THE UN CONVENTION ON THE RIGHTS OF THE CHILD
To understand the potential for engaging children’s rights in climate litigation, it is necessary to
consider the UNCRC. The CRC is a human rights treaty aimed at protecting, promoting, and ful-
filling the rights of children everywhere. It is all but universally ratified –there are 195 signatories to
this founding children’s rights text. This comprehensive instrument covers the full spectrum of
rights –civil and political, as well as economic, social and cultural rights. It does not explicitly ref-
erence intergenerational equity, but it is the only UN human rights treaty directly linking the right to
health to the environment. Article 24(2)(c) directs States to recognise the right of children to the
enjoyment of the highest attainable standard of health and, in particular, to take appropriate mea-
sures to combat disease and malnutrition ‘taking into consideration the dangers and risks of envir-
onmental pollution’. It also includes rights specific to children, including the right to be heard, the
right to play, and the principle of the best interests of the child.
As presented in Figure 1, children’s rights can be positioned as a key component within the
picture of intergenerational rights. The international human rights framework more broadly
(for example, the ICCPR and ICESCR) can be crucial for tackling numerous environmental
rights issues such as the right to water (UNCESCR, Articles 11 and 12). There is, as outlined
above, an emerging framework for the rights of future people (whether born or yet to be born).
Instruments such as the UNESCO Declaration on the Responsibilities Towards
Future Generations will gain increasing ground in the coming years as courts recognise the
legitimacy of protecting such rights.
97
The children’s rights framework, then, sits in the
centre; an important bridge between the two, involving principles which are firmly embedded
and accepted internationally, such as the principle of the best interests of the child (CRC,
Article 3).
Figure 1. Intergenerational equity and children’s rights.
97. Nolan describes children’s rights as a well-established area of international human rights law, and the rights of future
generations as being ‘at a much more nascent stage.’Nolan (n 36).
Daly 145
However, there is surprisingly little in-depth reflection on the potential of the CRC for progressing
the principle of intergenerational equity. The draft General Comment No. 26 references intergenera-
tional equity, but refrains from providing a definition of the concept of future generations. Nor does
it attempt to elaborate on the relationship of future generations to children.
98
As the children’srights
framework is now so accepted however it is clear that emphasising the children’s rights element of
the principle of intergenerational equity holds great potential for grounding the principle in legal efforts.
The most promising route is likely via the principle of the best interests of the child unde r Article
3 of the CRC.
99
The right of children to have their best interests included as a primary consideration
in matters affecting them is a crucial right for a group who frequently have decisions about their
interests made by adults. The importance of the principle is demonstrated by the fact that it is,
of CRC rights, the one which is most incorporated in domestic law systems. Lundy and others
found that incorporation of this right at national level was widespread.
100
It is also a ‘general prin-
101
The prin-
ciple is therefore very prominent in both national and international law. The Children’s Rights
International Network points out that the principle is the most-cited Article of the CRC by courts.
102
There is one element of the best interests principle which may be particularly useful if invoked in
litigation, and that is the procedural element. The UN CRC in its General Comment No. 14 on the
Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration
103
outlines
that the principle of the best interests of the child is a threefold concept: it is a substantive right; a
fundamental, interpretative legal principle; and finally, a rule of procedure. This latter element could
be used very pragmatically in climate litigation. The principle can serve as a tool to ensure that
States adopt procedures which place children in a prominent position in decision making. It has
been argued for example that the procedural element facilitates the European Court of Human
Rights (ECtHR) to apply the principle in all cases, regardless of the right in question.
104
It is clear that the principl e of the best interests of the child has in the past been used in ways that
have been unduly paternalistic.
105
The principle gives the impres sion that adults know best, an d
that adults will make decisi ons about children’s interest s. It has been used in some proceedi ngs
98. See Committee on the Rights of the Child, Draft General Comment No. 26: Children’s Rights and the Environment
with a Special Focus on Climate Change, para. 13.
99. The right of children to be heard is another general principle of the CRC which is also of great importance in climate
justice. See Aoife Daly, ‘Child and Youth Friendly Justice for the Climate Crisis: Relying on the CRC’(under review,
2022) =4083055>accessed 19 June 2022.
100. Laura Lundy and others, The UN Convention on the Rights of the Child: A Study of Legal Implementation in 12
Countries (UNICEF, 2012), 4.
101. Committeeon the Rights of the Child, General CommentNo. 5: General Measuresof Implementationof the Conventionon
the Rights of the Child (27 November 2003) CRC/GC/2003/5. The other general principles are the right to be heard (Article
12); the right to life, survival and development (Article 6); and non-discrimination (Article 2).
102. See Ann Skelton, ‘Child Justice in South Africa: Application of International Instruments in the Constitutional Court’
(2018) 26(3) The International Journal of Children’s Rights 391.
103. Committee on the Rights of the Child, General Comment No. 14 on the Right of the Child to Have His or Her Best
Interests Taken as a Primary Consideration CRC/C/GC/14 (29 May 2013), para.6.
104. Mathieu Leloup, ‘The Principle of the Best Interests of the Child in the Expulsion Case Law of the European Court of
Human Rights: Procedural Rationality as a Remedy for Inconsistency’(2019) 37(1) Netherlands Quarterly of Human
Rights 54. The observation is made in the context of cases, for example, Maslov v Austria [2008] ECHR 1638/03 [23
June 2008] where the parent of the child has been expelled from the state.
105. See Skelton (n 102).
146 Netherlands Quarterly of Human Rights 41(3)
to stifle children’s own views and wis hes.
106
However, in the context of climat e law and policy,
the best interests principl e draws attention to children’s i nterests rather than other int erests –the
perceived national intere sts of economic development, f or example. It can be used along side
other principles, such as the r ight of children to be heard, to ensure that children’srightsandinter-
ests are engaged in a policy or a leg al application in a holistic way. This is vital, as it is challenging
for children to access environm ental justice mechanisms.
107
The broader range of children’s
rights, such as the right of child ren to development, may not alway s be accessible in litigation
however, as such rights may not be enshrined in t he national legal framework of a particul ar
country.
108
In such circumstances they m ay not be justiciable then, pa rticularly in countries
with dualist legal systems. For t his reason, the principle of the best int erests of the child is the
primary focus of this sectio n due to the scope of the piece, altho ugh it is acknowledged that
there is a broad tapestry of child ren’s rights which could and should be dr awn upon in environ-
mental and climate litigation an d advocacy. It should also be noted t hat there is, amongst aca-
demics and practitioners, inc reased attention to applying t he children’s rights framework within
strategic litigation involvi ng children.
109
Part of the power of the best interests principle is its wide reach in terms of public policy and law
making. The CRC Committee outlines that the best interests of children must be a primary consid-
eration in all decisions,
110
and this should of course be taken to include government policies relat-
ing to issues such as activities impacting the climate and the environment more broadly. In fact, it
could be argued that children’s interests should be given even higher priority in relation to the envir-
onment as compared with other issues, as children will be disproportionately affected by the climate
crisis. This was emphasised by the then-Special Rapporteur on Human Rights and the Environment,
who opined in his 2018 report on children’s rights and the environment that States have heightened
obligations to protect children from environmental harm, including through regulation of private
actors such as businesses.
111
In practical terms, the principle requires that first, information and data must be gathered on the
topic to determine the scope of a particular problem affecting children’s rights. The CRC
Committee states that: ‘Collection of sufficient and reliable data on children, disaggregated to
enable identification of discrimination and/or disparities in the realisation of rights, is an essential
part of implementation.’
112
Children’s rights and interests, including their participation, must then
106. See Aoife Daly, Children, Autonomy and the Courts: Beyond the Right to be Heard (Brill 2018).
107. See Aoife Daly and Laura Lundy, Synthesis Report on Children’s Rights and Climate Justice (European Network of
Ombudspersons for Children 2022) f>
accessed 9 November 2022.
108. See, for example, Elizabeth Donger, ‘Children and Youth in Strategic Climate Litigation: Advancing Rights through
Legal Argument and Legal Mobilization’(2022) 11(2) Transnational Environmental Law 1, and Hoffman, Simon, and
Rebecca Thorburn Stern, ‘Incorporation of the UN Convention on the Rights of the Child in National Law’(2020)
28(1) The International Journal of Children’s Rights 133.
109. See Aoife Nolan and Ann Skelton, ‘Turning the Rights Lens Inwards: The Case for Child Rights-Consistent Strategic
Litigation Practice’(2022) 22(4) Human Rights Law Review: ngac026.
110. Committee on the Rights of the Child, General Comment No. 14 (n 103).
111. UNHRC, Children’s Rights and the Environment: Report of the Special Rapporteur on Human Rights and the
Environment (24 January 2018) UN Doc A/HRC/37/58, para 38.
112. Committee on the Rights of the Child, General Comment no. 5 (n 101), Section F.
Daly 147
be built into climate and development strategies as early as possible.
113
The Committee outlines in
General Comment No. 14 that these best interests assessments should be underpinned by the CRC
general principles, and be based on input from children and other stakeholders.
114
The Committee
also states that children’s rights impact assessments are a vital component of reflecting on the best
interests of children in a given issue. Children’s rights impact assessments involve ‘predicting the
impact of any proposed law, policy or budgetary allocation which affects children and the enjoy-
ment of their rights.’Child impact evaluations –evaluating the actual impact of implementation –
must also be conducted.
115
This points to extensive obligations on States to ensure that the best interests of children are
adequately considered in environmental matters concerning them. Research conducted in 2020 by
UNICEF, however, indicates that most States do not explicitly give primary consideration to chil-
dren’s rights and interests in climate policy-making. In only 34% of 103 countries with new or
revised climate plans (Nationally Determined Contributions –a requirement under the Paris
Agreement) could those plans be classed as ‘child sensitive’.
116
This figure highlights then that
there are many States which are falling well short of the CRC standards outlined above. They
could therefore be subject to litigation and other justice mechanisms in an effort to improve States’
climate mitigation policies, using the principle of the best interests of the child as a key argument.
There is great potential for engaging the procedural element of the principle. Although General
Comments are not binding on States, they provide crucial guidance on implementation ofCRC prin-
ciples. Many States are failing to conduct basic assessments of children’s best interests.The descrip-
tion by the Committee of the extent to which States must consider children’s best interests on
environmentalmatters, including through thegathering of statistics and of children’s views, can elab-
orate in a climate case the extent to which States are failing to engage in basic implementation of the
key CRC principle. This could potentially increase the chance of a success in a climate case, thereby
progressing the right to a healthy environment and the obligation on States to curb emissions.
4.2. RECENT CLIMATE CASES AND CHILDREN’SRIGHTS
The use by children and youth (and adult allies) of the courts to litigate governments’climate pol-
icies has already begun. These applications and cases have harnessed human rights and have
increasingly engaged concepts relating to children/youth together with the principle of intergenera-
tional equity. Parker and others examined the Sabin Centre for Climate Change Law’s database of
climate litigation, identifying 32 climate cases led by or involving children/youth by May 2021.
117
113. Office of the United Nations High Commissioner for Human Rights (UNOHCHR), ‘Analytical study on the relation-
ship between climate change and the full and effective enjoyment of the rights of the child: report of the Office of the
United Nations High Commissioner for Human Rights’(4 May 2017) UN Doc A/HRC/35/13.
114. Committee on the Rights of the Child, General Comment No. 14 (n 103), para. 99.
115. Committee on the Rights of the Child, General Comment No. 5 (n 101). In the context of the environment in particular,
see UNHRC, Children’s Rights and the Environment: Report of the Special Rapporteur (n 111).
116. UNICEF, Climate & Environment Discussion Paper (UNICEF, November 2021).
117. Parker and others, analysed cases accessed in Sabin Centre for Climate Change Law, Climate Litigation Databases
Climate Change on Trial: Youth-Focused Rights-Based Climate Litigation around the World’(2021) 13(1) Journal
of Human Rights and Environment 64.
148 Netherlands Quarterly of Human Rights 41(3)
Surprisingly few cases have referenced the principle of the best interests of the child, or children’s
rights more broadly, in spite of the involvement of child litigants.
118
One of the earliest applications in the modern suite of climate cases was in the US, where non-
profit organisation Children’s Trust began to file lawsuits across the United States in 2011, engaging
children and youthas litigants. They argued, amongst otherthings, that the failure to adequately miti-
gate the climate crisis invoked constitutional rights of children, and that the public trust doctrine
should be applied to the atmosphere. This doctrine is based on ancient Roman civil law and
English common law,
119
and is the principle that certain resources are preserved for public use,
and that the government has a duty to protectthem. In the most recent manifestation of these petitions
in 2020 (Juliana
120
) a Ninth Circuit panel held that the plaintiffs lacked standing to sue, though the
case continues t hrough further applications.
121
The principle of thebest interests of the child does not
seem to have engaged in Juliana. The lack of attention to the children’s rights framework is unsur-
prising, as the US remains the only State not to have ratified the CRC.
appears that litigants’arguments rarely make reference to the principle of the best interests of
the child. In Australia, children and youth made attempts to prevent coal mining in the case of
Sharma.
122
In this (ultimately unsuccessful)
123
tort law-based application, the applicants argued
that the relevant legislation should be interpreted as involving the need to ‘ensur[e] a healthy envir-
onment for the benefit of future generations.
124
The Court did not conduct a best interests analysis
of the mining plans, nor did it order the government to conduct such an analysis.
125
In the 2016 case
People v Arctic Oil,
126
a children/youth organisation challenged oil licences approved by the gov-
ernment as violating the right to a healthy environment under the Norwegian Constitution, (which
references the rights of future generations).
127
Despite the incorporation of the CRC in both juris-
dictions, the CRC does not appear to have been invoked in these applications. The ongoing
Canadian case of La Rose
128
involves a petition by children/youth aged 10 to 19 (seven of
whom are Indigenous), who argued that that they have public interest standing to represent their
rights and the ‘rights of all children and youth in Canada, present and future’.
129
Interestingly
118. See Donger (n 108).
119. Andrea Rodgers, Julia Olson, and Eric Laschever, ‘Climate Justice and the Public Trust’(2022) 36(3) Natural
Resources & Environment 13.
120. Juliana v United States, 947 F (3d) 1159 at 5 (9th Cir 2020).
121. See Climate Case Chart, Juliana v United States
18 June 2022.
122. Minister for the Environment v Sharma [2022] FCAFC 35.
123. An initial success was overturned on appeal by the Full Court of the Federal Court of Australia.
124. Sharma and others v Minister for the Environment [2021] FCA 560, 274.
125. See Donger (n 108) 279 and Noam Peleg, ‘Has the Federal Court Put the Heat on the Environment Minister over
Climate Change and Children’s Rights?’, Australian Human Rights Institute, 2 June 2021
humanrights.unsw.edu.au/news/has-federal-court-really-put-heat-environment-minister-over-climate-change>
accessed 27 March 2023.
126. Föreningen Greenpeace Norden v Norway, 18-060499ASD-BORG/3, Borgarting Court of Appeal [Borgarting
Lagmannsrett], 23 Jan. 2020.
127. Norwegian Constitution (1814), Art. 104,available at: https://www.constituteproject.org/constitution/Norway_2014.pdf.
128. La Rose v Canada, 2020 FC 1008, online: plaintiffs’
statement of claim, at para 27.
129. See further Nathalie J. Chalifour; Jessica Earle; Laura Macintyre, ‘Coming of Age in a Warming World: The Charter’s
Section 15(1) Equality Guarantee and Youth-Led Climate Litigation’(2021) 17(1) Journal of Law & Equality 1.
Daly 149
they invoke a right to equality, as this is enshrined in section 15(1) of the Canadian Charter of
Rights and Freedoms. Again, the case does not invoke the CRC, although domestic constitutional
rights are engaged.
International human rights law petitions have had greater emphasis on the best interests prin-
ciple. This is likely because international law is naturally going to be relied upon more in inter-
national petitions, and the best interests principle is prominent in the CRC as the key
international children’s rights instrument. In the Duarte Agostinho application
130
to the ECtHR,
six Portuguese children and youth (who live in an area prone to deadly wildfires) argue that the
inadequate climate policies of 33 European States violate their rights under the European
Convention on Human Rights (ECHR). The applicants allege violations of the right to life
(Article 2), the right to private and family life (Article 8), and non-discrimination (Article 14).
Although the principle of the best interests of the child is not explicitly included in the ECHR,
the ECtHR has held that it is an obligation of States to ensure that the best interests of children
are adequately considered in matters affecting them.
131
In their application, the complainants
refer once to the best interests principle, stating that:
The Court’s assessment of these risks […] must be undertaken bearing in mind the precautionary prin-
ciple, the concept of intergenerational equity, and the requirement (under Article 3(1) of the UN
consideration.’
132
As of 2023, the applicants’representatives have submitted responses to the State responses, after
drafting more thorough elaboration on the alleged breaches of the best interests principle.
133
The
ECtHR will decide if the application proceeds to a full hearing, and if it does the principle will
of course be given further legal elaboration, and therefore legitimacy in relation to climate cases.
The best interests principle featured strongly in a 2019 climate petition to CRC Committee.
Greta Thunberg and 15 other children filed a petition with the Committee arguing that the five
respondent States had breached their CRC obligations due to their failure to adequately mitigate
climate change.
134
The CRC, covering as it does the full spectrum of rights, facilitated the chil-
dren/youth provided a strong vehicle through which to argue breaches of numerous children’s
rights. The best interest principle (Article 3) was amongst the provisions invoked. The others
were the right to life (Article 6); the right to health (Article 24), and the right of Indigenous children
to their own culture (Article 30). The applicants requested in the petition that the Committee on the
Rights of the Child adopt as one of their recommendations for relief that States ‘make the best inter-
ests of the child a primary consideration, particularly in allocating the costs and burdens of climate
130. See application to the Court at Global Legal Action Network website
June 2021.
131. See Maslov v Austria [2008] ECHR 1638/03 [23 June 2008].
132. See Global Legal Action Network (GLAN) application to the court < https://youth4climatejustice.org/wp-content/
uploads/2020/11/GLAN-ECtHR-Application.pdf> accessed 28 March 2023, 3–4. The applicants cite Neulinger v
Switzerland App No 41615/07, (ECtHR GC 6 July 2010), para. 132.
133. The author has provided assistance to the representatives in this regard.
134. Sacchi and others v Argentina and others, Petition Submitted under Article 5 of the Third Optional Protocol to the
United Nations Convention on the Rights of the Child (23 September 2019).
150 Netherlands Quarterly of Human Rights 41(3)
change mitigation and adaption.’
135
The Committee declined to examine the petition on its merits,
due to a failure to exhaust domestic remedies, though it established important precedent in recog-
nising State responsibility for transboundary harm.
136
In its pronouncement, the Committee did not
mention the best interests of the child. There would likely have been significant attention accorded
to the best interests principle however if the application had been heard on its merits, considering its
prominence as a principle of the CRC.
In 2022, the applicants next petitioned the UN Secretary General, asking that he announce that
the climate crisis constitute a global level 3 emergency, to match the level of UN response adopted
for the coronavirus pandemic.
137
The children/youth based their arguments on ‘international human
rights law’,
138
yet they explicitly referenced neither the CRC, nor the best interests principle.
Neither is there any reference to the best interests principle in the 2021 petition by Haitian children
to the Inter-American Commission on Human Rights to redress human rights violations stemming
from toxic trash disposal in their residential area.
139
The Inter-American Convention on Human
Rights does not make direct reference to the best interests principle, which may go some way
towards explaining why the applicants refrained from relying on it. Article 19 of that instrument
makes reference however to the right of children to protection required by their status. The
Inter-American Court too sometimes makes reference to the CRC and the best interests principle,
as it did in its Advisory Opinion on children in the context of migration.
140
It is notable then, and
perhaps surprising, that the CRC was not invoked in the Haiti petition.
On surveying climate cases with child litigants it is evident that there is a distinct lack of engage-
ment with the CRC, including the best interests principle. One reason for the lack of prominence of
the CRC in such cases is likely that there is increasing reliance on the right to a healthy environ-
ment. This is because it is fortunately increasingly recognised in the constitutions of many
States. Another reason is likely the varying extent to which the best interests principle (and the
been incorporated into domestic law in some countries, particularly in dualist States. Courts (par-
ticularly those in common law jurisdictions) often remain resistant to the claim that States have an
obligation to implement the best interests principle in policy-making.
141
135. ibid 8.
136. See further Daly (n 99).
137. Bryant, ‘Youth Activists Petition UN to Declare “Systemwide Climate Emergency”’ The Guardian (10 November
2021) ts-petition-un-to-declare-systemwide-
climate-emergency> accessed 3 December 2021.
138. Sacchi petition (n 134), para 13.
139. Petition to the Inter-American Commission on Human Rights Seeking to Redress Violationsof the Rights of Children in
Cité Soleil, Haiti, filed 4 February 2021
to-the-inter-american-commission-on-human-rights-seeking-to-redress-violations-of-the-rights-of-children-in-cite-
soleil-haiti> accessed 3 April 2022.
140. Inter-American Court of Human Rights, Advisory Opinion No. 21, 10th August 2014 on the rights and guarantees of
children in the context of migration or in need of international protection. See further Susana Sanz-Caballero,
‘Towards a Uniform and Informed Interpretation of the Best Interests of the Child by the Judiciary: Inter-American
and European Jurisprudence’(2021) 29(1) The International Journal of Children’s Rights 54.
141. See, for example, in the UK context SC, CB and 8 children, R. (on the application of) v Secretary of State for Work and
Pensions & Ors [2021] UKSC 26 (9 July 2021) in which the CRC is dismissed by the court as an ‘unincorporated
international treat[y]’.
Daly 151
Another possible reason for refraining from using the CRC or the best interests principle is that
whilst some (perhaps most) of the litigants in these child/youth cases are under the age of 18, some
enshrining the rights of those under 18 years –in these circumstances. Children’s rights arguments
would apply to the situation of some of the applicants, but not all. This is the case in Duarte
Agostinho, as amongst the applicants are those over and under 18 years. The dilemma of how to
manage children’s rights in the context of claims by litigants over and under the age of 18
points to the need for greater work theorising the intersections between CRC rights and the
rights of youth over the age of 18. The CRC does not elaborate on what happens to children’s
rights when applicants become older than 18, and when they are partnered with applicants over
18 in the same application. Whether it is a practical obstacle, a theoretical obstacle or both is an
area that requires examination. The need for clarity in climate cases containing a mix of litigants
over and under age 18 makes it all the more important to provide legal analysis on the issue.
It is also possible that the concept of ‘intergenerational equity’–which, as noted above, is fre-
quently taken to exclusively refer to ‘the rights of future generations’–is in some way distracting
from the realisation of the potential usefulness of CRC rights, and particularly the potential of the
best interests principle. The preference for future generation arguments is evident from analysis of
the case law. Donger examined the 33 child/youth-focused climate applications filed before 2021
which reference rights,
142
and establishes that 90% of the arguments advanced in these applications
refer to intergenerational equity, while less than 10% refer to the best interests principle.
143
Nolan
makes the point that the term ‘future generations’, when included in national Constitutions, is fre-
quently left undefined.
144
The legal representatives of litigants may wish to avoid reliance on the
argument that children should be included in ‘future generations’. Yet legal representatives in
such cases could consider whether the principle of the best interests of the child could be used
alongside arguments relating to the rights of future generations. Children’s rights could be
employed as stand-alone arguments as an additional tool, considering the CRC is embedded in
the law of most States (although there may be reluctance by courts in dualist countries to apply
unincorporated international law instruments).
There are some indications that children are being included more explicitly in recent climate cases.
Twelve children in Austria are at present challenging Austria’s Federal Climate Protection Act on the
basis that it violates the constitutionally guaranteed rights of children andthe fundamental right to equal-
ity before the law.
145
The Austrian Federal Constitutional Act on the Rights of Children refers in Article
1 both to the best interests principle and consideration of intergenerational equity.
146
It seems that inclu-
sion of the principles of the UN convention on the rights of the child (such as the best interests principle,
142. Donger (n 108) 270.
143. ibid 277.
144. Aoife Nolan, ‘Children’s Rights and Future Generations’Rights –Ensuring Mutual Support’paper presented at
Children/Youth and the Right to a Healthy Environment (11 November 2022) Centre for Children’s Rights and
Family Law, University College Cork fl/> accessed 30 March 2023.
145. Children of Austria v Austria (2023). See Global Climate Change Litigation database, See Global Climate Change
Litigation database, Sabin Center for Climate Change Law
austria-v-austria/> accessed 12 March 2023.
146. In Korea, see also Do-Hyun Kim and others v South Korea (2020), which involves arguments that intergenerational
equity includes ‘adult and youth generations alive today, and future generations’. See Global Climate Change
Litigation database, Sabin Center for Climate Change Law
al-v-south-korea/> accessed 12 March 2023.
152 Netherlands Quarterly of Human Rights 41(3)
the right to be heard, and so on) remains the exception in climate cases. Extensive research is required
however on the ever-increasing amount of child and youth- related climate petitions, to establish trends
in this type of litigation from a children’s rights perspective.
5. CONCLUSION
There is great urgency if humanity is to mitigate the climate crisis to protect present and future gen-
erations, however one might define them. Since Brown Weiss elaborated a concept of ‘intergenera-
tional equity’in Fairness to Future Generations in 1988,
147
it has become prevalent in international
discourse. Brown Weiss did not explicitly consider children in her concept, however, and since then
the children’s rights framework has evolved and the CRC has been ratified by (almost) all States.
Moreover, children and youth have made their voices heard and become amongst the leaders fight-
ing for climate justice.
Human rights, intergenerational rights, and the rights of future generations are all being
employed at present to legally tackle the climate crisis. The CRC, as the primary children’s
rights instrument, should guide all climate justice efforts involving children.
148
By invoking the
principle of the best interests of the child in child/youth-led climate litigation, the point will be
made that States must give adequate consideration to the ways in which laws and policies affect
children, now and in the future. The principle is already featuring in international climate cases,
although there is scope for it to be much more prominent, particularly at the domestic level. It
should be considered a key component of the principle of intergenerational equity and a bridge
between the interests of those in the present and in the future.
In many climate and environmental rights petitions it appears that litigants could have relied on
the CRC, and particularly the best interests principle, and did not do so, but rather invoked the rights
of future generations. This could be due to a number of reasons. The rights of future generations
may be embedded in their Constitutions, and the principle of the best interests of the child may
not. It may be inconvenient where many young applicants are over 18, as children’s rights argu-
ments may not be perceived as applicable to them.
Yet failure to rely on children’s rights arguments may constitute a missed opportunity. The pro-
cedural approach to the best interests of the child (rather than the application of the concept as a
substantive right) means that the principle can potentially be applied in all cases irrespective of
the right at issue.
149
This will likely increase the chances of success in a case, but also ensure
that the case is firmly based in the children’s rights framework. The more that applicants across
the globe invoke the principle, the greater the chance that it will be upheld in a climate case.
Success would ensure that the particular rights and needs of children will be given the necessary
attention in the climate crisis. Such success in climate cases will, of course, progress human
rights as a whole at the most challenging time for humanity.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication
of this article.
147. Brown Weiss (n 53).
148. Daly (n 99).
149. Leloup (n 104).
Daly 153
Funding
The author would like to gratefully acknowledge funding from the Ragnar Soderberg Foundation (grant
number R20/18).
ORCID iD
Aoife Daly https://orcid.org/0000-0002-4005-9803
154 Netherlands Quarterly of Human Rights 41(3)
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