The International Protection of Youth and Children Displaced by Climate Change
By: Jose Rodriguez and Manon Rouby
Introduction
Climate change explicitly poses a significant threat to the enjoyment of basic human rights (Inter-American Court of Human Rights, Advisory Opinion on the Environment and Human Rights OC-23/17 § 47). In the case of young people and children, the 2019 World population prospect established that 29.3% of the world population is under 18 years old and 1.8 billion young people aged 10 to 24 years old, constituting the largest generation of youth in history. A significant number of these children and youth live in areas vulnerable to climate impacts, with for instance half a billion children living in extremely high flood occurrence zones and nearly 160 million children living in areas experiencing high or extremely high drought severity. Thousands of children and young persons are displaced by these extreme impacts and millions more are also displaced by conflict, which can also be fueled by climate-related factors.
While acknowledging the issue of displacement of children and youth within countries, this blog post focuses on the transboundary displaced children and youth and its legal consequences. Therefore, the identification of a clear legal definition of youth and children is essential to efficiently address this issue. As of today, there is no universally agreed international definition of the youth age group. However, the United Nations (UN) statistically defines ‘youth’ as those persons between the ages of 15 and 24 years (General Assembly, resolution 36/28 of 1981). Several UN entities, instruments and regional organizations have different definitions of youth, which the United Nations secretariat recognizes and are interchangeable. Additionally, and challenging the definition of youth by the UN, article 1 of the United Nations Convention on the Rights of the Child defines children as every human being below the age of eighteen years unless under the law applicable to the child. For this blog post, the terms children and youth will respectively be used as this incorporates the widest range of impacted groups and is currently used the most in legal instruments. For its part, international climate displacement can be defined as cross-border displacement caused by sudden-onset events and slow-onset processes arising fromthe climate crisis (UN Human Rights Committee, Ioane Teitiota v. New Zealand, § 9.11).
This blog entry addresses the need for international protection of youth and children displaced by the effects of climate change. Accordingly, (1) the special vulnerability of youth and children to climate-related displacement is shown; (2) the existing legal framework protecting children and youth in the context of climate change-related displacement is explored, (3) and it is explained how international adjudication might help develop a uniform standard for their protection.
The special vulnerability of youth and children
Children and youth are disproportionately affected by climate change and are highly vulnerable to its impacts. These impacts can be qualified as direct or indirect, immediate and delayed. For instance, direct climate change impacts are physical threats - such as fatalities and injuries; heat-related illnesses; exposure to environmental toxins - as well as threats to their mental health - such as anxiety, stress or depression. As for the indirect effects of climate change, they are infinite, going from increasing dependence on families which increases the risk of domestic violence to the deprivation of a secure and healthy future. Research also explicitly established that children and youth are affected more strongly than some other groups of people. For instance, a tremendous number of children live in high-risk areas when it comes to direct climate change impacts.
As a result, climate change eventually becomes such a threat to children’s and youth’s human rights enjoyment that displacement across boundaries and migration is inevitable. Indeed, unplanned international displacement of children and families following sudden-onset climate disasters has been identified as a direct effect of climate change. For instance, the Internal Displacement Monitoring Centre reported 30 million new weather-related displacements in 2020, the highest annual figure for ten years (Child rights resource centre 2021). This included an estimated 9.8 million children (Child rights resource centre 2021). By the end of 2020, 42% of the 55 million people who were internally displaced were children under the age of 18 (Child rights resource centre 2021). Therefore, the increasing number of children and youth that, each year, are forced to flee their homes to avoid climate threats, combined with their extreme vulnerability in comparison with adults make the issue of climate-fueled displacement of children and youth worthy of international legal regulation. In this sense, de Salles Cavedon-Capdeville et al. have pointed out that climate related displacement of youth is fundamentally an issue of intergenerational inequity, in the sense that even though they’ve had a minimal impact on climate change, they’re exposed to its worse effects at the beginning of their lives.
A majority of those displaced by disasters remain within their home countries, but a smaller number seek safety in other countries and require international protection. The World Bank further established that climate change could push more than 200 million people to leave their homes by 2050 unless urgent action is taken. Correlatively, it has been estimated that around 300,000 children migrated alone or without their families in 2017 due to climate issues or fear, which is five times more than in 2012.
Legal framework protecting children and youth in the context of climate change-related displacement
Currently, a specific international legal framework for the protection of children and youth displaced by the effects of global climate change is lacking. Both UNICEF and the IOM agree that there is a general lack of political will at the international level to draft a new treaty on the matter. In this regard, the UN Committee on the Rights of the Child has recognized that “there is a need to recognize the particular challenges to children’s health for children affected by humanitarian emergencies, including those resulting in large-scale displacements due to natural or man-made disasters”.
Nevertheless, regional treaties and declarations show a trend in recognizing climate change as a root for displacement in Africa and the Americas. The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) enshrines an obligation to “take measures to protect and assist persons who have been internally displaced due to natural or human-made disasters, including climate change”. Moreover, in the African and Inter-American regional human rights systems, “serious” or “grave” perturbations of public order and “massive human rights violations” in the State of origin constitute grounds for determining refugee status. Climate change-related harm has the entity to produce both mass human rights violations and grave alterations of public order, and therefore persons displaced by the effects of climate change might find protection through the evolutive interpretation of such criterion.
It must also be highlighted that several soft law instruments and recommendations exist with regard to the international protection of children and youth displaced by climate change. For instance, the Global Compact on Safe, Orderly and Regular Migration, a non-binding instrument agreed upon by 193 UN Member States, recognizes that climate change and environmental degradation are indeed drivers of human mobility (objective 2). Accordingly, the Compact sets out several aspirations for dealing with climate-related migration, including the integration of considerations about displacement in adaptation, resilience, and disaster preparedness strategies (objective 2, points 18.i and j) as well as ensuring displaced persons “have access to humanitarian assistance that meets their essential needs with full respect for their rights wherever they are” (objective 2, point 18.k). With respect to children in the context of migration, the Compact establishes as imperative to “uphold the best interests of the child at all times, as a primary consideration in situations where children are concerned” (objective 7 point 23). This requires, inter alia, (i) establishing robust procedures for the protection of migrant children; (ii) the protection of unaccompanied and separated children at all stages of migration through the establishment of specialized procedures for their identification, referral, care and family reunification; (iii) protecting them from all forms of violence, and (iv) providing access to sustainable solutions that are in their best interests (objective 7). For its part, the Sendai Declaration for Disaster Risk Reduction recognizes children and youth as agents of change that “should be given the space and modalities to contribute to disaster risk reduction”(point, 36.a). In addition to not being binding upon states, these instruments are in constant evolution through consultations and reviews.
International adjudication to fill the normative gap?
It has been argued that rights-based litigation is a strategy that gives voice to children and young people who are at the frontlines of the climate crisis. Recent developments in the human rights mechanisms may pave the way for the international protection of persons displaced by climate change through adjudication.
In Sacchi et al. v. Argentina, the Committee on the Rights of the Child Rules that “the collective nature of the causation of climate change does not absolve the State party of its individual responsibility that may derive from the harm that the emissions originating within its territory may cause to children, whatever their location”. In this regard, in Teitiota v. New Zealand, the Human Rights Committee stressed that, without adequate domestic and international measures against climate change-related harm, individuals may be exposed to violations of their human rights, thus “triggering the non-refoulement obligations of sending states”.
The Human Rights Committee has also verified the existence of a broader international obligation stemming from the protection of the right to life, namely “the obligation not to extradite, deport or otherwise transfer” a person to a State where a substantiated risk of violation to their right to life exist”. This means that a specific status for international protection may be irrelevant for determining whether non-refoulement obligations are triggered with respect to those internationally displaced by climate change. In the same way, the Inter-American Commission on Human Rights has stressed that States must guarantee the rights of those displaced by climate change, which includes “the safeguard of non-refoulement while their status is determined”.
Conclusion
Children and young persons are disproportionately affected by the disastrous effects of climate change, and, as a consequence, they are highly vulnerable to being forced to flee their States of origin or residence in the pursuit of safety. There is, however, little binding regulation of the international protection that persons displaced by climate change, and children and youth, in particular, should enjoy.
Nevertheless, international human rights bodies have laid out novel interpretations that may evolve into a uniform human rights standard for the protection of persons internationally displaced which addresses the specific safeguards that must be adopted to protect children and youth in this context. Ideally, the international community should convene a new treaty to consolidate such international protection, but there is a scarce political will to do so at the moment.
Therefore, strategic rights-based litigation before international courts and mechanisms may pave the way for more ambitious legal measures. In this sense, the International Court of Justice could, if requested an advisory opinion on the terms laid out by the WY4J campaign, provide legal clarity on states’ obligations regarding climate change and human rights and contribute to the development of international and domestic regulations to prevent and address climate-related displacement, especially when those affected are children and young persons.
About the Authors
Jose is a young Costa Rican lawyer who is passionate about enabling climate justice through international law. He holds an LLB with an emphasis in Environmental Law from the University of Costa Rica. Since 2017, he has worked as a Legal Assistant to the Merits Division of the Inter-American Court of Human Rights.
Manon is a French environmental lawyer based in the UK. With WYCJ, she is the Academic Coordinator and part of the Steering Committee.
Special thanks to Erika Pires Ramos for editing this piece. Erika is a Brazilian Public Lawyer and Researcher specialising in Human rights and Co-founder of the South American Network for Environmental Migrations - RESAMA.
