CRC/C/88/D/104/2019

United Nations

Convention on the
Rights of the Child
unedited version

Distr.: General
8 October 2021
Original: English

Committee on the Rights of the Child
Decision adopted by the Committee on the Rights of the Child under
the Optional Protocol to the Convention on the Rights of the Child on acommunications procedure in respect of Communication No.
104/2019*,*****Submitted by:

Chiara Sacchi et al (represented by counsels
Scott Gilmore et al (Hausfeld LLP) and Ramin
Pejan et al (Earthjustice))

Alleged victims:

The authors

State party:

Argentina

Date of communication:

23 September 2019

Date of adoption of the decision:

22 September 2021

Subject matter:

Failure to prevent and mitigate the consequencesof climate change

Procedural issues:

Jurisdiction; victim status; failure to exhaust
domestic remedies; substantiation of claims;
inadmissibility ratione temporis

Substantive issues:

Right to life; right of the child to the enjoymentof the highest attainable standard of health; rightof the child to enjoy his or her own culture; bestinterests of the child

Articles of the Convention:

3, 6 (1-2), 24 and 30

Articles of the Optional Protocol:

5 (1), 7 (e), (f) and (g)Adopted by the Committee at its eighty-eight session (6-24 September 2021).
The following members of the Committee participated in the examination of the communication:
Suzanne Aho, Aissatou Alassane Sidikou, Hynd Ayoubi Idrissi, Rinchen Chopel, Bragi
Gudbrandsson, Philip Jaffe, Sopio Kiladze, Gehad Madi, Faith Marshall-Harris, Benyam Dawit
Mezmur, Clarence Nelson, Mikiko Otani, Luis Ernesto Pedernera Reyna, Zara Ratou, José Ángel
Rodríguez Reyes, Ann Marie Skelton, Velina Todorova and Benoit Van Keirsbilck.

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1.1
The authors of the communication are Chiara Sacchi, a national of Argentina; Catarina
Lorenzo; a national of Brazil; Iris Duquesne a national of France; Raina Ivanova a nationalof Germany; Ridhima Pandey a national of India; David Ackley III, Ranton Anjain and
Litokne Kabua, nationals of the Marshall Islands; Deborah Adegbile, a national of Nigeria;
Carlos Manuel, a national of Palau; Ayakha Melithafa, a national of South Africa; Greta
Thunberg and Ellen-Anne, nationals of Sweden; Raslen Jbeili, a national of Tunisia; and Carl
Smith and Alexandra Villaseñor, nationals of the United States of America. At the time ofthe submission of the complaint the authors were all under the age of 18 years. They claimthat by failing to prevent and mitigate the consequences of climate change, the State party
has violated their rights under articles 6 (1-2), 24 and 30, read in conjunction with article 3of the Convention.1 The Optional Protocol entered into force for the State party on 14 July
2015.
1.2
Pursuant to article 8 of the Optional Protocol and rule 18 (4) of the Committee’s Rulesof Procedure, on 20 November 2019, the Working Group on Communications, acting on
behalf of the Committee, requested the State party to submit its observations on theadmissibility of the communication separately from its observations on the merits.
The facts as submitted by the authors
2.
The authors claim that by causing and perpetuating climate change, the State party
has failed to take necessary preventive and precautionary measures to respect, protect, andfulfil the authors’ rights to life, health, and culture. They claim that the climate crisis is not
an abstract future threat. The 1.1°C rise in global average temperature is presently causing
devastating heat waves, fostering the spread of infectious diseases, forest fires, extreme
weather patterns, floods, and sea level rise, infringing on the human rights of millions ofpeople globally. Because children are among the most vulnerable to these life-threatening
impacts, physiologically and mentally, they will bear the burden of these harms far more andfar longer than adults.2
Complaint
3.1
The authors claim that by recklessly causing and perpetuating life-threatening climatechange, the State party has failed to take necessary preventive and precautionary measures torespect, protect, and fulfil their rights to life, health, and culture. They claim that the climate
crisis is not an abstract future threat. The 1.1°C rise in global average temperature is presently
causing devastating heat waves, fostering the spread of infectious diseases, forest fires,extreme weather patterns, floods, and sea level rise. Because children are among the mostvulnerable to these life-threatening impacts, physiologically and mentally, they will bear theburden of these harms far more and far longer than adults.
3.2
The authors argue that every day of delay depletes the remaining “carbon budget”, theamount of carbon that can still be emitted before the climate reaches unstoppable andirreversible ecological and human health tipping points. They argue that the State party,
among other states, is creating an imminent risk as it will be impossible to rectify lostmitigation opportunities and it will be impossible to ensure the sustainable and safe livelihoodof future generations.
3.3
The authors contend that the climate crisis is a children’s rights crisis. The States
parties to the Convention are obliged to respect, protect and fulfill children’s inalienable rightto life, from which all other rights flow. Mitigating climate change is a human-rights
imperative. In the context of the climate crisis, obligations under international human rights
law are informed by the rules and principles of international environmental law. They argue
that the State party has failed to uphold its obligations under the Convention to (i) prevent
foreseeable domestic and extraterritorial human rights violations resulting from climatechange; (ii) cooperate internationally in the face of the global climate emergency; (iii) apply

1

The authors have submitted the same complaint against Argentina, Brazil, France, Germany andTurkey, the five complaints are registered as communication Nos. 104-108/2019.
2 For further information on the facts as presented by the authors, see Sacchi et al v. Germany(CRC/C/88/DR/107/2019), paras. 2.1-2.6.
2

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the precautionary principle to protect life in the face of uncertainty; and (iv) ensureintergenerational justice for children and posterity.
Article 6 (1-2)
3.4
The authors claim that the State party’s acts and omissions perpetuating the climate
crisis have already exposed them throughout their childhood to the foreseeable, lifethreatening risks of human-caused climate change, be it heat, floods, storms, droughts,
disease, or polluted air. A scientific consensus shows that the life-threatening risks
confronting them will increase throughout their lives as the world heats up to 1.5°C andbeyond.
Article 24
3.5
The authors claim that the State party’s acts and omissions perpetuating the climate
crisis have already caused injuries to their mental and physical health, from asthma toemotional trauma. These injuries violate their right to health under article 24 of theConvention and the injuries will worsen as the world continues to warm. Smoke from theParadise wildfires caused Alexandria Villasenor’s asthma to dangerously flare up, sending
her to the hospital. Heat-related pollution in Lagos has led to Debby Adegbile being
hospitalized regularly due to asthma attacks. The spread and intensification of vector-borne
diseases has also impacted the authors. In Lagos, Debby now catches malaria multiple times
a year. On the Marshall Islands, Ranton Anjain contracted dengue fever in 2019; David
Ackley III contracted chikungunya, a new disease in the islands as of 2015. Extreme heatwaves that have increased in frequency because of climate change have been a serious threat
to the health of many of the authors. High temperatures are not only deadly, they can cause
a wide range of health impacts, including heat cramps, heatstroke, hyperthermia, andexhaustion, and quickly worsen existing health conditions. Drought is also threatening water
security for many petitioners, like Catarina Lorenzo, Raslan Jbeili, and Ayakha Melithafa.
Article 30
3.6
The authors claim that the State party’s contributions to the climate crisis have alreadyjeopardized millennia-old subsistence practices of the indigenous authors from Alaska the
Marshall Islands, and Sapmi, which are not just the main source of their livelihoods, but
directly relate to a specific way of being, seeing, and acting in the world, that are essential totheir cultural identity.
Article 3
3.7
By supporting climate policies that delay decarbonization, the State party is shifting
the enormous burden and costs of climate change onto children and future generations. In
doing so, it has breached its duty to ensure the enjoyment of children’s rights for posterity,and failed to act in accordance with the principle of intergenerational equity. The authors
note that their complaint documents the violation of their rights under the Convention, but
the scope of the climate crisis should not be reduced to the harms of a small number ofchildren. Ultimately, at stake are the rights of every child, everywhere. If the State party,
acting alone and in concert with other states, does not immediately take available measures
to stop the climate crisis, the devastating effects of climate change will nullify the ability of
the Convention to protect the rights of any child, anywhere. No state acting rationally in thebest interests of the child would ever impose this burden by choosing such delay. The only
cost-benefit analysis that would justify any of the respondents’ policies is one that discounts
children’s lives and prioritizes short-term economic interests over the rights of the child.
Placing a lesser value on the best interests of the authors and other children in the climate
actions of the State party is in direct violation of article 3 of the Convention.
3.8
The authors request that the Committee should find that: 1) climate change is achildren’s rights crisis; 2) that the State party, along with other states, has caused and isperpetuating the climate crisis by knowingly acting in disregard of the available scientificevidence regarding the measures needed to prevent and mitigate climate change; and 3) thatby perpetuating life-threatening climate change, the State party is violating the authors’ rights
to life, health, and the prioritization of the child’s best interests, as well as the cultural rightsof the authors from indigenous communities. They further request that the Committee
recommends that: 1) the State party reviews, and where necessary, amends its laws and3

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policies to ensure that mitigation and adaptation efforts are being accelerated to the maximum
extent of available resources and on the basis of the best available scientific evidence to (i)protect the authors’ rights and (ii) make the best interests of the child a primary consideration,
particularly in allocating the costs and burdens of climate change mitigation and adaption; 2)that the State party initiate cooperative international action - and increase its efforts withrespect to existing cooperative initiatives - to establish binding and enforceable measures tomitigate the climate crisis, prevent further harm to the authors and other children, and secure
their inalienable rights; and 3) that pursuant to article 12, the State party shall ensure thechild’s right to be heard and to express their views freely, in all international, national, andsubnational efforts to mitigate or adapt to the climate crisis and in all efforts taken in responseto this communication.
State party’s observations on admissibility
4.1
On 21 July 2020, the State party submitted its observations on the admissibility of thecommunication. It notes that, while it shares the authors’ concerns and one of its priorities is
to address the effects of climate change, the communication generally questions Argentina's
environmental policy and therefore transcends the communications mechanism. For the State
party, these are issues that could be addressed through other functions of the Committee, suchas the State review procedure or the elaboration of a general comment.
4.2
The State party argues that the communication is, in relation to Argentina, absolutely
generic and legally indeterminate. The communication contains four references related toalleged events that occurred within the jurisdiction of the State party: i) an alleged “windstorm” in Haedo, Province of Buenos Aires, which allegedly devastated the neighbourhoodof the author, Chiara Sacchi; ii) the alleged “extreme heat” in this town, that increased theuse of air conditioners and therefore the pressure on the electrical system, causing power
outages that are common in the author’s daily life, affecting her schoolwork and ruining foodstored in the refrigerator; iii) alleged recent storms, in which the author was hit by hail thesize of golf balls; and iv) that the author is very scared about the future due to climate change.
However, the communication does not provide any evidence to support these considerations,nor does it delimit the legal reproach against the State party.
4.3
The State party submits that the communication is inadmissible ratione loci in relation
to the authors who are not nationals of the State party. Although the State party acknowledges
the existence of international obligations of an extraterritorial nature, as well as the possibilityof transboundary environmental damage, it considers that this is not the case in thiscommunication. The State party recalls the jurisprudence of the Human Rights Committee,
as well as that of the European and Inter-American human rights systems, according to which
the term “jurisdiction” is not limited to territory but to the relationship of power, authority oreffective control between an individual and a State; 3 and that “the exercise of jurisdiction by
a State of origin is based on the understanding that it is the State in whose territory or underwhose jurisdiction the activities were carried out that has the effective control over them andis in a position to prevent them from causing transboundary harm that impacts the enjoymentof human rights of persons outside its territory” but that “there must always be a causal link
between the damage caused and the act or omission of the State of origin in relation toactivities in its territory or under its jurisdiction or control”.4 The State party argues that, inthe present communication, the Committee is not competent to analyse, with respect to theState party, events that allegedly occurred outside its territory, over which it does not exercise
any type of jurisdiction and which, furthermore, do not have any type of causal link that could
be attributable to agents of the State party. Indeed, the authors do not provide evidence thatchildren outside Argentina are subject to the power or control of Argentine agents. Beyond
general statements about the contribution of States to the climate change phenomenon, thecausal link between actions or omissions that could be attributable to the State party and theextreme heat in France, a fire in Tunisia or the sea level rise in the Marshall Islands, is notestablished.
3

Cfr. ECHR, Issa et others vs. Turquía, 16 November 2004, par. 71; IACHR, The environment andHuman Rights, Advisory Opinion OC-23/17 of 15 November 2017. Nº. 23, par. 81.
4 IACHR, The environment and Human Rights, Advisory Opinion OC-23/17 of 15 November 2017.
Nº. 23, par. 102 and 103.
4

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4.4
The State party further submits that the communication is inadmissible ratione
temporis as concerns events prior to 14 July 2015, when the Optional Protocol entered into
force for the State party. It argues that the use of fossil fuels and the consequent carbon
emissions are not ongoing violations.
4.5
The State party also submits that the communication is inadmissible for failure to
exhaust domestic remedies. Although the communication expressly recognizes that Chiara
Sacchi could challenge the State party’s climate change policy in domestic courts, the authors
acknowledge that they have chosen not to do so, coming directly before the Committee andignoring the multiple domestic legal remedies available that would allow the filing of claims
for environmental issues. The State party recalls that article 41 of the Constitution expressly
recognizes the right to a healthy environment, that article 43 recognizes the “acción deamparo ambiental” (environmental writ of amparo), and that the General Environmental
Law contains several provisions that enable actions in environmental matters (as the “acciónde recomposición del daño ambiental colectivo” – writ of redress for a collective
environmental damage). It argues that the abundant favourable jurisprudence demonstrates
the effectiveness of these domestic remedies, recalling in particular the environmental
jurisprudence of the Supreme Court of Justice of the Nation.5 Finally, regarding the alleged
difficulties that the authors would have in accessing the justice system due to their status aschildren, the State party argues that the Defensoría General de la Nación (National Public
Defenders Office) and the Defensor de los Derechos de las Niñas, Niños y Adolescentes(Office of the Ombudsperson of the Rights of Girls, Boys and Adolescents) have the mandate
to provide free legal aid and representation to children in environmental litigation. In
conclusion, the State party claims that the authors’ conduct has prevented it from eventuallyproviding a remedy to the issue at the domestic level, as provided by article 7 (e) of the
Optional Protocol.
Authors’ comments on the State party’s observations on admissibility
5.1
On 25 November 2020, the authors provided their comments on the State party’s
observations on the admissibility of the communication. They maintain that thecommunication is admissible, and reiterate their arguments that the Committee has
jurisdiction to examine the complaint, that the complaint is sufficiently substantiated and thatthe pursuit of domestic remedies would be futile.
5.2
The authors note the State party’s argument that the communication should be foundinadmissible for lack of jurisdiction. They argue that the Committee is competent to examine
the communication as the State party has effective control over economic activities in its
territory that emit greenhouse gases. Those emissions contribute to violations of the authors’
rights caused by climate change. The authors refer to their initial submission and reiterate
their argument that a state’s extraterritorial obligations are not confined to the narrowcircumstances of territorial or personal control cited by the State party. Extraterritorial
obligations also arise when a state controls activities in its territory that cause direct andforeseeable transboundary harm. They argue that it is indisputable that the State party has theeffective ability to regulate GHG emissions in its territory. The State party has failed to use
its maximum available resources to curb emissions in line with the Paris Agreement target ofcontrolling temperature rise at or below 1.5°C. The State party’s emissions are not the solecause of climate change, but they are a contributing cause, which only the State party can
mitigate. As to the specific question of causation, i.e. whether climate change, to which theState party is contributing, has caused an actual or imminent violation of the rights of eachauthor, the authors argue that this is a merits issue. At the admissibility phase, they havepresented substantiated allegations of the actual and imminent violations of their rights to life,
health, and cultural rights caused by climate change. The authors finally argue that theviolations of their rights are entirely foreseeable. For decades, climate scientists have warned
that unchecked emissions will have a direct effect on children around the world. In 1990, the
IPCC’s first report warned the international community that without sufficient emission-

5

Cuadernillo “Ambiente. Fallos de la Corte Suprema de Justicia
https://sj.csjn.gov.ar/sj/suplementos.do?method=ver&data=ambiente2018,https://sj.csjn.gov.ar/sj/suplementos.do?method=ver&data=ambiente2019.

delaNación”,

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reductions, global warming would cause the very same adverse climate impacts that now
injure and threaten the authors, from the spread of malaria and deadly wildfires to rising seasengulfing atolls.6
5.3
Regarding the State party’s argument that the communication is inadmissible ratione
temporis, the authors argue that the State party continues to permit and promote excess
emissions contributing to dangerous climate change and that it will continue doing so, unless
it reduces its emissions as soon as possible, in line with limiting warming to 1.5°C. The effectof the State party’s pre-2015 GHG emissions will also continue to impair the authors’ rights
for the rest of their childhood and beyond, making these continuing violations within themeaning of article 7 (g) of the Optional Protocol.
5.4
The authors reiterate their claims that they have established that each of them has been
injured and exposed to a risk of further irreparable harm as a result of climate change causedin substantial part by the State party’s failure to reduce emissions. The consequences of theState party’s acts and omissions in relation to combating climate change directly andpersonally harm the authors and expose them to foreseeable risks. Their assertions of harms
from climate change do not constitute an actio popularis, even if children around the world
may share their experiences or be exposed to similar risks.
5.5
The authors further reiterate their argument that pursuing domestic remedies would
be futile as they would have no real prospect of success. They argue that the State party has
failed to demonstrate that requiring exhaustion of remedies would be fair to the authors
residing outside its borders. State practice and opinio juris, as reflected in article 15 (c) of the
Draft Article on Diplomatic Protection, show that domestic remedies need not be exhausted
in cases of transboundary environmental damage, where the victim has not made a voluntarylink with the state of origin, and did not assume the risk of being harmed by that state’s
pollution.7 They further argue that as the State party recognizes foreign state immunity, itcannot provide a domestic forum for the actual claims raised and remedies sought in thepresent case, which involve transboundary human rights violations caused by multiple statesacross multiple borders. State immunity vitiates any possible remedy for transboundary harmcaused by other states.
5.6
The authors argue that none of the domestic remedies identified by the State party
would be effective.8 The defence of arraigo under article 348 of the Code of Civil Procedurecan be raised to bar a person domiciled abroad from pursuing any kind of litigation in
Argentina when they are neither domiciled nor have real property there. This defence would
preclude the foreign authors from litigating their claims in Argentinian courts. Even if they
could somehow overcome the defence of arraigo, the domestic remedies the State party has
identified are likely ineffective. They argue that the amparo action is ill-suited to theirtechnically complex case involving demands for policy changes and international
cooperation because such an action does not allow extensive debate or evidence, or adeclaration that particular laws, decrees or ordinances are unconstitutional. For example, theCourt of First Instance in “Mujeres Por La Vida Asoc. Civil Sin Fines De Lucro [Women For
Life – A Civil Nonprofit Association] –Cordoba Branch – V. E.N. – P.E.N.- Ministry of
Health and Social Action – Amparo-” rejected an amparo action seeking a declaration thatthe law and national policy related to the National Program on Sexual Health and Responsible
Procreation was inapplicable throughout Argentina because the study and debate of each of
the medications denounced went beyond the court’s mandate. An action for environmental
remediation under article 30 of Law No. 25,675 (General Law on the Environment) is broader
and allows for debate and evidence, but it can only address past or existing and localized
harms. As such, it is not a vehicle for transforming the State party’s national and international
policies with the aim of preventing future harm. In addition, the authors would not be able tobring claims against foreign states through an action for remediation because they present
non-justiciable issues. Law No. 27,520 on Minimum Climate Change Adaptation and

6

IPCC, Policymaker Summary of Working Group II (Potential Impacts of Climate Change) at 88, 102–
03, 107–08 (1990).
7 Draft Articles on Diplomatic Protection with commentaries, Report of the International Law
Commission on the work of its fifty-eighth session, (2006), article 15 (c) at 48–49.
8 The authors refer to Appendix C.1 to their comments, Expert Report of Raul Angel Vidable.
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Mitigation Requirements also does not provide an effective remedy. First, the law does not
require the State party to align national objectives with its international climate changecommitments or to cooperate with other countries. Second, this law does not impose
sanctions or any consequences for noncompliance. Thus, the public cannot invoke violationof the law as a basis for redress. Nor would an action under the Civil and Commercial Codeprovide an effective remedy, including claims based on the right to a healthy environment.
As with any civil action, the defence of arraigo would bar the authors who are non-nationalsof the State party from raising claims in an Argentinian court because they do not live or own
property in Argentina. The Argentine author’s claims would also fail because the court isunlikely to instruct the executive branch on how to exercise its discretion in modifying theState party’s foreign climate change policy. Finally, the National Ombudsman, the National
Ombudsman for the Rights of the Child, and the National People’s Ombudsman are
discretionary remedies because each Ombudsman can refuse to take up a petitioners’ case.
As such, it cannot be considered effective.
5.7
The authors further argue that the unique circumstances of their case would makedomestic proceedings unreasonably delayed as they would have to pursue five separate cases,
in each respondent State party, each of which would take years. The argue that the resolutionof complex environmental cases is often delayed in the State party and that resolving theissue of their standing alone would take years of litigation. Adjudicating the merits is nodifferent. For example, the National Supreme Court of Justice has yet to rule on the merits of‘Independent Citizens Foundation (FUCI) v. San Juan, Province of, National State et al.’, an
environmental remediation lawsuit about a 1,000,000 liter toxic spill more than eight years
after the complaint was filed. In ‘Papel Prensa S.A. v. National State’, the National Supreme
Court of Justice took eight years to issue a decision, only to set aside the precautionary
principle of the General Law on the Environment 25,675. Even when a case results in a
judgment favourable to environmental plaintiffs, proper execution of the judgment is notguaranteed. More than 12 years after judgment in the Mendoza-Riachuelo case that the State
party refers to in its observations, there is still no significant progress in clean-up of the
Matanza-Riachuelo river or improvement in the nearby inhabitants’ quality of life.
Third-party intervention
6.
On 1 May 2020, a third-party intervention was submitted before the Committee byDavid R. Boyd and John H. Knox, current and former, current and former UN Special
Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean,healthy and sustainable environment.9
State party’s observations on the third-party intervention
7.
On 30 July 2020, the State party submitted its observations on the intervention. It
notes that it shares the concern of the intervenors regarding the phenomenon of climatechange, and that it positively values it as a legitimate wake-up call for the international
community to carry out concrete and effective actions against global warming. The State
party however reiterates its arguments that the communication does not meet theadmissibility criteria under the individual communications procedure, nor does it present
convincing arguments on the merits of the communication.
Oral hearing
8.1
Following an invitation by the Committee and pursuant to rule 19 of its Rules ofProcedure, legal representatives of both parties appeared before the Committee on 3 June
2021 via videoconference, answered questions from Committee members on theirsubmission and provided further clarifications.
Oral comments by the authors
8.2
The authors reiterate their claim that the State party has failed to take all necessary
and appropriate measures to keep global warming below 1.5°C, thereby contributing toclimate change, in violation of their rights. They argue that if the Convention is to protect

9

For further information, see Sacchi et al v. Germany (CRC/C/88/DR/107/2019), paras. 6.1-6.5.
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children from the climate emergency, then the concepts of harm, jurisdiction, causation, andexhaustion must be adapted to a new reality. They reiterate their arguments that the harms
the authors have experienced, and will continue to experience, were foreseeable in 1990,
when the IPCC predicted that global warming of just 1 degree Celsius could cause the water
shortages, vector-borne diseases, and sea level rise the authors now face. They argue that if
the respondent States parties do not take immediate action to vastly reduce their greenhousegas emissions, the authors will continue to suffer greatly in their lifetime. They insist that
there is a direct and foreseeable causal link between the harms to which they have been
exposed and the respondent States parties’ emissions, arguing that there is no dispute that theharms suffered by them are attributable to climate change and that the respondent States
parties’ ongoing emissions contribute to worsening climate change.
8.3
Regarding the issue of exhaustion of domestic remedies the authors reiterate theirargument that the remedies indicated by the State party would not provide them with effective
relief. They argue that the constitutional amparo action is ill-suited to complex cases liketheirs. Article 2 of the National Amparo Act states that: “The amparo action shall not be
admissible when the determination of the eventual validity of the act requires extensive
debate or of evidence, or the declaration of unconstitutionality of laws, decrees or ordinances.”
The authors note that they do not dispute the existence of a right to a healthy environment
under Article 41. Rather, they argue that an amparo action is not a suitable remedy to ensure
its protection in the authors’ case. They further reiterate their argument that the remedy
provided under the General Law on the Environment is designed to deal with less complex
cases and remediation of environmental harm. A remediation action is broader than an
amparo action and allows for debate and evidence, but it can only address past or existing
and localized harms. It is not a vehicle for transforming the State party’s national andinternational climate policies with the aim of preventing harm that would materialize in the
future. In addition, the defence of arraigo, which requires litigants to be domiciled or havereal property in the State party, would preclude 15 out of 16 authors from participating in anenvironmental remediation case.
8.4
The authors reiterate their argument that they would also face significant delays inState party courts, both in obtaining a decision and in implementation. They note that in thecase of FUCI v. San Juan the plaintiff organization first filed an environmental remediation
action in 2009 to prevent environmental harm from the Veladero gold mine. Several cyanide
spills and more than a decade later, there is still no final judgment in the case. The authors
further argue that even when plaintiffs obtain a favourable judgment, effective
implementation of that judgment is not guaranteed. In 2006, the National Supreme Court ofJustice ordered the government to submit a clean-up plan for the Matanza-Riachuelo river.
Despite this court victory 14 years ago, the Matanza-Riachuelo river is still one of the mostpolluted waterways in Latin America, and little has improved for the communities along theriver’s shores. In addition, because of a strict separation of powers doctrine, domestic courts
are unlikely to dictate what national policies on climate change should achieve or direct the
government to engage in international cooperation, given the wide discretion granted to the
executive branch in the realms of public policies and diplomatic relations.
Oral comments by the State party
8.5
The State party provides additional considerations on its commitment toenvironmental protection and addressing climate change, both on domestic and foreign
policy. It reiterates its arguments on the lack of jurisdiction over the authors and the lack ofa causal link between the alleged generic damages and any act or omission that could be
attributable to the State party or its agents.
8.6
With regards to exhaustion of domestic remedies, the State party expands its
allegations to explain that both constitutionally and statutorily, domestic law has recognized
the so-called collective rights or “derechos de incidencia colectiva” (rights with a collective
impact), as well as greatly expanded the standing or locus standi of potential plaintiffs.
Depending on the type of remedy sought, directly or indirectly injured parties, theombudsperson, civil society organizations, and national, provincial and municipal authorities,
are given extraordinary standing to bring claims for environmental damage, thus eliminating8

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barriers to access to justice in environmental matters. 10 The State party also highlights thatthe costs of initiating proceedings in these matters is not a restriction for the authors since thecourt fees are a total of less than 50 cents of a dollar. Parties only need to bear thecorresponding legal fees of their own representation. However, if needed, they are entitledby law to free legal aid, in particular children, 11 as well as having various other possibilities
of representation through the ombudsperson, civil society organizations, or any of the legal
clinics at universities or pro bono lawyers at Bar Associations, registered under the National
Registry of Lawyers for Children.12
8.7
With regards to the duration of proceedings, the State party explains that, in line withinternational standards, the length of domestic proceedings cannot be measured in the
abstract, but must be subject to a case by case analysis, contemplating the complexity of thematter, the procedural actions taken by the parties and the diligence of the courts involved. 13
It explains that, for example, the delays in case Fuci v. San Juan are explained by thecomplexity of the process, which includes factual and evidentiary complexities (like theoccurrence of facts in Chile); the fact that the number of defendants has progressively
increased, at the sole will of the plaintiff; and that there is an important amount of criminal
jurisdictional activity involved. The State party explains that, with regards to the COVID-19
pandemic, the alleged delay of proceedings is unproven. In fact, not only have plaintiffs beenable to continue to bring all kinds of complaints but also these cases have been given impetus
and expediency because of the pandemic. The State party cites a case before the Supreme
Court initiated during the domestic quarantine, on 23 June 2020, in which, in less than twomonths, the Court considered there was a severe affectation of an inter-jurisdictional
environmental or ecologic resource (the delta of the Paraná river), that seriously
compromised its functioning and sustainability. 14 The Court considered the delta’s
conservation a priority for both current and future generations (much like what the authors
argue in this communication), and issued an injunction for the immediate creation of anenvironmental emergency committee at the federal level.
8.8
The State party explains that since the 1994 constitutional reform, the judiciary has
had an intense involvement reviewing the constitutionality of public policy, including mattersrelated to the environment. For example, the judiciary decided to suspend a series ofauthorizations to the felling of trees, modifying the criteria of analysing their environmental
impact separately and forcing authorities to conduct an aggregate and comprehensive
environmental impact study.15 It also issued injunctions to cease and redress environmental
damage by forcing authorities to conduct works of dredging in the stream Tarariras. 16 The
State party refers to several more cases in which the active intervention of the judiciary inpublic policy matters, shows that the principle of division of powers is not an obstacle tojudicial review when it comes to the protection of environmental rights. The State party
therefore argues that there are no barriers in place for the authors to exhaust domestic
remedies and give the State party the opportunity of addressing any alleged violations.

10

The State party refers to art. 30 of General Environmental Law 25.675; and the Law of State
Responsibility 26.944. The State party also mentions the “acción preventiva” (preventive action) as
another available legal recourse, regulated under art. 1711 of the Civil and Commercial Code.
11 The State party refers to art. 27 (c) of Law for the Comprehensive Protection of the Rights ofChildren and Adolescents 26.061.
12 The State party highlights that the domestic legal system recognizes the progressive capacity ofchildren and adolescents in line with their age and level of maturity, allowing them to exercise theirrights on their own behalf, through legal aid and representation.
13 The State party cites IACtHR, Case of Furlan and Family v. Argentina, Preliminary Objections,
Merits, Reparations and Costs. Sentence of 31 August 2012. Series C No. 246, par. 156.
14 “Equística Defensa del Medio Ambiente Asociación Civil c/ Santa Fe, Provincia de y otros s/ Amparo
ambiental” (CSJ 000468/2020-00). The State party also cites case “Ramírez, Miguel Ángel c/
Ministerio de Ambiente y Desarrollo Sostenible de la Nación s/ recurso directo” (expte. Fsm nº37451/2020).
15 “Salas, Dino y otros c/ Salta, Provincia de y Estado Nacional s/ amparo (Expte. S. 1144. XLIVORIGINARIO)”, Fallos 332:663. The State party also refers to “Mendoza, Beatriz S. y otros c/
Estado Nacional y otros”, Fallos 338:80.
16 “Nordi, Amneris Lelia c. Buenos Aires, Provincia de y otros s/ daño ambiental (Expte. Nº180/2010)”.
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Oral hearing with the authors
9.
Following an invitation by the Committee and pursuant to rule 19 of its Rules ofProcedure, 11 of the authors appeared before the Committee on 28 May 2021 via
videoconference in a closed meeting without the presence of State party representatives. They
explained to the Committee how climate change has affected their daily lives, they expressed
their views about what the respondent States parties should do about climate change, andwhy the Committee should consider their communications.
Issues and proceedings before the Committee
Consideration of admissibility
10.1 Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 20 of its rules of procedure, whether or not the claim is
admissible under the Optional Protocol.
Jurisdiction
10.2 The Committee notes the State party’s submission that the communication is
inadmissible for lack of jurisdiction. The Committee also notes the authors’ argument thatthey are within the State party’s jurisdiction as victims of the foreseeable consequences of
the State party’s domestic and cross-border contributions to climate change and the carbon
pollution knowingly emitted, permitted, or promoted by the State party from within its
territory. The Committee further notes the authors’ claims that the State party’s acts andomissions perpetuating the climate crisis have already exposed them throughout theirchildhood to the foreseeable, life-threatening risks of human-caused climate change.
10.3 Under article 2 (1) of the Convention, States parties have the obligation to respect andensure the rights of “each child within their jurisdiction”. Under article 5 (1) of the Optional
Protocol the Committee has competency to receive and consider communications submitted
by or on behalf of an individual or group of individuals, within the jurisdiction of a State
party, claiming to be victims of a violation by that State party of any of the rights set forth in
the Convention. The Committee observes that, while neither the Convention nor the Optional
Protocol make any reference to “territory” in its application of jurisdiction, extraterritorial
jurisdiction should be interpreted restrictively. 17
10.4 The Committee notes the Human Rights Committee’s and the European Court of
Human Rights’ relevant jurisprudence referring to extraterritorial jurisdiction. 18 That
jurisprudence was, however, developed and applied to factual situations which are very
different to the facts and circumstance of this case. The present communication raises novel
jurisdictional issues of transboundary harm related to climate change.
10.5 The Committee further notes the Advisory Opinion OC-23/17 of the Inter-American
Court of Human Rights on the Environment and Human Rights, which has particular
relevance to the issue of jurisdiction in the present case as it clarified the scope of
extraterritorial jurisdiction in relation to environmental protection. The Court noted thatwhen transboundary damage occurs that affects treaty-based rights, it is understood that thepersons whose rights have been violated are under the jurisdiction of the State of origin, if

17

See inter alia Inter-American Court of Human Rights Advisory Opinion, para. 81 and European Courtof Human Rights, Catan and others v. the Republic of Moldova and Russia, Application
Nos. 43370/04, 8252/05 and 18454/06.
18 See inter alia: Human Rights Committee, General Comment No. 31 on the nature of the general legal
obligation imposed on States Parties to the Covenant; Human Rights Committee; General Comment
No. 36 on the right to life; Human Rights Committee, Munaf v. Romania (CCPR/C/96/D/1539/2006),
para. 14.2; A.S. and others v. Malta, (CCPR/C/128/D/3043/2017); A.S. and others v.
Italy, (CCPR/C/130/DR/3042/2017); European Court of Human Rights, Andreou v. Turkey,
Application no. 45653/99, 27 October 2009, para. 25 and Georgia v. Russia (II), Application
no. 38263/08, 21 January 2021. See also General Comment No. 16 on State obligations regarding theimpact of the business sector on children’s rights, para. 39; Concluding Observations: Norway(CRC/C/NOR/CO/5-6) para. 27 and CRC/C/86/D/77/2019, CRC/C/85/D/79/2019CRC/C/85/D/109/2019.
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there is a causal link between the act that originated in its territory and the infringement of
the human rights of persons outside its territory. The exercise of jurisdiction arises when theState of origin exercises effective control over the activities that caused the damage andconsequent human rights violation. 19 In cases of transboundary damage, the exercise ofjurisdiction by a State of origin is based on the understanding that it is the State in whose
territory or under whose jurisdiction the activities were carried out that has the effective
control over them and is in a position to prevent them from causing transboundary harm that
impacts the enjoyment of human rights of persons outside its territory. The potential victimsof the negative consequences of such activities are under the jurisdiction of the State of origin
for the purposes of the possible responsibility of that State for failing to comply with its
obligation to prevent transboundary damage.20 The Court further noted that accordingly, it
can be concluded that the obligation to prevent transboundary environmental damage or harm
is an obligation recognized by international environmental law, under which States may beheld responsible for any significant damage caused to persons outside their borders byactivities originating in their territory or under their effective control or authority. 21
10.6 The Committee further recalls that, in its Joint Statement on Human Rights andClimate Change, 22 it has expressed that climate change poses significant risks to theenjoyment of the human rights protected by the Convention such as the right to life, the rightto adequate food, the right to adequate housing, the right to health, the right to water andcultural rights. Failure to take measures to prevent foreseeable human rights harm caused byclimate change, or to regulate activities contributing to such harm, could constitute a violationof States’ human rights obligations.
10.7 Having considered the above, the Committee finds that the appropriate test forjurisdiction in the present case is that adopted by the Inter-American Court of Human Rights
in its Advisory Opinion on the Environment and Human Rights. This implies that whentransboundary harm occurs, children are under the jurisdiction of the State on whose territory
the emissions originated for the purposes of article 5 (1) of the Optional Protocol if there is acausal link between the acts or omissions of the State in question and the negative impact on
the rights of children located outside its territory, when the State of origin exercises effective
control over the sources of the emissions in question. The Committee further considers thatwhile the required elements to establish the responsibility of the State are rather a matter of
merits, the alleged harm suffered by the victims needs to have been reasonably foreseeable
to the State party at the time of its acts or omissions even for the purpose of establishingjurisdiction. 23
10.8 The Committee notes the authors’ claims that, while climate change and thesubsequent environmental damage and impact on human rights it causes is a global collective
issue that requires a global response, States parties still carry individual responsibility for
their own acts or omissions in relation to climate change and their contribution to it. The
Committee further notes the authors’ argument that the State party has effective control overthe source of carbon emissions within its territory that have a transboundary effect.
10.9 The Committee considers that it is generally accepted and corroborated by scientificevidence that the carbon emissions originating in the State party contribute to the worseningof climate change, and that climate change has an adverse effect over the enjoyment of rights
by individuals both within as well as beyond the territory of the State party. The Committee

19

Advisory Opinion, para. 104 (h)Inter-American Court of Human Rights Advisory Opinion OC-23/17 on the Environment and Human
Rights (state obligations in relation to the environment in the context of the protection and guaranteeof the rights to life and to personal integrity: interpretation and scope of articles 4(1) and 5(1) in
relation to articles 1(1) and 2 of the American Convention on Human Rights), 15 November 2017,
paras 101-102.
21 Ibid. para. 103.
22 Joint Statement on ‘Human Rights and Climate Change’, CEDAW, CESC, CMW, CRC, CRPD, 16
September 2019.
23 Inter-American Court of Human Rights Advisory Opinion, para. 136. See also paras 175 – 180 on the
precautionary principle. It is also worth noting the textual similarity between article 1 of the InterAmerican Convention on Human Rights and article 2 of the Convention in respect of jurisdiction.
20

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considers that, through its ability to regulate activities that are the source of these emissions
and to enforce such regulations, the State party has effective control over the emissions.
10.10 In accordance with the principle of common but differentiated responsibility, as
reflected in the Paris Agreement, the Committee finds that the collective nature of thecausation 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.24
10.11 Regarding the foreseeability element, the Committee notes the authors’ uncontested
argument that the State party has known about the harmful effects of its contributions toclimate change for decades and that it signed the United Nations Framework Convention on
Climate Change in 1992 as well as the Paris Agreement in 2016. In light of existing scientificevidence showing the impact of the cumulative effect of carbon emissions on the enjoymentof human rights, including rights under the Convention,25 the Committee considers that thepotential harm of the State party’s acts or omissions regarding the carbon emissions
originating in its territory was reasonably foreseeable to the State party.
10.12 Having concluded that the State party has effective control over the sources ofemissions that contribute to the causing of reasonably foreseeable harm to children outside
its territory, the Committee must now determine whether there is a sufficient causal link
between the harm alleged by the authors and the State party’s actions or omissions for the
purposes of establishing jurisdiction. In this regard, the Committee observes, in line with theInter-American Court of Human Rights’ position26 that not every negative impact in cases oftransboundary damage gives rise to the responsibility of the State in whose territory theactivities causing transboundary harm took place, that the possible grounds for jurisdiction
must be justified based on the particular circumstances of the specific case, and that the harm
needs to be “significant.” 27 In this regard the Committee notes the Inter-American Court of
Human Rights’ observations that the International Law Commission’s draft articles on
prevention of transboundary harm from hazardous activities only refer to those activities that
may involve significant transboundary harm and its observation that ‘significant’ issomething more than ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial.’
The Court further noted that harm must lead to a real detrimental effect on matters such as,
for example, human health, industry, property, environment or agriculture in other States andthat such detrimental effects must be susceptible of being measured by factual and objective
standards.28
Victim status10.13 In the specific circumstances of the present case, the Committee notes the authors’
claims that their rights under the Convention have been violated by the respondent States
parties’ acts and omissions in contributing to climate change and their claims that said harm
will worsen as the world continues to warm. It notes the authors’ claims to have been
personally affected by: smoke from wildfires and heat-related pollution has caused some of
the authors’ asthma to worsen, requiring hospitalizations; that the spread and intensificationof vector-borne diseases has also impacted the authors, resulting in some of the authors
contracting malaria multiple times a year or contracting dengue fever and chikungunya; thatthe authors have been exposed to extreme heat waves causing serious threat to the health ofmany of the authors; that drought is threatening the water security for some of the authors;24

See preamble to the Convention, article 3 of the United Nations Framework Convention on Climate
Change, as well as the Preamble and articles 2 and 4 of the Paris Agreement. See also Draft articles
on Responsibility of States for Internationally Wrongful Acts, article 47, commentary, para. 8.
25 IPCC (2013) Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to
the Fifth Assessment Report of the Intergovernmental Panel on Climate Change and IPC Special
Report, ‘Global Warming of 1.5°C: Summary for Policymakers’, 2018.
26 Advisory Opinion, para. 102.
27 Advisory Opinion, paras. 81, 102.
28 International Law Commission (2001) Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities, Article 2, International Law Commission, Commentaries on the draft articles
on prevention of transboundary harm from hazardous activities, Yearbook of the International Law
Commission 2001, vol. II, Part II (A/56/10), art. 2, para. 4, and.Advisory Opinion, para, 136.
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that some of the authors have been exposed to extreme storms and flooding; that thesubsistence level of life is at risk for the indigenous authors; that due to the rising sea level
the Marshall Islands and Palau are at risk of becoming uninhabitable within decades; and thatclimate change has affected the mental health of the authors, some of whom claim to sufferfrom climate anxiety. 29 The Committee considers that, as children, the authors are
particularly impacted by the effects of climate change, both in terms of the manner in which
they experience such effects as well as the potential of climate change to affect themthroughout their lifetime, in particular if immediate action is not taken. Due to the particularimpact on children, and the recognition by States parties to the Convention that children areentitled to special safeguards, including appropriate legal protection states have heightened
obligations to protect children from foreseeable harm. 30
10.14 Taking the abovementioned factors into account, the Committee concludes that theauthors have sufficiently justified, for the purposes of establishing jurisdiction, that the
impairment of their Convention rights as a result of the State party’s acts or omissions
regarding the carbon emissions originating within its territory was reasonably foreseeable. It
further concludes that the authors have prima facie established that they have personallyexperienced a real and significant harm in order to justify their victim status. Consequently,
the Committee finds that it is not precluded by article 5 (1) of the Optional Protocol fromconsidering the present communication.
Exhaustion of domestic remedies
10.15 The Committee notes the State party’s argument that the communication should befound inadmissible for failure to exhaust domestic remedies. It notes the State party’s
argument that article 41 of the Constitution expressly recognizes the right to a healthy
environment, that article 43 recognizes the “acción de amparo ambiental” (environmental
writ of amparo), and that the General Environmental Law contains several provisions thatenable actions in environmental matters (“acción de recomposición del daño ambiental
colectivo” – writ of redress for a collective environmental damage). It further notes the State
party’s argument that the Defensoría National Public Defenders Office) and the Office of the
Ombudsperson of the Rights of Girls, Boys and Adolescents have the mandate to provide
free legal aid and representation to children in environmental litigation. It also notes the State
party’s argument that, under domestic law, collective rights or “derechos de incidencia
colectiva” (rights with a collective impact) are recognized and that depending on the type of
remedy sought, directly or indirectly injured parties, the ombudsperson, civil society
organizations, and national, provincial and municipal authorities, have standing to bringclaims for environmental damage, thus eliminating barriers to access to justice inenvironmental matters.
10.16 The Committee notes the authors’ claim that the defence of arraigo under article 348of the Code of Civil Procedure would bar the authors domiciled abroad from pursuing any
kind of litigation in the State party. It also notes their argument that the amparo action is illsuited to their technically complex case involving demands for policy changes andinternational cooperation as such an action does not allow extensive debate or evidence, or adeclaration that particular laws, decrees or ordinances are unconstitutional. It further notes
the authors’ argument that an action for environmental remediation under article 30 of Law
No. 25,675 (General Law on the Environment), while broader and allowing for debate andevidence, can only address past or existing and localized harms, and that it therefore is not asuitable vehicle for transforming the State party’s national and international policies. The
Committee finally notes the authors’ argument that the National Public Defenders Office andthe Office of the Ombudsperson of the Rights of Girls, Boys and Adolescents are
discretionary remedies and therefore unlikely to be effective.
10.17 The Committee recalls that authors must make use of all judicial or administrative
avenues that may offer them a reasonable prospect of redress. The Committee considers thatdomestic remedies need not be exhausted if they objectively have no prospect of success, for29
30

See further para. 2.2.
Preamble; A/HRC/31/52, para. 81, CRC Report of the 2016 day of general discussion ‘Rights and theEnvironment, p. 23.
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example in cases where under applicable domestic laws the claim would inevitably bedismissed or where established jurisprudence of the highest domestic tribunals would
preclude a positive result. However, the Committee notes that mere doubts or assumptions
about the success or effectiveness of remedies do not absolve the authors from exhausting
them.31
10.18 In the present case the Committee notes that the authors have not attempted to initiate
any domestic proceeding in the State party. The Committee notes the authors’ argument thatthey would face unique obstacles in exhausting domestic remedies as it would be unduly
burdensome for them, unreasonably prolonged, and unlikely to bring effective relief. It
further notes their argument that domestic courts would most likely dismiss their claims,
which implicates a state’s obligations of international cooperation, because of the nonjusticiability of foreign policy and foreign sovereign immunity. The Committee howeverconsiders that the State party’s alleged failure to engage in international cooperation is raisedin connection with the specific form of remedy that they are seeking, and that they have notsufficiently established that such remedy is necessary to bring effective relief. Furthermore,
the Committee notes the State party’s argument that legal avenues were available to theauthors in the form of an environmental writ of amparo under article 43 of the Constitution
as well as in the form of writ of a redress for a collective environmental damage under the
General Environmental Law. It further notes the State party’s argument that the authors could
have approached the National Public Defenders Office and the Office of the Ombudspersonof the Rights of Girls, Boys and Adolescents in filing such environmental actions under the
General Environmental Law, and that legal aid would be available for such litigation. The
Committee notes the authors’ arguments that the defence of arraigo under article 348 of theCode of Civil Procedure would bar the authors domiciled abroad from pursuing any kind of
litigation in the State party. It however notes that the State party has refuted this claim andthat the authors have not provided any examples of non-domiciled plaintiffs being barredfrom accessing the specific remedies referred to by the State party in filing proceedings
similar to the remedies sought by the authors in their specific case. The Committee also notes
the authors’ argument that the National Public Defenders Office and the Office of the
Ombudsperson of the Rights of Girls, Boys and Adolescents are discretionary remedies andtherefore unlikely to be effective. It however notes that the authors did not make any attempt
to engage these entities in filing a suit on their behalf and it considers that the fact that theremedy may be discretionary in itself does not exempt the authors from attempting to engage
these entities in pursuing a suit, especially in the absence of any information that would
demonstrate that this remedy has no prospect of success and in light of existing suits filed on
the issue of environmental degradation in the State party. In the absence of any further
reasons from the authors as to why they did not attempt to pursue these remedies, other than
generally expressing doubts about the prospects of success of any remedy, the Committee
considers that the authors have failed to exhaust all domestic remedies that were reasonably
effective and available to them to challenge the alleged violation of their rights under theConvention.
10.19 Regarding the authors’ argument that foreign sovereign immunity would prevent themfrom exhausting domestic remedies in the State party, the Committee notes that the issue of
foreign sovereign immunity may arise only in relation to the particular remedy that theauthors would aim to achieve by filing a case against other respondent States parties together
with the State party in its domestic court. In this case, the Committee considers that theauthors have not sufficiently substantiated their arguments that the exception under article 7(e) of the Optional Protocol that the application of the remedies is unlikely to bring effective
relief.
10.20 The Committee further notes the authors’ argument that pursing remedies in the State
party would be unreasonably prolonged. It notes that the authors cite a few examples ofenvironmental cases in the State party which took several years to decide, but that they do
not provide any further specific information on the length of such proceedings in the State
party. It also notes that the State party likewise provides examples of environmental litigationin the State party which were resolved within a reasonable timeframe. The Committee

31

14(CRC/C/83/D/60/2018), para. 6.5

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concludes that, in the absence of any specific information by the authors that would justify
that domestic remedies would be ineffective or unavailable, and in the absence of any attemptby them to initiate domestic proceedings in the State party, the authors have failed to exhaust
domestic remedies.
10.21 Consequently, the Committee finds the communication inadmissible for failure to
exhaust domestic remedies under article 7 (e) of the Optional Protocol.
11.

The Committee therefore decides:(a)That the communication is inadmissible under article 7 (e) of the Optional
Protocol;(b)That the present decision shall be communicated to the State party and to theauthors.

15