Posted on 17 April 2023 in climate change, human rights, law

Child-Friendly Justice For The Climate Crisis: Post-Paternalist Judgments, Litigation, Participation

Former ISRF Fellow Aoife Daly was recently awarded a prestigious European Research Council grant. Here she outlines what she’ll be researching and how it builds on her ISRF project.

Aoife Daly, University College Cork

ISRF Early Career Fellow 2019-20

Original image by Pascal Bernardon (via Unsplash).

We are currently faced with a climate crisis, involving global heating and the rapid degradation of ecosystems. The Intergovernmental Panel on Climate Change outlined in its most recent report (2023) that global heating due to human activity has already guaranteed irreversible damage. Children are amongst the worst affected as they will be the adults who have to deal with the most severe consequences of environmental crises in years to come, which will likely include food and water shortages, increasingly frequent and severe weather events, rising sea levels, and infectious diseases. 

Children’s rights and interests are then clearly implicated in the climate crisis. Children have the right under the UN Convention on the Rights of the Child (CRC) to have their interests adequately considered when governments are making decisions that affect children (Article 3), and they have the right to be heard in all matters affecting them (Article 12). Yet children’s views and perspectives are frequently not engaged in policy and planning relating to climate and environment. 

Young climate activists have taken the matter into their own hands, organising and protesting online and in the streets. They have brought cases before national courts, and have brought UN petitions. 16 children from various parts of the world brought a petition before the UN Convention on the Rights of the Child, for example. 17-year-old Alaska Petitioner Carl Smith of the Yupiaq tribe explained in that petition how global heating is destroying his people’s way of life, as the warming temperatures make hunting and fishing more difficult.

I have argued in my work that, in spite of the ground breaking nature of the UN Convention on the Rights of the Child, adults often interpret and use it in a paternalistic way. There is often undue focus on adults ‘protecting’ children’s rights or ‘giving’ them their rights. This global leadership by children in the face of the unprecedented threat to humanity is a new departure and an exciting phenomenon. I hypothesise that we are in a ‘post-paternalist’ time for the CRC, involving grassroots action from children (for the first time, on a global scale), rather than well-meaning adults giving children their rights. 

The prominence of children in climate action also appears to be disruptive on a number of levels, including children’s rights law. Never before have children organised on a global scale to take national and international cases. It is also disruptive as children are finding that legal frameworks are not working as well as they would like. To the dismay of many young climate advocates, the Committee actually declined to hear the petition of the 16 children in full on the basis they had not first come through the national courts of the countries involved.

Child/youth climate activism therefore presents an exciting opportunity to rethink how under-18s can claim and define their own human rights under the UN Convention on the Rights of the Child. I was successful in securing a European Research Council grant for a project examining child/youth climate action in the courts and in communities.European Research Council grants allow a researcher to examine a ‘big idea’ in a way which has great potential for shaping their area of academic study. 

The project facilitates me to elaborate on this hypothesis that we are in a ‘post-paternalist’ time for the CRC. The funds provided will facilitate the creation of a research team to research climate cases and speak to children/youth around the world who are taking climate cases, as well as those taking community action. Legal analysis will be conducted; as well as analysis through other disciplines such as political science and psychology to interrogate questions relating to children’s climate justice—are climate judgments showing that courts are viewing children differently? Do children feel that they are working with adults as equals, or is there sometimes tokenism in their involvement in climate cases? Are children’s rights arguments useful in a context where litigants over and under 18/moving over the age of 18 in the process of lengthy proceedings? Do children outside court processes (e.g. in local communities) feel that climate action has changed their status in society? The project seeks to discover what climate justice means for children, and what this new era might mean for the CRC.

In the preparation of the application for this project, I spoke to a number of children in different countries. They were united in their commitment to take action on the climate crisis, for example: ‘Children are united in a common problem—we are committed together online’ (Chantin, Nepal, age 14). ‘In seven years things will be irreversible. We have to do things NOW. Adults in power … We need to talk now.’ (Ethan, UK, age 15). There is a sense of impatience with the slow pace at which adults in power are working on the issue of the climate crisis. There is also a sense of entitlement of children/youth to access the corridors of power to work with adults on this issue as equals. The project seeks to capture and interrogate that and to create frameworks of understanding to guide those of us researching children’s rights.

This research is exciting for number of reasons. Children and youth have been working together to tackle government inaction on climate change. It is extraordinary to see children taking cases not just in national courts around the world, but at UN level too. Children and youth have often been involved in social change, from fighting Apartheid in South Africa to Malala Yousafzai’s campaign for girls’ education in Pakistan. Yet with climate activism, they are organizing on a global scale to do this. This research focuses on what the consequences of this could be for the CRC. This project seeks to make leaps in what we know and understand about children’s rights, the ability of children to claim their own rights, as well as their ability to transform the world.

My research during my time as an ISRF early career fellow 2019-2021 was fundamental to the germination of this project. My ISRF-funded project considered children’s ‘competence’ and how the law can take a more evidence-based and rights-based approach. During the time that I conducted this research, Greta Thunberg had started her lone protest outside the Swedish Parliament and sparked a worldwide child/youth climate movement. 

My initial exploration of children’s capacity/competence was in the criminal and medical sphere, as these tended to be the areas in which legal questions about children’s competence arise. I made great gains in my research here as a result of the ISRF fellowship. Suddenly, however, children and youth even started to take climate cases, entering legal spaces in an unprecedented way. This therefore raised issues of children’s competence in the sphere of climate justice too. As I engaged in my ISRF-funded research, therefore, I wrote “Climate Competence: The impact of youth climate activism on human rights law” in Human Rights Law Review arguing that the unique competence of many children (e.g. on social media, on the science of climate crisis, on Indigenous issues) is actually crucial in climate advocacy, including in the courts.

This was the beginning of my exploration of what this new era of children as global climate advocates means for the CRC. I was incredibly fortunate to benefit from the space and support forwarded to me by an ISRF grant which facilitated me to engage in the kind of scholarly thinking required to form ideas which have the potential to be transformational in the field of children’s rights. I went on to put together an ambitious ERC application on the basis of this scholarly work, which was ultimately successful. I am very excited to continue the research which started during my ISRF fellowship, and I aim to make a substantial contribution to the discipline of children’s rights.

Professor Aoife Daly

University College Cork
Prof Aoife Daly teaches law at University College Cork and specialises in human rights law. Aoife’s research focuses on human rights based approaches and children’s rights in areas which include environmental rights, climate activism, and access to justice. She was an ISRF Early-Career Fellow in 2019–2021. In 2023 she secured a European Research Council Consolidator Grant to build a team to carry out a large scale research study on child/youth climate justice—inside and outside the courts—around the world.