The ocean is included in the zero draft of the UN General Comment on Children’s rights to a healthy environment
We are delighted to see the ocean included in the Zero Draft of a new UN General Comment No. 26 on children’s human rights and a healthy environment (‘the Zero Draft’). This development follows months of inputs and engagements with the United Nations Committee on the Rights of the Child, and partners based on our research on children’s human rights to a healthy ocean (see here, here, here, and here). In this blog post, we share our immediate reactions on how the Zero Draft addresses the importance of the ocean for children’s human rights, as well as other aspects of the draft that are relevant for ocean conservation and sustainable use. We also address gaps we have identified within the zero draft, which can be addressed in the current second consultation, and outline ongoing research within the Hub, that will be shared by the deadline for comments on the zero draft on 15th February 2023). We welcome and invite the contributions and engagement of other ocean experts in this process.
The Zero Draft considers the holistic application of a child rights-based approach in the context of the environment. This includes essential considerations such as overcoming the multiple barriers facing children whose rights are most at risk, and the breadth of children’s human rights which are engaged in this regard. Collectively, these elements ensure the full enjoyment of a, healthy environment for children.
The Zero Draft is divided into 6 sections, 1) an Introduction, outlining a child rights-based approach to the environment; 2) Key Concepts, such as sustainable development and intergenerational equity; 3) Specific rights under the UN Convention on the Rights of the Child relating to the environment, such as the right to development, the right to education and the right to be heard; 4) Children’s right to a healthy environment; 5) General obligations of States, such as access to information; and 6) Climate change, with separate sections on state obligations, mitigation, climate finance and business rights and climate change.
The Zero Draft also includes noteworthy references to the ongoing evolution of international human rights law and the environment, highlighting General Comment 26’s interlinkages with the UN Framework Convention on Climate Change and the Paris Agreement, and the need to ensure a ‘dynamic interpretation’ of the UN Convention on the Rights of the Child in order to adequately address environmental crises.
The Zero Draft therefore aims to highlight the relevance of children’s human rights in relation to urgent action on environmental harm, promote a holistic approach to children’s human rights and the right to a healthy environment, as well as offer guidance and clarity in relation to the obligations of States.
Marine pollution and children’s human rights
The section in the Zero Draft on children’s rights to a healthy environment, clarifies that States party to the UN Convention on the Rights of the Child (CRC) must take action immediately to “prevent marine pollution by banning the direct or indirect introduction of substances into the marine environment that are hazardous to children’s health and marine biodiversity” (para 73(f)).
The reference to marine pollution is helpful, in that this concept has been interpreted broadly under the United Nations Convention on the Law of the Sea, as well as Regional Seas Conventions. In effect, the Zero Draft references in footnote one of these regional seas convention, namely the OSPAR Convention. A broad understanding of marine pollution could therefore include various environmental threats (including new and emerging) to ocean’s health and related children’s rights, such as: marine plastic pollution, pollution from hazardous substances, including heavy metals and persistent organic pollutants, acidification and its impacts, underwater noise, nutrient runoff and other causes of ocean deoxygenation, and the polluting effects of proposed deep-seabed mining projects (see also our recent paper).
- Conserving, protecting and restoring biodiversity for current and future generations (para 73(e)), which should be understood to extend to marine biodiversity of areas beyond national jurisdiction, for instance, as we discussed here;
- Ensuring access to safe and sufficient water and healthy aquatic ecosystems (para 73(b), considering the role of the ocean in the global water cycle (which was underscored as an important element for understanding the indivisibility of human rights in the 2022 UNEP Winter/Summer School on Human Rights and the Environment, as well as for the protection and integration of indigenous cultures);
- Transforming industrial agriculture to produce healthy and sustainable food aimed at preventing malnutrition and undernutrition (para 73(c)), which should be understood to include “fisheries” given its nutritional importance (based, for instance, on how the FAO Constitution defines agriculture). In that connection, it’s welcome that the zero draft emphasises business responsibility to respect children’s rights in the context of fishing practices (para 91)
- Phasing out the use of coal, oil and natural gas by investing in renewable energy, to address the climate crisis (para 73(e)), which can alleviate the negative impacts of climate change on the ocean, but equally should consider that marine renewables development may create risks for the protection of marine biodiversity.
Sustainable development, the interconnections between the global environmental crises, and the element of time
The zero draft refers to the “traditional” definition of sustainable development, as “three interlinked pillars of economic development, social development and environmental protection” (para 12), although our research on the blue economy shows how the actual understanding of sustainable development at the national level is often skewed towards economic development, at the expense of the environment, culture and human rights, including those of children (and women). While the emphasis of the Zero Draft is understandably on children, the draft is curiously silent on the relationship between children and their family, in particular women, given an almost global trend of women (who are also a vulnerable group) as the primary caregivers of children, and additionally, an increase in single-mothers families and child headed households due to cumulative shocks and pressures such as HIV/AIDS and COVID-19 (UN, 2017). Additionally, climate change can impact on food, nutrition, and livelihoods, and affect children in utero and therefore be reflected upon in the stages of childhood development considered in the Zero Draft (see below). This relationship is perhaps an omission which needs to be considered beyond the reference in para 46 to “…climate-related stress on households and family incomes [that] may reduce children’s time available for rest, leisure, recreation and play…”.
The Zero Draft is also quite timid on discussing the cumulative pressures across the global environmental crises (of climate change, biodiversity loss, and toxic pollution) (UNEP, 2020; 2022; IPCC, 2022). The Draft describes the relationship between these crises rather passively, by stating that they “often interact” (para 25). However, the Zero Draft points out that all types of environmental harm can have adverse, direct and indirect, effects on children, as well as “new environmental challenges may arise in the future” (para 5). It may be suggested that the Draft should specifically identify environmental harms such as sea level rise and subsidence, salt-water intrusion and storms that result from climate change, as these combined effects severely threaten many developing states, including small island developing states (Martyr-Koller et. al., 2021). In all events, the Zero Draft acknowledges – as the Hub has recommended – that “while it focuses on [the impacts of] climate change, it [contents] [are] not limited to any particular environmental issue” (para 5).
On the whole, we note that the Zero Draft needs to better recognise and promote a holistic systems approach to the environment, which recognises the connectivity and integration of aspects such as biodiversity and climate change at the land-sea interfaces, and acknowledge that society and culture as part of the environment, instead of removed from it (Virapongse et al. 2016; Strand et al. 2022).
The reflection on stages of childhood development peppered across the Zero Draft, and the relevant considerations for protecting children’s human rights in the context of environmental protection, are particularly enlightening in understanding the value added of looking at sustainable development, including ocean-based sustainable development, through the lens of children’s human rights. For instance, the Zero Draft calls on States to:
- Recognize each period of childhood, its unfolding importance for subsequent stages and children’s varying needs at different stages of their maturation and development, linking this to the “life-course perspective” and the need for “an optimal environment for children’s right to development” (para 20);
- Prevent particularly environmental impacts that can lead to under-five mortality and disease (para 26);
- Protect children from future risks and harm, as part of consideration of children’s best interest and ongoing monitoring and evaluation (para 53-54); and
- Take into account the “possibility that environmental actions that seem reasonable on a shorter scale can become unreasonable when considering the full harm they will cause to children throughout their childhoods and their lives (para 55).
The distinction between stages of development differentiates general human rights from children’s human rights, as children can be impacted throughout their developmental processes in multiple and diverse ways.
The ocean-climate nexus
The Zero Draft includes an extensive section specifically focused on climate change, notably clarifying that “States have an individual responsibility to mitigate climate change in order to fulfil their obligations under the Convention on the Rights of the Child and international environmental law” (para 111(a)). At the moment, however, it does not make any mention of the ocean-climate nexus, although it refers to the role of water management systems as part of adaptation efforts (para 106). This gap needs to be filled in light of the increasing recognition of the ocean-climate nexus internationally, both within the UN Framework Convention on Climate Change, following the 2021 Glasgow Climate Pact (see Morgera and Lennan, 2021), and the work of the UN Special Rapporteur on Climate Change and Human Rights (A/77/226, para 92 (f)); Lennan, 2022; Lennan, Morgera and Lancaster, 2022).
The section in the Zero Draft on climate change also stresses the need to limit carbon dioxide emissions, which is particularly important to prevent further ocean acidification. Additionally, the section refers to “tipping points” (thresholds beyond which certain impacts can no longer be avoided) as creating “greater risks in relation to children’s rights and climate change” (para 109), which presents particular challenges at the ocean-climate nexus. As agreed at the Glasgow CoP26 in 2021, key research action items which that items, that are crucial to advance the consideration of the ocean into the international climate change regime, include “further understanding of knowledge gaps, including tipping points and incremental transformations in the climate in climate system, including in the ocean.”
As an example of a tipping point are the threats posed to children by climate-related displacement (see broadly, the UN Human Rights Council in Teitiota v New Zealand), and impacts on their education and cultural rights (see the UN HRC Decision on the Torres Strait Islanders) as a result of more frequent and fierce storms [in the Pacific and Atlantic], sea-level rise and subsidence, and saltwater intrusion. The displacement of children by storms shows that “…the climate crisis is a child right’s issue …” (UNICEF, 2019), and the Zero Draft places emphasis on preserving the sanctity of these rights (para 8), notably the right to education (paras 28 and 29(1)(e)) as one of the cornerstones of a child-rights based approach to the environment (para. 31), and the avoidance of socio-environmental issues as a virtuous cycle.
Further, the section on climate change emphasises the “global climate finance gap” (para 121), which should be understood in the context of the even bigger “global ocean finance gap” (as SDG 14 is the least funded of the SDGs), and the key opportunity to channel climate finance into ocean-climate actions that protect children’s human rights. A critical and supportive development for consideration in this general context, is the 2022 COP27 Decision -/CP.27 -/CMA.4, which paved the way for the development of a loss and damage fund, which over 30 years is to provide compensation for both slow and fast onset events caused by climate change. This development is of critical importance for children’s rights, as developing states – especially small island developing states – are where the majority of the world’s children live.
Importantly, an overwhelming majority of the states affected are from Asia, Africa, Latin America, the Caribbean and South Pacific, and are heavily reliant on their coastal marine environment, and very extensive exclusive economic zones in the case of many SIDS, who consider themselves large ocean states (Chan, 2018; Hume et. al., 2021). As such, the finance gap directly impacts vulnerable groups, including children, who rely on blue assets and ecosystem services, which are impacted by threats to the ocean-climate nexus. Accordingly, COP27 flagged the need to identify priority gaps for which solutions should be explored including those related to climate-related emergencies, sea level rise, displacement, relocation, migration, for the most vulnerable populations and the ecosystems on which they depend (para 6 (b)-(d), CMA.4).
It is however disappointing that intergenerational equity issues as highlighted in the Zero Draft (paras. 12-13) are not explicitly part of the considerations in this potential avenue for climate justice, although children and youth are recognised as agents of change as part of the Sharm el-Sheikh Implementation Plan (preambular para 5 and paras 55-57). This is a distinct entry point for child climate and ocean defenders, and will constitute an important area towards children’s agency at the ocean-climate nexus (discussed below) ) and therefore will need to feature into discussions for addressing the global ocean finance gap.
Children’s Rights, Business & Climate Change
The Zero Draft highlights the linkages between businesses and climate change (para 114), and underscores that businesses have responsibilities to “respect children’s rights and remedy violations of their rights in relation to the environment” (para 90). This is an area of huge concern to children, as impacts from climate change are now exacerbating child labour (Greenfield, 2022; Boutin, 2014) and modern slavery across sectors, including fisheries (Brown et. al., 2021), and impact on other of children’s fundamental rights such as education (Colmer, 2013).
While the SDGs have laid a special emphasis on international business as an agent of transformation, there is a propensity at the national level to forgo regulation, and prioritise the interest of attracting investors (a condition known as the “regulatory chill”) (van Harten, 2020; Tienhaara, 2011; Eckersley, 2004). This results in the protection of the rights and interests of foreign investors often undermining the protection of the human rights of local communities, including children, and their efforts to hold investors accountable for human rights abuses resulting from environmental pollution (para 3, UNGA Resolution A/76/238). The United Nations Guiding Principles on Business and Human Rights (UNGPs), which have sought to clarify international expectations on business due diligence in relation to human rights, refer to the human rights of children in the Commentary of Principle 3 (state regulatory practice and functions) and Principle 13 (responsibility to respect internationally recognised human rights). These references should be emphasised in the next iteration of the Zero Draft (paras 90 – 93).
It should be noted that the business “responsibility to respect” human rights in Latin America and the Caribbean is now more advanced than what was anticipated in the UNGPs, as a consequence of two recent legal developments: first, the 2018 Escazú Agreement on procedural environmental rights, which supports children’s rights to access environmental information, participate in environmental decision-making, and access to justice in environmental matters. Secondly, in the 2021 judgement in the Case of the Miskito Divers (Lemoth Morris et. al v Honduras), the Inter-American Court of Human Rights explicitly stipulated clear human rights standards to be met by states and companies in the context of the deep-diving lobster fishing industry. The “Miskito standards” have already been referenced in another decision of the Inter-American Court with specific regard to children’s human rights (Vera Rojas and Others v Chile), noting that “… its interpretational jurisdiction the text of the Convention on the Rights of the Child … necessitates the adoption of special protection measures … [which] was particularly important for children with disabilities …” (para 76).
These developments in Latin America and the Caribbean are being complemented by proposals in other regions, such as the recent Draft Directive on Corporate Sustainability Due Diligence in the EU, which is expected to impose mandatory human rights and environmental due diligence obligations on certain large EU businesses, as well as some non-EU businesses that do business in the EU single market. Another examples is the development of the Hague Rules on Business and Human Rights Arbitration, which seek to address the significant remedy gap faced by victims of business-related abuses by providing an international private judicial dispute resolution avenue available to parties involved in business and human rights issues.
Indigenous and Local Knowledge
While the Zero Draft has a paragraph on Indigenous children, including reference to “indigenous land” and the need to integrating, in responding to climate change, “indigenous cultures and knowledge in mitigation and adaptation measures” (para 49), the provision should be expanded to refer to the respect and integration of “indigenous and local knowledge.” This is in line with the IPCC and IPBES practices in widening the scope to other traditional users of resources, especially in regions where there are histories of colonisation and dispossession (Lancaster, 2023). The reference to local knowledge could then be linked also to “children of peasants”, “children in rural communities” and “children of nomadic groups” which are mentioned separately with a generic reference to discrimination (para 50). In effect, a broader reflection on the relevance of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the UN Declaration on the Rights of Peasants and the SSF Guidelines, from the perspective of children’s human rights and the environment would be warranted in the next draft of the UN General Comment, including with reference to children of small-scale fishers.
Children’s agency is fundamental to changing the status quo and securing children’s human rights in meaningful ways. We welcome the Zero Draft’s references to:
- children as “agents of change, [who] have made historical contributions to human rights and environmental protection” and should be recognised as “human rights defenders” so their “demands for urgent and decisive measures to tackle global environmental harm should be met and realised to the maximum extent” (para 4), which relates to our research on ocean defenders;
This also relates to children climate defenders, which is increasingly a global phenomenon, such as the Fridays for the Future movement and the upcoming hearing in March 2023 of Duarte Agostinho and Others v. Portugal and Others, where four children and two young adults from Portugal submitted a complaint against 33 European countries, claiming that they face unprecedented risks to their lives and livelihoods as a result of the defendants’ contributions to climate change and inaction in taking effective measures and complying with positive obligations under the European Convention on Human Rights, when read in the light of undertakings under the 2015 Paris Agreement (Daly 2022; Keller and Heri, 2022).
As pointed out below, the Zero Draft underscores the equal importance of procedural elements to the right to a healthy environment, by referring to education and procedural rights for children to “become agents of their own destiny, actively shaping their future rather than passively inheriting a healthy environment” (para 74); which speaks to our work on decolonizing ocean literacy and making it fit for supporting the protection and realisation of children’s human right to a healthy ocean.
This is particularly important with regard to education, which the Zero Draft requires that modes of schooling should be “child-centred, child-friendly and empowering”, taking into account children’s cultural contexts, reflecting new environmental science and equipping children with skills and the ability to reflect critically on environmental challenges (para 33), as well as outdoor learning (para 35). The Hub has experienced tremendous success with the Empatheatre methodology, in Lalela uLwandle to tell inter-generational stories of the sea as showcased recently at CoP 27, could be blueprints for child-centred climate and ocean advocacy.
The Zero Draft also expounds on procedural human rights found in the CRC, including:
- the right to be heard (Art. 12);
- freedom of expression, association and peaceful assembly (Arts. 13 and 15); and
- access to justice and remedies (Art. 4)
- access to information (Arts 13 and 17)
Significantly, the Draft singles out access to information for a deeper treatment (paras 84-86), which together with children’s rights impact assessments (paras 87-89) constitute areas where there is potential for the significant expansion of procedural rights.
These recommendations can be significantly enhanced by developments under the 2018 Escazú Agreement, with its emphasis on environmental human rights defenders (Art. 9), and the creation of a new rapid response mechanism for environmental and climate defenders under Art. 3(8) of the Aarhus Convention (Weber, 2022).
These pointers on children’s agency are also crucial in further reflecting on children’s and youth’s participation in international environmental, climate and ocean processes (as we discussed with youth at CoP26). In that connection, the Zero Draft emphasises that “at the international level, States should:
- facilitate the involvement of children’s associations and child-led organisations and projects in decision-making processes relating to the environment;
- ensure that their obligations concerning children’s right to be heard are reflected in instruments of international environmental law;
- enhance children’s participation through youth participation (para 58).
The “Child Friendly” Version of the Zero Draft
The One Ocean Hub notes with satisfaction, that alongside the publication of the draft General Comment, was the “Child Friendly” version. Similar to the General Comment, the Child Friendly version is available in English, Spanish and French. This is desirable to increase equitable access to information and participation, to some extent. However, in the immediate future and before the deadline for comments in March 2023, the Child Friendly Zero Draft should be made available in other languages. Additionally, it may be useful to convert it into audio and visual media, to take into account issues of literacy, access to internet, electricity, etc.
When considering “best available science” as one of the four key concepts, the Child Friendly version states that “Governments must use evidence given by scientists to form their decisions”. Although we agree with this statement, it is important to also highlight Indigenous and local knowledge that can and should inform environmental decision-making”. As mentioned previously, this also rings true for the Zero Draft, and both should rather consider referring to “best available science and information”.
Furthermore, although the Zero Draft briefly mentions “cultural life” and children’s “enjoyment of their own cultures” as part of a broad range of children’s rights where a healthy environment plays a role, the Child Friendly Draft does not specifically consider children’s rights to culture amongst the 9 children’s rights that are highlighted as being “related to the environment and climate change”. We argue that this is something that should be specifically highlighted in both versions of the future General Comment, as the ocean plays an integral role in children’s development-culture nexus and wellbeing across the globe (see Strand et al., in prep; MacDonald et. al. in prep.)
Responsive Hub Research
We are preparing a series of papers that will help us consolidate our inputs into the current second consultation in early 2023, notably with a focus on:
- The interface of children’s right to development and their cultural rights, and what this means for ocean-related education
- States’ due diligence obligations under the law of the sea and international environmental law and their relevance to protect children’s human rights to life, survival and health
- Children’s right to be heard in international ocean processes,
- Children’s rights at the ocean-climate nexus,
- Children’s cultural rights and the ocean.
Children as ocean and climate defenders/environmental human rights defenders.
These will be interdisciplinary publications among researchers from the Global North and Global South, and will be shared for peer review with our partners, including the Global Network for Human Rights and the Environment with whom the Hub has collaborated on children’s human rights and the ocean as part of the 2022 Winter/Summer School on Human Rights and the Environment.