CLA News / Where are the Children? Stark Omissions in the ICJ’s Climate Ruling By Fiona Ey

Children and young people have been front and centre in the global climate justice movement, from school strikes to advocacy campaigns and litigation. Groups such as Pacific Island Students Fighting Climate Change and World’s Youth for Climate Justice drove the genesis of the ICJ Advisory Opinion  on Climate Change. The Advisory Opinion is a landmark decision that frames the climate crisis as a human rights issue and reaffirms the obligations on States to act. It unifies climate treaties and principles into a comprehensive framework for climate action. Yet children’s rights are largely invisible in the decision, despite children’s significant role in the climate justice movement.

The CLA’s Sabah Declaration on Climate Justice (2025) emphasises a rights-based approach to climate justice founded on human rights, equity and rule of law. It expressly recognizes the international community’s commitments to children’s rights to a clean, healthy and sustainable environment[1] and the need to empower children and youth “to assert their rights and participate actively and effectively in decision-making processes that shape climate action.”[2]

The climate crisis is a children’s rights crisis, whether that is a crisis of water, health, education, protection or participation. Children under the age of 18 are 30% of the world’s population, or some 2.4 billion people.[3] This trend is not uniformly distributed and there are significant youth population bubbles across Africa, South Asia and the Pacific in the world’s poorest – and most climate vulnerable – countries. In many sub-Saharan African nations, over 50% of the population are aged under 18. Approximately 1 billion children live in countries with extremely high climate risk.[4] The countries of the global South with overwhelmingly young populations are suffering the worst impacts of the climate crisis.

Considerable progress has been made in international human rights law to recognize children’s rights, including their environmental rights. The Convention on the Rights of the Child (CRC) is the most extensively ratified human rights treaty in the world and almost every State is a party. It is one of the few human rights treaties that specifically provides for environmental rights. There has been significant work to develop authoritative guidance on children’s environmental rights in the Convention on the Rights of the Child, through the 2023 General Comment No. 26 on Children’s Rights and the Environment with a Special Focus on Climate Change (GC26). GC26 is the first (and only) Treaty Body General Comment to recognize the right to a clean, healthy and sustainable environment. GC26 was developed with guidance of 12 child advisors and the involvement of over 16,300 children in global consultations. Children have also litigated their environmental rights, creating established jurisprudence in domestic and international law. In the case of Saachi et al v Argentina et al,[5] the UN Committee on the Rights of the Child found that States are legally responsible for the harmful effects of carbon pollution originating in their jurisdictions on children outside their borders.

It is clear that children are not passive victims of the climate emergency; they are informed actors and participants in the climate justice movement. Yet children are largely invisible in the Advisory Opinion, even though the questions put to the ICJ by the UN General Assembly emphasized the importance of the CRC. The ICJ’s 133 page decision barely considers children, and they appear only in broad references to vulnerable persons, grouped as “women, children & indigenous people”. Children’s rights are considered only in general terms in the context of the right to life and right to health. While the Court considers and adopts the principle of intergenerational equity, this concerns the impact of today’s actions on future generations. Intergenerational equity and children’s rights are linked, with children often considered the first embodiment of future generations. However, the environmental rights of children today are distinct and the Court’s analysis of intergenerational equity does not constitute analysis of children’s rights jurisprudence.

The only meaningful analysis of children’s rights is contained in the separate opinion of Judge Hillary Charlesworth. In her analysis of the position of climate vulnerable groups,[6] Judge Charlesworth engages with the children’s rights jurisprudence, in particularly the Saachi case and GC26. She starts by setting the context that  “States’ obligations to apply the treaty and customary principles of equality and non-discrimination entail that heightened attention must be paid to the situation of climate vulnerable groups”.[7] Judge Charlesworth’s analysis draws on the moving testimony from children in Tonga, Kiribati and via the Melanesian Spearhead Group’s submission that highlight the “marked effect of climate change on children.” These submissions highlight children’s vulnerability to the adverse effects of climate change and the impact on their health, education and culture, “deepening social and economic inequality among children and undermining their well-being”.[8] Younger children are most at risk physically from these impacts, due to children’s “unique metabolism, physiology and developmental needs’’.[9] Judge Charlesworth’s conclusion that States are obligated to afford children special safeguards and legal protections from climate change, is grounded in the CRC and the finding in Saachi that “States have heightened obligations to protect children from foreseeable harm”.[10]

Key parts of the ICJ’s unanimous decision which could have addressed children’s rights simply failed to do so. The Court’s recognition of the right to a clean, healthy and sustainable environment could have been further expounded in the context of children’s environmental rights. The Court’s analysis failed to recognize children’s agency. Rather than framing children as active rights-holders, they are considered only as passive recipients of protection.[11] Compare this with the approach of the Inter-American Court of Human Rights which engaged meaningfully with the issue of children’s rights in its 2025 Advisory Opinion on the Climate Emergency and Human Rights.[12] This includes explicit recognition of children’s distinct agency and vulnerabilities as well as international jurisprudence such as GC26 and the Sacchi decision.[13]

It is perplexing why children are largely invisible in the ICJ’s analysis, as there were a number of submissions before the Court that argued for children’s environmental rights. Analysis from Ann Skelton and Ruhama Yilma Abebe[14] shows that submissions from countries such as Albania, Colombia, Ecuador, Germany, Portugal, Sierra Leone and Tonga highlighted the impact of climate change on children’s rights under the CRC, drawing on GC26. Portugal also highlighted GC26’s express recognition of the right to a clean, healthy and sustainable environment. The Sacchi decision was argued by Antigua and Barbuda and Tonga. Despite the breadth of this evidence and argument, the court’s recognition of the climate crisis as a human rights issue omits a key group: children.

The Court’s unanimous decision is a missed opportunity to further expound children’s environmental rights and their specific needs as a key element of climate justice. Instead, it needs to be read together with the CRC, GC26 and children’s environmental rights jurisprudence in order to advance children’s environmental rights and hold States accountable for climate inaction. Elements of the Advisory Opinion may be used to strengthen the situation for children. It gives further weight to States’ obligations under the Paris Agreement and affirms that children’s rights must be respected, promoted and considered in all climate action.[15] It confirms that the right to a clean, healthy and sustainable environment exists as an independent right under international law and is fundamental for the enjoyment of all other human rights.[16] The Court’s discussion of intergenerational equity finds that governments must take the rights and needs of future generations into account to secure a livable planet for the generations who will inherit it.[17]

Commonwealth lawyers must now take up the challenge to assist children worldwide to advance their rights by utilizing international legal instruments such as the CRC and GC26 and jurisprudence such as the Advisory Opinion. This could occur through domestic and international litigation. It may also include advocacy in national law reform processes and submissions to UN reporting mechanisms on children’s rights or human rights. These all form important parts of the ambitious climate action that the world’s children need in order to secure their present and their future.

By Fiona Ey

Fiona Ey is Co-Convenor of the CLA Climate Justice Committee and Council Member for Samoa. She is President of the Samoa Law Society (2025-2026).

FOOTNOTES:

[1] Referencing the UN Committee on the Rights of the Child’s General Comment 26.

[2] Sabah Declaration on Climate Justice, paragraph 3.

[3] UN World Population Prospects 2024: https://population.un.org/wpp/.

[4] UNICEF Children’s Climate Risk Index: https://data.unicef.org/resources/childrens-climate-risk-index-report/.

[5] No. CRC/C/88/D/104/2019 (Oct. 8, 2021).

[6] Separate Opinion of Judge Charlesworth, at paragraphs 13-29.

[7] Ibid., paragraph 28.

[8] Ibid., paragraph 21.

[9] Ibid., paragraph 20.

[10] Ibid., paragraph 26.

[11] Ann Skelton & Ruhama Yilma Abebe, “The missing children in the ICJ climate change Advisory Opinion”, Leiden Law Blog (2025), https://www.leidenlawblog.nl/articles/the-missing-children-in-the-icj-climate-change-advisory-opinion.

[12] https://corteidh.or.cr/tablas/oc-32-2025/index-eng.html.

[13] Skelton & Abebe, n.10 above.

[14] Ibid.

[15] ICJ Advisory Opinion at paragraph 382. See also Child Rights International Network, “What do the recent climate rulings mean for children’s rights?” (August 2025): https://home.crin.org/readlistenwatch/stories/what-do-recent-climate-rulings-mean-for-childrens-rights.

[16] ICJ Advisory Opinion at paragraphs 387-393.

[17] ICJ Advisory Opinion at paragraphs 155-157.