Human rights of minors and future generations: Global trends and EU environmental law particularities

• Date: 01 July 2020
• Published date: 01 July 2020
• DOI: http://doi.org/10.1111/reel.12345
• Author: Sanja Bogojević

RECIEL. 2020;29:191–200. wileyonlinelibrary.com/journal/reel  

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  191© 2020 John Wile y & Sons Ltd

1 | INTRODUCTION

Minors across the globe are increasingly relying on human rights

claims in challenging governments’ climate policy failings. The first

case to have made inte rnational head lines emerged in t he Philippines ,

where a group of chil dren, led by thei r parents, an env ironmental

nongovernment al organization (NGO) and a repu ted environmental

law yer, 1 challenged the gove rnment’s deforestat ion efforts that had

had a disastrou s impact on the environment an d the population.2 A

similar claim was recently raised before the Colombian Supreme

Court where a g roup of Amazonian ch ildren, accompa nied by

Dejusticia – a nat ional NGO – sued the Colombian gover nment for

failing to protect the Colombian Amazon rainforest from deforesta-

tion.3 Also in the Un ited States, more tha n two dozen young perso ns,

together with th eir parents, N GOs and the climato logist James

Hansen, are cha llenging the federal gover nment’s failure to take ad-

equate steps to suspend fossil fuel development.4 These cases, al-

though arising i n distinct legal setting s, share at least t wo common

characteristics.

One is that the app licants rely o n various concept ualizations of

human rights in c hallenging the ir respective gov ernments’ clim ate

failures. In Minors Oposa, the p etition was founded on the idea of a

right to a ‘balanced a nd healthful eco logy’,5 which the Philippines

Supreme Cour t found to be among such ‘ba sic rights’ as are ‘assumed

to exist from the i nception of humankind ’ and as such, ‘need not eve n

be written in th e Constitution’.6 In Andrea Lozano Barragán, the appli-

cants relied on Colombian constitutional law, which, as Acosta

Alvarado and Rivas-Ramírez explain, recognizes that the Constitution

is ‘composed of both th e formal bill of right s and the so-ca lled

 1For a detaile d list of the appli cants, see Su preme Court of t he Philippine s, Judgment of

30 July 1993, Min ors Oposa v Secr etary of the Dep artment of Envi ronmental and N atural

Resources, Case No 33 IL M 173 (Minors Oposa).

 2As explaine d in the case, ra inforests in t he Philippin es had decline d from constit uting

roughly 53 pe rcent of the count ry’s landma ss to 4 percent 25 yea rs later; see ib id paras 8–9.

 3Colombian Supreme Court, Andrea Lozano Ba rragán et al. v Pre sidencia de la Rep ública et

al., Judgment of 5 A pril 2018, STC43 60-2018.

 4United State s Court of Appe als for the Ninth C ircuit, D.C. No 6 :15-cv-01517-AA,

Juliana et al . v the United States of A merica et al. (Juliana). N ote that this act ion failed but is

currently under appeal.

 5Found in the Dec laration of Pr inciples and St ate Policies , as explained in Minor s Oposa (n 1).

 6ibid.

Received: 23 Sep tember 2019 

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  Accepted: 5 May 2020

DOI: 10 .1111/reel .12345

SPECIAL ISSUE ARTICLE

Human rights of minors and future generations: Global trends

and EU environmental law particularities

Sanja Bogojević

© 2020 John Wile y & Sons Ltd, 9600 Gars ington Road, Oxf ord OX4 2DQ, UK and 350 Main St reet, Malden, M A 02148, USA.

Correspondence

Email: sanja.bogojevic@lmh.ox.ac.uk Abstract

A growing global wave of climate cha nge litigation is led by mino rs, relying on their

human rights, as well a s those of future gener ations against governme nts and their

failure to take acti on on climate change. Such lit igation is emerging als o before the

Court of Justice of t he European Union, whe re the ambitiousne ss of the EU’s cli-

mate change policies, em bodied in the 2030 C limate and Energy Poli cy Framework,

is challenged. This may sug gest a possible ‘right s turn’ in EU climate change litig a-

tion, where the use of r ights claims intensifi es and allows stakehol ders tradition ally

excluded from decisio n making to raise their concerns in a judicia l forum. This article

explains why this tren d has failed to materialize in th e EU through an analysis of EU

environmental law pa rticularities . From this view, it shows the shor tcomings of the

2030 Framework, an d by drawing inspiration from successful enfo rcement of statu-

tory obligation s in EU air quality legislat ion, the articl e suggests how the se may be

remedied in future legislative action.