Abstract

Keywords

Climate change; environmental impact on children; children's right to be heard; Article 12 of the Convention on the Right of the Child; Article 4.2 of the African Charter on the Rights and the Welfare of the Child; Sacchi v Argentina; section 10 of the Children's Act.

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1 Introduction

It has become widely recognised that climate change poses severe threats to the enjoyment of a wide array of human rights such as the rights to health, to survival and to development, including in extreme cases even the right to life itself. 1

 Mildred Bekink. BA BA Hons LLB (Unisa), LLM (cum laude) (Pret) LLD (Unisa). Associate Professor at the Department of Mercantile Law, College of Law, University of South Africa. E-mail: bekinm@unisa.ac.za. ORCiD: https://orcid.org/0000-0002-1204-4487. This contribution was supported through funding by the University of South Africa. Consequently, the author wishes to thank the University of South Africa for its support.

1 Atapattu UN Human Rights Institutions 297.

Due to their specific physiology, children are highly vulnerable to the impacts of climate change, even more so than adults. 5

5 UNICEF 2022 https://www.unicef.org/mena/reports/impact-climate-change-children-mena; UNICEF 2021 https://www.unicef.org/reports/climate-crisis-child-rights-crisis.

In this regard, it is estimated that one billion children live in one of the 33 countries classified by the United Nations Children's Fund (UNICEF) as being ʺextremely high risk to [climate] changeʺ 8

8 Save the Children 2022 https://resourcecentre.savethechildren.net/document/cop-fit-children-how-support-childrens-participation.

schools. 10

10 Agarwal 2023 https://oecd-development-matters.org/2023/11/27/cop28-prioritising-children-in-the-fight-against-climate-change/.

Though climate change poses significant harm to the integrity of a wide range of ecosystems, these adversities are more intense in developing countries. 13

13 Fambasayi and Addaney 2021 AHRLJ 31.

In South Africa the impact of climate change needs to be considered in relation to the broader economic and development pressures affecting the country. This includes international economic shocks and stressors such as COVID-19, high levels of poverty and inequity, high levels of unemployment, rapid urbanisation, the effects of HIV and AIDS, the mismanagement of scarce natural resources such as water, and the lack of sufficient provision of electricity. 16

16 UNICEF 2011 https://www.unicef.org/southafrica/reports/exploring-impact-climate-change-children-south-africa 5.

Even though climate change affects children more than adults and will affect children as the future generation more than anyone else, their inclusion in climate action policy and decision making at local, national and international level has been limited. 18

18 UNICEF 2023 https://www.unicef.org/press-releases/media-advisory-unicef-cop28.

power. 19

19 James and Jørgensen 2022 NORRAG 104.

In contrast with these barriers, children have a right to be heard on topics that affect them. 23

23 Boshoff and Damtew 2022 AHRLJ 334.

Generally states are the primary duty bearers of children's rights and are obliged to take action and protect children from current and foreseeable adverse effects due to climate change. 27

27 UNICEF 2021 https://www.unicef.org/reports/climate-crisis-child-rights-crisis 11.

such as the Paris Agreement, to protect and promote children's rights. 29

29 Paris Agreement (2016).

The young have become more vocal in demanding their participatory and other human rights on climate change. This has been characterised by a global movement of children demanding climate action in various ways such as online activism, sit-ins, and street protests such as "Fridays For Future", which was started by the climate activist Gretha Thunberg, following the 24th COP meeting in December 2018. 31

31 Fridays for Future date unknown https://fridaysforfuture.org/.

In recognition of these limitations, COP 28 recently saw an increase in child participation in that a large youth delegation, including YOUNGO, attended the Pre-COP, the critical final ministerial meeting before COP, for the first time. During this meeting youth attendees formed part of a high-level roundtable where they presented their Global Youth Statement (GYS), a centrepiece youth advocacy document, representing the consensual demands of youth and children worldwide. 35

35 YOUNGO 2023 https://www.cop28.com/en/news/2023/12/COP28-Youth-Climate-Champion-welcomes-Global-Youth-Statement.

negotiation process conducted by the parties to COP. 36

36 YOUNGO 2023 https://www.cop28.com/en/news/2023/12/COP28-Youth-Climate-Champion-welcomes-Global-Youth-Statement.

South Africa is a constitutional democracy and boasts an advanced constitutional legal regime that has been hailed internationally as an example of a constitution providing for the protection and advancements of children's rights. 38

38 Skelton ʺConstitutional Protection of Children's Rightsʺ 327.

A preliminary appraisal of South Africa's legal framework signifies a commitment towards advancing children's rights in relation to climate change action. In line with the global movement of children demanding climate action, South African youth have also moved towards actively claiming their environmental and participatory rights. Organisations such as South African Youth Climate Change Coalition (SAYCC) 41

41 SAYCCC date unknown https://sayccc.org.za/.

children are thus advancing to actively participate in climate change action it is imperative that their right to do so is not only guaranteed but also properly enforced. It is in this context that this contribution sets out to explore whether the South African legislative framework adequately provides for children to effectively participate in climate change action. 45

45 Note that it is acknowledged that the right of children to participation has been guaranteed in South Africa's normative framework and practice through cases provided (see paras 3.1 and 3.2 of this discussion) but that the focus and ambit of this discussion is on the right of children to participate in climate change action specifically.

2 International and regional law

2.1 Child participation on the international and regional levels

In terms of section 39(1)(b) and (c) of the South African Bill of Rights, a court, tribunal or forum must consider international law and may consider foreign law. 46

46 Section 39(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution).

Although several International Instruments contain provisions that are of general importance to children, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the scope of this discussion is limited to two child law treaties, namely the CRC and the ACRWC, due to their importance for the topic under discussion.

2.1.1 United Nations Convention on the Rights of the Child (CRC)

The CRC is regarded as a landmark instrument in the advancement of children's rights and one of the most fully ratified international documents. 48

48 Sloth-Nielson 1995 SAJHR 402; Freeman 2000 Children and Society 277.

made a primary consideration, the inherent right to life and respect for the views of the child, as reflected in Articles 2, 3, 6 and 12.

The CRC does not confer on children any stand-alone environmental rights, but does so indirectly, deriving them from other rights such as the right to life, survival and development, 49

49 Article 6 of the CRC.

In contrast herewith, Article 12 of the CRC states that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

Although Article 12 itself does not use the term ʺchild participationʺ, the Committee on the Rights of the Child in its General Comment 12 indicates that the objective of the article is to advance child participation. 56

56 Mahery ʺUN Convention on the Rights of the Child" 309.

The right of a child to be heard constitutes one of the fundamental core values of the CRC. Not only is the right established in Article 12 as a right in itself, but it should also be considered in the interpretation and implementation of other rights, thereby enhancing its importance. 57

57 UN Committee on the Rights of the Child General Comment No 12 on the Rights of the Child to be Heard UN Doc CRC/C/GC/12 (2009) (GC12) paras 1-3.

Article 12 places an obligation on state parties to assure that a child is afforded the opportunity to form and express his or her views freely in all matters affecting the child. Children can express their views in matters that affect them through participation or representation. Either way, these views must be given due weight in accordance with the age and maturity of the child. 59

59 Henaghan 2017 Int'l J Children's Rts 537.

Article 12 has two key elements, namely the right to express a view and the right to have the view given due weight. The fact that Article 12 requires states to ʺassureʺ children of the right to express their views indicates a positive obligation on the state to take proactive steps in encouraging children to express their views. 60

60 Lundy 2007 British Educational Research Journal 933; Boezaart ʺGeneral Principlesʺ 2-18; GC12 para 19.

The fact that the views of the child must be given due weight in accordance with the age and maturity of the child means that two criteria must be considered. Notably, the CRC rejects the erection of specific age barriers, as age per se is not a criterion. Also, the right to express a view is not dependent on the age and maturity of the child, but applies only to the second part of Article 12, namely, the obligation to give the view due weight. State parties should accordingly presume that a child is capable of expressing his or her views and has the right to express them. 63

63 GC12 para 20.

Children's views must be regarded as valid in their own right. The practice of actively involving children in decision-making ʺshould not be portrayed as an option which is in the gift of adults but [as] a legal imperative which is the right of a child.ʺ 65

65 Lundy 2007 British Educational Research Journal 931.

2.1.2 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (OPIC)

Three optional protocols were added after the initial adoption of the CRC, namely to address the involvement of children in armed conflict, 67

67 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and on the Sale of Children UN Doc A/RES/54/263 (2001).

Article 5 of OPIC formed the basis for a recent climate-related communication filed by sixteen children from different parts of the world, namely, Sacchi v Argentina, Brazil, France, Germany and Turkey. 70

70 The Petitioners 2019 https://childrenvsclimatecrisis.org/wp-content/uploads/ 2019/09/2019.09.23-CRC-communication-Sacchi-et-al-v.-Argentina-et-al-2.pdf (the Petition).

In line with the rules outlined in OPIC, the Committee had to determine whether the complainant/s fell within the ʺjurisdiction of the state partyʺ and

whether the claimants had exhausted their domestic remedies. 74

74 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 a Communications Procedure in Respect of Communication No 104/2019 UN Doc CRC/C/88/D/104/2019 (8 October 2021) (Sacchi v Argentina) paras 4.1, 10.2-10.6.

Despite the communications being declared inadmissible due to the complainants' failure to exhaust local remedies, it has been recognised as groundbreaking for various reasons. 79

79 Fambasayi and Addaney 2021 AHRLJ 31; Skelton 2023 De Jure 621.

springboard towards writing a general comment on children's environmental rights and their intersection with climate change. 85

85 Tigre and Lichet 2021 American Society of International Law Insight 5.

2.1.3 General Comment No 26 on Children's Rights and the Environment with a Special Focus on Climate Change (GC26)

Following the events of Sacchi v Argentina, the Committee issued General Comment No 26 on Children's Rights and the Environment with a Special Focus on Climate Change (2023) (hereafter GC26), which was adopted on 22 August 2023. 86

86 See UN Committee on the Rights of the Child General Comment No 26 on Children's Rights and the Environment with a Special Focus on Climate Change UN Doc CRC/C/GC/26 (2023) (hereafter GC26) which was adopted on 22 August 2023.

Notably, the Centre for Child Law (CCL) at the University of Pretoria in South Africa, a child rights organisation registered as a law clinic, also commented on the Draft General Comment No 26, lending its support to the objectives of the GC26. 90

90 CCL 2023 https://centreforchildlaw.co.za/wordpress21/wp-content/uploads/

2023/04/Submission-on-CRC-Draft-General-Comment-No.26_2023.pdf 2.

In issuing its GC the Committee highlighted the importance of children's voices, underscoring the fact that age is not a restriction. Children from an early age can enhance the quality of environmental solutions, for example, by providing invaluable insights into issues such as the effectiveness of

early warning systems for environmental hazards. 93

93 GC26 para 26.

The role of state parties is set out in ensuring that age-appropriate, safe and accessible mechanisms are in place for children's views to be heard regularly and at all stages of environmental decision-making processes for legislation, policies, regulations, projects and activities that may affect them. This should transpire at the local, national and international levels. 96

96 GC26 para 27.

To ensure that children's participation is not merely tokenism, the Committee indicates that children should receive information about the outcomes of environment-related consultations and feedback on how their views were considered. 97

97 GC26 para 27.

The GC26 issued by the Committee is commendable as it offers significant guidance to state parties to the CRC to ensure that meaningful, child-friendly and appropriate youth participation in environmental decision-making processes – at both a national and an international level – is achieved. State parties to the CRC should accordingly take the necessary steps to comply with the comments internationally, regionally and domestically.

2.1.4 The African Charter on the Rights and the Welfare of the Child (ACRWC)

From a regional perspective the ACRWC represents the ʺAfricanʺ concepts of children's rights and strives to promote and protect the rights and welfare of the African child. It should be noted that the ACWRC is not opposed to the CRC. Rather, the two documents are complementary, and together they provide a framework for the enhanced protection of African children. 101

101 Kaime Convention on the Rights of the Child 25.

Like the CRC the ACRWC contains four foundational principles that are essential in ensuring a child rights-based approach in relation to government action, namely the best interests of the child, the principle of non-discrimination, the right to life, survival and development, and the principle of participation. 102

102 Sloth-Nielsen ʺAfrican Charter on the Rights and Welfare of the Childʺ 431.

One of the most important features of the ACRWC is that the child's best interests are made the paramount consideration. While the CRC states that a child's best interests shall be ʺaʺ primary consideration, the ACWRC goes a step further by declaring these interests ʺtheʺ primary consideration in all actions concerning the child. 104

104 Article 4 of the ACRWC; Sloth-Nielsen ʺAfrican Charter on the Rights and Welfare of the Childʺ 431.

Article 4.2 of the ACWCR addresses the right of a child to be heard. It provides as follows:

In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate laws.

Like the CRC, the ACRWC recognises children as autonomous beings and guarantees them several participatory rights. 107

107 Articles 7, 8 and 9 of the ACRWC.

autonomous. The specific guarantee of participatory rights for children in the ACRWC is, therefore, commendable. 108

108 Chirwa 2002 Int'l J Children's Rts 160.

Although Article 4.2 guarantees children the right to be given an opportunity to express their views, these views are limited to judicial and administrative proceedings affecting them. This right is further qualified in that the child must be capable of communicating his or her views. 109

109 Article 7 of the ACRWC.

2.1.5 The role of the African Committee of Experts on the Rights and Welfare of the Child (African Children's Committee) in realising children's right to be heard in climate change actions

The African Committee of Experts on the Rights and Welfare of the Child (African Children's Committee) is an African Union body established by the ACRWC with the purpose to promote and protect children's rights as enshrined in the ACRWC. 114

114 Articles 32, 33 and 34 of the ACRWC.

In its General Comment 5 on State Party Obligations under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems

Strengthening for Child Protection (GC5), the African Children's Committee comments that:

The child's best interests include short-term, medium-term and long-term best interests. For this reason, State actions which imperil the enjoyment of the rights of future generations of children (e.g., allowing environmental degradation to take place, or inappropriate exploitation of natural resources) are regarded as violating the best interests of the child standard. 116

116 UN Committee on the Rights of the Child General Comment 5 on State Party Obligations Under the African Charter on the Rights and Welfare of the Child (Article 1) and Systems Strengthening for Child Protection (2018) (GC5) para 4.2; own emphasis.

Though not mentioning climate change by name, it may be included under environmental degradation, which imperils the enjoyment of the rights of future generations. Through the linkage of the best interest principle to children's enjoyment of environmental welfare, the obligation placed on participatory states to further these interests in any climate action decision undertaken by the states is once again endorsed. 117

117 Boshoff and Damtew 2022 AHRLJ 336.

The GC5 confirms the relevance of child participation as a core principle underpinning the ACRWC. The Committee acknowledges that the practice of consulting with children and taking their views into account is still a very recent trend amongst state parties, and efforts to include children are still mostly new and uncoordinated. Nonetheless, state parties are required to consult children in the formulation of plans, policies and laws that have a bearing on their interests, and to ensure that child participation in governance is devolved to the regional and district levels. 118

118 GC5 para 6.8.

Some countries have introduced so-called children's parliaments to enhance child participation in government activities. The African Children's Committee commended states for introducing a children's parliament, whilst calling on states who have not done so to follow the example. State parties should also ensure that children's voices are reflected in reporting to treaty bodies, including the ACRWC. 119

119 GC5 para 6.8.

In 2014 the African Children's Committee adopted guidelines similar to those of OPIC to provide for procedures around communication. 120

120 African Children's Committee 2014 https://caselaw.ihrda.org/entity/ 4pzk8bedzi?file=154936181273170yyp83us7b.pdf.

accordingly enables African children to formally submit any complaints to the African Children's Committee about rights violations, including those due to environmental degradation.

As indicated above, in Sacchi v Argentina the CRC Committee received a climate-related communication. Three of the claimants were from African states, namely South Africa, Nigeria and Tunisia. It is not clear why the three children did not opt to communicate with the African Children's Committee but instead opted to use the CRC Committee. This may perhaps be attributed to the fact that the cited countries were viewed as being responsible or more responsible for climate change, perhaps, than the claimants' countries of origin. However, given the global momentum on the active participation of children in global governance structures and the complementarities between the CRC and the ACRWC, the use of the CRC by a collective group of sixteen children could have been a strategic move on the part of the three African children. A decision by the CRC, moreover, has a global rather than a regional impact. 123

123 Fambasayi and Addaney 2021 AHRLJ 38.

While the African Children's Committee also has a requirement for the exhaustion of domestic remedies, exceptions exist where this requirement does not have to be met, which could also find application in climate action cases. 124

124 See Project Expedite Justice v Republic of Sudan (Communication No.0011/Com/001/2018) [2018] ACERWC 1 (26 August 2018) Decision on Admissibility No:001/2019 para 44 as followed by the ACRWC stating that: the requirement of the exhaustion of local remedies is applicable only if the remedies are available, effective, accessible and not unduly prolonged.

Despite its regional application, the African Children's Committee fulfils an important role in furthering the protection of African children from the negative impacts of climate change. In this regard it should be noted that in 2020 the African Children's Committee established a Working Group on Children's Rights and Climate Change, 128

128 African Children's Committee 2020 https://www.acerwc.africa/ sites/default/files/2022-10/RESOLUTION%20ON%20THE%20ESTABLISHMENT%20OF%20A%20WORKING%20GROUP%20ON%20CHILDREN%E2%80%99S%20RIGHTS%20AND%20CLIMATE%20CHANGE.pdf.

3 South African legislative framework

3.1 The Constitution of the Republic of South Africa

As indicated above, 130

130 Refer to para 1 hereof.

be protected for the benefit of ʺpresent and future generationsʺ, 140

140 Section 24 of the Constitution. Own emphasis.

In addition, the Bill of Rights contains specific provisions pertaining to children's rights. These are set out in section 28 and provide a strong framework for safeguarding the rights and well-being of children, granting children the right to a name and a nationality from birth; 141

141 Section 28(1)(a) of the Constitution.

A perusal of the Bill of Rights in general and section 28 specifically reveals that it does not afford the child a specific right to child participation, save for the right to the appointment of a legal practitioner, as set out in section 35(3)(g) and section 28(1)(h). Section 28(1)(h) states that:

Every child has the right to have a legal practitioner assigned to the child by the State and at State expense, in civil proceedings affecting the child, if substantial injustice would otherwise result.

Section 28 (1)(h) refers only to the appointment of a legal practitioner. Although it reflects the underlying principle of Article 12 of the CRC, it does not refer to any broader right of participation attaching to children. 147

147 Du Toit ʺLegal Representation of Childrenʺ 109.

judgments. 149

149 Soller v G 2003 5 SA 430 (W) 434-435; Legal Aid Board v R 2009 2 SA 262 (D); Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC) para 55; Banyantane v Banyantane 2003 3 SA 363 (CC) 375 H-J; Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) 787; S v M (Centre for Child Law as Amicus Curiae) 2008 3 SA 232 (CC).

Legal matters involving children often exclude the children and the matter is left to adults to argue and decide on their behalf. In Christian Education South Africa v Minister of Education this Court held, in the context of a case concerning children, that their 'actual experiences and opinions would not necessarily have been decisive, but they would have enriched the dialogue, and the factual and experiential foundations for the balancing exercise in this difficult matter would have been more secure.'

This also rings true for children's right to participate in general but obviously includes matters regarding climate action decisions. Though children's experiences and opinions would not necessarily play a decisive role in climate action decision-making, they would enrich the dialogue. Despite the child's right to participation not being in the Constitution, it has been incorporated into domestic legislation in the Children's Act. 151

151 Section 10 of the Children's Act 38 of 2005 (the Children's Act).

3.2 The Children's Act 38 of 2005

In building on the important provisions in the Constitution, the South African parliament has enacted specific national legislation directed at further enhancing and protecting the rights and interest of children. In this regard and of special importance to this discussion was the enactment of the Children’s Act in 2005. The Children’s Act specifically provides for the child's right to participation in section 10 thereof, that determines that:

Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

Apart from being a stand-alone right, section 10 is also a general principle of the Children's Act. In terms of section 6(2)(a) the general principles of the Children's Act must be respected, protected, promoted and fulfilled in all proceedings, actions or decisions in matters concerning children. This includes the best interests standard set out in section 7 of the Children's Act as well as all other rights and principles set out in the Act. Notably, the child's right to participate occupies a central theme throughout the Children's Act. 152

152 Du Toit ʺLegal Representation of Childrenʺ 114.

Section 10 of the Children's Act closely resembles Article 12 of the CRC and Article 7 of the ACRWC. It defines a child's right to express his or her views in relation to a factual assessment of the child's capacity by reference to the age, maturity and stage of development of the child in question. 153

153 Schäfer Child Law 164.

The decision-maker must give ʺdue considerationʺ to the views expressed. A decision-maker cannot assume what a child's views are; the child's view must be ascertained and considered. 159

159 Schäfer Child Law 166.

Traditionally, some South African courts have not been inclined to give much weight to children's views. In Greenshields v Wyllie, 161

161 Greenshields v Wyllie 1983 4 SA 898 (W).

ʺverge of adulthoodʺ 166

166 Matthews v Matthews 1983 4 SA 136 (SE) 141.

In B v B, 170

170 B v B (602/11) [2012] ZASCA 151 (28 September 2012) para 18.

Three of the leading cases on legal representation, namely Centre for Child Law v The Governing Body of Hoërskool Fochville, 174

174 Centre for Child Law v the Governing Body of Hoërskool Fochville 2016 2 SA 121 (SCA).

The significance of section 28(1)(h) [legal representation] lies in the recognition also found in the Convention on the Rights of the Child, that the child's rights and the adult's interest may not always intersect and that a need exists for separate legal presentation of the child's views.

The fact that children's rights may differ from those of adults as well as the best interests of the child sanctions the right of children to be afforded separate legal representation. In Centre for Child Law v The Governing Body of Hoërskool Fochville the court underlined the importance of observing the child's best interests, stating that children's right to participate

and to litigate separately from their parents must be informed by the best interests principle. 178

178 Centre for Child Law v the Governing Body of Hoërskool Fochville 2016 2 SA 121 (SCA) para 23.

3.3 National environmental laws and policies

On the issue of national environmental matters, the South African state has adopted a broad range of national law, policies and strategies that address climate change, disaster management, environmental and energy issues. These include the National Climate Change Response Whitepaper, 179

179 Department of Environmental Affairs 2012 https://www.dffe.gov.za/sites/ default/files/legislations/national_climatechange_response_whitepaper.pdf.

The failure of the South African state is disheartening. Where legislation, declarations and frameworks for implementation do not include explicit statements on children's rights, children are often forgotten and left behind. 187

187 UNICEF 2023 https://www.unicef.org/southafrica/reports/climate-energy-and-environment-landscape-analysis-children-south-africa 47.

Climate Commission (PCC). 189

189 PCC date unknown https://www.climatecommission.org.za.

Public consultations and comments on the Bill were called for and the CCL submitted comments on the First Draft Bill and the Second Draft Bill. 193

193 CCL 2024 https://centreforchildlaw.co.za/wordpress21/wp-content/uploads/ 2024/02/310124-Centre-for-Child-Law-Submissions-on-the-Climate-Change-Bill_2024-2.pdf.

As the latter proposal was not incorporated into the Second Draft Bill, in a second submission the CCL reiterated its concern over the exclusion of child participation at the local government level. The CCL once again petitioned for the Bill in its final form to encompass provisions that would ensure the right to access information, foster participation in decision-making processes, and acknowledge the unique correlation between children's rights and environmental justice. 196

196 CCL 2024 https://centreforchildlaw.co.za/wordpress21/wp-content/uploads/ 2024/02/310124-Centre-for-Child-Law-Submissions-on-the-Climate-Change-Bill_2024-2.pdf 5.

has chosen to ignore these pleas, as the Climate Change Act does not include such provisions.

The PCC was established to advise and facilitate South Africa's Just Energy Transition. In this regard, a Just Transition Framework (JTF) has been set out as a planning tool to achieve a just transition in South Africa, listing the actions that government and its social partners need to take to transform the economy to one which is low-carbon, climate resilient and sustainable. The JTF emphasises the importance of consultation and participation, stating that it puts ʺpeople at the centre of decision making, especially those most impacted, the poor the women and youth.ʺ 197

197 PCC 2022 https://pccommissionflo.imgix.net/uploads/images/22_PAPER_

Framework-for-a-Just-Transition_revised_242.pdf 2.

The JTF, however, gives no indication of whether any strategies or child-centred approaches for engaging and consulting with children have been developed. In its comments on the JTF the CCL, in conjunction with groundWork and the Centre for Environmental Rights, proposes that ways to integrate representation by or on behalf of children should be considered. 199

199 CLL, groundWork and Centre for Environmental Rights 2022 https://centreforchildlaw.co.za/wordpress21/wp-content/uploads/2022/07/Joint-PCC-Submission_-JustTransitionChildrenRights_5-April-2022.pdf 3.

4 Child and youth organisations

As alluded to above, 201

201 Refer to para 1 hereof.

Africa, representing various organisations, schools, university groups and communities, developed this first SAYCAP, serving as a youth-led climate change framework. Five core pillars inform this action plan, namely intersectionality, advocacy and activism for climate action, good governance, systemic change and environmental sustainability. 204

204 SAIIA 2021 https://saiia.org.za/youth-blogs/the-south-african-youth-climate-action-plan/.

An interesting development relating to children's participation and role in climate decision-making is the matter of African Climate Alliance v Minister of Mineral Resources and Energy (#CancelCoal case). 205

205 African Climate Alliance v Minister of Mineral Resources and Energy (56907/21) [2022] ZAGPPHC 946 (9 December 2022).

5 Conclusion

In almost every crisis that occurs, children are the most vulnerable and most affected persons. Climate change is no exception. The last decade bears witness to the catastrophic harm caused to the intersecting rights and

interests of the current generation. 209

209 Agarwal 2023 https://oecd-development-matters.org/2023/11/27/cop28-prioritising-children-in-the-fight-against-climate-change/.

Rather than viewing children just as passive victims of climate change, they should be recognised as innovators, agents of change and the co-creators of solutions. 211

211 Godfrey and Tunhum The Climate Crisis 67.

Nevertheless, children's inclusion in climate change decision-making has generally been limited. 215

215 Arts ʺChildren's Rights and Climate Changeʺ 234.

Domestically children's right to participation in climate change decision-making has also seen some improvement. South Africa is not only a signatory to the CRC and ACRWC but also to instruments such as the UNFCCC and the Paris Agreement. The right of children to an environment that is not harmful to their health and welfare as well as their right to ensuring

their best interests are guaranteed in every matter concerning them are constitutionally entrenched. The right of children to participate in matters that affect them is further guaranteed in the CRC, the ACRWC and the Children's Act. 219

219 Refer to paras 2.1 and 3.2.

While South Africa has adopted a broad range of national laws, policies and strategies that address climate change, the framework woefully lacks regarding child participation. 220

220 Refer to para 3.3.

Children accordingly still need to rely on child rights bodies such as the CCL, civil society or themselves through child and youth organisations such as the SAYCC for their voices to be heard on climate change decision-making. However, donor-funded initiatives such as SAYCC do not have the benefit of long-term security. More can and needs to be done by government to facilitate the formal and direct involvement of children in climate-related decision-making processes. Such involvement could be formalised, for example, through establishing state-funded children's parliaments. 222

222 CCL 2023 https://centreforchildlaw.co.za/wordpress21/wp-content/uploads/ 2023/04/Submission-on-CRC-Draft-General-Comment-No.26_2023.pdf 8.

It is perhaps fitting to conclude this paper with South Africa's children's authentic voices on how they see their participatory role in South Africa's future. Post-COVID-19, UNICEF and its partners asked South African children and youth to express how they ʺreimagineʺ the country beyond COVID-19. In the ʺReimagine our Future Declarationʺ, the children spoke as follows:

We, the children and youth of South Africa, see ourselves as the generation that will spark a wildfire resulting in young people actively taking up space in all spheres of our country. We envision a future that is conducive and favourable for young people to grow and prosper, freely and with dignity. We envision a future where young people are active participants in policy and decision-making spaces from local to national level and hold our leaders accountable. We envision a future where our voices are acknowledged and our participation is not tokenistic. 223

223 UNICEF date unknown https://www.unicef.org/southafrica/documents/reimagine-our-future-declaration. Own emphasis.

In closing, it is the responsibility of the adult generation to ensure that our children's voices are heard in the realisation of their future and that this legal entitlement is not merely a form of tokenism, but results in the attainment of true and meaningful participation for the current generation and generations to come.

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List of Abbreviations