The Best Interest of the Child and Climate Change Adaptation in Sub-Saharan Africa

Boshoff, Elsabé

doi:10.1007/978-3-030-27049-0_14

Elsabé Boshoff⁴

Abstract

Adaptation to climate change is a core priority for the African continent, based on its vulnerability to the effects of climate change, which particularly affects children. This chapter considers how the human rights principle of the “best interest of the child” can be applied in the context of national and regional climate change adaptation policies to ensure that children are fully included in adaptation planning and implementation. The chapter uses a comparative approach to best practices from national policies in South Africa, Kenya and Nigeria, and regional and international best practices in order to extract the elements of the best interest of the child in the context of adaptation in Sub-Saharan Africa. It ends with recommendations to various stakeholders to implement the best practices identified.

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Notes

1.
African Union (AU), “Draft African Union Strategy on Climate Change” (2014), at 1, 8; Climate and Development Knowledge Network (CDKN), “The IPCC’s Fifth Assessment Report: What’s in It for Africa?” (2014), at 1, 11, available at http://cdkn.org/resource/highlights-africa-ar5/?loclang=en_gb, accessed October 10, 2016.
2.
Paul Collier et al., “Climate Change and Africa,” Oxford Review of Economic Policy 24 (2008), at 337; J.J. Romm, “Present and Future Climate Realities for Children,” in The Challenge of Climate Change: Children on the Front Line, ed. UNICEF (2014), at 6; Rema Hanna and Paulina Oliva, “Implications of Climate Change for Children in Developing Countries,” in Children and Climate Change, ed. The Future of Children (2016), available at http://www.futureofchildren.org/publications/journals/journal_details/index.xml?journalid=86, accessed September 25, 2016, at 115; and Isabelle Niang et al., “Africa,” in Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, ed. IPCC Working Group II (2014), at 1237–1238.
3.
AU, Draft Strategy, 20–21.
4.
Niang et al., Africa, 1227; Edward R. Carr, “Between Structure and Agency: Livelihoods and Adaptation in Ghana’s Central Region,” Global Environmental Change 18 (2008), at 690; J. Guillemot and J. Burgess, “Children Rights at Risk,” in Children on the Front Line, ed. UNICEF (2014), at 50; and AU, Draft Strategy, 54.
5.
Children in a changing climate coalition (CCCC), “Child-Centred Adaptation: Realising Children’s Rights in a Changing Climate” (2015), at 2; See also Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment to the General Assembly on 24 January 2018, which related specifically to the rights of children.
6.
UNICEF, “Unless We Act Now: The Impact of Climate Change on Children” (2015), at 66; CCCC, Child-Centred Adaptation, 2, 6.
7.
Courtenay Cabot Venton “Why We Need a Child-Centred Approach to Adaptation,” in UNICEF, The Challenge of Climate Change, above at note 2 at 32; Guillemot and Burgess, Children Rights at Risk, 47–48; Janet Currie and Olivier Deschênes, “Children and Climate Change: Introducing the Issue,” in Children and Climate Change, 3–4.
8.
Venton, Child-Centred Approach, 32.
9.
Currie and Deschênes, Children and Climate Change, 3.
10.
UNICEF, The Challenge of Climate Change, 1.
11.
Mounkaila Goumandakoye and Richard Munang, “Engaging Children in the African Climate Change Discourse,” in UNICEF, The Challenge of Climate Change: Children on the Front Line (2014), at 73; UNICEF, “Children’s Vulnerability to Climate Change and Disaster Impacts in East Asia and the Pacific” (2009), at 18.
12.
UNICEF, The Challenge of Climate Change, 3.
13.
Collier et al., Climate Change and Africa, 337.
14.
Emily Polack, “Child Rights and Climate Change Adaptation: Voices from Kenya and Cambodia,” Children in a Changing Climate (2010), at 37; Mark Pelling, Adaptation to Climate Change: From Resilience to Transformation (2012), at 7.
15.
UNICEF, Unless We Act Now, 54; Government of Kenya, “National Climate Change Action Plan 2013–2017” (NCCAP) (2013), at 4; Thea Dickenson and Ian Burton, “Palliative Climate Change Planning and Its Consequences for Youth,” in UNICEF, The Challenge of Climate Change, at 40.
16.
United Nations Environmental Programme (UNEP), “Guidebook on National Legislation for Adaptation to Climate Change” (2011), at vi.
17.
Pelling, Adaptation to Climate Change, 23.
18.
Id., 24.
19.
Ibid.
20.
AU, “Agenda 2063” ed 2 (2014), at 3; AU, Draft Strategy, 16, 36; NCCAP at 21, 27; Michal Nachmany et al., “The GLOBE Climate Legislation Study: A Review of Climate Change Legislation in 66 Countries,” 4th ed. (2014), at 418; and Nachmany et al., “The 2015 Global Climate Legislation Study: A Review of Climate Change Legislation in 99 Countries,” Grantham Institute (2015), at 3.
21.
Michael Freeman, “Article 3: The Best Interest of the Child,” in A Commentary on the United Nations Convention on the Rights of the Child, ed. Andre Alen et al. (2007), at 15.
22.
Art 3(1) of the CRC. The best interest principle is also mentioned elsewhere in the CRC, but these are concerned with specific contexts which are not presently relevant.
23.
Art 4(1) of the ACRWC.
24.
Marta Mauras, “Public Policies and Child Rights: Entering the Third Decade of the Convention on the Rights of the Child,” Annals 633 (2011), at 54; United Nations Committee on the Rights of the Child (CRC) General Comment 14, “On the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration,” adopted on 29 May 2013 at the 62nd session of the CRC (GC14), para. 2.
25.
Yvonne Dausab, “The Best Interest of the Child,” in Children’s Rights in Namibia, ed. Oliver C. Ruppel (2009), at 147; Mauras, Public Policies, 53.
26.
Freeman, “Article 3,” 2.
27.
GC14, para. 32.
28.
Julia Sloth-Nielson, “Book Review of M. Freeman, ‘Article 3: The Best Interests of the Child,’” in A Commentary on the United Nations Convention on the Rights of the Child, ed. A. Alen, J. Van de Lanotte, E. Verhellen, F. Ang, E. Berghmans, and M. Verheyde, International Journal of Children’s Rights 16 (2008), at 153; Dausab, Best Interest, 147; Mark Henaghan, “Above and Beyond the Best Interests of the Child,” in Perspectives on Fathering, S. Birks and P. Callister (1999), at 121; Erica K. Salter, “Deciding for a Child: A Comprehensive Analysis of the Best Interest Standard,” Theoretical Medicine and Bioethics 33 (2012), at 190–191; S v M 2008 (3) SA 232 (CC), para. 23.
29.
Salter, Deciding for a Child, 182, 190–191; Henaghan, Above and Beyond, 114–116; John Eekelaar, “Decisions Affecting Children and Decisions About Children,” International Journal of Children’s Rights 23 (2015): 25; Joan B. Kelly, “The Best Interests of the Child a Concept in Search of Meaning,” Family and Conciliation Courts Review 35 (1997): 377.
30.
Freeman, “Article 3,” above at note 44 at 50.
31.
GC14, paras. 4, 16, 34.
32.
Jason M. Pobjoy, “The Best Interests of the Child Principle as an Independent Source of International Protection,” International and Comparative Law Quarterly 64 (2015), at 350.
33.
GC14, para. 1.
34.
Id., paras. 41–43.
35.
Kirsten Sandberg, “The Genesis and Spirit of the Convention on the Rights of the Child,” in 25 Years of the Convention on the Rights of the Child, ed. UNICEF (2014), at 64; Freeman, “Article 3,” above at note 44 at 51.
36.
GC14, para. 6(b).
37.
‘In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations […],’ GC14, para. 6(c).
38.
Art 12 of the CRC.
39.
The expression of the basic needs of the child differs based on national, religious, cultural and personality characteristics as well as other differences.
40.
This must be understood in terms of the general well-being and development of the child and includes “basic material, physical, educational, and emotional needs, as well as needs for affection and safety”, GC14, para. 71.
41.
Situations of vulnerability include disability, belonging to a minority group, being a refugee or asylum seeker, victim of abuse, living in a street situation. GC14, para. 75.
42.
Article 24 of the CRC.
43.
GC14, para. 50.
44.
Id., para. 89. By including this in GC14, the Committee brought back the views of the child into the understanding of the best interest of the child, from where it had been removed during the drafting of the Charter, Freeman, “Article 3,” 51.
45.
GC14, para. 93.
46.
Id., para. 15; Mauras, Public Policies, 64.
47.
GC14, para. 16; Mauras, Public Policies, 52.
48.
GC14, para. 19.
49.
United Nations High Commissioner for Refugees (UNHCR), “Guidelines on Determining the Best Interests of the Child” (2008), 14.
50.
Id., at 20, 23.
51.
Id., at 23, 26, 27, 57.
52.
Id., at 67.
53.
Communication 002/2009 of the African Committee on the Rights and Welfare of the child, delivered on 22 March 2011.
54.
Frans Viljoen, International Human Rights Law in Africa, 2nd ed. (2012), at 403.
55.
Ebenezer Durojaye and Edmund A. Foley, “Making a First Impression: An Assessment of the Decision of the Committee of Experts of the African Children’s Charter in the Nubian Children Communication.” African Human Rights Law Journal 12 (2012), 565, 565.
56.
Nubian case, para. 42.
57.
Id., at para. 46.
58.
Id., at para. 57.
59.
Michelo Hunsungule and Others (on behalf of children in Northern Uganda) v The Government of Uganda decided at the Twenty first Ordinary Session, April 15–19, 2013 (the Ugandan case).
60.
Id., at para. 34.
61.
Decision on the communication submitted by the Centre for Human Rights (University of Pretoria) and La Recontre Africaine pour la defense des droits de l’homme (Senegal) v Government of Senegal Decision no. 003/Com/001/2012 on 15 April 2014 at the 23rd Ordinary Session of the African Committee of Experts on the Rights and Welfare of the Child (Senegal case).
62.
Id., at para. 34.
63.
Id., at para. 37.
64.
John H. Knox and Ramin Pejan, “Human Rights Principles, Climate Change and the Rights of the Child,” in UNICEF, The Challenge of Climate Change, above at note 7 at 55.
65.
Guillemot and Burgess, Children Rights at Risk, 2, 8.
66.
GC14, para. 15; Mauras, Public Policies, 60; Goumandakoye and Munang, Engaging Children, 74; UNICEF, “Children and the Changing Climate: Taking Action to Save Lives” (2015), at 2; CCCC, Child-Centered Adaptation, 2, 8; B.W. Edes, “Mitigating the Negative Impacts of Environmentally Driven Migration on Children and Other Vulnerable People,” in UNICEF, The Challenge of Climate Change, above at note 7 at 30.
67.
Laura Lundy, “‘Voice’ Is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child,” British Educational Research Journal 33 (2007), at 928; and UNICEF, “Éducation au changementclimatique et à l’environnement” (2012), 27.
68.
Mauras, Public Policies, 47 at 62; Polack, Child Rights, 9, 37; UNICEF, Unless We Act Now, 9; Edes, Mitigation the Negative Impacts, 30; and Goumandakoye and Munang, Engaging Children, 74.
69.
Ibid.
70.
Lundy, Voice Is Not Enough, 928.
71.
Ibid.
72.
See also Goumandakoye and Munang, Engaging Children, 74.
73.
Polack, Child Rights, 9.
74.
Venton, Child-Centred Approach, 36.
75.
Ibid.
76.
Polack, Child Rights, 37; Goumandakoye and Munang, Engaging Children, 74; and CCCC, Child-Centered Adaptation, 6.
77.
Ibid.
78.
Oliver C. Ruppel, “International Legal Climate Change Regimes and Climate Finance from a Southern African Perspective,” in Ruppel and Ruppel-Schlichting, 300.
79.
M. Mumba “Ecosystem-Based Approaches to Adaptation and African Children,” in UNICEF, Children on the Front Line, above at note 4 at 46.
80.
GC14, para. 15; Mauras, Public Policies, 60.
81.
Polack, Child Rights, 9; Mauras, Public Policies, 62.
82.
Ibid.
83.
UNICEF, Unless We Act Now, 9; Pelling, Adaptation to Climate Change, 7.
84.
While the focus here is on adaptation policies related to nutrition, water and health, it must be noted that the best way for policymakers to express concern for the best interest of the child is through strong mitigation measures.
85.
Nachmany et al., 66 Countries, 499.
86.
Id., at 500; Government of South Africa, “National Climate Change Response Policy White Paper” (NCCRP) (2011), at 16.
87.
Sibonelo Mbanjwa, “Toward National Climate Change Adaptation Strategy,” Department of Environmental Affairs, Climate Change Response Dialogue 2014, November 10–14, 2014; NCCRP at 5, 8, 12.
88.
Pelling, Adaptation to Climate Change, 23–24.
89.
NCCRP at 8, 12.
90.
Id., at 38.
91.
Id., at 45.
92.
Ibid.
93.
Id., at 49.
94.
Ibid.
95.
Id., at 17.
96.
Mbanjwa, Adaptation Strategy; NCCRP at 20.
97.
Ibid.
98.
NCCRP at 19.
99.
Id., at 23.
100.
Donald A. Brown and Prue Taylor, “Ethics and Climate Change: A Study of National Commitments,” IUCN (World Commission on Environmental Law) Environmental Policy and Law Paper No. 86 (2014): xxi.
101.
Id., at 37.
102.
Radhika Perrot, “South Africa’s Consideration of Ethics and Justice Issues in Formulating Climate Change Policies,” in D.A. Brown and P. Taylor, “Ethics and Climate Change: A Study of National Commitments” IUCN (World Commission on Environmental Law) Environmental Policy and Law Paper No. 86 (2014), 28.
103.
Nachmany, 66 Countries, 20.
104.
Id., at 33.
105.
Id., at 39.
106.
NCCAP at 136.
107.
Ibid.
108.
Id., at 108.
109.
Id., at 112.
110.
Ibid.
111.
Nachmany et al., 66 Countries, 15.
112.
Ibid.
113.
Id., at 419.
114.
Id., at 418; Nachmany et al., 99 Countries, 3.
115.
Id., at 421.
116.
Ibid.
117.
Ibid.
118.
The Federal Government of Nigeria, “Nigeria’s Intended Nationally Determined Contribution” (INDC) (2015), at 20.
119.
Nachmany et al., 99 Countries, 2; Nigeria INDC, at 16.
120.
Nigeria INDC, 20.
121.
Ibid.
122.
Id., at 18.
123.
Polack, Child Rights, 10; Ivana Savic, “Partnering with and Catalysing Young Innovators,” in UNICEF, The Challenge of Climate Change, above at note 7 at 63; UNICEF, Children’s Vulnerability, above at note 7 at 15.
124.
GC14, para. 50.
125.
Polack, Child Rights, 9, 27.
126.
“The [African] continent is experiencing a number of demographic and economic constraints” which leads to “increased loss of livelihood and widespread poverty”, impacting negatively on the adaptive capacity of all people, particularly the most vulnerable. Niang, “Africa”, 1211.
127.
CCCC, Child-Centered Adaptation, 2.
128.
Polack, Child Rights, 36.
129.
Oliver C. Ruppel, “Climate Change and Human Vulnerability in Africa,” in Ruppel and Ruppel-Schlichting, above at note 21 at 284.
130.
Guillemot and Burgess, Children Rights at Risk, 49.
131.
Article 24(2)(c) of the CRC; Polack, Child Rights, 11.
132.
GC14, paras. 41–43; Guillemot and Burgess, Children Rights at Risk, 47.
133.
Knox and Pejan, Human Rights Principles, 55; Polack, Child Rights, 12; Guillemot and Burgess, Children Rights at Risk, 48; and CCCC, Child-Centered Adaptation, 2.
134.
GC14, para. 93; CCCC, Child-Centered Adaptation, 2.
135.
Ibid.
136.
Venton, Child-Centred Approach, 35.
137.
Ibid.; UNICEF, The Challenge of Climate Change, 4.
138.
CCCC, Child-Centered Adaptation, 3.
139.
Venton, Child-Centred Approach, 35.
140.
UNICEF, Unless We Act Now, 66.

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Technical Assistant, African Commission on Human and Peoples’ Rights, Banjul, The Gambia
Elsabé Boshoff

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Research Institute of Environmental Law, Wuhan University, Wuhan, China
Michael Addaney
Centre for Human Rights, University of Pretoria, Pretoria, South Africa
Michael Gyan Nyarko
African Commission on Human and Peoples’ Rights, Banjul, The Gambia
Elsabé Boshoff

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Boshoff, E. (2020). The Best Interest of the Child and Climate Change Adaptation in Sub-Saharan Africa. In: Addaney, M., Nyarko, M.G., Boshoff, E. (eds) Governance, Human Rights, and Political Transformation in Africa. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-27049-0_14

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