CHILDREN’S RIGHTS

As noted, only two of the nine UN human rights treaties make express reference to minorities or minority rights - the ICCPR and the UN Convention on the Rights of the Child. The UN CRC is also the only treaty to contain the term ‘Indigenous’ in the operative provisions of its text. Its Article 30 recalls Article 27 ICCPR through a child rights lens:

‘In those States in which ethnic, religious or linguistic minorities or persons of Indigenous origin exist, a child belonging to such a minority or who is Indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.’

As with the ICCPR, the opening phrase of Article 30 ‘In those States in which ethnic, religious or linguistic minorities or persons of Indigenous origin exist (…)’ appears not to have limited the Committee on the Rights of the Child (CRC) in protecting minority and Indigenous children in all States Parties. There are other provisions of the Convention that refer also to these groups.²³ CRC has issued General Comment 11 on Indigenous children, in which it is recognised that the Convention is the first core UN human rights treaty to include specific references to Indigenous children.²⁴ GC 11 does not relate also to minority children as its title indicates, although it does note: ‘the Convention contains references to both minority and Indigenous children. Certain references in this general comment may be relevant for children of minority groups and the Committee may decide in the future to prepare a general comment specifically on the rights of children belonging to minority groups.’²⁵ That was now 15 years ago, and the Committee has not prepared such a general comment on the rights of children belonging to minority groups. Nevertheless, GC 11 remains of relevance in interpreting Convention obligations in relation to children belonging to minority groups.

In concluding observations, CRC regularly engages the minority rights aspects of its mandate. At its recent reporting session in May 2024, the Committee raised the minority rights obligations of a number of States Parties. In relation to Bhutan, it requested the State Party to ‘[s]trengthen measures to promote the meaningful and empowered participation of all children, including children belonging to ethnic minority groups’.²⁶ It called for special protection measures for children belonging to minority groups including Lhotshampa children, noting ‘with deep concern the lack of progress in repatriating Lhotshampa children from refugee camps in Nepal’.²⁷ In the context of Egypt, the Committee considered that ‘children of religious minorities, including Coptic Christians, Shia Muslims, Jehovah’s Witnesses, Baha’is, and atheists continue to face varying forms of discrimination’, requiring the State Party to ‘[a]ccord children of minority religious groups the freedom to manifest their religion’.²⁸ In regard to Georgia, it criticised ‘[p]oor school attendance and limited access to education for children belonging to ethnic minorities, in part due to the insufficient number of teachers in non-Georgian schools.’²⁹ Under the reporting obligation of the Optional Protocol on the sale of children, child prostitution and child pornography, the Committee requested Panama to ‘[i]mplement targeted measures to adapt all recommendations to the specific needs and vulnerabilities of minority groups, such as Indigenous communities and communities of people of African descent’.³⁰.

The jurisprudence of the CRC is relatively small, with around 40 decisions on the merits in total, although its Optional Protocol has only been in force since 2014. The first decision relating to minority or Indigenous children’s rights under Article 30 UN CRC was Chiara Sacchi et al v Argentina (2021),³¹ which litigated a number of States Parties’ failure to prevent and mitigate the consequences of climate change as a violation of the Convention. The case was declared inadmissible by the Committee, but was considered to reveal the potential for future caselaw. In Sacchi, the authors argued under Article 30 that the States Parties’ contributions to the climate crisis ‘have already jeopardized the millenniums-old subsistence practices of the Indigenous authors from Alaska in the United States, the Marshall Islands and the Sapmi areas of Sweden.’³² It submitted that those subsistence practices ‘relate to a specific way of being, seeing and acting in the world that is essential to their cultural identity.’³³ The authors requested findings inter alia that the State Party is violating ‘the cultural rights of the authors from Indigenous communities’.³⁴ The Committee found the communication failed to exhaust domestic remedies.³⁵ As a result, substantive aspects including the Article 30 claim were not examined. However, as Aoife Nolan rightly observed, the decision left the door open for future complaints.³⁶

This would indeed occur in M.E.V., S.E.V. and B.I.V. v Finland, adopted by the CRC on 7 October 2024.³⁷ This case related to a mineral exploration project on Sami territory which would give rise also to a case before CESCR, discussed below. The present communication engaged the child rights aspects, being taken by three sisters aged 13, 15 and 16 and members of a multigenerational Sami reindeer herding family. The claimants distinguished their communication from that before CESCR, ‘as female Indigenous children beneficiaries of the unhindered intergenerational transmission of the Sami culture and way of life.’³⁸ The CESCR communication related ‘not only to different victims but also to a different set of human rights violations’, with the claim before CRC involving a right of an Indigenous child to the transmission, from generation to generation, of an Indigenous identity, way of life and traditional economic activity, constituting a core dimension of the rights of Indigenous children.³⁹ Hence, the case is notable in setting out how a situation can give rise to different actions before different treaty bodies.

The facts provided detail on how the communicants are ‘determined to learn the traditions of Sami reindeer herding, which is a cornerstone of Sami culture and way of life’, describing inter alia how they participate in the earmarking of reindeer calves and traditional Sami ways of singing and handicrafts. They described also a language deeply rooted in nature, with no future for their mother tongue if there is no place for traditional reindeer herding because of activities negatively affecting their ancestral territories.⁴⁰ As the continuance of the Sami children culture and way of life is strongly dependent on traditional reindeer herding, if this is lost due to threats from mineral exploration, their identity, language and culture will also be lost.⁴¹

The authors submitted that Finland’s granting of a mineral exploration permit did not meet the standards of FPIC. CRC engaged with Finland’s argument that the communication should be declared inadmissible due to its actio popularis and premature nature. The Committee found that ‘the authors are alleging violations of their own rights under the Convention, which occurred already with the granting and upholding of the permit, without the Sámi free, prior and informed consent.’⁴² It held that if the granting of a permit on traditional territory is obtained without FPIC, ‘this fact may represent in itself, irrespective of future developments, a breach to the authors’ rights under the Convention’.⁴³ Hence, a failure to obtain FPIC of Indigenous peoples in relation to mineral exploration or analogous activities on their territories is in and of itself a violation of UN CRC, specifically Articles 8, 27 and 30.⁴⁴

On the merits, the Committee noted that cultural rights have an intergenerational aspect which is fundamental to the cultural identity, survival, and viability of Indigenous Peoples. It recalled that language is the principal mode of transmission of traditional knowledge and a foundational element of Indigenous cultures and identity, with Indigenous children learning and using their languages key to preserving Indigenous cultures, historical memory and worldview.⁴⁵ It considered that precisely because the State Party was aware that transferring Sami culture to Sami children is ‘becoming increasingly difficult’, that it must be particularly cautious when regulating activities that may endanger the continuity of their culture.⁴⁶ In the light of the above, the Committee held that ‘Article 30 of the convention enshrines the right of Indigenous children to enjoy their traditional territories and that any decision affecting them should be taken with their effective participation.’⁴⁷

Importantly, the CRC noted the right of children in relation to FPIC. Thus, it noted that States Parties must provide an ‘adequate and effective process of free, prior and informed consent whenever Indigenous Peoples’ rights may be affected by projects carried out in their traditional territories’.⁴⁸ In addition, it held that ‘Indigenous children must be particularly at the heart of the processes, from their consideration in impact assessments to their effective participation in processes of consultations aimed at obtaining their free, prior and informed consent.’⁴⁹ The decision reads an obligation of FPIC into Article 30 in which Indigenous children must also form part of the process, if it is to be deemed adequate and effective. Finland was found to be in violation since it had failed to demonstrate how the process of granting the exploration permit ‘correctly took into account the standards established in international human rights law for the participation of Indigenous Peoples, including Indigenous children’.⁵⁰

The communication referred also to climate change and the Saatchi case, in noting how Finland’s CO2 emissions put it 57 among all countries in absolute terms, and 29 per capita, as responsible for climate change. This contributed to the argument as to why the mineral exploration project violated UN CRC in the current circumstances created by climate change.⁵¹ However, ultimately climate change was considered as context and not a separate claim.⁵² Overall, M.E.V., S.E.V. and B.I.V. is the first finding in an individual communication of a violation of Article 30 UN CRC, and the first time FPIC was read into this provision in an individual communication. It is a milestone decision, and one that marks out UN CRC as an important treaty body in the protection of Indigenous and minority rights. 

²³ See Article 17(d): ‘States parties shall…encourage the mass media to have particular regard for the linguistic needs of the child who belongs to a minority group or who is indigenous’; and Article 29(1)(d): ‘States Parties agree that the education of the child shall be directed to... friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin’.
²⁴ CRC General Comment 11, ‘Indigenous Children and their Rights under the Covenant’ UN Doc. CRC/C/GC/11 (2009) para 1.
²⁵ Ibid para 15.
²⁶ UN Doc. CRC/C/BTN/CO/6-7 (2024) para 17(a).
²⁷ Ibid para 42.
²⁸ UN Doc. CRC/C/EGY/CO/5-6 (2024) para 20(a).
²⁹ UN Doc. CRC/C/GEO/CO/5-6 (2024) para 36(a).
³⁰ UN Doc. CRC/C/OPSC/PAN/CO/1 (2024) para 16(f).
³¹ UN Doc. CRC/C/88/D/104/2019 (2021). Note that the same complaint was submitted against five States Parties,Argentina, Brazil, France, Germany and Turkey, but given it raised similar issues at the admissibility stage it wasexamined by the Committee only in relation to Argentina.
³² Ibid para 3.5.
³³ Ibid.
³⁴ Ibid para 3.7.
³⁵ Ibid para 10.21.
³⁶ Aoife Nolan, ‘Children’s Rights and Climate Change at the UN Committee on the Rights of the Child: Pragmatism and Principle in Sacchi v Argentina’ Ejil: Talk! 20 October 2021 <https://www.ejiltalk.org/childrensrights-and-climate-change-at-the-un-committee-on-the-rights-of-the-child-pragmatism-and-principle-insacchi-v-argentina/> The author notes: ‘Overall, the decision, while a loss for the specific claimants, was a major win for future climate change complaints under the [Optional Protocol to UN CRC] due to the Committee’s expansive approach to the jurisdictional issue and causality.’
³⁷ UN Doc. CRC/C/97/D/172/2022 (2024).
³⁸ Ibid para 2.15.
³⁹ Ibid.
⁴⁰ Ibid para 2.3.
⁴¹ Ibid para 2.14.
⁴² Ibid para 8.3.
⁴³ Ibid.
⁴⁴ Ibid para 8.6.
⁴⁵ Ibid paras 9.14-9.15.
⁴⁶ Ibid para 9.16.
⁴⁷ Ibid 9.17.
⁴⁸ Ibid para 9.20.
⁴⁹ Ibid para 9.22.
⁵⁰ Ibid para 9.23.
⁵¹ Ibid para 2.2 and n 3.
⁵² Ibid para 8.4. The Committee found as a result that domestic remedies had been exhausted.