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I. Why a Youth Climate Court?

If local governments are failing to adequately address the climate crisis and need to be called to account, even put on trial, for failing to protect the basic human and constitutional rights of their citizens, who better to do that than the young people whose rights are already being, and will continue to be, most dramatically impacted.

One way young folks could do this would be to create their own local Youth Climate Court, with youth judges, youth prosecuting attorneys and youth jury members. This Youth Court would put the local government on trial. It would call leaders of that government to account and require them to explain themselves in open Youth Court against charges that that government is failing to adequately protect the basic human and constitutional rights of its citizens, especially of the children.

If, after a Youth Court trial has been conducted, the jury finds the local government guilty of neglecting its responsibilities, the Court would then issue a mandate requiring government officials to enter into a restorative justice process with the Court or, alternatively, to prepare a strong Climate Action Plan and submit it to the Youth Court for approval.

Why should young folks set up such courts? Because young people need to be heard on this issue and adults need to listen. Adults need to attend to what their children are telling them because it is their future that is being put at risk by grownups’ ongoing failures to act.

While Youth Courts may not have the formal legal authority to compel change like a state or federal court does, what they do have is the moral authority of those whose lives are being directly impacted by adults’ failure to act. Kids, in fact, living now under threat of a genuine crisis, may have more moral authority on this issue than do the many adult institutions that have been ignoring it. Youth Courts would also, of course, have the power to shame, and that is real power, more exertable by young people these days than by many adults. Governments really do need to be called to account on this. Governments need to be made to listen, and who better to do that than those most directly wronged?

II. Purpose of government

Because why do governments exist, after all? What are governments for and what are they actually supposed to do? The US Declaration of Independence explains pretty clearly, right there in its third sentence, that the purpose of governments is, first and foremost, to protect and secure the rights of their citizens. “We hold these truths to be self-evident,” it says in sentence two. All people are created equal and everyone has certain basic rights, among which are life, liberty and the pursuit of happiness.

Then comes that third sentence: “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

Right there it is, the purpose, the raison d’etre of government: to secure the rights of its citizens. Protecting the rights of its citizens is exactly what governments are for, and if a government is not doing that, then it is not meeting its most fundamental moral obligation as a government. Governments at all levels are bound by this basic obligation to protect their citizens’ rights.

The Universal Declaration of Human Rights agrees: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” So respecting people’s rights is what secures freedom, justice and peace in the world, and it is also the fundamental purpose for having a government.

More specifically, if governments are to meet their human rights obligations, they have a duty to respect, protect and fulfill human rights. 1) For a government to respect human rights means it must refrain from taking any actions that would interfere with citizens’ enjoyment of their rights. 2) To protect human rights a government must make sure that third parties, such as businesses, corporations, other private entities and other governments don’t violate citizens’ rights. And 3) the duty to fulfill human rights means governments must take active measures to ensure the realization of rights for all members of society.

All three kinds of duties bear directly on a government’s obligation to protect against climate change, particularly with respect to any government actions that license, permit, monitor, subsidize, or otherwise support fossil fuel extraction, infrastructure, distribution and use.

At one level it is obvious why governments should take seriously their mandate to respect, protect and fulfill their citizens’ rights. It’s because that’s what people need from their governments. There’s another reason too, though, and that is because so many problems result when rights are not protected. The Declaration of Independence reminds us that if a government fails to do its job, “it is the right of the people to alter or to abolish it.” That means that if a government does not protect their rights, people will be inclined to get rid of that government and replace it with one that does.

The Universal Declaration of Human Rights says the same thing. It is in governments’ own self-interest to protect citizens’ rights, it says, lest people decide to get rid of that government and replace it.

So the central underlying question on which the Youth Court will be testing its local government is whether it is meeting its most fundamental moral obligations as a government.

III. The argument

The prosecution’s central argument will be a) that human and constitutional rights are absolutely essential for a minimally decent life, b) that it is government’s central purpose and obligation to respect, protect and fulfill those rights, c) that the climate crisis puts at risk most or all constitutional and human rights, d) especially certain specific rights the prosecution will choose to highlight – such as the rights to security of person, to life, to liberty, to water, to education, to health, to an adequate standard of living, to special care and assistance for women and children, and many others – and e) that this accused government is failing in its fundamental moral obligation as a government to protect these rights. Each of those elements in the basic argument will be fleshed out by the prosecution and its witnesses.

The prosecutor(s) will want to draw particular attention to a list of specific rights that they see as most clearly at risk in a climate-changed world. These specific rights, such as those mentioned above, can be easily found in the Universal Declaration of Human Rights, the Convention on Civil and Political Rights, the Convention on the Rights of the Child, the UN Declaration on the Rights of Indigenous Peoples, and several other human rights Declarations and Conventions that have been broadly endorsed around the world.

Believe it or not, these documents are not at all difficult to read. They have no use for the lawyerly gobbledegook that so often shows up in statutes and ordinances created by legislatures and other government bodies. These human rights documents are intended to be read by ordinary people, not just by lawyers and government officials. Here, for example is the whole of Article 3 in the Universal Declaration of Human Rights: “Everyone has the right to life, liberty and security of person.” And here is the entirety of Article 6 in the Convention on the Rights of the Child: “1. States Parties [i.e., governments] recognize that every child has the inherent right to life. 2. States Parties shall ensure to the maximum extent possible the survival and development of the child.”

Authors of these human rights documents wanted everyone, not just lawyers, to be able to read and understand them.

IV. Start local

It will be best to start with local governments. City governments could be put on trial first. They are closest to home and are more likely to have personal and friendly relationships with people you know. They also care about votes and care about how their city views them. Local community and independent newspapers, radio and tv stations, local bloggers and local school leaders may also be more interested in a Youth Court in their own town than one held elsewhere.

County Boards of Commissioners could perhaps be put on trial next, and state governments after that.

V. But will governments even show up?
Once summoned by a Youth Court, will governments be inclined to send a representative to the Court or not? I believe they will because most local governments include at least a few members who, even if they are not in the majority, recognize the seriousness of the climate crisis and who worry that so little (perhaps nothing) is being done locally to address it. Those members will want to attend and make sure their government’s inaction is made public.

But if the government elects to not participate, the Youth Court should publicly call them out for that. If members of the government cared so little about the rights of its youth that they didn’t even bother to respond, show up and make their case, the public should know about that. “Perhaps,” the media can be told, “they had no case to make. Perhaps they were ashamed of how little they had done.”

And then the trial proceeds without them. A Youth Court defense attorney could possibly be assigned to represent the absent government if the Court so chooses, but that defense attorney could not be expected to make a very strong case, perhaps not any case at all, for a government that declined to even attend.

VI. The mandate

If the defendant government is acquitted and found to be doing a responsible job of protecting their citizens’ rights, then the government is congratulated and the Court’s work is completed at that point.

But if the defendant government is found guilty of failing to meet its obligations, then the Court issues a formal mandate to the government. The mandate would require that government officials enter into a restorative justice process in which the Youth Court and the defendant government explore together what the government should do to best restore a sense of continuing justice.

There are several advantages to a restorative justice approach. It allows the government that has just been found guilty to acknowledge that it has fallen down on the job. It allows a mandate that is more tailored to that particular government’s situation, and it increases the sense that a degree of justice was achieved. It entails a process of parties working together and, perhaps most importantly, it enhances the feeling of buy-in from both parties and increases the likelihood that the agreed-upon mandate will actually get carried out.

Or if the Court chooses to take a more direct route, its mandate could instead simply require the government to develop a science-based and human-rights-protecting Climate Action Plan for its jurisdiction and submit it to the Youth Court by a specific date. The Youth Court would “retain jurisdiction,” so that later, when the government has submitted its Climate Action Plan, the Court would reconvene, review the submitted CAP and determine whether it does or does not meet the Court’s standards of adequacy. If it does, the plan is returned as acceptable and the government is encouraged to monitor and publicly report on the implementation and efficacy of its plan.

If the submitted plan does not meet the Court’s standards of adequacy, it is formally returned (in person and in writing) to the defendant government with instructions to create a new, more satisfactory CAP to be resubmitted to the Court by a given date. That process then continues until a submitted plan does meet the Court’s standards of adequacy, at which point it is returned to the government with a request that the implementation of its plan be closely monitored and reported on.

VII. Coalition of Youth Courts

If even a few of these Youth Courts are developed and conducted around the world, they could potentially, with such a strong voice and a public platform, bring about real change in the policies, practices and mindset of the governments they put on trial.

If more than a few such courts are created, though, the effects could be quite significant. In that situation it would be very helpful to have in place an International Coalition of Youth Courts to serve as a training center to help with creation of future Youth Courts. The Coalition would help teach best practices for setting up and conducting a court session. It would offer a) help with ideas and materials for building strong prosecutorial arguments, b) basic information about human rights, including what they mean and how they work, c) ideas for how to most effectively approach and work with a defendant government, and d) techniques for and help with engaging local media. The Coalition could also be available for help throughout the process of conducting a session.

In addition, it would serve as a clearinghouse for information about Youth Courts and a research center to keep records of the procedures, verdicts, mandates, effectiveness and long term impacts of Youth Courts around the world. It would keep records of how the defendant governments respond to their summons, how they behave during the court hearings, and how well they carry out the mandates and/or the restorative justice solutions that result from the court session.

VIII. Finally

I genuinely hope that some good people in their teens come across this idea, find it intriguing, maybe show or describe it to a friend or two and then decide that they want to give it a go. Or a teacher, parent or mentor might bring the idea to students. When teens discover this idea, they will hopefully feel excited by it, enlivened and empowered, and see it as a way for them to have a very public voice about the climate crisis that will impact their lives so directly.

I also hope that the city mayors and council members and the county commissioners who find their governments summoned to participate in a Youth Court hearing will realize how important it will be for them to participate, how important to not dismiss what is being asked of them, and how crucial it is that they respond with grace and generosity. I hope they will give their full respect to the young organizers and what they are trying to accomplish and will see these Youth Courts as allies in the hard work of governing in a desperately climate-challenged world.

– Tom Kerns