1. Introduction
The climate crisis is the greatest challenge of our time. It is the greatest threat to the realisation of human rights ever.1This report has been prepared by the Norwegian National Human Rights Institution (NIM). Chapter 2 of the report is written by CICERO Center for International Climate Research on commission from NIM. Technical adviser and lead author of the report is NIM Senior Adviser, Jenny Sandvig. Co-authors are Erlend Andreas Methi, NIM Senior Adviser, Mina Haugen, NIM Adviser, Marius Mikkel Kjølstad, research fellow at the University of Bergen (UiB) and NIM Associate Adviser, Agnes Harriet Lindberg, research fellow at the University of Cambridge and NIM Associate Adviser, as well as interns Matias Von der Lippe Sjursæther and Marit Tjelmeland, both master students at UiB. Thanks to NIM Director Adele Matheson Mestad, Assistant Director Gro Nystuen, and NIM Special Adviser Anine Kierulf, Associate Professor at the University of Oslo, for assistance and input along the way. Big thanks to NIM’s Communications Adviser Nora Vinsand for putting together images and content.
1.1. The background and purpose of this report
In January 2020, the then President of the European Court of Human Rights (ECtHR), Linos-Alexandre Sicilianos, stated the following in a speech:
“We have unfortunately entered the Anthropocene age in which nature is being destroyed by man. In that context, more than ever, it is right and proper for the Court to continue with the line of authority enabling it to enshrine the right to live in a healthy environment. However, the environmental emergency is such that the Court cannot act alone. We cannot monopolise this fight for the survival of the planet. We must all share responsibility.”2Speech given on 31 January 2020 at the annual opening of the Court. See also the president’s speech at the high-level conference “Environmental protection and Human Rights”, February 28 2020 (in French). Both are available on www.echr.coe.int.
In October 2020, the new President of the ECtHR, Roberto Spano, stated in a speech on climate that:
“we are facing a dire emergency that requires concerted action by all of humanity. For its part, the European Court of Human Rights will play its role within the boundaries of its competences as a court of law forever mindful that Convention guarantees must be effective and real, not illusory.”
The ECtHR has not, to date, decided any cases on climate change. As of April 2021, the Court has communicated two climate cases from applicants in Portugal and Switzerland. In Norway, the Supreme Court in December 2020 ruled in favor of the Government in a climate action against exploration licenses in the Arctic. In December 2019, the Supreme Court of the Netherlands ruled in the Urgenda case that the country’s government had a human rights obligation to increase their targets for greenhouse gas emissions reductions, and similar climate actions based on the European Convention on Human Rights (ECHR) and other human rights have been brought in several other countries. In recent years, the UN Human Rights Committee has made decisions on individual appeals and general comments concerning environmental damage and climate change.3See Chapter 6 of the report on climate in the UN human rights system and Chapter 8 on climate displaced persons, as well as Chapter 9 on human rights-based climate actions. The UN High Commissioner for Human Rights considers climate change to be the greatest threat to human rights, ever.4See the opening remarks made by the UN High Commissioner for Human Rights, Michelle Bachelet, at the 42nd session of the UN Human Rights Council on 9 September 2019, available on www.ohchr.org, and the speech by the Council of Europe’s Commissioner for Human Rights, DunjaMijatović, at a high-level conference on environmental protection and human rights on 27 February 2020, available on www.coe.int. The Council of Europe’s Commissioner for Human Rights has also expressed concern that climate change and environmental decline threaten human rights.
Against the backdrop of these and other similar developments, NIM has in the past year chosen to highlight climate change and human rights. Our work has been based on a recognition of the fact that this is a field of great societal importance, where deeper insight is required.5The need for more research on climate and human rights in Norway in light of an expected legal development has been pointed out by Askeland, Cyndecka, Holmøyvik, Konow, Nordtveit and Schütz, “Klimarettslege utfordringar for rettsvitskapen” in Giertsen, Husabø, Iversen and Konow (eds.), Rett i vest. Festskrift til 50-årsjubileet for juristutdanningen ved Universitetet i Bergen (2019) pp. 177–196. The link between climate and human rights also raises several issues that have yet to be clarified, and of which this report can contribute to a better understanding.6See in particular Chapter 4 of the report on Article 112 of the Constitution and Chapter 5 on the European Convention on Human Rights.
The purpose of the report is twofold. Firstly, we want to contribute knowledge ourselves – about current law and recent developments in the field. Secondly, we hope that the report may stimulate further debate.
1.2. Some delimitations
NIM’s main purpose is to promote and protect human rights pursuant to the Constitution, the Human Rights Act and other legislation, international treaties and international law in general.7Act relating to the Norwegian National Human Rights Institution Section 1, second paragraph. See Section 3 for the Institution’s functions. That is to say that the basis for our work is the nature of human rights obligations. As far as this report is concerned, this means that it is beyond NIM’s mandate to have an opinion on the Government’s general climate policy. At the same time, human rights can create legitimate boundaries or restrictions on the political scope of action, in the field of climate change as much as in other fields. In accordance with our mandate, we will discuss these boundaries in the report. Such boundaries, however, are rarely unambiguous. This is especially true in an area of law such as this, where factual and legal developments occur rapidly. It is also important to emphasise that a human rights approach to the climate crisis is only one among several perspectives. Human rights alone cannot provide an answer to the climate crisis.
In general, the report will not deal with other aspects of the environment than those concerning global warming. Some of the discussions, for instance on the ECHR, will nevertheless build on case law concerning more local pollution and other forms of environmental damage that may by comparison be relevant to climate issues. In addition, some of the questions raised, such as the interpretation of Article 112 of the Constitution, may also have relevance to other types of environmental issues.
Human rights are based on the fundamental principle that States have a responsibility to respect and safeguard human rights only within their own jurisdictions.8See e.g. The European Convention on Human Rights (ECHR). Art. 1. The concept of jurisdiction, however, has been interpreted to encompass situations of effective control over territory or persons outside the State’s territory. The question of jurisdiction and climate change can raise difficult and legally unresolved issues. The Supreme Court recently held that Section 112 of the Constitution encompass exported emissions from Norwegian oil and gas, since the combustion cause harm on Norwegian territory. These types of issues will be dealt with in the report. Issues such as burden-sharing and international solidarity, however, will not be addressed.
1.3. The report’s structure
In the following chapters, we will first address two basic prerequisites for the substantive legal discussions in the remainder of the report. The first is the scientific evidence base for climate change. In Chapter 2, From emissions to climate risk, CICERO – the Center for International Climate Research, on commission from NIM, describes the current evidence basis for climate science. The second prerequisite is the conceptual Link between climate change and human rights, which will be addressed in Chapter 3. In addition to addressing some general challenges with viewing climate from a human right perspective, the chapter provides a more in-depth justification for the topics highlighted in this report.
Subsequent chapters address the various human rights affected by climate change. Chapter 4 addresses Article 112 of the Constitution, Chapter 5 the European Convention on Human Rights, and Chapter 6 the UN human rights system. In addition to these substantive provisions, Chapter 7 will address procedural rights covered by these three legal bases.
In Chapter 8, we look at the development of human rights obligations to provide international protection to climate displaced persons. In chapter 9, we keep our eyes on international developments when presenting central human rights-based legal cases. The cases we refer to relate mainly to the interpretation of international conventions that Norway is bound by, and these cases can therefore indirectly contribute to how the Norwegian obligations may be understood. In the final chapter, we consider the way forward.