Foreword

This report is an updated and revised English version of the report “Klima og menneskerettigheter”, published by the Norwegian Institution for Human Rights (NIM) in October 2020. Chapter 4 on Section 112 of the Norwegian Constitution has been revised to reflect the interpretations adopted by the Norwegian Supreme Court in a plenary judgement of December 22^nd, 2020. This chapter, along with other parts of the report pertaining to national law, have been significantly shortened for the benefit of international readers. Chapter 5 on the European Convention on Human Rights (ECHR) has been updated, to reflect new developments in national jurisprudence across Europe and recently communicated climate cases before the European Court of Human Rights in Strasbourg. Chapters 8 and 9 on climate displaced persons and international climate cases have also been updated, to account for new developments in the area.

Abbreviations

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

IPCC

Intergovernmental Panel on Climate Change

ICCPR

International Covenant on Civil and Political Rights

UNFCCC

United Nations Framework Convention on Climate Change

ICESCR

International Covenant on Economic, Social and Cultural Rights

CO₂

Carbon dioxide

Summary

Who is NIM?

The Norwegian National Human Rights Institution (Norges institusjon for menneskerettigheter, NIM) is an independent public body established by the Norwegian Parliament to strengthen and protect human rights in accordance with the Constitution, the Human Rights Act and international human rights law.

What is the link between climate and human rights?

Climate change is the greatest threat to the realisation of human rights, according to the UN High Commissionar for Human Rights. The most fundamental link between climate change and human rights relates to the commitment to prevent further climate change from occurring. Human rights may also require States to adapt to climate change, and to undertake specific assessments when it comes to certain climate actions. The theme of this report is the commitment to prevent further climate change.

What scientific premises are NIM’s assessments based on?

NIM has commissioned the Center for International Climate and Environmental Research Oslo (CICERO) to clarify the link between greenhouse gas emissions and climate risk. CICERO describes how temperatures have been greatly altered by human activity compared to natural variability in most places. Continued climate impact, especially from CO₂ accumulating in the atmosphere and thereby causing further warming in both the short and long term, immediately contributes to exacerbating many types of climate risks. Climate risk is generally considered to increase in step with global warming and is, for instance, significantly greater at 2 degrees than at 1.5 degrees. Climate change is already contributing to an increase in many types of climate risk, for both nature, society and people. Further emissions, including from Norway, will intensify this risk, both locally and globally.

Does Section 112 of the Constitution grant climate rights?

Section 112 of the Constitution determines that everyone has a right to a healthy environment and an environment in which productivity and diversity is preserved. According to a recent Supreme Court judgement,¹HR-2020-2472-P. these rights apply not only in relation to the environment, but also in relation to climate. The provision encompasses exported greenhouse gas emissions from Norwegian oil and gas production. The protection under Section 112 is both of a substantive and a procedural nature. The Supreme Court confirmed that both the substantive and the procedural rights are justicable. However, there will be a high threshold for overruling decisions that affect substantive rights, when these decisions were made by or with the consent of the Parlimement.

Does the European Convention on Human Rights (ECHR) establish a duty to avert climate change?

Environment in ECtHR practice. The ECHR does not include an explicit right to a clean and quiet environment. However, the European Court of Human Rights (ECtHR), which interprets the ECHR with binding effect for Contracting States, has in nearly 300 instances applied rights from the Convention in environmental cases. The ECtHR has not yet decided on appeals concerning greenhouse gas emissions. Whether the ECHR establishes a positive commitment to preventing dangerous climate change must be answered based on ECtHR methods in light of existing practice and the purpose of the Convention.

The right to life. Article 2 of the ECHR protects the right to life and obliges the State to protect against real and imminent danger to loss of life through environmental hazards. According to ECtHR practice, this protection includes general community risk. There is no doubt that the risk of dangerous climate change is real, but it is disputed whether the risk is immediate. In other types of cases, the ECtHR has considered hypothetical risks up to 20-50 years into the future within the scope of protection. Greenhouse gas emissions immediately change the balance of the atmosphere, with long-term effects from CO₂ in particular. The risk of dangerous climate change is thus immediate and latent. In NIM’s assessment, this indicates that Article 2 of the ECHR applies. The report argues, based on ECtHR practice and international law, that the fact that several States are responsible for climate change does not provide exemption from liability.

The right to a home and privacy. Article 8 of the ECHR commits the State to protect the health and well-being of individuals in cases where a “sufficiently close link” has been established between a future environmental hazard and privacy interests or homes. The ECtHR has applied the provision to environmental hazards where the risk is contingent on several hypothetical causal chains, see e.g. Hardy and Maile. The risk of climate change is, as mentioned above, immediate and latent. It has been well established by UN Intergovernmental Panel on Climate Change reports and national reports that greenhouse gas emissions cause climate change. The link is therefore “sufficiently close”, in NIM’s view. The provision is therefore generally applicable.

Adequate and necessary measures. The report argues that the Government will not have fulfilled its positive duty to safeguard the rights enshrined in Articles 2 and 8 of the ECHR if decision-making processes prior to point source emissions do not comply with ECtHR requirements. In NIM’s view, neither will the Government have fulfilled its duty to safeguard if adequate and necessary measures have not been taken to avert the risk. What are sufficient measures can, by ECtHR methods, be determined based on other international law rules and consensus. There is a well-established international consensus that warming must be limited to 1.5 degrees Celsius to avoid harmful climate change. According to the Intergovernmental Panel on Climate Change (IPCC), this will entail cuts of at least 25 percent by the end of 2020, and at least 45 percent by 2030, with net zero emissions by 2050. On the basis of this, the Dutch Supreme Court has concluded that emissions reductions of at least 25 per cent by the end of 2020 are necessary to avoid violating Articles 2 and 8 of the ECHR.

Burden and margin of appreciation. An impossible or disproportionate burden cannot be imposed on individual States, and the ECtHR allows States a margin of appreciation (discretion) when considering measures. It is not clear whether States can expect a similar margin of appreciation in climate issues as the ECtHR has allowed in cases of environmental hazards that are “beyond human control”.

Can environmental associations appeal ECHR violations? Nationally, environmental protection associations have the right to invoke the ECHR by proxy, see Sections 1-3 and 1-4 of the Disputes Act . However, the right to appeal to the ECtHR is reserved for appellants who claim to be directly or indirectly affected by the violation. Where necessary to ensure the effective enjoyment of rights, the ECtHR has nevertheless accepted appeals from organisations over abstract violations without individualised victims, such as mass storage of data and secret surveillance. The report argues that it can therefore not be ruled out that the ECtHR could allow environmental organisations to appeal on personal rights violations that protect against harmful climate change.

Do UN human rights conventions grant rights concerning climate change?

Greatest threat. The UN High Commissioner for Human Rights considers climate change the greatest threat to human rights. The UN Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), has stated that climate change is one of the most urgent threats to the right to life and well-being of living and future generations. In environmental appeals, the Committee has stated that States must implement “all appropriate measures” to address the dangers of “general conditions in society,” including threats from pollution. The Committee has stated that the right to life can provide a protection against the real risk of life-threatening climate change, see Teitiota.

Climate appeals to UN agencies. UN human rights committees have received several individual appeals concerning climate change. One of the appeals has been made by Greta Thunberg and other children to the UN Committee on the Rights of the Child, alleging that the countries cited have violated the UN Convention on the Rights of the Child by not implementing emissions cuts in line with the 1.5-degree target to protect children’s right to life, health, culture and the best interests of the child. The appeal has not been settled.

Recommended halt to oil exploration. UN human rights committees have increasingly referred to greenhouse gas emissions in their recommendations to Norway. The UN Special Rapporteur on human rights and the environment has argued that Norway has a human rights obligation to end oil exploration.

Are climate-displaced people entitled to international protection?

Climate-displaced people do not meet the conditions for being considered refugees under the Refugee Convention. However, in an appeal against New Zealand, the UN Human Rights Committee has stated that climate displaced persons could be entitled to international protection under Article 6 of the ICCPR, which guards against return in the event of a real risk of loss of life.

The ECtHR has not yet decided whether climate displaced persons are protected under Article 3 of the ECHR. The provision guards against deportation in the event of real risk of inhumane or degrading treatment in the country of origin. The ECtHR has previously stated that the protection applies regardless of the type of risk in question, and can be applied in a situation of extreme need “incompatible with human dignity”, see S.S. This may provide the basis for climate displaced persons in precarious situations being entitled to protection, but the issue must be considered unresolved.

What is the status of international climate actions based on human rights?

More than 1500 climate-related actions are in progress around the world, and at least 41 of them are based on human rights. The number is increasing. As of today, there are 11 ongoing and settled actions based on the ECHR, three appeals based on UN human rights conventions, one based on the EU Charter of Fundamental Rights, and several based on national human rights provisions. The rights most often invoked are the right to life, privacy, home, health, and property, as well as the right to an environment.

Lawsuits based on the ECHR have succeeded in the Netherlands, but have been rejected on procedural grounds in Switzerland and Ireland. The Irish action nevertheless succeeded based on national rules. The Swiss case has been appealed to the ECtHR. Lawsuits based on ECHR against planning decisions which would not in and of themselves result in GHG emissions have also failed in Norway and the UK. A common feature of several of the actions is disagreement over standing to try the cases before the courts, but agreement on the link between greenhouse gas emissions and climate change.

How will NIM work on human rights-related climate commitments going forward?

NIM will monitor this area of human rights closely going forward. While this report has assessed obligations placed on governmental authorities, NIM will in the future also monitor companies’ compliance with the duty of care in the field of climate change, see the UN Guiding Principles on Business and Human Rights (UNGP).

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 42^nd 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.

2. From Emissions to Climate risk – Scientific Knowledge Base

This chapter is written by CICERO – the Center for International Climate Research¹The chapter is written by CICERO Center for International Climate Research (hereinafter CICERO), and is dated 26 August 2020. Authors are Bjørn H. Samset and Marianne T. Lund.  on commission from the Norwegian National Human Rights Institution (NIM).²A basic premise for discussions about the relationship between climate and human rights is an understanding of the scientific link between greenhouse gas emissions and climate change. Since NIM’s expertise is human rights, we have commissioned CICERO to summarise and explain the scientific knowledge base in Chapter 2 of the report. CICERO’s descriptions form the factual basis for our legal discussions in the rest of the report.

2.1. Introduction

The chapter summarises the scientific basis for linking greenhouse gas emissions and other man-made influences on the global climate to an increased risk of adverse and harmful effects on nature and society. The main source for the chapter is the Fifth Assessment Report from the Intergovernmental Panel on Climate Change (IPCC),³ Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge, United Kingdom and New York, NY, USA, Cambridge University Press (IPCC AR5 (2013)). as well as updates from three recent special reports.⁴ Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate. World Meteorological Organization, Genève, Switzerland (IPCC SR15 (2018)); Climate Change and Land. An IPCC special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems. World Meteorological Organization, Geneva, Switzerland (IPCC SRCCL (2019)) and Ocean and Cryosphere in a Changing Climate. An IPCC Special Report on the Ocean and Cryosphere in a Changing Climate. World Meteorological Organization, Geneva, Switzerland (IPCC SROCC (2019)). Some recent scientific literature has also been used, with references in footnotes.

The chapter’s main conclusion can be summarised as follows:

Any human activity that changes the climate, locally or globally, from the State to which society and nature are currently adapted, can lead to an increase in climate-related risk. Natural variations, which are a part of the climate to which we are accustomed, make society relatively resilient against minor changes. In most places, however, human activity has already significantly changed the temperature relative to these variations.⁵Hawkins, et al., “Observed Emergence of the Climate Change Signal: From the Familiar to the Unknown,” Geophysical Research Letters vol. 47 (6) (2020). Continued climate impact, especially from CO₂ accumulating in the atmosphere and thereby causing further warming in both the short and long term, therefore immediately contributes to exacerbating many types of climate risks. Climate risk is generally considered to increase in step with global warming and is, for instance, significantly greater at 2 degrees than at 1.5 degrees.⁶SR15 (2018). Climate change is already contributing to an increase in many types of climate risks, for both nature, society and people. Further emissions, including from Norway, will intensify this risk, both locally and globally.

In the following, we elaborate on and substantiate these conclusions.

2.2. Climate change, natural variability and climate risk

Climate change is now observed throughout the climate system, from deep down in the oceans to high up in the atmosphere. Today, around the year 2020, the global surface temperature is about one degree higher than in pre-industrial times.⁷0.87 degrees for the decade 2006–2015, relative to 1850–1900, followed by four years all measured to be warmer than this average. See IPCC SR15 (2018) and WMO (2020). The trend over the past 50 years has been a global warming of just under 0.2 degrees per decade. This increase in temperature, and the recorded increase in the amount of CO₂ in the atmosphere over the same period, has occurred very rapidly from a geological time perspective. The current level of CO₂ in the atmosphere is also higher than it has been in a million years.⁸See illustration of development over time at the end of the chapter. Significant changes have also been measured across the climate system, including in the oceans (warming, sea level rises, acidification), on land (heat waves, extreme rainfall, tropical hurricanes) and in the frozen parts of the Earth (melting glaciers, ice loss in Greenland and Antarctica, Arctic sea ice decline, reduced snow cover during winter in the Northern Hemisphere).

Global warming, and the other climate changes, are mainly attributable to man-made influence, with only a small contribution from natural causes such as variations in solar radiation, volcanoes and cyclic changes in ocean currents. Of the man-made impacts, greenhouse gas emissions are by far the most forceful,⁹CO₂, methane, nitrous oxide, ozone and synthetic gases; a total of around 1.5 degrees in recent model studies (Tokarska et al.,”Past warming trend constrains future warming in CMIP6 models,” Science Advances vol. 6 (12) (2020)). while emissions of aerosols (particles suspended in the air, such as soot, dust and sulphur compounds) in sum have a cooling effect, thereby so far keeping global warming somewhat at bay (cooling at around 0.5 degrees).¹⁰Tokarska et al. (2020); Samset et al, “Climate Impacts From a Removal of Anthropogenic Aerosol Emissions”, Geophysical Research Letters vol. 45 (2) (2018) pp. 1020-1029.

(IPCC AR5)The degree of natural variability, or how much temperature, precipitation and other parts of the weather normally vary from day to day, season to season and year to year, is as important a part of the climate as the average values. Nature and society are normally adapted to both. The amount of variability, however, is very different in different parts of the world, and is generally higher at high latitudes (as in Norway) than closer to the equator.¹¹Hawkins, et al. (2020). At the same time, climate change occurs at different rates in different places. Warming also occurs faster in the north than near the equator, and faster on land than over oceans. For instance, an observed warming of between 3 and 5 °C has been reported from 1971 to 2017 at measuring stations in Svalbard.¹²Hanssen-Bauer, et al. (eds.), Climate in Svalbard 2100 – a, knowledge base for climate adaption, NCCS report no. 1 2019. Available on https://www.miljodirektoratet.no/globalassets/publikasjoner/M1242/M1242.pdf Climate change affects averages, but can also change variability. See Figure 1, which shows an example of how a warming and a simultaneous change in variability can lead to an increase in very hot days, while there are still as many cold days as before.

Society’s climate risk is mainly determined by three factors: the physical climate change (such as stronger heatwaves or more intense extreme rains), how exposed we are to the change (whether it happens in areas with high population density, or far out at sea), and how vulnerable we are to it (whether agriculture and infrastructure have already adapted to the changing climate, or whether conditions go beyond the limits of tolerance). Because natural variations will always occur on top of the average properties of the climate, even relatively small human-induced changes to the mean can lead to weather and climate events that are beyond those which society is familiar with and adapted to.¹³Hawkins, et al. (2020).

2.3. From emissions to climate change, in the short and long term

Recent research on the effect of climate change on nature and society shows that while a higher temperature is not the direct cause of all types of climate-related risks, the degree of global warming is nevertheless a good measure of the degree of climate risk. A central question is therefore how man-made emissions contribute to surface warming, in the short and long term. The physical processes linking emissions to warming are scientifically well established, and the remaining uncertainties about how strongly the climate responds to different types of emissions are limited.

Some types of emissions, such as soot, sulphur compounds and other forms of air pollution, have a direct impact on solar irradiance. The particles can reflect the solar radiation back into space (by themselves or by making clouds whiter), or absorb solar radiation before it reaches the Earth’s surface. The ground thereby cools quickly. Most of these emissions, however, remain in the atmosphere for only a few days. If, for instance, we removed all air pollution, the response of the climate would therefore in principle manifest within a few weeks to months. However, see the comments on the natural variability and inertia of the climate system further down.

An increase in the amount of greenhouse gases, as a result e.g. of the burning of oil, coal and gas, also has a rapid effect. A stronger greenhouse effect enhances the absorption of thermal radiation (heat) from the Earth’s surface, similar to the way a down jacket retains heat from the body. Like with a down jacket, however, it takes a little time for the full effect to be felt. If we abruptly doubled the amount of CO₂, for instance, we could in the long term expect around 3 °C global of warming, according to the latest research.¹⁴Sherwood, et al., “An assessment of Earth’s climate sensitivity using multiple lines of evidence,” Reviews of Geophysics (2020). Around half of this warming would have occurred during the first decade, much of the remaining warming over the next hundred years, and then a small remnant on a millennial scale.¹⁵Ibid.

In reality, the greenhouse effect increases slightly each year as emissions continually increase (except in the pandemic year 2020), which in turn contributes to increased warming. The warming we register today, from year to year, is the sum of all these consecutive influences over time on climate, combined with natural variations from year to year of a few tenths of a degree.

To simplify this complex picture, scientists have concluded that there is a relatively direct relationship between the sum of all CO₂ emissions from pre-industrial times until we cease producing them and how strong the eventual global warming will be. See Figure 2. Based on this, it is possible to estimate the level of future warming, under a given assumption about future emissions of CO₂ – and thus, as we will see, also how significant the climate risk will be. The key message, however, is this: All emissions affect the climate from the moment they are released into the atmosphere, but some – especially CO₂– also have a long-term effect.

The long-term evolution of climate change depends on how emissions continue to progress, and whether we at some point in the future develop technology or actively manage the environment in such a way as to remove greenhouse gases from the atmosphere on a large scale. As of today, all the scenarios applied by the IPCC in SR15, and where we remain within the goals of the Paris Agreement, depend on such technology or management in the second half of this century. This will require significant upscaling, development, and improvements of technology. Not even the most climate-optimistic scenarios, where human-made greenhouse gas emissions and carbon uptake are in balance already in 2050 and emissions turn negative with the help of technology thereafter, show a notable reduction in the global temperature below 1.5 to 2.0 degrees before 2100. Higher emission scenarios show continued warming for several hundred years. The natural carbon cycle, along with any form of technological or otherwise elevated atmospheric carbon removal, will drive the temperature down again in the long term, but only in a situation where anthropogenic emissions are net zero or negative. Technological carbon removal to reduce temperatures must therefore come in addition to that used to offset residual anthropogenic emissions. Climate change can therefore be considered permanent and irreversible on all timescales relevant to social and political development.

2.4. From climate change to climate risk

When current emissions have now been linked to continued climate change, the next step is to link climate change to climate risk. Today, this is often done through so-called “burning ember” charts; coloured columns where the level of global warming increases upwards, and the darker colour indicates higher risk. See an example in Figure 3, taken from two of the IPCC’s special reports from 2018 and 2019. At the end of the chapter we include the summary figures on risk from all three special reports. Together, they provide a thorough picture of how climate risk for different human and natural systems increases with the degree of warming.

Figure 3 has three parts. Part (a) and (b) are from the Special Report on 1.5-degree warming. Part (a) shows an overall risk assessment for aggregated changes, such as extreme weather and particularly harmful individual events. Part (b) shows more detailed assessments of the impact of climate change on coral reefs and on heat-related disease and death in humans. Part (c) is from the Special Report on Climate Change and Land, and shows risks related to water shortages in dry areas, large fires, loss of permafrost, failed harvests in tropical areas and unstable food supply. Below part (c) is an indication of which foundations of society is most at risk: food, livelihood, health etc. Note that the columns here extend to greater warming than in parts (a) and (b). (See also the appendices for the full figures.)

There are two overarching messages in these figures. The first is that the risk steadily increases with global warming, sometimes faster, other times somewhat slower. The second is that for the current level of warming (calculated for the period 2006–2015), indicated by the grey horizontal band, moderate climate risk has already been established in most cases. We are therefore already in a situation where climate change poses challenges for nature, society, health and life, in the form e.g. of fires and heatwaves. Any further warming, from further emission of greenhouse gases or other causes, will heighten this risk. In many cases, two degrees of global warming could be enough to move us into the high-risk area, defined as “severe and widespread impacts/risks”, where risks include irreversible consequences such as tipping points in the climate system (e.g. self-reinforcing emissions of methane from tundra in the north, or changes to global ocean currents).

2.5. Society’s impact on risk

As mentioned above, climate risk is determined by three factors: physical climate changes, exposure and vulnerability. The physical changes are largely determined by how warm it gets, and consequently by how much greenhouse gases we emit in the future. Figure 4 shows the span of temperature development up until 2100 in the scenarios used in IPCC AR5. Here, RCP8.5 is an assumption of continued high, and increasing, greenhouse gas emissions (with an associated CO₂ concentration in 2100 of around 1200 ppm), while RCP2.6 (CO₂ concentration in 2100 of 400 ppm) assumes reductions that overall are in line with the ambitions of the Paris Agreement. The figures are relative to the average of temperatures in 1986–2005, where global warming was already at 0.61 °C. In order to arrive at total warming from pre-industrial times, this number must therefore be added. The figure shows that we can expect warming between 2.0 and 4.5 °C by 2100, as the two scenarios shown can be roughly considered the upper and lower range of what might happen to emissions. By comparison, scientists estimate that the future emission cuts announced by the world’s nations before the Paris Agreement would have resulted in a warming of around 3°C by 2100 (relative to 1850–1900), if successfully implemented but not further strengthened.¹⁶NB: These scenarios look only at man-made emissions and the expected behaviour of the carbon cycle, and do not include any abrupt feedback/tipping points. These, however, are included in the other parts of the risk assessments below.

The risk, especially exposure and vulnerability, is nevertheless also affected by societal factors. In later reports, the IPCC has used scenarios that describe possible future socioeconomic developments, in addition to emissions and climate change. Studies of these show that even for the same degree of warming, and thereby comparable physical changes, the climate risk will be significantly lower in a society characterised by international cooperation and sustainability than in a world with a high degree of conflict and resource use. At the same time, socioeconomic development alone is not sufficient to avoid elevated climate risk. See Figure 5, which also describes the two illustrative scenarios for socioeconomic development (called SSP1 and SSP3).

2.6. Norwegian emissions and Norwegian risk

Climate change is a global issue. Emissions of greenhouse gases such as CO₂ and methane disperse throughout the entire atmosphere, regardless of their origin, causing changes both locally and globally. Climate risk in any given place, such as Norway, therefore depends on the degree of global warming, on which physical changes are most prominent regionally and locally, and on how exposed and vulnerable society is where they occur. For Norway, extreme rain, floods, landslides, wildfires, migration of new species and diseases and agricultural challenges have been mentioned, but this list is not exhaustive. Furthermore, Norway is also vulnerable to risks associated with major changes abroad, affecting trade, security and international relations. Quantifying Norway’s climate risk in detail is an ongoing activity among scientists, authorities and corporations.¹⁷Se e.g. https://klimaservicesenter.no/faces/desktop/index.xhtml.

In 2019, 42 million tonnes of CO₂ were emitted from Norwegian territory (total greenhouse gas emissions of 50 million tonnes of CO₂ equivalents).¹⁸SSB 2020, https://www.ssb.no/klimagassn/. This represents approximately 0.12% of the total man-made CO₂emissions of 36 trillion tonnes of CO₂ that same year.¹⁹Global Carbon Project 2019, www.globalcarbonproject.org/carbonbudget. In comparison, the burning of oil and gas extracted from Norwegian territory and sold abroad causes approximately²⁰Figures for 2019, based on estimates from the Global Carbon Project (see previous note). ten times as much emissions, which is more than 1% of the global total. Emissions directly from Norwegian territory, and from use of the oil and gas Norway produces, both contribute to increasing climate risk – globally and locally.

2.7. Additional figures

Risk chart from IPCC’s three special reports from 2018 and 2019:

How the level of global warming affects impacts and/or risks associated with the Reasons for Concern (RFCs) and selected natural, managed and human systems²¹Special Report: Global Warming of 1.5 °C (IPCC SR15).

Five Reasons For Concern (RFCs) illustrate the impacts and risks of different levels of global warming for people, economies and ecosystems across sectors and regions.

A. Risks to humans and ecosystems from changes in land-based processes as a result of climate change²²Special report on Climate Change and Land(IPCC SRCCL)

Increases in global mean surface temperature (GMST), relative to pre-industrial levels, affect processes involved in desertification (water scarcity), land degradation (soil erosion, vegetation loss, wildfire, permafrost thaw) and food security (crop yield and food supply instabilities). Changes in these processes drive risks to food systems, livelihoods, infrastructure, the value of land, and human and ecosystem health. Changes in one process (e.g. wildfire or water scarcity) may result in compound risks. Risks are locationspecific and differ by region.

B. Different socioeconomic pathways affect levels of climate related risks²³Special Report on Climate Change and Land(IPCC SRCCL)

(d) Impact and risks to ocean ecosystems from climate change²⁴Special Report on the Ocean and Cryosphere in a Changing Climate (IPCC SROCC)

3. The Link Between Climate Change and Human Rights

Climate change has enormous consequences for nature and the environment. This chapter conceptualises the link between climate and human rights.

3.1. Introduction

There is a clear link between climate risk and the interests that are protected by human rights.¹Bugge, Lærebok i miljøforvaltningsrett (5^th ed., 2019) p. 113. A damaged climate system will affect nature as we know it, and lead to more droughts, extreme rainfall, storms, sea level rises, heatwaves, wildfires, landslides and floods. This will again have consequences for fundamental human interests.²See Chapter 2 of the report, written by CICERO on commission from NIM. Both people and buildings will fall victim to landslides and floods, the food supply will be threatened, groundwater may become undrinkable as a result of salination, and new diseases will spread.³See Chapter 6 of the report on climate in the UN human rights system. In both the short and long term, a damaged climate system could lead to rising tensions globally. Climate change could also lead to many people being displaced from their homes.⁴This issue is discussed in more detail in Chapter 8 of the report on climate displaced persons.

At the same time, many would consider it misguided to justify environmental protection with an “anthropocentric” or human perspective, rather than attributing an intrinsic value to nature.⁵See more detailed criticism of the ecophilosophical criticism of human rights in Bugge (2019) p. 114. We will not enter into this debate here, but point out that human rights can include environmental interests, as illustrated in the jurisprudence of the Inter-American Court of Human Rights (IACtHR). Firstly, human rights can provide protection extending beyond individuals. Articles 2 and 8 of the ECHR, for instance, can provide protection against generalised risks in environmental matters, and Article 112 of the Constitution protects the intrinsic value of nature. Secondly, human beings themselves are part of nature. In the climate field, this is particularly evident. One cannot therefore meaningfully protect human life and health without consideration of climatic conditions for life and health.

Another objection is that climate change is a political issue with such complex causes and effects that it is not suitable for human rights doctrines. Before entering into this discussion (Section 3.3), we will outline how the connection between climate change and human rights manifests in three relations; prevention of climate change (3.2.1), adaptation to climate change (3.2.2) and as boundaries to climate action (3.2.3). The overview will explain why this report leaves certain human rights issues aside for now, and concentrates on issues that appear unresolved.⁶See the report’s introduction.

3.2. Three human rights aspects

Within international climate cooperation, it is common practice to refer to two different types of actions required to deal with climate change, namely adaptation and mitigation. The Intergovernmental Panel on Climate Change (IPCC) has established various working groups to contribute to its reports, with Working Group II looking at how we need to adapt to climate change to avoid harm, and Working Group III looking at what emissions reductions are required for the climate system to stabilise before the average warming reaches 2 degrees Celsius. Both of these types of actions are covered by the Paris Agreement, where Article 4 deals with reducing greenhouse gas emissions, while Article 7 deals with adaptation to inevitable changes. This distinction is also often referred to in the context of Norwegian climate change policies, e.g. in NOU 2018: 17 Klimarisiko og norsk økonomi.⁷NOU 2018: 17 Klimarisiko og norsk økonomi, p. 14. In the following we will show how these two situations also have a human rights aspect. In addition, we will highlight how human rights have been emphasised as an important barrier in the choice of means to achieve adaptation and mitigation.

3.2.1. Mitigation of climate change

The relationship between human rights and climate that is most fundamental and, at the same time, the least explored is the responsibility for limiting climate change. This relationship concerns whether the government has a human right obligation to fight climate change, i.e. to refrain from new large greenhouse gas emissions and reduce current emissions.

The question of whether States have human rights obligations to avoid climate change is not new, and today a comprehensive international legal framework exists in this area.⁸The UN Framework Convention on Climate Change (UNFCCC) was negotiated at the Rio Conference in 1992. This Convention has subsequently been operationalised through the Kyoto Protocol, which regulated emissions from 2008 to 2012. In the Doha Agreement, Norway committed to extend the Kyoto commitment for a second term until 2020. Today, the most important international climate agreement is the Paris Agreement, which was negotiated in 2015. Norway’s participation in international climate cooperation is incorporated into Norwegian law through the Climate Change Act of 2017. Here, Norway has committed to becoming a low-emission society in 2050 in line with the Paris Agreement. This law is based on the two agreements on climate policy from the Norwegian Parliament in 2008 and 2012. The fact that there is a link between human rights and climate is directly evident from climate cooperation. The Paris Agreement’s preamble, paragraph 11, contains a concrete recommendation that States should “consider” their obligations under “human rights” and “intergenerational equity” when taking action to reduce greenhouse gas emissions. The UN Framework Convention on Climate Change (UNFCCC) Article 1 defines “adverse effects of climate change” as changes that will have “significant deleterious effects” on inter alia  “human health and welfare”.

In the 1972 Stockholm Declaration, the first part of the first principle adopted said the following:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”⁹Declaration of the United Nations Conference on the Human Environment, 1972.

A few months earlier, the first proposal for an environmental provision in the Norwegian Constitution had been put forward – the proposal did not get a majority, but started a process leading up to the adoption of what became Article 110b (currently Article 112) of the Constitution.¹⁰Regarding the proposal from January 1972, put forward by Helge Seip, member of the Norwegian Parliament, see Bugge, “Grunnlovsbestemmelsen om miljøvern: Hvordan ble den til?” in Fauchald and Smith (eds.) Mellom jus og politikk. Article 112 of the Constitution (2019) pp. 19–40, at pp. 20–21. In 1987, the World Commission on Environment and Development released its report “Our Common Future,” which, among other things, proposed a set of legal principles for environmental protection and sustainable development. The first legal principle proposed was that “[a]ll human beings have the fundamental right to an environment adequate for their health and well being.”¹¹Report of the World Commission on the Environment and Development, Our Common Future (1987). In the 1990s, Article 110b of the Constitution was adopted in Norway (1992) and the Aarhus Convention in Europe (1998), and in addition, the issue of climate and human rights was discussed by legal scholars.¹²Fauchald, “Miljø og menneskerettigheter”, Kritisk juss 1989 p. 3–17; Fauchald, “Bør retten til miljø anerkjennes som menneskerettighet?”, Retfærd 1991 no. 53, p. 68–70; Bugge, “’Bærekraftig utvikling’ og andre aktuelle perspektiver i miljøretten”, Lov og Rett 1993 no. 8, pp. 485–498, Section 4.1.

Ever since 2008, the UN human rights agencies have dealt with the link between human rights and climate change.¹³See Chapter 6 of the report on climate in the UN human rights system. In 2016, the UN Special Rapporteur on Human Rights and the Environment pointed out that human rights also relate to the issue of “how much climate protection to pursue.”¹⁴A/HRC/31/52, paragraph 33. In recent years, the issue of climate change and human rights has increasingly been raised in legal cases before national and international fora.¹⁵See chapter 9 of the report on climate-relate legal cases based on human rights. These cases have necessitated a clarification of what the legal obligations in this area entail. In Chapters 4, 5, 6 and 7, NIM will discuss the commitments to avert climate change that result from the Constitution and the international conventions on human rights that Norway has ratified.

3.2.2. Adaptation to climate change

Another human rights aspect of climate change concerns the obligation to make local adaptation to the climate change that already has or will inevitably occur.  This obligation is to a large extent already settled in case law. Given the circumstances, States have an obligation to protect citizens from specific and predictable threats from environmental and natural disasters.¹⁶A/HRC/31/52, paragraph 37. Although several natural disasters are inevitable, it is clear that much can be done to avert impact on people’s lives and rights.¹⁷See e.g. A/64/255, paragraph 51. Various UN agencies have addressed, among other things, the importance of disaster planning,¹⁸UN’s Human Rights Council, CCPR/C/GC/36, paragraph 26, and UN’s Committee on the Elimination of Discrimination against Women, CCPR/C/GC/37, Gender-related dimensions of disaster risk reduction in the context of climate change. that food supply systems need to be reformed,¹⁹The UN Special Rapporteur on the right to food, see A/HRC/25/53. and that residential houses must be secured through risk analyses for urban planning and construction.²⁰The UN Special Rapporteur on adequate housing, see A/64/255, paragraph 51.

The European Court of Human Rights (ECtHR) has also on several occasions heard cases relating to States’ obligations in environmental disasters.²¹ Budayeva et al. v. Russia and Özel et al. v. Turkey. For more, see Chapter 5 of the report on the European Convention on Human Rights and climate. Similar obligations can likely be derived from the parallel provision of rights in Articles 93 and 102 of the Constitution, as well as Article 112. National adaptation is therefore an important human rights obligation in the face of climate change. However, we will only to a limited extent discuss adaptation obligations in this report. The focus rests on the more fundamental commitment to avert any harmful impact on the climate system in the first place.

We will nevertheless address one particular issue concerning adaptation to climate change that has occurred or will inevitably occur, and that is the legal status of climate displaced persons. When the natural environment changes so much that people are forced to leave dangerous areas, it raises the question of whether they have the right to settle in safer areas outside their own country. This is an ever-evolving field that we will discuss in more detail in Chapter 8.²²See Chapter 8 of the report on climate displaced persons.

3.2.3. Boundaries to climate action

A third human rights aspect of climate change is the notion of human rights as boundaries or limitations on measures to address climate change. Human rights entail boundaries for political agency in that political goals cannot be implemented in a way that violates human rights. The duty of the government to respect property rights, indigenous rights, protection against discrimination, the protection of privacy, freedom of expression etc., does not cease to apply even if certain acts of government threatening these rights in isolation may have worthy purposes. According to the UN Special Rapporteur on human rights and the environment, this applies also in principle to climate policy.²³See e.g. A/HRC/31/52, paragraph 33 ff.

Whether the government’s policies and measures to address climate change are in conflict with other rights depends on how these actions are arranged. Whether rights have been violated will depend on a concrete assessment of the rights in question and the measures in question.²⁴Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (2019) pp. 125–127. In this report, NIM will not make an abstract assessment of how other rights may be affected by government climate action. We will, however, make two observations that show the tension in the relationship between climate and human rights. Firstly, it is important that the government is aware that climate action can also be in conflict with other rights, and that this is taken seriously in climate change action, as in any other form of exercise of authority. It is not thereby said that climate action cannot interfere with other protected rights. Generally, however, it is important that the authorities consider whether the measure is appropriate, necessary and proportionate before intervening. In connection with large-scale renewable energy projects in indigenous areas, it has been particularly necessary to raise awareness of human rights consequences.²⁵See e.g. Khan, Working paper on promoting rights-based climate finance for people and the planet (A/HRC/WG.2/19/CRP.4) and Bugge (2019) p. 115.

At the same time, it is important to clarify that the protection of the climate is a human rights issue. The preparatory work for Article 112 of the Constitution, for instance, raised the questions whether “the right to a healthy environment is not at least as important to the existence and self-realisation of the individual as the other human rights”.²⁶Document 16 (2011–2012) Report to the Presidency of the Norwegian Parliament from the Human Rights Committee on Human Rights in the Constitution, p. 245. Protecting the climate is therefore a legitimate purpose for the government and this must be given sufficient weight in the face of other considerations and rights. A practical example is that the government could have a duty to intervene in property rights or business interests in order to safeguard climate concerns. In the same way that the restrictions in the right of disposal in property law is not absolute, the proportionality assessment for other rights also addresses the reason why the government is taking action.²⁷See e.g. Bugge (2019) p. 47 ff. When assessing whether interventions in other rights are necessary and proportionate, the purpose of safeguarding commitments to avert climate change will have to be given considerable weight.²⁸See Chapter 4 of the report on Article 112 of the Constitution and Chapter 5 on the European Convention on Human Rights and climate.

3.3. Key issues when mitigation of climate change is understood from a human rights perspective

In this report, there are some issues that appear several times. The first is whether climate is exclusively a political issue and not a legal one. Another issue is whether we have human rights obligations to future generations, given that they will bear the long-term and irreversible consequences of climate change. We will discuss these two issues throughout the report. In the following, we will nevertheless introduce them on a general level, as a framework for further discussions.

3.3.1. Politics or law?

A central objection to applying human rights obligations to the prevention of climate change is that the subject is considered political. This understanding is based on three considerations. The first is that the government’s understanding of and response to climate change is politically contentious. Another objection is that there are various policy instruments that can be applied to prevent further climate change. The choice between instruments is a typical political assessment. This objection is closely linked to the last consideration, which is that combatting climate change is just one of many goals pursued by the government and society at large. It is up to politicians how this goal should be reconciled with other worthy purposes.

The fact that a field is politically contested and depends on priorities is, however, true for many areas where boundaries are set by human rights. One example is immigration policy, in which the prohibition on inhumane treatment and the right to private and family life can limit the State’s right to decide who should be allowed to remain within their territory. The fact that climate change is an area that is at the centre of political debate is in itself not sufficient for this form of exercise of authority to be dissociated from human rights obligations. The fact that greenhouse gas emissions, unlike other fields, could have irreversible consequences for future generations, which are not currently represented in the political system, may also imply that the interests of posterity must be safeguarded through legal limitations or boundaries on the agency of the present majority.

3.3.2. Future generations as rights-bearers

Because climate change is long-term, the impact of current emissions will affect generations who are not yet alive. This raises questions of a more legal philosophical nature about whether the people who will live in the future have human rights, and whether these possible human rights could commit us to climate action today. This is often referred to as a matter of justice across generations (“intergenerational justice/equity”).²⁹Stanford Encyclopedia of Philosophy, Intergenerational Justice, available on https://plato.stanford.edu/entries/justice-intergenerational/  Within international climate cooperation, this future perspective has been clear from the very start. In the preamble to the UN Framework Convention on Climate Change, Art. 3 says that “the Parties should protect the climate system for the benefit of present and future generations of humankind,” and future generations are mentioned specifically in the preamble. The Paris Agreement also states that nations should consider “intergenerational equity” in efforts to avert climate change. As a philosophical question, it typically raises three challenges, which we will discuss in turn. The first of these is often referred to as Parfit’s non-identity problem.

(i) The non-identity problem

The first philosophical challenge associated with future generations as rights holders was put forward by Derek Parfit in the 1980s and concerns our current actions affecting the identities of those who will live in the future.³⁰Parfit, Reasons and Persons (1986) pp. 358–359. This is because the way in which we live today, such as where and what we study and work with, will affect who we meet and when we have children – and thereby also which children are actually born. It therefore appears to be a paradox if these future children were to blame us for our neglect of the climate problem, since the actions that led to the climate problem may be exactly the same actions that allow these individuals to exist. For Parfit, it therefore does not make sense to say that specific future individuals have rights relating to us taking actions that would have led to these individuals not existing.

However, the tension between the interests of specific individuals in having been born and their interests in being born into a stable climate, can be solved if we treat these future individuals as a group.³¹See e.g. Lindberg, “Fremtidige generasjoner som rettighetsbærere”, Salongen nettidsskrift for filosofi og idéhistorie, published March 30 2020. Accessible on salongen.no. At a group level, there is a difference between a potential group of individuals coming into the world in an environment with a stable climate, and a potential group of individuals coming into the world in an environment where the tipping points of climate catastrophe have been reached. From a collective standpoint, Parfit’s paradox disappears, allowing future generations to possess human rights.

However, as the consequences of climate change draw closer, many argue that the non-identity problem is irrelevant to our understanding of climate change. Children born today will be 80 years old when we reach 2100, and will experience the consequences of our possible failure to avert further climate change.³²Year 2100 is often used as a reference year, see chapter 2 of the report, written by CICERO on commission from NIM. What is at stake is therefore whether we wrong those who are already alive, who in turn will have obligations to new generations in their own lifetime, in an unbroken overlapping chain of generations.³³Stanczyk, “How quickly should the world reduce its Greenhouse Gas Emissions?” p. 20, Harvard Philosophy As the former UN Special Rapporteur on human rights and the environment, John Knox, has written: “We do not need to look far to see the people whose future lives will be affected by our actions today. They are already here.”³⁴A/HRC/37/58, paragraph 68.

(ii) The necessity of being able to assert one’s right

Another legal philosophical problem that is often raised regarding the status of future generations as rights-holders is that they will not be able to assert their rights – for the simple reason that they do not yet exist. Will theory within rights theory is based on the notion that there is a necessary link between rights and enforcement. It is nevertheless clear that there are several people who cannot enforce their rights but still have rights. The most obvious example is children. In addition, there are rights that one cannot renounce, even if one should want to, such as the right to life or the right not to be subjected to torture. These examples show that the existence of rights does not necessarily depend on whether the rights holder can or will enforce those rights.

The interest theory is an alternative rights theory that links the rights holder to whose interest is at stake. Such a theory could cover children and non-waivable rights – in addition to the interests of future generations. Even if the issue of enforcing the possible rights of future generations raises many questions, the fact that they themselves cannot assert their rights today is not a decisive objection. As we demonstrate in the chapter on Article 112 of the Constitution, their interests can be argued by proxy, see Section 1-4 of the Disputes Act.

(iii) Is it possible to have obligations to future generations?

A final challenge is often how interests that first materialise in the future can be relevant today. The objection seems to be that the future cannot affect the present in such a direct manner. Since rights and obligations are often regarded as two sides of the same coin, such an objection is difficult to understand.³⁵See e.g. Eng, Rettsfilosofi (2007), pp. 145-148 and Smith,  Konstitusjonelt demokrati (4^th ed. 2019) p. 55. Even if they do not occur simultaneously, they are in a causal relationship with each other. From the perspective of the obligation, the injustice is committed by us in our present,³⁶Stanczyk, p. 16. and the harmful consequences in terms of changing the climate balance in the atmosphere occur immediately.³⁷See Chapter 2 of the report, written by CICERO on commission from NIM. The action is therefore completed on our part in the present, even if the adverse effects will extend into the future. That we must therefore take responsibility for the negative consequences of our actions, when we know that our actions harm fundamental interests of future generations, is accordingly entirely in line with the way that obligations are construed in other areas of law.³⁸Lewis, “Human rights and intergenerational justice” in Ismangil, von der Schaaf and van Trost (eds.), Climate Change, Justice and Human Rights (Amnesty International Netherlands 2020), p. 82. The German Constitutional Court has recently held that the right to life and physical integrity in the German Constitition (article 2.2) places the State under an objective duty to protect future generations, even though they do not have subjective rights.

As with the identity problem mentioned above, we could also answer this temporal objection by referring to the fact that our actions and omissions now have direct consequences for those alive now.³⁹Stanczyk, p. 21. The gap between the injustice being committed and the damage materialising is thereby reduced.

In the following, we will look at possible legal grounds for linking climate risks to States’ human rights obligations. We will first discuss Article 112 of the Constitution, then the ECHR and the UN conventions..

4. Section 112 of the Norwegian Constitution

Section 112 of the Norwegian Constitution recognises that everyone has a right to a healthy environment and an environment in which productivity and diversity are preserved. The provision further recognises that natural resources shall be utilised on the basis of a long-term perspective that safeguards these rights for posterity. To achieve this, Section 112 also stipulates that citizens have the right to information about the condition of the environment and about planned or implemented environmental interferences. In its last paragraph, the provision explicitly imposes a duty on the State to implement appropriate measures in order to achieve the aforementioned rights.

Section 112 played a central role in a 2020 climate lawsuit in which two environmental organisations contested the validity of a royal decree to grant ten petroleum exploration licenses in the southern and southeastern parts of the Barents Sea.¹HR-2020-2472-P. NIM intervened with a written amicus curiae on general principles of law, available here. The Supreme Court of Norway, in its judgement provided a number of clarifications regarding the content of the provision.

With respect to the scope of application, the Supreme Court confirmed that Section 112 clearly offers protection in relation to climate change and greenhouse gas emissions (para. 147). Furthermore, the Court held that although Section 112 only applies to actions and effects occurring in Norway, it also encompasses exported emissions from Norwegian oil and gas, because Norwegian authorities can exert effective control over such emissions, and they undisputedly cause harm in Norway (paras. 149, 155 and 260).

A key point discussed in the case was determining whether – and if so, to what extent – Section 112 provides enforceable rights. The State argued that the provision exclusively sets out a non-justiciable positive duty for the State to take measures, that could be tried only through impeachement (para. 83). The Supreme Court disagreed. It held that the purpose of the provision could not be achieved if the State did not also have a negative duty to abstain from interferences (para. 143). For instance, the Court noted that Section 112 could give rise to a duty to deny production of located oil and gas “out of considerations for climate and the environment” (para. 222, 223). Furthermore, it would be “contrary to general principles of the rule of law” if the courts could not intervene against violations of the Constitution (para. 123). The State can thus be held accountable by citizens and organisations with regard to both the positive and the negative duty to preserve a healthy environment.

In matters decided by Parliament, however, the threshold for overruling is very high. Hence, decisions made by or with the consent of the Parliament, can only be overruled in the courts if there has been a serious breach of duty (para. 142). In these cases, Section 112 thus serves as a mere safety valve. To underpin the high threshold, the Court inter alia argued that fundamental environmental decisions necessitate broad political considerations and prioritisation, and that democratic values thus suggest that such decisions should be taken by elected bodies (para. 141).

As matters stood before the Court, it did not consider the implications of Section 112, first paragraph, second sentence, which states that the right to a healthy environment shall be safeguarded for future generations as well.²The exploration licences under review would not, in and of themselves, lead to significant greenhouse gas emissions. Several licenses had also been returned to the State by companies, empty-handed, because no oil and gas could be found. In cases concerning actual or foreseeable greenhouse gas emissions, it could be argued that unrestricted deference to political decision-making today, risks restricting political leeway in an intemporal sense, as rapid depletion of the finite carbon budget today would unilaterally and irreversibly offload a disproportionate burden to cut emissions on unrepresented younger and future generations, which in turn would threaten their future freedoms and potentially expose them to risks of severe climate-induced impairments of life, physical integrity and property.³See for example Neubauer et al. v. Germany, BVerfG, Order of March 24^th 2021- 1 BvR 2656/18, para. 206 (German Constitutional Court), and References re Greenhouse Gas Pollution Pricing Act 2021 SCC 11, para. 206 (Supreme Court of Canada).

In environmental questions which Parliament has not decided upon, the Court clarified that Section 112 can be invoked directly. The Court acknowledged that it could be difficult in practice to decide whether Parliament has taken a stance on an environmental problem (para. 139). This leaves the door open for interpretation, in climate cases in particular. It could reasonably be argued that where legislative assessments are based on presumptions that are scientificly outdated, Parliament has not decided on the issue and has not addressed the real problem at hand. Moreover, the Court did not address the threshold for judicial scrutiny with respect to admininstrative decisions in which Parliament has not been involved.

The procedural rights set out in Section 112, second paragraph, are under full judicial scrutiny. The Court further held that the level of judicial scrutiny increases in proportion to the severity of the consequences involved (para. 183). In light of the irreversible and potentially catastrophic effects of greenhouse gas emissions and run-away climate change above 1.5 to 2 degrees Celsius, the Court’s reasoning implies high qualitative procedural requirements and intensified judicial scrutiny in cases concerning actual or foreseeable greenhouse gas emsisions. This appears to be in line with the procedural requirements posed by the Irish Supreme Court, the Dutch Supreme Court, the French Conseil d’État and the German Constitutional Court in cases on inadequate greenhouse gas emissions reduction policies.⁴Friends of the Irish Environment v. Ireland, [2020] IESC 49, para. 6.45 (requires specification “in some reasonable detail” of the measures to reduce emissions up to 2050); Urgenda v. the Netherlands, ECLI:NL:HR:2019:2007, para. 7.5.3 (the state had not “sufficiently substantiated” that the reduction of at least 25% by 2020 was an impossible or disproportionate burden); Commune de Grande-Synthe c. France, N° 427301, ECLI:FR:CECHR:2020:427301.20201119 (State must provide further justifications on the sufficiency of measures to reduce emissions by 40% by 2030); Neubauer et al. v. Germany, BVerfG, Order of March 24^th 2021- 1 BvR 2656/18 (requires specification of emission reductions after 2030 to reach target of climate neutrality by 2050).

5. The European Convention on Human Rights

The right to life and well-being pursuant to Articles 2 and 8 of the ECHR commits the State to protect citizens from real and imminent risks from environmental and natural disasters. This chapter discusses how this obligation relates to greenhouse gas emissions.

5.1. Introduction

The European Convention on Human Rights (ECHR) does not explicitly contain the right to a clean and quiet environment, or the right to the preservation of the environment as such.¹ Hatton v. United Kingdom [GC] (36022/97); Allen et al. v. United Kingdom (5591/07); Greenpeace E.V. et al. v. Germany (18215/06); Kyrtatos v. Greece (41666/98); Ivan Atanasov v. Bulgaria (12853/03); Dubetska et al. v. Ukraine (30499/03). The European Court of Human Rights (ECtHR), which interprets the Convention with binding effect on State Parties, has nevertheless applied several of its provisions to environmental damage that has occurred or risks occurring in the future.²The ECtHR and the Commission have made nearly 300 decisions on environmental risks and harm, discussed here: https://www.coe.int/en/web/portal/concept-human-rights-for-the-planet The ECtHR has in particular interpreted environmental protection into Article 2 (the right to life) and Article 8 (the right to privacy, family life and a home), and occasionally into additional protocol no. 1 Article 1 (P1-1, the right to property). Applicants in climate cases communicated by the ECtHR have also invoked Article 3 (prohibition against inhuman and degrading treatment), Article 6 (access to court), Article 13 (right ot remedy), and Article 14 (prohibition against discrimination).

The question of whether the ECHR requires States to avert the risks that result from dangerous climate change can be examined in two ways. One way is to ask whether the State will be obliged to protect citizens from harm caused by past or inevitable climate change. This is a matter of adaptation to climate change. Based on ECtHR practice, the answer appears to be relatively clear. The State could be positively obliged under Articles 2 and 8 of the ECHR to protect citizens from known risks of natural and environmental disasters and provide emergency relief after such incidents.³ Conc. ECHR Article 2: Budayeva et al. v. Russia (15339/02, 21166/02, 20058/02, 11673/02 and 15343/03); Öneryildiz v. Turkey [GC] (48939/99); Murillo Saldias et al. v. Spain (76973/01) presumably; Kolyadenko et al. v. Russia (17423/05, 20534/05, 20678/05); Özel et al. v. Turkey (14350/05, 15245/05, 16051/05); conc. ECHR Article 8: Guerra, et al. v. Italy [GC] (14967/89); Brincat et al. v. Malta (60908/11, 62110/11, 62129/11); Tãtar v. Romania (67021/01); Dubetska et al. v. Ukraine (30499/02); see also Dzemyuk v. Ukraine (42488/02). It could be a matter of protection under ECHR Protocol No. 1 Article 1 (P1-1): Öneryildiz v.Turkey; Dimitar Yordanov v. Bulgaria (3401/09). As the report focuses on mitigation, we will not discuss such an obligation to make adjustments in more detail here.

Another approach is to ask whether the State is committed to reducing greenhouse gas emissions to avert dangerous or harmful climate change in the future.⁴Harmful effects of climate change are defined in Section 4 of the Climate Change Act, cf. Article 2(1)(a) of the Paris Agreement as global average temperature warming to more than the limit of tolerance of 1.5 to “well below” 2 degrees Celsius. This is unresolved. The ECtHR has not yet settled appeals about greenhouse gas emissions.The Supreme Court of the Netherlands has held that Articles 2 and 8 of the ECHR, read in conjunction with Article 13, commit the Netherlands to reduce greenhouse gas emissions by at least 25 per cent by the end of 2020 to protect its citizens from the real and imminent danger of dangerous climate change.⁵For more, see Chapter 9 of the report on climate-related legal cases based on human rights. The German Constitutional Court has held, with reference to Articles 2 and 8 of the ECHR, that the constitutional right to life, physical integrity and property obliges the State to protect against climate change by reducing emissions. The ECtHR has communicated and fast-tracked two cases on greenhouse gas emissions, pertaining inter alia to Articles 2 and 8.

This chapter aims to analyse the issue of whether Articles 2 and 8 of the ECHR, under the circumstances, require the State to avert dangerous climate change. This must be determined independently on the basis of the legal methods adopted by the ECtHR.⁶HR-2019-1206-A, (paragraph 104). Here, case law from the ECtHR plays an essential role.⁷Kjølbro (2020), p. 15. Since the ECtHR has not yet decided on the issue, we will first review the ECtHR’s method of resolving interpretation issues where clarifying ECtHR practice is absent (Section 5.2). We will then discuss the substantive protection under Articles 2 and 8 of the ECHR (Sections 5.3-5.7), before considering the issue of standing in relation to greenhouse gas emissions cases based on the ECHR (Section 5.8).

5.2. The ECtHR’s interpretation method

5.2.1. Legal principles

The ECHR is a treaty of international law and is interpreted on the basis of the customary principles expressed in the Vienna Convention on the Law of Treaties, Articles 31-33. This means that the interpretation is based on a normal understanding of the wording of the provision, read in context and in view of its purpose. ECtHR case law is central to the interpretation of the ECHR, since previous court decisions provide an indication of what the Court will decide in similar cases, even if the judgements formally are only binding on the State(s) party to the legal proceedings. In order to interpret the meaning of a particular provision of the ECHR and apply it to a given factual scenario, one must also consider distinctive principles of interpretation that the ECtHR has developed over time, which complement and supplement the basis in international law for the interpretation of treaties. We will discuss five such principles of interpretation here.

5.2.2. Purpose-oriented interpretation

Firstly, the ECtHR’s interpretation method is purpose-oriented, in accordance with the Vienna Convention. The Court has repeatedly emphasised that the purpose of the Convention is to safeguard rights that are not theoretical and illusory, but practical and effective.⁸ Demir and Baykara v. Turkey [GC] (34503/97), Section 53; Klass et al. v. Germany (5029/71), Section 34. This applies to both substantive and procedural provisions. The primary purpose of the Convention’s enforcement system is to provide individual restitution. Nevertheless, the ECHR also ensures collective implementation of its provisions. A key purpose of the Convention is to decide on general issues in the interests of society in order to raise the level of the general standards of protection.⁹Kjølbro (2020), p. 15. This follows from the Convention’s preamble, sixth paragraph, in which the Convention States commit to the “collective enforcement” of human rights, and which has been consistently referred to by the ECtHR since Ireland v. United Kingdom in 1978.¹⁰ Ireland v. United Kingdom (5310/71), 18/01/1978, Section 239. The ECtHR has also emphasised that the interpretation of the ECHR must include consideration of “the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms”.¹¹ Loizidou v. Turkey [GC] (15318/89), Section 70. This collective protection objective is also evident from references in the preamble to peace and the common heritage of State Parties based on the rule of law and democracy.

The collective protection purpose of the Convention cannot be understood as being limited to present and short-term interests but also as providing protection for future generations. This is supported by the preamble of the Statute of the Council of Europe, which is included as a relevant instrument for the contextual interpretation of the ECHR, see Article 31 (3) (c) of the Vienna Convention. The second paragraph of the preamble of the Statute states that the overarching purpose of the establishment of the Council of Europe and the convention system, which includes the ECHR, was to safeguard peace, justice and “the preservation of human society and civilisation”.¹²Statute of the Council of Europe, 1949. These aspects of the ECHR’s purpose and scope will have an impact on the interpretation of the various convention provisions.

5.2.3. Dynamic interpretation

Secondly, the ECtHR’s interpretation method is dynamic. The Convention constitutes a “living instrument” that is to be interpreted in light of “present-day conditions”.¹³ Demir and Baykara v. Turkey, Section 68. This means that the ECtHR’s present case law is a necessary, but not completely sufficient, source for predicting how the court will assess a particular question.¹⁴Kjølbro (2020), p. 25. This has two implications. Firstly, this means that even though the ECtHR has to date only considered appeal cases concerning local environmental pollution and not appeals concerning greenhouse gas emissions, it cannot be ruled out that the ECtHR will at some point consider alleged violations of Articles 2 and 8 of the ECHR as a result of greenhouse gas emissions. Secondly, this means that the principles developed by the court in relation to appeals concerning local environmental damage will not necessarily govern new appeals about greenhouse gas emissions, because it must be taken into account that social developments in the meantime may have necessitated further development of the interpretation.¹⁵Kjølbro (2020), p. 25, a corresponding principle appears to be assumed by the Supreme Court of Norway in HR-2020-972-U (paragraph 26) in another area of the law. The ECtHR’s approach to various rights issues will, therefore, depend on the social challenges that exist at any given time.

5.2.4. The principle of subsidiarity

Thirdly, the ECtHR interprets the Convention in light of the principle of subsidiarity.¹⁶ Budayeva et al. v. Russia. The principle of subsidiarity implies that it is primarily the Convention States, including national courts, that shall ensure observance of the rights and positive obligations of the Convention, and that the ECtHR’s review function is subsidiary, see Article 19 of the ECHR. The principle of subsidiarity indicates that national courts are unlikely to wait for an authoritative interpretation by the ECtHR, for example, in climate matters. The principle of subsidiarity appears rather to assume that the national courts shoulder, as part of the national authorities, the primary responsibility for ensuring the observance of rights and obligations under the Convention, so that the ECtHR’s review can be secondary. This has been given more emphasis in recent times. Pursuant to with Protocol no. 15, Article 1, it shall be included in the ECtHR’s preamble that the Convention States “have the primary responsiveness to secure the rights and freedoms defined in this Conventions and the Protocols thereto.”¹⁷Protocol no. 15 will enter into force three months after being ratified by all Member States of the Council of Europe, cf. Article 7 of the Protocol. At present, the protocol has been ratified by 45 out of 47 states. The status of the ratifications is available here: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213/signatures?p_auth=5tABARHI

5.2.5. Principle of margin of appreciation

Fourthly, the ECtHR interprets the Convention in light of the principle of the margin of appreciation. The margin of appreciation is related to the principle of subsidiarity and implies that the ECtHR may allow the Convention States a certain discretionary latitude when assessing whether it is necessary to intervene in certain rights, or what measures are necessary to ensure them.¹⁸Kjølbro (2020), p. 25. The rationale is that the national authorities will most often be better placed than the ECtHR to make these assessments, because they have greater insight into special circumstances that may apply in each individual country.¹⁹HR-2013-2200-P (paragraph 257). The extent of the margin of appreciation will, inter alia, depend on whether there is a European consensus, as well as the nature of the right and the activities that are appealed.²⁰Kjølbro (2020), p. 26. In environmental cases, the Court has afforded a “certain” or a “wide” margin of appreciation.²¹See for example Lopez Ostra v. Spain, Cordella v. Italy, Budayeva v. Russia.

5.2.6. The significance of international and national law

The fifth and final interpretation principle that we will emphasise here concerns the significance of other international and national laws.

The ECtHR interprets the Convention in accordance with the rules and principles of international law, see Article 31(3)(c) of the Vienna Convention, which states that treaties should be interpreted in light of relevant “rules of international law appliable in the relations between the parties.” The ECtHR has emphasised that the ECHR cannot be interpreted and applied “in a vacuum”, but must take into account “any relevant rules of international law” and be interpreted “as far as possible in harmony with other principles of international law of which it forms part”.²² Bankovic et al. v. Belgium et al. (52207/99) Section 57. There is no prerequisite that the treaties are binding or the rules have been ratified by the Convention State, as long as “the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of Member States of the Council of Europe and show, in a precise area, that there is a common ground in modern societies”.²³ Demir and Baykara v. Turkey, Section 86. The notion of “common ground” includes “scientific and societal developments”.²⁴Christine Goodwin v. the United Kingdom (28957/95), § 92. The ECtHR assesses whether there is a “consensus emerging from specialised international instruments and from the practice of Contracting States”.²⁵ Demir and Baykara v. Turkey Section 85 (our emphasis by italics). If such a consensus is under development, it may constitute a “relevant consideration” for the Court when interpreting the Convention.²⁶ Demir and Baykara v. Turkey Section 85 (our emphasis by italics).

The Paris Agreement has been ratified by 46 out of the Council of Europe’s 47 Member States, as well as by the EU.²⁷Turkey signed the Paris Agreement on 22 April 2016 but has not ratified the agreement. This is an internationally binding agreement. The emission obligations are nationally determined, but they must be progressive and reflect the highest level of ambition, see Article 4.3. The Paris Agreement’s goal of keeping warming below 1.5 degrees Celsius, and “well below” 2 degrees Celsius, and the IPCC reports the agreement is based on, may be considered as constituting “common ground” from specialised international law instruments and State practices, which may be of significance to the interpretation of the ECHR.²⁸Wewerinke-Singh, State responsibility, climate change and human rights under international law (2019). The environmental law precautionary principle incorporated in the Rio Declaration and the UNFCCC, and the no-harm principle as customary international law, may also be of importance to the interpretation.²⁹See Tătar v. Romania (67021/01), Section 120, where the ECtHR refers to the precautionary principle in the Rio Declaration as an important principle. For more, see Demir and Baykara v. Turkey, Section 86. Furthermore, the UN Human Rights Committee’s general comments and decisions in individual appeal cases concerning the ICCPR and greenhouse gas emissions may contribute to the interpretation.³⁰Cf. Opuz v. Turkey (33401/02), Section 187. The decisions of the UN Human Rights Committee are discussed in greater detail in NIM’s report on climate and human rights (2020), Chapter 6.

Finally, the ECtHR will be able to look to the practice of the upper courts of the Convention States as a source of law for the interpretation.³¹ S. V. and A v. Denmark [GC] (35553/12, 36678/12 and 36711/12), Sections 122 and 125. There are European Supreme Court decisions on climate and human rights from for instance France, Switzerland, Norway, the United Kingdom, and the Netherlands.³²Décision n 2019-823 QPC: “Il en découle que la protection de l’environnement, patrimoine commun des êtres humains, constitue un objectif de valeur constitutionnelle”, available in an English translation here: https://www.conseil-constitutionnel.fr/en/decision/2020/2019823QPC.htm. The Supreme Court of the Netherlands concluded last year that Articles 2 and 8 of the ECHR bound the Netherlands to reduce its greenhouse gas emissions by a minimum of 25 per cent compared with the 1990 level by the end of 2020. The ECtHR’s former President Sicilianos has referred to the Urgenda judgement as historic. Even though such speeches carry no significance as a source of law, Sicilianos observations are worth noting:

“By relying directly on the Convention, the Dutch judges highlighted the fact that the European Convention on Human Rights really has become our shared language and that this instrument can provide genuine responses to the problems of our time.”³³Siciliano’s speech at the opening of the ECtHR for the legal year 2020 on 21 January 2020, available here: https://www.echr.coe.int/Documents/Speech_20200131_Sicilianos_JY_ENG.pdf See also the published speech of 27 February 2020, available here: https://www.echr.coe.int/Documents/Speech_20200227_Sicilianos_Environment_FRA.pdf

5.2.7. Summary

The ECtHR’s method is based on the wording of the Convention, but because the ECHR consists largely of standards with little detail, the wording must be interpreted. The Court’s interpretation is distinctively purpose-oriented, to ensure effective rights, and dynamic, in order to respond to contemporary challenges. In establishing the obligations, the ECtHR takes international law into account, and may, under the circumstances, give weight to national supreme court practice. Since the judicial review of national courts is primary, while the ECtHR’s review is subsidiary, the principles of subsidiarity and the margin of appreciation do not mean the same to the national courts as the ECtHR. In the absence of clarifying case law from the ECtHR in the area of climate, national authorities and courts will have to make independent interpretations of the Convention, based on its purpose and the ECtHR’s existing case law.

5.3. Jurisdiction

Pursuant to Article 1 of the ECHR, a State’s obligations under the Convention apply to everyone within that State’s jurisdiction. An unresolved question is whether the State can be held to have jurisdiction for the purposes of Article 1, not only for its territorial GHG emissions, but also for exported GHG emissions under its “effective control”.

The jurisdictional concept under Article 1 is primarily territorial, but the ECtHR has nevertheless allowed recognised that “acts of the States Parties performed, or producing effects, outside their territories” may involve the exercise of jurisdiction.³⁴M.N. and Others v. Belgium, no. 3599/18, § 101. The Court has also noted that State responsibility may be engaged if acts have “sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction”.³⁵Ilascu et al. v. Moldova and Russia, no. 48787/99, § 317. The exceptions established to date pertain to effective control over either territory or persons. In principle, however, extra-territorial jurisdiction may also arise from transboundary harm caused by emissions, being acts of the States Parties “producing effects” abroad.

Emerging trends in international and national law may also point in that direction. The Inter-American Court of Human Rights (IACtHR) has held that a State will have extra-territorial jurisdiction if it has effective control over the harmful activity in question and if there is a “causal link between the act that originated in its territory and the infringement of the human rights of persons outside its territory”.³⁶IACtHR,Advisory Opinion on the Environment and Human Rights, OC-23/17, 2017, paras. 101-102. The UN Committee on Economic Social and Cultural Rights (CESCR) and the IACtHR have noted that activities causing transboundary environmental harm undertaken within the jurisdiction of a State Party should not deprive another country of its ability to realise rights for persons in its jurisdiction.³⁷CESCR, General Comment No. 15 on the Right to Water, UN Doc. E/C.12/2002/11, 2002, para. 31; IACtHR, Advisory Opinion on the Environment and Human Rights, paras. 94, 101-102. The UN Human Rights Committee has generally noted that the right to life under Article 2 of the ICCPR will apply extra-territorially to any person whose right to life is “affected” by the State’s activities in a “direct and reasonably foreseeable manner”.³⁸Human Rights Committee, General Comment No. 36 on the Right to Life, UN Doc. CCPR/C/GC/36, 2018. In a 2020 judgement concerning surveillance of non-German individuals abroad, the German Constitutional Court held that the State’s extraterritorial jurisdiction is engaged where the State has the capacity to interfere with the rights of any person abroad.³⁹BVerfG, Judgement of the First Senate of 19 May 2020, BvR 2835/17 (German Constitutional Court). Exported GHG emissions were deemed relevant in a 2020 judgement by the Norwegian Supreme Court and in a 2019 Australian judgement by the New South Wales Land and Environment Court.⁴⁰HR-2020-2472-P, para. 149; Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (NSW Land & Environment Court).

The fact that climate change is caused by multiple States and actors, does not necessarily negate jurisdiction. Under ECtHR case law, State responsibility may be engaged for human rights violations that are attributable to more than one State and possible factors that are outside the jurisdiction under Article 1.⁴¹William Schabas, The European Conventioin on Human Rights – A Commentary, Oxford University Press, 2015, s. 93; Andrejeva v. Lativa (55707/00, § 56. This is consistent with international law, see Draft Articles on State Responsibility for Internationally Wrongful Acts, article 47.⁴²Ilascu et al. v. Moldova and Russia, no. 48787/99, §§ 320 – 322. However, since GHG emissions affect human rights across the globe, and the ECHR is a regional convention, the extra-territorial applicability might reasonably be limited to the effects within the Convention’s legal space (ordre public).⁴³Louizidou, § 70; Cyprus v. Turkey, no. 25781/94, § 78; see Bankovic and Others v. Belgium and Others, no. 52207/99 [GC], § 80. Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 232; Castaño v. Belgium, no. 8351/17, § 81.

5.4. Articles 2 and 8 of the ECHR in general

5.4.1. Point of departure

As mentioned above, the ECHR does not explicitly contain the right to a “clean and quiet environment”, but environmental protection is nevertheless interpreted into Articles 2 and 8 of the ECHR. In the following, we will explain the legal principles that can be derived from the ECtHR’s practice, and discuss their application to appeals concerning greenhouse gas emissions. The analysis is structured so that we will first discuss whether the provisions apply (5.5–5.7), and then discuss the substantial and procedural obligations that may arise (5.8).

5.4.2. Relationship between Articles 2 and 8 of the ECHR

Article 2 of the ECHR protects the right to life, while Article 8 of the ECHR protects, inter alia, the right to respect for one’s home and private life, including physical integrity, health and well-being. Even though the provisions differ, the ECtHR has considered the rights to be overlapping in cases on environmental grounds concerning “dangerous activities”.⁴⁴ Budayeva et al. v. Russia, Section 133; Öneryıldız v. Turkey [GC] (48939/99), Sections 90 and 160. In Cordella et al. v. Italy, for example, the ECtHR considered the appellants’ submissions regarding violations of Articles 2 and 8 of the ECHR, as well as Article 13, solely under Article 8 of the ECHR.⁴⁵ Cordella et al. v. Italy, Section 94. The fact that the provisions overlap implies, according to the ECtHR, that principles of law developed in case law on the environment and planning matters concerning Article 8 can also be applied to cases concerning Article 2, and vice versa.⁴⁶ Budayeva et al. v. Russia, Section 133. The ECtHR typically assesses appeals under Article 2 of the ECHR if the actions in question entail a relevant and obvious risk to life, while appeals are typically assessed under Article 8 if the actions do not entail such risks, but rather risks to life and physical integrity in the long term.⁴⁷ Vilnes et al. v. Norway (52806/09 and 22703/10), Section 234; Kjølbro (2020), p. 238 Article 3 of the ECHR might also be applicable where environmental hazards attains a “minimum level of severity [that] involves actual bodily injury or intense physical or mental suffering”.⁴⁸See in general, Ireland v. the United Kingdom, § 167. On environmental hazards in particular, see Lopez Ostra v. Spain.

For the sake of this overview, we will discuss the interpretation principles relating to Article 2 and 8separately, but the case law concerning the two provisions may be relevant in both respects.

5.4.3. Precautionary assessment of risk

It may be argued that human rights obligations do not apply well to greenhouse gas emissions and the general consequences of climate change, since it is difficult to establish the actual causal relationship between emissions, climate change and harmful events.⁴⁹Dupuy and Viñuales, International Environmental Law, 2^nd edition (2018) pp. 396–397. This problem of attribution pertains to responsibility for events that have already occurred. The issue of prevention of risk is another. The issue here is whether Articles 2 and 8 of the ECHR positively bind State Parties to prevent the risk of dangerous climate change as a result of greenhouse gas emissions. The difference is illustrated by Tãtar v. Romania. Here, the ECtHR found that it had not been substantiated that the pollution was the cause of the demonstrated deterioration in the appellant’s asthma, but that the pollution nevertheless represented a real risk of injury to the health of the general population of the area.⁵⁰ Tãtar v. Romania, Sections 106–107. When the ECtHR accepts greater uncertainty for the future risk assessment, this is, among other things, anchored to the fundamental precautionary principle of environmental law, see the Rio Declaration.⁵¹ Tãtar v. Romania, Section 120.

5.5. Does Article 2 of the ECHR apply?

5.5.1. Introduction

Article 2 of the ECHR on the right to life is the most fundamental right in the Convention.⁵²O’Boyle et al. 2018 (205) pp. 575–595. Kjølbro (2020), p. 237 and the ECtHR’s Guide on Section 2 of the Convention – Right to Life (updated 30 April 2020), p. 6 categorises Article 2 as one of the most fundamental rights. See also Giuliani and Gaggio v. Italy [GC] (23458/02), Section 174). It cannot be derogated from.⁵³Article 15 of the ECHR. The ban on derogation does not apply to a state’s lawful acts of war. The provision binds the State not only to refrain from negative interventions in the right to life, but also to take “appropriate steps to safeguard the lives of those within its jurisdiction”.⁵⁴ Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, Section 130. The positive obligation or the duty to safeguard applies “in the context of any activity, whether public or not, in which the right to life may be at stake”.⁵⁵ Öneryildiz v. Turkey, Section 71. The ECtHR has stated that the obligation must be interpreted and applied “so as to make its safeguards practical and effective”.⁵⁶ McCann et al. v. United Kingdom [GC] (18985/91), Section 146; Öneryildiz v. Turkey, Section 69.

Even though Article 2 of the ECHR does not regulate environmental hazards based on its wording, the ECtHR has made the provision applicable in environmental matters to protect against real and imminent danger to life in the event of pollution, industrial risk, environmentally hazardous activities and natural disasters.⁵⁷ Guerra et al. v. Italy [GC] (116/1996/735/932), Sections 60–62; Öneryildiz v. Turkey, Sections 69–74; Budayeva et al. v. Russia, Section 146; M. Ôzel et al. v. Turkey (14350/05), Sections 170–172; Kolyadenko et al. v. Russia (17423/05, 20534/05, 20678/05, 23263/05 and 35673/05); Brincat et al. v. Malta (60908/11, 62110/11, 62129/11, 62312/11 and 62338/11). The provision is not limited to situations where lives have been lost, but also applies where there is clearly a risk of loss of life.⁵⁸ Kolyadenko et al. v. Russia, Section 151, Budayeva et al. v. Russia, Section 146. The ECtHR’s practice with regard to Article 2 of the ECHR has primarily been brought about by individual appeals filed after lives have been lost or put at risk. However, this does not mean that the duty to safeguard only applies when the risk has already materialised. The duty to safeguard is preventative and general by nature, so it also arises in situations where the authorities should be aware of a sufficiently serious and close risk of loss of life.

5.5.2. Protection against the general risk to society

Since the risks associated with climate change may have a general impact, an initial issue is whether Article 2 of the ECHR can provide protection against this type of general risk to society, or whether the provision only provides protection to individuals. This will depend on the criteria developed in practice to determine whether a situation gives rise to a duty to safeguard. The ECtHR applies a modified version of the so-called “Osman Test” in environmental cases.⁵⁹ Öneryildiz v. Turkey; Budayeva et al. v. Russia; Kolyadenko et al. v. Russia. This test was originally developed in cases of serious violence by third parties, and sets out a positive obligation to prevent threats against the right to life in cases where:

“the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals […] and failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”.⁶⁰ Osman v. United Kingdom (87/1997/871/1083), Section 116

In principle, the “Osman test” requires there to be a risk against an identified individual or individuals, but the ECtHR has in subsequent cases recognised that State Parties have an obligation “to afford general protection to society”, for example, in cases of potentially violent acts by the mentally ill, suspected terrorist attacks or landmines.⁶¹See resp. Bljakaj et al. v. Croatia (74448/12) Section 77; Tagayeva et al. v. Russia (26562/07) Section 482 and Ercan Bozkurt v. Turkey (20620/10) Section 54. This is also a common view in international literature. O’Boyle et al. writes, for example, that the ‘Osman obligation’ “has been extended beyond the protection of ‘identified individuals’ at risk to that of the public at large in a life-threatening situation”.⁶²O’Boyle et al. (2018) p. 213. In the ECtHR’s own commentary guide for Article 2 of the ECHR, it is further stated that the Court has stipulated “an obligation to afford general protection to society” in various contexts.⁶³Case law guide for Article 2, Section 21, refers, inter alia, to Mastromatteo v. Italy (37703/97), Section 69 and Gorovenky and Bugara v. Ukraine (36146/05 and 42418/05), Section 32. The environment is one such context.

With regard to environmental threats that expose an entire region to risk, Articles 2 and 8 of the ECHR protect the residents of the region. In Cordella et al. v. Italy and Tãtar v. Romania, Article 8 of the ECHR was violated because the authorities allowed pollution that exposed not only the appellants, but the entire population of the affected areas in general to a health hazard.⁶⁴ Cordella et al. v. Italy, Section 172: “plus géneralement, celle de l’ensemble de la population résidant dans les zones à risque”. Tătar v. Romania, Section 122: “la Cour estime que la population de la ville de Baia Mare, y inclus les requérants, a dû vivre dans un état d’angoisse et d’incertitude accentuées par la passivité des autorités nationales […]”; Section 124: “les autorités nationales ont manqué à leur devoir d’information de la population de la ville de Baia Mare, et plus particulièrement des requérants”. The scope of the duty to safeguard is limited based on who is exposed to the risk, whether it is individuals or all the residents of a region. In the event of very local pollution, only neighbours will be protected, whereas in the case of pollution or environmental hazards with larger impact areas, the residents of the exposed regions may be protected. The ECtHR’s decision will materially only apply to the groups of individuals who have exercised their right to appeal, but the Court’s reasoning in deciding whether to apply the duty to safeguard will include consideration of the general population in the relevant area.⁶⁵ Cordella et al. v. Italy, Section 172; Tãtar v. Romania, Section 122. To the extent that general principles can be derived from the Court’s reasoning in different cases, it is thus probable that the delimitation of the protected population depends on the geographical extent of the pollution or environmental hazard. ECtHR jurisprudence suggests that the protection may encompass larger populations in the event of hazardous pollution that is not limited to a local impact area, but which will have a greater impact in general. This may apply to cases concerning greenhouse gas emissions.⁶⁶As in Urgenda v. Netherlands.

The ECtHR’s expansion of the duty to safeguard to encompass general social protection is consistent with a purpose-oriented interpretation of the Convention. For even though the primary purpose of the convention system is to provide individual restitution, the purpose is also to decide on general questions in the interests of society in order to raise general protection standards.⁶⁷Kjølbro (2020), p. 15. The ECHR’s preamble, sixth paragraph, binds States Parties to the “collective enforcement” of human rights, and the ECtHR has emphasised that the Convention also has a distinctive collective protection objective.⁶⁸ Loizidou v. Turkey, Section 70. See also section 5.2.2.

In light of the present case law and a purpose-oriented interpretation of the Convention, it would be counter-intuitive to assume that Articles 2 and 8 of the ECHR do not apply to human rights violations resulting from dangerous climate change. The impact of these human rights violations will be so extensive that the risks can be considered collective, while at the same time, each of the countless violations on a smaller scale will involve risks to the protection of rights at an individual level.⁶⁹For more of the same, see Section 3.15. The principle of effectiveness may point in the same direction. An interpretation which ultimately concludes that the right to life does not encompass the right to an atmosphere that can sustain life, may not be consistent with the principle that the rights set out in the ECHR shall be interpreted in a manner that renders them practical and effective.

5.5.3. What does the requirement for a “real and immediate” risk entail?

Another question is whether the risk of dangerous climate change is sufficiently “real and immediate” to trigger the duty to safeguard. This is based on an assessment of how serious and how imminent the risk is, and the two factors are interrelated. A very serious risk may increase the imminency of the risk, and vice versa.⁷⁰See, for example, Nicolae Virgiliu Tănase v. Romania (41720/13), Section 144. A corresponding point of view follows from the general law of damages, whereby the duty of care is assessed based on such factors as an overall assessment of the probability of the realisation of risk compared with the potential extent of damage if the risk were to be realised. As Lødrup writes in Lærebok i erstatningsrett (5^th ed. 2005): “The safety devices in a nuclear power plant must of course be more extensive than in a pin factory” (page 108). This will also affect the scope and content of the measures that the authorities are required to adopt to address the risk.⁷¹ Budayeva, paragraph 135.

As for the requirement that the risk be “real”, this phrase has been understood in other contexts as a delimitation against “mere possibilities”, but the ECtHR has otherwise made modest demands on the likelihood that the risk will materialise.⁷²Cf. T.K. and S.R. v. Russia (28492/15) Section 9. The Supreme Court of the Netherlands has interpreted the phrase to mean a risk that is “genuine”.⁷³See the Supreme Court of the Netherlands in Urgenda v. Netherlands, Section 5.2.2. NIM assumes that the “real risk” requirement is satisfied by the international scientific consensus, as outlined in the IPCC reports, on the risks associated with dangerous climate change as a result of warming in excess of 1.5 to 2 degrees.⁷⁴ Demir and Baykara v. Turkey.

The next question is whether the risk of dangerous climate change can also be characterised as “immediate”. ECtHR case law shows that the notion “immediate” encompasses risks that may also materialise in the longer term:

In Öneryildiz v. Turkey, the risk of a gas explosion had been known to the authorities for several years, while in Budayeva et al. v. Russia, the authorities had for a period prior to the landslide been aware of the danger of landslides and the possibility that such landslides could occur at some point in time.⁷⁵See Sections 98–101 and 147–158, respectively. In Kolyadenko v. Russia, the authorities had been aware of the risk of flooding for years, without taking the “necessary steps” to protect “those individuals who, on the date of the entry into force of the Convention in respect of Russia, were living in the area downstream of the Pionerskoye reservoir”.⁷⁶ Kolyadenko et al. v. Russia, Section 171. As a result, the ECtHR linked the duty to safeguard to persons who lived downstream at the time of ratification in 1998, even though the risk did not materialise until 2001, and then not necessarily to the same individuals. In Brincat et al. v. Malta, the authorities should have been aware from the early 1970s of the risk of asbestos exposure at a shipyard, to protect employees who subsequently died, developed life-threatening illnesses or serious health problems.⁷⁷ Brincat et al. v. Malta, Sections 103–117. And in Tãtar, the risk of the pollution hazard had been known to the authorities since an impact assessment in 1993. The factory in question was nevertheless commissioned in 1999, a factory accident occurred in the following year, and the activities continued. The ECtHR emphasised that the positive obligation to protect against serious and substantial risk to health and well-being was equally valid before the establishment of the factory as after the accident, and was even more valid in the years thereafter, while the factory continued to operate.⁷⁸ Tãtar v. Romania, Section 107.

Supreme Courts in Europe have approached this question under ECHR article 2 in different ways. The Administrative Supreme Court of Switzerland considered that heat waves do not pose a real and immediate risk today, because global warming will not exceed 1.5 or 2 degrees before 2040. As pointed out by Dutch courts, however, the risk of missing the 1.5 or 2-degree target is not hypothetical, however, it already latently exists.⁷⁹Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others, para. 5.3. Based on ECtHR case law, the Supreme Court of the Netherlands has interpreted “immediate” as not referring to a short period of time, but that the risk is “directly threatening the persons involved”.⁸⁰Supreme Court of the Netherlands, Urgenda v. Netherlands, Section 5.2.2. See Öneryildiz v. Turkey; Budayeva et al. v. Russia and Kolyadenko et al. v. Russia. The Court concluded that since “the lives and welfare of Dutch residents could be seriously jeopardised” within a few decades, climate change clearly poses a real and immediate risk in comparison to long-term hypothetical risks considered by the ECtHR.⁸¹Urgenda v. Netherlands, paras. 5.2.2. and 5.6.2. The German Constitutional Court has also held, with reference to ECtHR case-law under Articles 2 and 8, that the right to life and physical integrity under the German Constitution obliges the State to protect against climate change by limiting the antropoghenic concentration of greenhouse gases in the atmosphere. The Court held that an objective obligation to protect the right to life against climate change also arise in respect to future generations. Similarly, the Administrative Supreme Court of France has recognised that even if the severe consequences of climate change will not manifest before 2030 or 2040, there is an urgent need to act without delay due to their inevitability in the absence of effective preventative measures today.⁸²Grande Synthe v. France, para. 3. The Supreme Court of Norway has held that climate change threaten life in Norway under ECHR Article 2. However, there was no “real and immediate” risk associated with the specific exploration licenses for oil and gas under review; they had not lead to discovery of exploitable oil and gas and were unlikely to lead to GHG emissions in the near future.⁸³HR-2020-2472-P, para. 167.

It can also be noted that Supreme Courts in various countries have described the risk of dangerous climate change as real and imminent. The Supreme Court of the United States has characterised the risk of harm from unregulated GHG emissions as “actual” and “imminent”, with a “real” risk of “catastrophic harm”.⁸⁴Massachusetts v. EPA, 549 US 497 (2007) p. 23 [Section IV]. The Supreme Court of Colombia has called the risk of climate change “grave y inminente”, posing a “growing threat to the possibility of existence of human beings”.⁸⁵Future Generations v. Ministry of the Environment and Others, STC4360-2018 (Supreme Court of Colombia). The Irish Supreme Court has noted that the consequences of failing to address climate change are “very severe with potential significant risks both to life and health”.⁸⁶Friends of the Irish Environment, para. 3.6. The Supreme Court of Canada has called climate change an “existential threat to human life in Canada and around the world”, adding that climate change “is causing significant […] human harm nationally and internationally”.⁸⁷Re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Chief Justice Wagner (Supreme Court of Canada)

Based on the above, NIM is of the view that the notion “real and immediate” encompasses the latent and long-term effects of dangerous climate change. It can be noted that since the immediacy requirement is set out in connection with the State’s preventive duty to “avoid” life-threatening risks from materialising, this logically refers to a point in time when the danger – emissions exceeding the 1.5-degree carbon budget – can still be prevented. When it comes to dangerous climate change, the positive duty to safeguard must be triggered prior to the emissions occurring, and not at a later point in time when the risk begins materialising.

This is because the temperature response to greenhouse gas emissions has an inherent inertia. Because even though all the greenhouse gas emissions affect the climate from the moment they are released, some greenhouse gases – especially CO₂ – will also have an effect in the longer term.⁸⁸See Chapter 2 of the report, written by CICERO on commission from NIM. The latest research shows that if the amount of CO₂ in the atmosphere abruptly doubled, it would result in the long term in additional warming of approximately 3 degrees Celsius. Around half of this warming would have occurred during the first decade, much of the remaining warming over the next hundred years, and then a small remnant on a millennial scale.⁸⁹Sherwood et al., 2020, featured in Chapter 2 of the report, written by CICERO on commission from NIM. In other words, climate change is locked in from when the emissions occur. This means that the assessment of whether the risk of dangerous climate change is “imminent” must be linked to a point in time before the emissions, when the change is still preventable, and not close to the moment the change takes effect, when climate change as a result of emissions is unavoidable and irreversible.

5.5.4. The authorities’ knowledge of the risks

In accordance with the Osman Test, it is also a requirement that the authorities “knew or ought to have known at the time” about the existence of the risk. The authorities’ due care is assessed specifically, and the requirement is relative to the magnitude and proximity of the risk.⁹⁰ Öneryildiz par. 101. If the authorities can be blamed for not knowing more about the risk or for not having investigated and assessed the risk, then this may entail liability.⁹¹ Tatar v. Romania, Section 97. The risk of dangerous climate change as a result of greenhouse gas emissions is well established, and has been so for many years. It can therefore be presupposed that state authorities have sufficient knowledge of the risks.

5.5.5. Summary

The risk of dangerous climate change due to greenhouse gas emissions is real and cannot be characterised as anything less than “immediate”. Greenhouse gas emissions affect the climate immediately.⁹²See Chapter 2 of the report, written by CICERO on commission from NIM. In addition, some greenhouse gases, such as CO_2,, will have an effect for a long time. This inertia of the temperature response is latent and irrevocable.⁹³The assessment will have to be based on available, scalable technology. Hence, Article 2 applies.

According to ECtHR case law, however, there is no need to make a final decision on whether Article 2 of the ECHR applies. This is because, in cases where the risk is far into the future, the ECtHR may in any case choose to allow the assessment pursuant to Article 2 of the ECHR to be consumed by Article 8 of the ECHR.⁹⁴ Vilnes et al., Cordella et al. In the following, we will discuss the conditions for Article 8 of the ECHR applying to greenhouse gas emissions.

5.6. Does Article 8 of the ECHR apply?

5.6.1. Point of departure

Article 8 of the ECHR protects the right to respect for private and family life, home and correspondence. The wording of this provision does not grant the right to the environment, but the ECtHR has interpreted this right as encompassing environmental pollution that “may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely”.⁹⁵ Taşkın et al. v. Turkey (46117/99), Section 113. In other contexts, the ECtHR has formulated it as a requirement that the environmental degradation must “directly and seriously affect” private and family life, or affect “adversely, to a sufficient extent”, see Hatton v. United Kingdom, Section 96. The impact must therefore exceed a certain threshold, but it is not a requirement that the pollution constitutes a serious health hazard.⁹⁶ López Ostra v. Spain, Section 51; Taşkın et al. v. Turkey, Section 113. Article 8 of the ECHR will also apply where a “sufficiently close link” has been established between the dangerous future effects of an activity that individuals may be exposed to and private and family life.⁹⁷ Taşkın et al. v. Turkey, Section 113. It is this protection against potential risk that is discussed in greater detail here.

5.6.2. Negative and positive obligations in general

As with the right to life in Article 2 of the ECHR, Article 8 of the ECHR may be violated as a result of intervention by the State itself (the state’s negative obligation) or by the State not adequately safeguarding the right from intervention from third parties (the state’s positive obligation). The positive obligation is derived from Article 8(1) of the ECHR, while the negative duty depends on an overall assessment of whether the intervention is lawful pursuant to Article 8 (2) of the ECHR. According to the ECtHR, the State must take “reasonable and appropriate measures”.⁹⁸See, for example, Lopez Ostra v. Spain and Hatton v. United Kingdom. The distinction between negative and positive obligations may be fluid, and the relevant principles are “broadly similar”.⁹⁹ Jugheli et al. v. Georgia, Section 73. The ECtHR has stated that:

“In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.”¹⁰⁰ Jugheli et al. v. Georgia, Section 73.

5.6.3. Does Article 8 of the ECHR cover the latent and future risk of climate change?

As with Article 2 of the ECHR, a key question is whether Article 8 of the ECHR covers the latent and future risk of dangerous climate change. The question is unresolved, but current case law nevertheless provides some clues.

An older admissibility decision, Asselbourg et al. v. Luxembourg, does indeed state that it will only be in “wholly exceptional circumstances” that the risk of future violations may constitute a prima facie Convention violation.¹⁰¹ Asselbourg v. Luxembourg (29121/95), 29/06/1999. The Court did not consider Article 8 of the ECHR, but Article 34. It held that “the mere mention of the pollution risks” was not enough, and that the appellants had to prove a detailed probability of risk of injury. Subsequent development of the law suggests that protection under Article 8 of the ECHR against potential and hypothetical risk goes somewhat further.¹⁰²See Hardy and Maile v. United Kingdom, Section 185, see also Section 189. Asselbourg is only mentioned a few times in subsequent cases.

In Taşkın et al. v. Turkey from 2004, Turkey was held responsible for the risk of possible health damage caused by pollution from a gold mine, where the risk would not materialise among the residents of the area until after 20-50 years.¹⁰³ Taşkın et al. v. Turkey, Section 107, compared to Section 113. Turkey argued that the risk was too “hypothetical” to be deemed “serious and imminent”, and therefore outside the scope of application of Article 8 of the ECHR. The ECtHR dismissed the argument, and concluded that Article 8 of the ECHR had been violated. The most important element according to the Court was that a “sufficiently close link” had been established between the risk of hazardous health effects and private and family life. If such a risk was not encompassed, the positive obligation to safeguard the rights of appellants under Article 8 of the ECHR would “be set at naught”.¹⁰⁴ Taşkın et al. v. Turkey, Section 113. Since the Supreme Court of Turkey had already rendered an adverse decision on the authorities’ substantial duty to safeguard the right to life and a healthy environment, the ECtHR only made an assessment of the procedural side of the duty to safeguard (Section 117). The Court found that Turkey violated the procedural side of its duty to safeguard by allowing the mining operations to continue, despite the fact that the operating permit was ruled invalid in an enforceable judgement.

In Tãtar v. Romania from 2009, Romania was held responsible for risks to health and the environment associated with a mineral extraction plant. Unlike Taskin, there was no impact assessment establishing a “sufficiently close link” between the pollution risk and protected interests, but this was, under the circumstances, and in light of a prior accident, not of decisive importance.¹⁰⁵Tãtar v. Romania, Sections 93. The risk of a sudden detoriation was a relevant factor to the Court’s assessment.

In Hardy and Maile v. United Kingdom from 2012, the State, citing Asselbourg, argued that the appellants had not demonstrated a sufficiently detailed probability of injury risk in a hypothetical scenario of a collision in a port area with LNG terminals, potentially posing a risk of explosion.¹⁰⁶ Hardy and Maile v. United Kingdom, Section 185. The ECtHR did not mention Asselbourg. Instead, the Court relied on legal principles established in the subsequent decisions, Taskin et al. and Tãtar. The Court concluded that the potential risk of a hypothetical collision incident near the LNG terminals was sufficient to establish a “sufficiently close link” with the appellants’ private life and home.¹⁰⁷ Hardy and Maile v. United Kingdom, Section 189 ff.

In Cordella et al. v. Italy from 2019, Italy was held responsible for allowing the continuation of a polluting situation despite being presented with reports on the health hazards associated with the activities since the 1970s.¹⁰⁸ Cordella et al. v. Italy, Sections 163 and 172. See also Vilnes et al. v. Norway, in which Norway was held responsible for the “long-term effects on human health” due to inadequate information in connection with diving in the 1970s. Presumably, Norway has been responsible for this violation from a point in time before the diving took place, when information about the diving tables should have been provided.

While the ECtHR has not yet decided any cases concerning greenhouse gas emissions, there are a few European Supreme Court decisions on Article 8 (and 2) of the ECHR and climate risks.

The UK Supreme Court and the Norwegian Supreme Court considered Article 8 of the ECHR with respect to conditional planning licenses that would not, in themselves, cause significant greenhouse gas emissions. Both Article 8 and 2 were deemed inapplicable. The UK Supreme Court summarily dismissed claims under the ECHR as being in any event outside the scope of appeal. The Norwegian Supreme Court based its interpretations of Article 8 on ECtHR case law pertaining to incurred local environmental harm without discussing ECtHR case law on future and hypothetical environmental risks of planned activity. The oil and gas exploration licenses at issue in the case had at any rate not resulted in any exploitable findings of petroleum.

The Swiss Supreme Court has, as discussed above, dismissed the urgency of climate induced heat waves, whereas the Supreme Court of the Netherlands has held that the threat of dangerous climate change clearly poses a real and immediate risk under Articles 2 and 8 of the ECHR, from which the authorities are obliged to protect its citizens. In accordance with a review of the present ECtHR practice, the Court stated that

“no other conclusion can be drawn but that the State is required pursuant to Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change if this were merely a national problem. Given the findings above in paras. 4.2-4.7, after all, this constitutes a ‘real and immediate risk’ as referred to above in para. 5.2.2 and it entails the risk that the lives and welfare of Dutch residents could be seriously jeopardized. The same applies to, inter alia, the possible sharp rise in the sea level, which could render part of the Netherlands uninhabitable. The fact that this risk will only be able to materialize a few decades from now and that it will not impact specific persons or a specific group of persons but large parts of the population does not mean – contrary to the State’s assertions – that Articles 2 and 8 ECHR offer no protection from this threat (see above in para. 5.3.1 and the conclusion of paras. 5.2.2 and 5.2.3). This is consistent with the precautionary principle (see para. 5.3.2, above). The mere existence of a sufficiently genuine possibility that this risk will materialise means that suitable measures must be taken.”

The analysis of the Supreme Court of the Netherlands is based on established legal principles pursuant to Articles 2 and 8 of the ECHR, including the principle of effective rights protection and the precautionary principle. The analysis is not limited to the risks associated with rising sea level represents for a low-lying country. The German Constitutional Court has similarly held that the right to physical integrity under the German Constitution, places the state under an obligation to limit global warming. The Court references ECtHR case-law under Article 8 of the ECHR in this respect.

Potential and hypothetical risk that may not materialise for a period of up to 50 years, i.e. the year 2070 calculated from today, may in principle be encompassed by Article 8 of the ECHR.¹⁰⁹See Taşkın et al. v. Turkey, Section 113. Climate change, by comparison, is not a hypothetical and potential risk, but a latent and existing risk that has already materialised.¹¹⁰IPCC 5th Assessment Report, Summary for Policymakers. If demonstrating that climate change as a result of emissions today will not occur until decades in the future was to relieve States of responsibility, the inertia of the temperature response will exclude the protection of the right to life and well-being against one of the most serious threats to the right to life and well-being, or “the ability of present and future generations to enjoy the right to life”, as the UN Human Rights Committee has formulated it.¹¹¹See CCPR/C/GC/36, paragraph 62. As in Taşkın et al. v. Turkey, it can set the positive obligation to protect life and well-being “at naught”.¹¹²Cf. Taşkın et al. v. Turky Section 113.

5.6.4. Summary

The risk of dangerous climate change is latent and existing, and is substantiated in national and international risk assessments. The risk appears to have a “sufficiently close link” with the private life and well-being of vulnerable groups, if not today, then at least within a period of time accepted by the ECtHR. Hence, Article 8 of the ECHR applies.

5.7. Particular questions when applying Articles 2 and 8 of the ECHR to greenhouse gas emissions

5.7.1. Can individual States be held accountable for violations caused by multiple States?

An objection to asserting a positive obligation for the State to avert dangerous climate change is that climate change is not the result of emissions caused only by a single Convention State, but rather by emissions from every country in the world. In NIM’s view, however, this does not mean that the State is exempt from the positive duty to take action to safeguard its citizens from dangerous climate change under Articles 2 and 8 of the ECHR.¹¹³ Georgel and Georgeta Stoicesu v. Romania (9718/03) concludes that the positive obligation is an obligation concerning content, not result. There are several reasons for this.

5.7.2. ECtHR practice

Firstly, based on well-established ECtHR practice, a state is not exempted from responsibility because a potential violation is partly or primarily based on the actions of other countries. The Court held in Andrejeva v. Latvia that “the fact that the factual or legal situation complained of by the applicant is partly  attributable to another State is not in itself decisive for the determination of the respondent State’s ‘jurisdiction’”.¹¹⁴Andrejeva v. Latvia [GC] (55707/00) § 56. In Soering v. United Kingdom, the ECtHR found that imminent expulsion or return from a Convention State to another State will violate the obligations of the Convention State under Article 3 of the ECHR, even though it is the other State that exposes the person in question to a real risk of torture, degrading or inhumane treatment or punishment. The Soering-principle has evolved in case-law to include multiple chains of causality, e.g. the return of a person to a country, where the person would be at a real risk of being sent to a third country, where the person in question will be at risk of degrading treatment, by the latter state or private parties.¹¹⁵ M.S.S. v. Belgium and Greece [GC] (30696/09), Hirsi Jamaa et al. v. Italy [GC] (27765/09). The ECtHR’s rationale is general and applies in principle not only to Article 3 of the ECHR but any Convention right.¹¹⁶O’Boyle et al. (2018), p. 248; O’Boyle, “Rights: reflections on the Soering case” in James O’Reilly (editor), Human Rights and Constitutional Law Essays in Honour of Brian Walsh (1992), p. 97. The Convention States are therefore obligated to do what they can within their jurisdictions, by refraining from contributions to potential harm, to protect individuals from real risk of the hypothetical actions or omissions by other countries.

5.7.3. Customary international law

Secondly, customary international law recognises that a state can be held individually responsible for actions that only partially contribute to the damage, and where the actions of other States are necessary and independent contributions. Customary international law is relevant in accordance with the ECtHR’s method to the interpretation of the ECHR, see Article 31 (3)(c)  of the Vienna Convention.¹¹⁷ Bankovic et al. v. Belgium et al., Section 57. See Section 3.2.6. General rules of international law  concerning state responsibility are stated in the Articles on State Responsibility for International Wrongful Acts, prepared by the UN International Law Commission and adopted by the UN General Assembly.¹¹⁸Articles on State Responsibility for International Wrongful Acts (ASR), Article 47. The articles are in large part regarded as an expression of customary international law. Article 47 (1)reads:

“Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be pleaded in relation to that act.”

The explanatory report on the provision states:¹¹⁹Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, p. 124, Section 1.

“Article 47 deals with the situation where there is a plurality of responsible States in respect of the same wrongful act. It states the general principle that in such cases each State is separately responsible for the conduct attributable to it, and that responsibility is not diminished or reduced by the fact that one or more other States are also responsible for the same act. (…)

Of course, situations can also arise where several States by separate internationally wrongful conduct have contributed to causing the same damage. For example, several States might contribute to polluting a river by the separate discharge of pollutants. […] In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.”

The provisions here are aimed only at acts that constitute violations of international law (hence the phrase “internationally wrongful acts”). In this sense they are relevant in situations where it is alleged that a State has violated international law (including the ECHR). The essence of the rules on State responsibility is that States are individually responsible under international law for their contributions to damage.

This responsibility is not limited or precluded by the fact that other States have contributed to the same damage.¹²⁰Articles on Responsibility of States at Internationally Wrongful Acts, with commentaries, 2001, p. 124, Section 2. In the Corfu Channel case from 1949, for instance, the ICJ found that Albania was fully responsible for the loss of life and material damage to British vessels as a result of mine explosions in Albanian waters, even though the mines had been placed there by a third country.¹²¹The ICJ concluded that the mines were of a German variety, and probably deployed by Yugoslavia. The ICJ found that Albania was obliged to try to “prevent the disaster”.¹²²Corfu Channel (United Kingdom and Northern Ireland v. Albania), 9 April1949, p. 23. When Albania failed to take “all necessary steps” to prevent the potential disaster that mines in their waters represented to people and vessels, they were responsible and obligated to provide the United Kingdom with compensation for the damage directly inflicted by the actions of third countries.¹²³Ibid.

States are also responsible for the consequences of transboundary environmental harm resulting from activities that are not prohibited by international law, as outlined in the UN International Law Commission’s Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, adopted by the UN General Assembly in 2006.¹²⁴Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, 2006,  Articles 2 and 4.

5.7.4. Specialised rules of international law on greenhouse gas emissions

Thirdly, the lex specialis rules of international law on greenhouse gas emissions set out that every country has “common but differentiated responsibilities” to reduce greenhouse gas emissions to prevent dangerous climate change, see the preamble, sixth paragraph, Article 3 (1), Article 4 (1) of theUN Framework Convention on Climate Change (UNFCCC),as well as the preamble, third paragraph. Under the Paris Agreement, account should also be taken of states’ “respective capabilities”.¹²⁵Paris Agreement, preamble, article 2.2, 4.3 and 4.19. Under Article 2 of the UNFCCC, the objective is to stabilise the concentration of greenhouse gases in the atmosphere at a level “that would prevent dangerous anthropogenic interference with the climate system”, defined in Article 1 no. 1, inter alia, as “changes in the physical environment or biota resulting from climate change which would have significant deleterious effects on […] human health and welfare”. In order to prevent such dangerous changes, the parties shall “protect the climate system for the benefit of present and future generations of humankind”. Developed countries, given their historical responsibilities and resources, “should take the lead”, see the UNFCCC Article 3 (1). According to the ECtHR’s method, specialised international climate rules are in principle relevant to the interpretation of the ECHR.¹²⁶ Demir and Baykara v. Turkey. See also section 5.2.6.

5.7.5. National responsibility rules

Finally, it can be added that basic rules of responsibility in the law of damages, which are common in the national legal systems of the Convention States and in the EU, operate on the principle of joint and several liability. Under the circumstances, it may also be a relevant source of law for the ECtHR’s interpretation of the ECHR.¹²⁷ Agrotexim et al. v. Greece (15/1994/462/543), Section 66; Goodwin v. United Kingdom (17488/90), Section 39. See further details in Kjølbro (2020), p. 33.

5.7.6. Objections

Two persisting objections are that if a single State is held responsible, other States may become freeloaders, and that emissions from a single State may be marginal compared to global emissions. However, the consequence of these objections are that any country can then evade partial responsibility for greenhouse gas emissions by pointing to other countries or to the size of its own relative contribution, so that no country can be held responsible if greenhouse gas emissions exceed an existentially dangerous level. This argument may be inconsistent with general principles of international law, such as the rules on state responsibility for international law violations and international liability for damages for transboundary harmful acts.¹²⁸Articles on State Responsibility, Article 47, see also Principles of the allocation of loss in the case of transboundary harm arising out of hazardous activities, 2006, inter alia, Articles 2 and 4. It may also be inconsistent with Article 31 of the Vienna Convention, according to which a treaty shall be interpreted based on the wording of the text, as well as the object and purpose of the treaty. The interpretaion of Articles 2 and 8 in this context should thus promote the overall purpose of the ECHR regarding the protection of individuals and the purpose of the Statute of the Council of Europe regarding the protection of human society and civilization.

The Supreme Court of the Netherlands stated this as follows:

“Indeed, acceptance of these defences would mean that a country could easily evade its partial responsibility by pointing out other countries or its own small share. If, on the other hand, this defence is ruled out, each country can be effectively called to account for its share of emissions and the chance of all countries actually making their contribution will be greatest, in accordance with the principles laid down in the preamble to the UNFCCC cited above in 5.7.2.

Also important in this context is that, as has been considered in 4.6 above about the carbon budget, each reduction of greenhouse gas emissions has a positive effect on combating dangerous climate change, as every reduction means that more room remains in the carbon budget. The defence that a duty to reduce greenhouse gas emissions on the part of the individual states does not help because other countries will continue their emissions cannot be accepted for this reason either: no reduction is negligible.”¹²⁹The Supreme Court of the Netherlands in Urgenda v. Netherlands, Sections 5.7.7 and 5.7.8.

The Supreme Court of the Netherlands concluded that Articles 2 and 8 of the ECHR entail positive obligations for the Convention States “to do ‘their part’” to prevent dangerous climate change. The Court considered this interpretation “sufficiently clear” based on the case law of the ECtHR and other principles of interpretation, eliminating the need to request an advisory opinion from the ECtHR, see Protocol No. 16, Article 1.¹³⁰The Supreme Court of the Netherlands in Urgenda v. Netherlands, Section 5.6.4. Protocol no. 16 has been ratified by the Netherlands. The protocol has been signed, but not ratified, by Norway. An overview of the ratification status is available here: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/214/signatures?p_auth=JxEGRcU8 Similarly, the Administrative Tribunal of Paris has held France responsible for having contributed to “une partie” of the ecological harm caused by greenhouse gas emissions by overstepping national carbon budget.¹³¹Notre Affaire à Tous and Others v. France (2021) no. 1904967, 1904968, 1904972, 1904976/4-1 (Administrative Court of Paris), para. 34. The German Constitutional Court has also dismissed arguments to the effect that the State can evade its responsibility by pointing to emissions in other States.¹³²Neubauer et al. v. Germany, para. 203.

5.7.7. Summary

Based on ECtHR case law, supported by international law, tort law and EU-law, this conclusion appears the most obvious one: States cannot evade responsibility for climate induced human rights violations simply because greenhouse gas emissions are caused also by other States.

5.8. Positive obligations relating to climate change risks

5.8.1. Overview

Based on the assumption that Articles 2 and/or 8 of the ECHR apply to the dangerous risks associated with climate change, this part will discuss the content of the positive obligation under these provisions. In accordance with the ECtHR’s practice, the positive obligation has both substantive and a procedural elements.¹³³ Taşkın et al. v. Turkey, Sections 115 ff.

5.8.2. Substantive element of the positive obligation

The substantive element entails that the ECtHR will consider “the substantive merits of the national authorities’ decision” to ensure that it is compatible with the requirements pursuant to Article 2 or 8 of the ECHR.¹³⁴ Hatton et al. v. United Kingdom Section 99; Taşkın et al. v. Turkey, Section 115. The ECtHR will assess whether the State has taken “appropriate steps” to prevent the risk. The onus lies on the State¹³⁵Fadeyeva v. Russia, no. 55723/00, §§ 129-130; Jugheli and Others v. Georgia, no. 38342/05, § 76; Dubetska and Others v. Ukraine, no. 30499/03, § 155; Cordella, § 161. Similarly, Urgenda, para. 5.3.3. to provide “sufficient explanation”, including “using detailed and rigorous data”,¹³⁶Dubetska, § 155; Fadeyeva, § 128; Jugheli, § 76. that its measures are reasonable and appropriate, i.e that it has provided an “effective solution” to the risk of harm and “effective protection” of the applicant.¹³⁷Öneryildiz, § 89 (“effective deterrence against threats to the right to life”); Budayeva, § 132 (“effective protection of citizens whose lives might be endangered by the inherent risks”; Fadeyeva, § 133 (“effective solution”, “effective measures”); Dubetska, § 155 (“effective solution”); Brincat § 110 (“effective protection”). However, the obligation is one of means rather than results and an “impossible or disproportionate burden must not be imposed on the authorities”.¹³⁸Stoicesu, §§ 51, 59. The Court initially held in Lopez Ostra (§ 51) and recently in Cordella (§ 158), that States enjoy a “certain margin of appreciation” in environmental issues.  Budayeva suggests that the margin be narrower with respect to risks “of a man-made nature”, such as climate change, as opposed to natural disasters “beyond human control”.¹³⁹Budayeva, §§ 134-135, 137.

State authorities do not have the freedom to choose whether or not to take adequate and necessary measures, but the ECtHR may grant a wide margin of discretion in the choice of specific measures implemented to prevent the risk.¹⁴⁰ Hatton et al. v. United Kingdom, Section 100; Buckley v. United Kingdom (20348/92), Sections 74–77.

The positive obligation pursuant to Articles 2 and 8 of the ECHR in the environmental area is, as mentioned above, preventative, in order to safeguard against potential risks. The ECtHR has accepted a greater degree of uncertainty here, with reference to the precautionary principle.¹⁴¹Tãtar v. Romania, Section 120, which states: “En ce sens, la Cour rappelle l’importance du principe de précaution (consacré pour la première fois par la Déclaration de Rio), qui “a vocation à s’appliquer en vue d’assurer un niveau de protection élevée de la santé, de la sécurité des consommateurs et de l’environnement, dans l’ensemble des activités de la Communauté.” The precautionary principle means that scientific uncertainty about the likelihood of potential environmental damage does not exempt States from a positive obligation to prevent risk.¹⁴²See e.g. Article 3 (3)of the UNFCCC. This states that in cases of “threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing [precautionary] measures”.

The Supreme Court of the Netherlands held that the State was obligated to take “appropriate measures” against the threat of dangerous climate change.¹⁴³Supreme Court of the Netherlands in Urgenda v. Netherlands, Sections 5.8–5.9.1. Even though the Dutch Court maintained that this “in principle” was a political question, it considered itself competent to decide whether the State had provided a sufficient explanation as to why its emissions cuts were below a minimum limit  to combat dangerous climate change.¹⁴⁴Paragraph 6.3–6.6

In determining this lower limit, the Supreme Court of the Netherlands applied the ECtHR’s “common ground” doctrine. The Court pointed out that there is a “high degree of international consensus on the urgent need” for the developed countries listed in Annex 1 of the UNFCCC to reduce greenhouse gas emissions by at least 25-40 percent by 2020, compared with 1990 levels, based on IPCC scenario AR4 from 2007.¹⁴⁵ Urgenda v. Netherlands, Section 7.2.11. This was based on the “widely supported view of states and international organisations, which view is also based on the insights form of climate science”.¹⁴⁶ Urgenda, paragraph 6.3. See also section 5.2 above. The reduction rate is anchored to Articles 3 and 4 of the UNFCCC and has been included in the resolution of the Bali Climate Change Conference in 2007 (COP-13), the preambles of the resolutions of the Cancùn Climate Change Conference in 2010 (COP-16), Durban in 2011 (COP-17) and Doha in 2012 (COP-18), as well as the resolutions adopted at the climate change conference in Warsaw in 2013 (COP 19), Lima in 2014 (COP-20) and Paris in 2015 (COP-21). The reduction rate has also been supported by the EU.¹⁴⁷See most recently COM/2020/562 final, 17 September 2020, Stepping up Europe’s 2050 climate ambition, where the European Commission sets an emissions reduction target of 55% by 2030. The Commission points out that the IPCC’s most recent special reports conclude a greater risk of tipping points in the Earth’s climate system with less warming than the 5th The IPCC report. Based on the “common ground” doctrine, the Court considered the Netherlands to be obligated to reduce greenhouse gas emissions by at least 25 per cent by the end of 2020.

The Court’s application of the common ground doctrine in line with ECtHR practices.¹⁴⁸ Demir and Baykara v. Turkey, Sections 85–86. As mentioned above, the ECtHR takes into account specialised rules and principles of international law, provided they express a “common ground in modern societies”.¹⁴⁹ Demir and Baykara v. Turkey, Section 86. This includes “scientific and societal developments”. Since a minimum 25 per cent emission reduction was not legally binding by itself, the Dutch Supreme Court nevertheless exercised restraint with respect to reviews outside of “clear-cut cases”.¹⁵⁰ Urgenda, paragraph 6.6.

The Urgenda decision concerned emission cuts by the end of 2020. With respect to emission cuts required to limit global warming to 1.5 degrees going forward, the ECtHR’s common ground doctrine suggests that the assessment of whether a State has taken all necessary and sufficient measures should be made in light of its commitments under the UNFCCC and the Paris Agreement, best available science¹⁵¹Brincat, § 112; Rees v. the United Kingdom, no. 9532/81, § 47; Cossey v. the United Kingdom, no. 10843/84, § 40; Fretté v. France, no. 36515/97, §42; S.H. & Ors v. Austria, no. 57813/00, §§ 97-118; Dubská and Krejzová v Czech Republic, no. 28859/11 and 28473/12, §100; Oluić v. Croatia, no. 22330/05, §§ 29-31. and the international consensus regarding the emissions reductions required to limit warming to 1.5 degrees.¹⁵²Demir and Baykara v. Turkey, no. 34503/97 [GC], § 85; See also the interpretation of the Paris Agreement in domestic human rights cases such as Nature and Youth Norway and others v. Norway, paras. 56-60; Grande Synthe v. France, paras. 8-13; Plan B v. the United Kingdom [2020] EWCA Civ 214; Urgenda, section 5. States’ margin of appreciation should be confined to the choice of means in relation to this target. In addition, as pointed out by the Dutch Supreme Court and the German Constitutional Court, the precautionary principle implies that States’ minimum reduction rates should not rely on negative-emission technologies to remove CO2 from the atmosphere, many of which do not yet exist or are still at early stages of development.

Budayeva, as well as the principle of intergenerational equity, further suggests a narrow margin of appreciation since climate change is essentially of a “man-made nature” and a failure to stay within the 1.5-degree target will dramatically limit the choice of means available to younger generations. Moreover, since failure to cut emissions sufficiently today would irreversibly offload a drastic obligation to cut emissions in the near future, avoiding an “impossible or disproportionate burden” for the Contracting States supports more stringent emission cuts today, not less. This would safeguard political leeway in an intertemporal sense, as well as protecting fundamental rights in the future against irrevocable ifringements today (Neubauer et al. v. Germany).

The IPCC’s 2018 report states that global emissions must be cut by 45 per cent from 2010 levels by 2030, and reach “net zero” by 2050 to limit warming to 1.5 degrees. As mentioned above, ratifying States are committed to emissions cuts based on their “highest possible ambition” under Article 4.3 of the Paris Agreement. Under Article 2.1(c), States are obliged to follow a “pathway towards low greenhouse gas emissions and climate-resilient development.” It cannot be assumed that a reduction rate less ambitious than the IPCC report’s emissions trajectory to reach the 1.5-degree target could be deemed adequate and necessary to avert harmful climate change. Moreover, since relevant IPCC scenarios on emission cuts to reach the 1.5 degree target presupposes large-scale negative technology that does not yet exist, the precautionary principle entails that emission cuts ought to be even higher. As noted by the German Constitutional Court, however, a specific reduction target in the future is in itself devoid of meaning, if it does not also set out a specified annual reduction rate based on scientific findings on the residual carbon budget. To this end, the German Constitutional Court relied on assessments by the IPCC and the German Council of Experts in Environmental Affairs.

5.8.3. Procedural element of the positive obligation

The procedural element of the positive obligation entails that the ECtHR will review the decision-making process to ensure that sufficient emphasis has been placed on the interests of individuals.¹⁵³ Taşkın et al. v. Turkey, Section 115, see also Hatton et al. v. United Kingdom, Section 99. The requirements made for the decision-making process are preventive by their nature, and have three components:

1. The State must conduct the necessary reports and studies “in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights”.¹⁵⁴ Taşkın et al. v. Turkey, Section 119; Hatton et al. v. United Kingdom, Section 128; Tătar v. Romania, Section 88.
2. Information from such reports and studies must be publicly available so that the citizens are able to assess in advance “the danger to which they are exposed”.¹⁵⁵ Taşkın et al. v. Turkey, Section 119; Guerra et al. v. Italy, Section 60; McGinley and Egan v. United Kingdom (10/1997/794/995-996), Section 97; Tătar v. Romania, Section 88.
3. The citizens must be able to attack the validity of any decision, action or omission at any stage of the process.¹⁵⁶ Hatton et al. v. United Kingdom, Section 127; Taşkın et al. v. Turkey, Section 119; Tătar v. Romania, Section 88.

While the substantive requirements derived by the Supreme Court of the Netherlands concern the minimum targets for the total emission reductions, the procedural requirements set out by the ECtHR also apply to specific decision-making processes that may entail significant emissions.

The procedural element of the positive obligation under  Articles 2 and 8 of the ECHR will probably require that State authorities at an early stage assess and make information available on the potential climate and human rights consequences of permits to extract carbon from geological deposits with the goal of combustion to the atmosphere. Such information will probably have to shed light on potential and total greenhouse gas emissions compared with the remaining carbon budget and Norway’s partial responsibility under the UNFCCC and the Paris Agreement with the goal of limiting warming to 1.5 degrees.¹⁵⁷ Plan B v. United Kingdom, EXCA Civ 214, 27 February 2020; Friends of the Irish Environment v. Ireland, IESC 49, 31 July 2020.July 2020. A positive obligation to assess risks and make assessments available in advance is not just of importance so that citizens are able to assess the risk that they and their descendants will be exposed to by permits that will allow significant sources of emissions in the long term, but also so that voters can make informed decisions and hold politicians accountable in elections.¹⁵⁸Supreme Court of Ireland in Friends of the Irish Environment v. Ireland.

Based on the ECtHR’s practice, the authorities will have to make predictions about the risk of pollution based on the evidence base available to the State, even if it is uncertain.¹⁵⁹ Guerra et al. v. Italy, Section 60. Here, the residents were given information about what type of pollution hazard they had been exposed to when the factory finished this part of its production in 1994. The ECtHR concluded that Article 8 of the ECHR had been violated. If the residents were to have been able to assess the risk associated with living in the city, they would have had to receive predictions about the risk of pollution in advance, and not certain information about the exact risk after the fact. However, the precautionary principle indicates that such uncertainty must be resolved in favour of the environment. In the case of greenhouse gas emissions, the authorities can therefore probably not rely on vague assumptions about technological developments in the future that are currently unavailable or scalable, or uncertain assumptions about carbon leakage internationally.¹⁶⁰For more, see the Supreme Court of Ireland in Friends of the Irish Environment v. Ireland.

5.8.4. Summary

Based on the above, a positive obligation to avert dangerous climate change can arguably be established for the purposes of Articles 2 and 8 of the ECHR.¹⁶¹See further details in Section 5.4-5.7. This could give rise to a substantive obligation to reduce greenhouse gas emissions at a scale and pace sufficient to reach a “common ground”-based tolerance limit on warming of 1.5 degrees, and in any case well below 2 degrees. In terms of procedural obligations, we have outlined the requirements set out by the ECtHR for specific decision-making processes. We have concluded that this will likely require the authorities to assess and provide information on the impacts of permits allowing for significant greenhouse gas emissions, based on a precautionary approach, to safeguard  the substantive duty to avert dangerous climate change.

5.9. Procedural conditions – in particular the victim requirement in Article 34 of the ECHR

5.9.1. The significance of procedural conditions in the climate area

Articles 34 and 35 of the ECHR set out the conditions for appealing to the ECtHR. Article 34 of the ECHR states, among other things, that the appeal must be made by someone claiming to be a victim of a convention violation. Climate change principally applies to future risks that may be difficult to individualize in advance. Thus, procedural conditions could constitute a practical obstacle to reviewing appeals over greenhouse gas emissions submitted by individuals to the ECtHR. In national law, environmental organisations have traditionally played a decisive role in promoting such broader public interests where environmental threats interfere. In Norway, for instance, organisations can plead personal ECHR rights in their own name pursuant to the Dispute Act, Section 1-4. A related question is whether Article 34 of the ECHR can be interpreted to allow appeals to the ECtHR from organisations on these types of issues.

5.9.2. Overview of the “victim” requirement pursuant to Article 34 of the ECHR

Article 34 of the ECHR grants the right of appeal to natural and legal persons, non-governmental organisations and groups of individuals, provided they can claim to be a victim of an alleged violation of the Convention. A “victim” is understood to mean the person or persons directly or indirectly affected by an alleged violation.¹⁶² Vallianatos et al. v. Greece [GC] (29381/09 and 32684/09), Section 47. With respect to future environmental harm, the Court initially held in Asselbourg that it is only in “wholly exceptional circumstances” that a risk of future violations may result in the conferral of victim status. However, subsequent case-law suggests that the threshold is lower today.  For example, neither in Taşkın (§ 113) nor Hardy and Maile (§ 191) did the Court question the applicants’ victim status, even though the cases concerned hypothetical risks of environmental harm in the future.¹⁶³Taşkin, § 113; Hardy and Maile, § 191; Tătar v. Romania, no. 67021/01.

Associations can appeal on behalf of directly affected individual members under a power of attorney, or appeal in their own name over alleged violations, in which the association, at least in principle, is itself “directly affected”.¹⁶⁴Kjølbro (2020), p. 121. Since associations as natural persons do not have a right to life under Article 2 of the ECHR and can in principle not claim a separate right to health under Article 8 of the ECHR, one can ask whether associations can be in a position procedurally to claim a violation of these provisions in their own name.¹⁶⁵ Identoba v. Georgia (73235/12), Section 45; Greenpeace E.V. et al. v. Germany (18215/06).

However, this issue must be further clarified. The question is not whether organisations can claim their own right to life or health, but whether they can file an appeal in their own name for violations that will jointly affect several members of the association. Kjølbro notes that there is “some doubt” regarding this question.¹⁶⁶Kjølbro (2020), p. 121. He concludes that associations “presumably” can also be entitled to appeal if a sufficient number of the association’s members are directly affected.¹⁶⁷Kjølbro (2020), p. 121. We will discuss this question in more detail in the following.

5.9.3. Can organisations appeal in their own name against violations that will affect their members?

In accordance with ECtHR case law, the point of departure is that normally the association itself must be “directly affected” in order to appeal.¹⁶⁸ British Gurkha Welfare Society et al. v. United Kingdom (44818/11), Section 50. This requirement is typically used as justification for dismissing appeals from associations in cases where there are specific individuals who have allegedly been subjected to a violation and who have either appealed or will be able to appeal on their own behalf.¹⁶⁹See, for example, Identoba v. Georgia, Section 45; Vallianatos et al. v. Greece, Section 47. This differs from appeals from associations concerning the future effects of greenhouse gas emissions, which are precisely characterised by the fact that individuals who are the most obvious parties to appeal the alleged violations cannot be easily identified.¹⁷⁰The Swiss Supreme Court’s decision of 5 May 2020 illustrates how difficult it will be for individuals to prove that they are at present individually and particularly affected by climate change.

The Court interprets the victim-requirement dynamically, and has warned that an “excessively formalistic” interpretation would make rights protection “ineffectual and illusory”.¹⁷¹Gorraiz Lizarraga et al. v. Spain, no. 62543/00, § 38; Monnat v. Switzerland, no. 73604/01, §§ 30-33. In general, Article 34 does not allow actio popularis and complaints in abstracto. However, the Court has in several cases accepted complaints of a general nature from individuals residing in regions were all residents would be equally exposed to pollution, even though the risk could not be proven and specified at the individual level.¹⁷²Cordella et al. v. Italy, no. 54414/13 and 54264/15, § 100-107. See also, Taşkin et al. v. Turkey, no. 46117/99; Hardy and Maile v. the United Kingdom, no. 31965/07. Similarly, case-law on secret surveillance suggests that an alleged violation may affect a larger group of people or an entire population without undermining the victim status of specific applicants.¹⁷³ Zakharov v. Russia, no. 47143/06, § 168; Klass et al. v. Germany, no. 5029/71, § 37.

In cases where it would be impossible for appellants to demonstrate that they are directly or indirectly affected by an alleged violation, the ECtHR has allowed the abstract review of laws that have a structural effect. One type of case is secret surveillance.¹⁷⁴ Roman Zakharov v. Russia [GC] (47143/06) Sections 173–178. In Klass et al. v. Germany, the Commission justified the exception as follows:

“The question arises in the presented proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. In the Court’s view, the effectiveness (l’effet utile) of the Convention implies in such circumstances some possibility of having access to the Commission. If this was not so, the efficiency of the Convention’s enforcement machinery would be materially weakened. The procedural provisions of the Convention must, in view of the fact that the Convention and its institutions were set up to protect the individual, be applied in a manner which serves to make the system of individual applications efficacious.”¹⁷⁵ Klass et al. v. Germany, Section 34.

In these types of cases, a formalistic interpretation of the “victim” requirement would thus exclude appeals concerning secret surveillance precisely because the surveillance is secret.

A corresponding impossibility characterises appeals over greenhouse gas emissions that could violate the right to life and integrity of the person. It is a scientific fact that the current emission rate (42 Gt CO₂ per year) gives us less than 10 years before the remaining carbon budget to achieve the 1.5-degree target with a 66 per cent probability will be exceeded.¹⁷⁶IPCC’s carbon budget, cited in the Court of Appeal’s judgement, Section 3.1. See: www.globalcarbonproject.org/carbonbudget. This will ensure irreversible and dangerous climate change, which will then no longer be possible to avert. At the same time, it may be difficult today to specify which individuals bear a real and individualised risk of losing their lives in landslides, wildfires, avalanches, floods, heatwaves, pandemics and hurricanes that greenhouse gas emissions today cause with a latent and delayed effect in the future.¹⁷⁷See Chapter 2 of the report, written by CICERO on commission from NIM concerning impact time.

A formalistic interpretation of the “victim” requirement will therefore in practice entail, as in Klass v. Germany, that individuals are deprived of their access to appeal to the ECtHR because of the actual violation he or she is appealing against. Just as the secrecy constitutes at the same time the violation and the procedural obstacle in Klass, it is the temperature response to the greenhouse gas emissions with its inherent inertia that constitutes at the same time the violation and the procedural obstacle in appeals concerning greenhouse gas emissions.

The ECtHR has also considered the substance of appeals in abstracto from associations in cases concerning mass/bulk surveillance, where potential violations may affect everyone and anyone, and where it will not be possible to demonstrate specified individual violations.¹⁷⁸ Centrum för rättvisa v. Sweden (35253/08), Section 92 and Big Brother Watch et al. v. United Kingdom (58170/13, 62322/14 and 24960/15). Both cases are being heard by the ECtHR’s grand chamber and no final decision has yet been made. Two additional appeals filed by associations have been communicated, see Privacy International et al. v. United Kingdom (46259/16) and Bureau of Investigative Journalism and Alice Ross v. United Kingdom (62322/14). Such cases are related to the rights the associations themselves have as legal persons, but generally apply to the existence of legislation that allows mass surveillance in bulk and potentially allows secret surveillance of anyone. In Centrum för rättvisa v. Sweden, for example, the ECtHR gave the association “victim” status, despite the fact that the appeal concerned the existence in abstracto of legislation, and despite the fact that the association could not demonstrate any specified individual violation, because it concerned a “system of signal intelligence that potentially affects all users of, example, mobile telephone services and the internet”.

Since climate change, as opposed to secret surveillance and bulk surveillance, may in its ultimate consequence entail irreversible changes to the possibility of life in the foreseeable future, a formalistic understanding of the “victim” requirement will also lead to the following paradox:

Today, when it is still possible to guard against emissions that will lead to dangerous climate change, appeals concerning the right to life and integrity of the person can conceivably be cut off procedurally because they cannot be adequately individualised. When climate change becomes so dramatic over time that a requirement for the individualisation of the loss of life and health can be met without difficulty by a large numbers of appeals, individuals will no longer have an opportunity to guard against the causes of climate change, because CO₂ in excess of the 1.5 degree target (430 ppm CO₂), or even the 2 degree target (450 ppm CO₂), has already been extracted and combusted.¹⁷⁹For more, see Chapter 2 of the report written by CICERO, and www.globalcarbonproject.org.

Representative appeals from collective entities, such as environmental protection associations, could be a way in which individuals can effectively and genuinely enforce rights in this area today. Consideration for effective rights protection may thus imply that the ECtHR could be persuaded to grant “victim” status to environmental protection associations, precisely because collective entities will be able to represent a community of affected interests, even if the interests of individual members alone are probably not adequately assessed in isolation. In addition, the complexity of the administrative decisions such appeals may conceivably challenge will involve genuine obstacles that a collective entity can practically and in terms of resources have better resources for overcoming than private individuals.

The ECtHR reasoned along these lines in an environmental case concerning the location of a dam that would flood a village, Gorraiz Lizarraga et al. v. Spain. Here, the Court justified an expansive interpretation of the term “victim” by the fact that collective entities such as associations are becoming increasingly important in modern societies in order for individuals to have remedies available to ensure effectiveness.¹⁸⁰Gorraiz Lizarraga et al. v. Spain, Section 38. The ECtHR therefore allowed both the environmental protection association and individual members, who had not been a party to the national legal action, the right of appeal to the ECtHR. The Court pointed out that the term “victim” must be interpreted dynamically, and then stated the following:

“And indeed, in modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members’ interests is recognised by the legislation of most European countries. That is precisely the situation that obtained in the present case. The Court cannot disregard that fact when interpreting the concept of ‘victim’. Any other, excessively formalistic, interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory.”¹⁸¹ Gorraiz Lizarraga et al. v. Spain, Section 38.

The ECtHR has also in other contexts emphasised the importance of environmental protection associations to prevent and appeal violations of environmental rights.¹⁸²See, for example, Costel Popa v. Romania (47558/10). Sicilianos has even pointed out that the right to establish associations can prove to be very important in filing appeals concerning environmental law violations to the ECtHR.¹⁸³Sicilianos, published speech of 27 February 2020, mentioned above.

An exception for environmental protection associations may draw on the justification for representative legal actions, as this institution has emerged in European legal systems. The ECtHR may attach weight to whether an interpretation is in accordance with what follows from the legal systems of several Convention States.¹⁸⁴See Agrotexim et al. v. Greece, Section 66; Goodwin v. United Kingdom, Section 39. In Gorraiz Lizarraga et al., the ECtHR justified a dynamic interpretation of Articles 34 and 35 of the ECHR, inter alia, by highlighting that the right for associations to bring legal actions to defend the interests of their members “is recognised by the legislation of most European countries”.¹⁸⁵See Gorraiz Lizarraga et al. v. Spain, Section 38.

According to Rt. 2005, p. 844 (para. 45), Norwegian courts will, in cases of doubt over the interpretation of the ECHR, also be able to rely on “value priorities on which Norwegian legislation and interpretation of law is based”. The institution of representative legal actions was originally justified in Norwegian law by environmental protection associations representing broader idealistic and public interests that otherwise could or would not be pleaded before the courts.¹⁸⁶See Rt. 1980 p. 569, Rt. 1992 p. 1618 and Rt. 2003 p. 833. The preparatory work of the Dispute Act points out that associations and foundations in particular “emerge as important bearers of public and idealistic interests in civil society”, see Proposition No. 52 (2004–2005) to the Odelsting, p. 356. In cases where individuals will not be affected to such an extent that they themselves can take legal action, organisations are also considered entitled to take legal action under Norwegian law since they represent the sum total of affected interests, see Rt. 1914 p. 419, Rt. 1952 p. 554, Rt. 1980 p. 569 and Rt. 1987 p. 538. Schei et al. note that an organisation has an interest as a party to a legal action in such cases “precisely because it represents a community – the affected parties – and where individual members are unlikely to be affected to such an extent that they could take legal action”.¹⁸⁷Schei et al., Tvisteloven kommentarutgave (Dispute Act Commentary Edition), 2^nd edition, Volume I, p. 60.

Such considerations are particularly relevant to questions concerning greenhouse gas emissions. This is because the consequences of emissions most strongly threaten those who lack procedural capacity pursuant to section 2-2 (2) of the Dispute Act, and the independent right of appeal pursuant to Article 34 of the ECHR today. Those are the children and young people who will live until and past 2100, and who in their lifetime, and in the lifetime of their children, will be exposed to dramatic and irreversible climate change unless greenhouse gas emissions are significantly reduced within a few years from now.

Accordingly, we believe there are several grounds supporting the assumption that the ECtHR will treat environmental protection associations appealing potential violations resulting from greenhouse gas emissions as a type of case outside of the cases in which the association itself is “normally” required to be directly affected.¹⁸⁸Cf. British Gurkha Association et al. v. United Kingdom.

5.9.4. Can individuals appeal to the ECtHR when the legal action has been filed by an organisation?

Whether an environmental organisation can appeal in its own name may nevertheless not be decisive. ECtHR practice shows that it is possible to differentiate the composition of appellants before the ECtHR, so that individual members of the association stand as co-appellants, without having taken part in the national legal action in their own name. In Gorraiz Lizarraga et al. v. Spain, the ECtHR accepted appeals from individual members of an environmental protection association that had not been part of the association’s legal action.¹⁸⁹ Gorraiz Lizarraga et al. v. Spain, Section 39. The decision is understood to mean that individual members of an environmental protection association will be eligible to appeal without regard to whether they themselves have exhausted national remedies, provided that the action is considered filed through an association.¹⁹⁰ Bursa Barosu Baskanligi et al. v. Turkey, No. 25680/05, 19/06/2018, Section 115. On the other hand, non-members who have not in any way participated in the association’s legal action will have to exhaust the national legal remedies before being able to appeal to the ECtHR in their own name.¹⁹¹ Bursa Barosu Baskanligi et al. v. Turkey, Section 115.

5.9.5. Summary

Even though the ECHR’s procedural conditions may constitute a practical obstacle with regard to appeals concerning greenhouse gas emissions to the ECtHR today, there is sufficient basis in the sources of law to suggest that the ECtHR might adapt a calibrated approach to ensure an effective review of the rights pleaded.¹⁹²For more on this, see Sicilianos’s speech, 27 February 2020.

5.10. Summary

This chapter has analysed the extent to which Articles 2 and 8 of the ECHR could establish a positive obligation on the authorities to do their part to prevent dangerous climate change. We have concluded that the existing sources of law indicate that Articles 2 and 8 of the ECHR apply to the risk of dangerous climate change resulting from greenhouse gas emissions. We have also concluded that States cannot evade responsibility because of the global nature of greenhouse gas emissions and outlined the various procedural and substantive obligations that States probably have in accordance with the present practice of the ECtHR to protect their citizens from the dangerous impacts of climate change.

We want to emphasise that these questions are yet to be decided authoritively by the ECtHR. It is also debatable how far national courts should go in interpreting the Convention in the ECtHR’s place. At the same time, one could ask whether this is really a matter of reinterpreting Articles 2 and 8 of the ECHR. It is perhaps more natural to characterise it as the logical application and extension of established legal principles from the ECtHR’s case law to a new set of facts.

6. Climate in the UN Human Rights System

6.1. Introduction

The various UN human rights bodies are increasingly devoting attention to the effects of climate change on the realisation of human rights.

The main instruments for the protection of human rights globally are the UN human rights conventions. The two most general of these are the UN International Covenant on Civil and Political Rights (ICCPR) and the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). Both emerge from the UN Declaration on Human Rights of 1948. In addition, there are more specialised human rights conventions, including the UN Convention on the Rights of the Child, the UN Convention on the Elimination of All Forms of Discrimination Against Women, the UN Convention against Torture, the UN Convention on the Elimination of All Forms of Racial Discrimination, and the UN Convention on the Rights of Persons with Disabilities.¹The UN International Covenant on Civil and Political Rights, the UN International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women have been made into Norwegian law and will prevail in cases of conflict with other legislation, cf. Sections 2 and 3 of the Human Rights Act. The UN Convention on the Elimination of All Forms of Racial Discrimination is incorporated into the Equality and Anti-Discrimination Act.

There are no general human rights provisions on climate or environmental rights in the UN human rights conventions.²See Chapter 7 of the report on procedural rights. The link between climate change and human rights has nevertheless been pointed out at several levels in the UN system.³See Chapter 3 of the report on the link between climate change and human rights. In 2008, the UN Human Rights Council adopted a separate resolution that recognised the link between climate, the environment and human rights, and has since then regularly made resolutions on the topic.⁴A/HRC/RES/7/23. The most recent of these came in July 2019.⁵A/HRC/RES/41/21, citing previously adopted resolutions concerning climate and the environment. Both the Human Rights Council and the UN High Commissioner for Human Rights have on several occassions highlighted that climate change poses a significant threat to the realisation of human rights.⁶Ibid. Among the rights threatened are the right to life, the right to health, the right to an adequate standard of living, indigenous rights and the rights of several vulnerable groups in society.⁷Ibid. See also Burger and Wentz, “Climate Change and human rights” in May and Daly (eds.) Human Rights and the Environment. Legality, Indivisibility, Dignity and Geography (2019) p. 199 ff.

Recognition of the close relationship between effective human rights and a viable climate has also been evident in the practices of various UN human rights bodies. This chapter will first review the practices of the UN treaty bodies and the rights that have been given most attention in a climate and environmental context. The chapter is divided by rights and addresses the right to life and the right to privacy and family life (6.3) and the right to health (6.4).⁸Attention has also been given to a number of other rights. Most often, the treaty bodies have mentioned in their various types of statements that the fulfilment of these rights can be negatively affected or threatened by the effects of climate change, without mentioning this further. In September 2019, for instance, the Women’s Committee, the Children’s Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of Persons with Disabilities, and the Committee on the Rights of Migrant Workers and Members of Their Families made a joint statement on climate change and human rights, highlighting how the effects of climate change threaten the realization of rights in the respective conventions they are charged with monitoring. Available on https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998&LangID=E. The chapter also looks at climate-related recommendations to Norway from the UN treaty bodies and the UN Special Rapporteur on Human Rights and the Environment (6.5). Before entering into these material issues, we will make a few brief remarks about the UN treaty bodies and their practices (6.2).

6.2. UN treaty bodies and their practices

6.2.1. UN treaty bodies

For each of the human rights conventions there are separate treaty bodies. The UN has a total of ten such committees. These are tasked with promoting, monitoring and enforcing States’ compliance with the rights enshrined in the individual Convention. They do this through general comments on the convention rights, concluding observations on individual States’ periodic reports and hearing complaints made by individuals against the States.⁹It is a prerequisite that the individual Convention State has joined the individual complaints scheme of the relevant UN Convention in order for the relevant committee to process them. Norway has currently joined the individual appeal system for four conventions, specifically the Convention on Civil and Political Rights, the Convention on Torture, the Women’s Convention, and the Convention on Racial Discrimination. See NIM’s annual report from 2019, p. 194 f., available on https://www.nhri.no/

6.2.2. The significance of the treaty bodies’ statements

General comments, concluding observations and decisions on individuals’ appeals are not in themselves legally binding on Convention States. Nonetheless, the treaty bodies’ decisions on appeals from individuals can carry “considerable weight” in a Norwegian context.¹⁰In Rt. 2008, p. 1764 paragraph 81, the Supreme Court stated that “a convention interpretation made by a UN human rights committee must carry considerable weight as a source of law.” The judgement is referred to in HR-2017-2247-A, paragraph 19. As for treaty body statements that appear to be “a clear interpretation of a convention,” the Supreme Court has stated that these types of statements are to be given “considerable weight.”¹¹See, e.g. HR-2018-2096-A, paragraphs 14-16 with further references. The Supreme Court places less emphasis on statements expressing a recommendation on optimal practice.¹²See e.g. Rt. 2009 p.1388, paragraph 78. This view also appears in later judgements, see e.g. HR-2019-2301-A. The legal significance of a statement must therefore be assessed on the basis of how well it can be anchored in the convention text.

The Supreme Court has not explicitly taken a position on the weight of the concluding observations on individual States’ reports, but these types of committee statements are state-specific and therefore have less weight in the general interpretation of human rights obligations. The observations also often express the ideal design of the practice, without the committees stating whether there are violations of human rights obligations.¹³For a more general overview of the importance of the UN committees’ statements, see e.g. Hellerslia, “Uttalelser fra FN-komiteene – en strukturell analyse”, Jussens Venner, no. 53 (2018) pp. 71–111 and Strand, “FNs menneskerettskonvensjoner og FN-komiteenes håndheving av dem” in Høgberg and Sunde (eds.), Juridisk metode og tenkemåte (2019) pp. 420–451. See also NIM’s annual report from 2019, p. 104 f., available on https://www.nhri.no/.

6.3.  The right to life and the right to private and family life

6.3.1. International Covenant on Civil and Political Rights (ICCPR)

The right to life and the right to privacy are enshrined ICCPR, Articles 6 and 17, respectively. The rights in this Convention are monitored by the UN Human Rights Committee.

In 2018, the Human Rights Committee made a general comment on the right to life.¹⁴CCPR/C/GC/36. The following quotes are from paragraph 62 of the comments. In this comment, the Committee recognises the connection between the right to life and the consequences of climate change and environmental degradation. The Committee states that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.” The Committee also emphasises that the right to life should not be interpreted narrowly, and that it also “concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their premature or premature death, as well as to enjoy a life with dignity.”

As regards the duty of individual States to secure the right to life, the Committee assumes that States’ obligations under international environmental law have an impact on the interpretation of Article 6, and vice versa. The implementation of States’ duty to ensure lives depends, according to the Committee, on States taking action to preserve and protect the environment and to prevent environmental degradation, pollution and climate change.¹⁵Ibid., “obligations of States parties under international environmental law should thus inform the contents of article 6 of the Covenant, and the obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law. Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors.”

The Human Rights Committee has also dealt with certain individual appeals concerning the right to life and the environment. In Portillo Cáceres v. Paraguay, a family in Paraguay complained about the agricultural industry’s use of pesticides that, according to the complainants, had led to the poisoning of several members of the local community and the death of one family member.¹⁶ Portillo Cáceres v. Paraguay, case No. 2751, 2016, CCPR/C/126/D/2751/2016. The Committee concluded that Paraguay had not adequately enforced environmental regulations and addressed the negative consequences of the pesticides, and that the complainants’ right to life and private and family life had been violated.¹⁷There were also violations of other rights, including the right to a fair trial. The Committee referred to international legal developments, including ECtHR practice, which recognises the existence of an “undeniable link” between environmental protection and the realisation of human rights, and which establishes that environmental degradation can negatively affect the right to life.¹⁸See section 7.4 of the decision. The Committee noted that States must implement “all appropriate measures” to address “general conditions in society,” including pollution, which may entail threats to the right to life or prevent individuals from living a life of “dignity.”¹⁹ Portillo Cáceres v. Paraguay, case No. 2751, 2016, CCPR/C/126/D/2751/2016, paragraph 7.3. The Committee stressed that the duty to safeguard applies even if lives have not been lost.²⁰Ibid. The pollution was found to pose “reasonably foreseeable” threats to life, as the pesticides affected drinking water sources, crops and grazing animals. The Committee pointed out that the authorities had been made aware of the threat posed by the pesticides. The right to life under Article 6 of ICCPR was therefore infringed.

The Committee also concluded that there was a breach of the right to private and family life under Article 17 of the ICCPR. The Committee’s reasoning was as follows:

“[w]hen pollution has direct repercussions on the right to one’s private and family life and home, and the adverse consequences of that pollution are serious because of its intensity or duration and the physical or mental harm that it does, then the degradation of the environment may adversely affect the well-being of individuals and violation constitutes of private and family life and the home.”²¹See Section 7.8 of the decision.

This case against Paraguay constituted part of the basis for a later decision by the Human Rights Committee in Teitiota v. New Zealand.²² Teitiota v. New Zealand, case no. 2728/2016 (delivered 24 October 2019, published 7 January 2020, CCPR/C/127/D/2728/2016). The decision concerned whether climate displaced persons may be entitled to international protection under Article 6 of the ICCPR, which also provides protection against return if there is a real risk of loss of life.²³The case is discussed in more detail in Chapter 8 of the report on climate displaced persons. Furthermore, violations of the right to life and the right to private and family life have also been raised by the applicants in Torres Strait Islanders v. Australia, which is under consideration by the Human Rights Committee.²⁴The case is discussed in more detail in Chapter 9 of the report on climate action based on human rights.

6.3.2. United Nations Convention on the Rights of the Child

Children’s right to life is specifically protected under Article 6 of the UN Convention on the Rights of the Child, which is monitored by the UN Committee on the Rights of the Child. Norway has not ratified the individual complaints mechanism of the Committee on the Rights of the Child. This means that any individual appeals before this Committee  cannot be given as much weight as individual appeal decisions by committees where Norway is affiliated.

The UN Committee on the Rights of the Child has not yet decided on any individual appeal about children’s right to life in the face of climate change. But one appeal is at the time of writing being heard, Sacchi et al. v. Argentina et al. The appellants, among them Swedish Greta Thunberg, argue that a number of States violate several of the rights of the Convention on the Rights of the Child, including children’s right to life, by not taking measures to prevent greenhouse gas emissions.²⁵The case is discussed in more detail in Chapter 9 of the report on climate action based on human rights. The appeal points out, firstly, that none of the cited States, Argentina, Brazil, France and Germany, have done enough to reduce their emissions in line with the Paris Agreement’s requirement for “highest possible ambition” and that the emission levels of the States will not contribute to the realisation of the 1.5-degree target. Secondly, the appellants point out that the States as members of the G20, which collectively account for 84 percent of the world’s emissions, have not adopted all available legal, diplomatic and economic measures to protect children from life-threatening carbon emissions. The appellants argue that this violates children’s right to life (Article 6), in addition to the right to health (Article 24), culture (Article 30) and the best interests of the child (Article 3).

6.4. The right to health

6.4.1. The UN’s International Covenant on Economic, Social and Cultural Rights (ICESCR)

The right to health is enshrined in Article 12 of the ICESCR. The provision also explicitly mentions the environment. States should work for “the improvement of all aspects of environmental and industrial hygiene,” to ensure the right to health.

The United Nations Committee on Economic, Social and Cultural Rights (the ICESCR Committee) monitors this Convention. In general comments, the Committee has described in detail what the right to health in Article 12 entails. Here, the Committee has stated that the right to health “embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinates of health, such as […] a healthy environment.”²⁶E/C.12/2000/4, paragraph 4.

Furthermore, the Committee has noted that States should “prevent and reduce the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions” and “enact and enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries.”²⁷Ibid, paragraph 15. The Committee has further noted that citizens must have access to effective appeal mechanisms and courts in order to safeguard this right.²⁸See paragraph 59.

6.4.2. United Nations Convention on the Rights of the Child

Article 24 of the Convention on the Rights of the Child protects children’s right to health. Environmental factors are also explicitly mentioned in this article.²⁹Environmental factors are also mentioned in Article 28 of the Convention on the Rights of the Child, which protects children’s right to education.

The Committee on the Rights of the Child refers to the effects of climate change on the realisation of children’s right to health in a general comment on children’s right to the highest attainable standard of health under Article 24. In the general comment, the Committee states that there is a “growing understanding of the impact of climate change […] on children’s health”³⁰CCPR/C/GC/15, paragraph 5. Furthermore, the Committee identifies environmental pollution as a threat to children’s right to health, and the Committee expresses concern that environmental problems may hinder or adversely affect the implementation of the right to health.³¹Ibid.

The Committee on the Rights of the Child further states that environmental measures should address climate change, “as this is one of the biggest threats to children’s health and exacerbates health disparities”, and that States should therefore place “children’s health concerns at the centre of their climate change adaptation and mitigation strategies.”³²Ibid, paragraph 50.

The Committee has not decided on any individual appeals concerning children’s right to health and climate change. This, however, is one of the foundations for the aforementioned appeal Sacchi et al. v. Argentina et al.

6.5. Recommendations for Norway from UN treaty bodies and the UN Special Rapporteur

6.5.1. Recommendations from the treaty bodies

The various treaty bodies have made a number of recommendations to Norway in concluding observations following government reports.³³See NIM’s report “Compilations of Recommendations to Norway” for a collection of all the treaty bodies’ recommendations for Norway from 2017-2020. Available on nhri.no. The recommendations may be advice on optimal practice, or based on applicable law. As mentioned, they are not legally binding, but they provide guidance on how the treaty bodies believe Norway can best meet its human rights obligations under the various human rights conventions.

In recent times, the UN treaty bodies have devoted more and more attention to climate in their cocnluding observations to individual States. While in the years 2008-2014 there were five or fewer referrals per year, in the years 2016-2018 there have been more than 15 annually. In 2018, there was a marked increase to 33 referrals, compared to 18 referrals the year before.³⁴Center for International Environmental Law and The Global Initiative for Economic, Social and Cultural Rights, ‘States’ Human Rights Obligations in the Context of Climate Change. 2019 Update’s p. 6, available on https://www.ciel.org/wp-content/uploads/2019/03/HRTB-Feb.-2019-update-2019-03-25.pdf. Furthermore, the UN Committee on the Rights of Persons with Disabilities and the UN Committee on the Protection of The Rights of Migrant Workers have referred to climate change in recent concluding observations. Norway has also received recommendations concerning climate change from the ICESCR, the Committee on the Rights of the Child and the Commission on the Status of Women.³⁵See E/C.12/EN CO/CO/6, paragraphs 10-11, CRC/C/CO/CO/5–6, section 27 and CEDAW/C/CO/CO/9, section 14, respectively.

6.5.2. Recommendations from the UN Special Rapporteur on Human Rights and the Environment

The UN Special Rapporteur on Human Rights and the Environment is tasked with promoting implementation of and compliance with States’ human rights obligations in the area of climate and the environment.³⁶A/HRC/RES/37/8. The mandate was created in 2012. One of the Special Rapporteur’s main tasks is country visits with subsequent reports to the UN Human Rights Council on good practice and challenges related to human rights and the environment.

Like treaty body recommendations, the UN Special Rapporteur’s assessments and recommendations are not binding on States. There are also some key differences between the special rapporteurs and the treaty bodies. The special rapporteurs are not established directly pursuant to the various human rights conventions, which individual States have joined, but are instead established by the UN Human Rights Council. The special rapporteurs often have a professional standing in their field which makes the reports and recommendations noteworthy. They can be useful as an outside indicator on how a state can best comply with its human rights obligations.

The Special Rapporteur for Human Rights and the Environment visited Norway in September 2019 and published his report in January 2020. The report points out that, although a lot of good work is being done in the environmental area in Norway, there is room for improvement. Among other things, the report includes an overview of facts that are of relevance in the area of climate and the environment, and a number of recommendations on how Norway can improve its safeguarding of environmental and human rights obligations.

The report proposes a number of climate and environmental measures, including addressing air pollution to a greater extent, taking measures to phase out fossil fuel cars and accelerating the process of proposed carbon storage projects. Furthermore, the report proposes measures to safeguard the rights of the Sami people, especially in connection with consultation processes and safeguarding the material conditions necessary for reindeer herding. Finally, the special rapporteur advocates that Norway should end oil exploration and start a gradual phase-out of the fossil fuel industry.³⁷A/HRC/43/53/Add.2. The entire special report with all the recommendations is available on https://undocs.org/A/HRC/43/53/Add.2

6.6. Developments

What has been consistently pointed out by the UN treaty bodies through their practice is that climate and environmental changes exacerbate the human rights challenges that already exist for the various legal subjects covered by each individual convention and committee. All in all, the fact that the treaty bodies mention climate change so often suggests that this is becoming increasingly important for the interpretation and enforcement of rights in UN human rights conventions. Although the concluding remarks and recommendations in these are state-specific and have limited legal weight, the development quite clearly shows that UN treaty bodies are paying more attention to climate change and its (negative) influence on the realisation of human rights.

This is also seen in other and more concrete statements from the various treaty bodies that have greater legal significance, such as the Human Rights Committee’s statements on the interpretation of the right to life in e.g. Portillo Cáceres v. Paraguay and Teitiota v. New Zealand. There is every reason to expect that this development in the UN human rights system will continue.

7. Procedural Rights

Environmental rights also include procedural rights. The procedural rights are not about the content of decisions, but they place certain requirements on the procedure in climate and environmental cases.

7.1. Introduction

The main category of procedural rights is what one might call participatory rights. Participatory rights include the right to environmental information, the right to participation in decision-making processes and the right to effective legal remedies. A key justification for these types of rights is that citizens should be able to exert influence over the government’s decisions in the field of climate and the environment. In other words, participatory rights are closely linked to democratic principles.¹See Leib, Human Rights and the Environment. Philosophical, Theoretical and Legal Perspectives (2011) pp. 85–86 and Atapattu, Human Rights Approaches to Climate Change. Challenges and Opportunities (2016) p. 47.

Another category of procedural rights is the authorities’ duty to investigate.²It is worth already here emphasising that our perspective in the following is limited to investigative obligations that can be derived from human rights norms. The duty to investigate establishes certain requirements for the quality of government investigations prior to decisions that have or may have negative climate or environmental consequences. In addition, there is a close connection between the duty to investigate and the right to environmental information. In the following, a general overview will be given of the most important sources of law (7.2), before a discussion of the participatory rights (7.3) and the authorities’ duty to investigate (7.4).

7.2. Overview of the most important legal sources and institutional arrangements

As stated in Chapter 4 of the report, Section 112 of the Constitution establishes a right to a healthy environment.³  The outline in this chapter is not intended to be exhaustive, but focuses on the provisions that are most central from a human rights perspective. To safeguard the substantive aspects of this general right, the provision sets out procedural rights that provide citizens with the right to information about the state of the natural environment and about the effects of planned and initiated interference with nature. In its climate case judgement of 2020, the Norwegian Supreme Court stated that the rights under Section 112 evidently apply in relation to climate change and GHG emissions.⁴HR-2020-2472-P para 147. Furthermore, the Court held that the procedural rights are subject to full judicial review, and that both the content of the rights and the intensity of the judicial review will be increasingly rigorous according to the severity of the environmental consequences in question.⁵HR-2020-2472-P para 183.

Internationally, the Aarhus Convention from 1998 is the central instrument when it comes to participatory rights.⁶Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. United Nations, Treaty Series, vol. 2161 p. 447. The Convention is a rights convention, and the ECtHR has also referred to it in several cases.⁷See e.g. Grimkovskaya v. Ukraine (38182/03) paragraph 69 and Di Sarno et al. v. Italy (30765/08) paragraph 107. For more, see Peters, “Unpacking the diversity of procedural environmental rights: the European Convention on Human Rights and the Aarhus Convention,” Journal of Environmental Law, 2018, Vol. 30 No. 1, pp. 1–27. The purpose provision, Article 1, reads as follows:

The definition of “environmental information” in Article 2(3) is so wide that it must be seen as also including the climate system and greenhouse gas emissions.⁸As pointed out in the United Nations Economic Commission for Europe (UNECE), The Aarhus Convention: An Implementation Guide (2nd ed. 2014) p. 50, the Convention does not contain any definition of “environment”. It is therefore natural to apply the definition of “environmental information” also to cases where the Convention uses the term “environment”, e.g. in Art. 9(3).

Furthermore, some of the provisions of the ECHR contain procedural rights. As mentioned in Chapter 5, the ECtHR interprets positive obligations to protect against the risk of environmental damage into Articles 2 and 8 of the ECHR. These obligations also have procedural aspects. Authorities’ procedural duties also follow from the freedom of expression and information of Article 10 of the ECHR, as well as the right to a fair trial in Article 6 of the ECHR. It is also worth mentioning that international climate cooperation has promoted procedural rights as key commitments in the fulfilment of climate agreements. For example, Article 12 of the Paris Agreement highlights the right to participation and information as important elements for strengthening climate action under the agreement.

In Norwegian law, procedural environmental provisions can be found in a number of places, including the Environmental Information Act of 2004.⁹Environmental Information Act of 2003. The law came into force on 1 January 2004. The Act aims to implement Norway’s international obligations, such as the Aarhus Convention, and to operationalise Article 112, second paragraph of the Constitution.¹⁰See Ot.prp.no.116 (2001–2002) Section 7.2.4. In short, the law states that, as a general rule, everyone is entitled to environmental information from public bodies and private enterprises, and it also gives the public the right to participate in certain decision-making processes that are of importance to the environment.

Another legal provision of significance, even if it is not a rights provision, is Section 6 of the Climate Change Act. It states that the Government will report annually to the Parliament on climate change, including how Norway can meet the established climate targets. The provision is important from a procedural point of view, since it contributes to the public disclosure and distribution of information about climate efforts.

In terms of institutional reforms concerning climate, it should firstly be mentioned that Article 15 of the Aarhus Convention calls for the States Parties to establish a voluntary supervision scheme. Norway submitted its previous report on the implementation of the Convention in December 2017, and in June 2020 submitted a draft for a new report for hearing with a consultation deadline of 30 September that year.¹¹The 2017 report is available on http://www.unece.org/env/pp/reports_implementation_2017.html. It is also possible for individuals to bring appeals against Norway before the Aarhus Convention’s Compliance Committee.¹²As of 31 August 2020, the Committee has heard two appeals against Norway, one of which was rejected while the other was not upheld. See the overview on http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom.html. Secondly, it should be mentioned that at the national level, the Appeals Board for Environmental Information was created to hear rejected claims for environmental information aimed at enterprises.¹³See Section 19 of the Environmental Information Act and regulations concerning the Appeals Board for Environmental Information. In recent years, the Appeals Board has received about 10-15 appeals a year, see the annual report for 2019 p. 2. Available on www.miljoklagenemnda.no. Rejected claims for environmental information aimed at public bodies can be heard by the Parliamentary Ombudsman.¹⁴As of ca. 2017, the Parliamentary Ombudsman had received approximately 20 appeals concerning the right to environmental information from public bodies, see Falkanger and Bartels, “Menneskerettighetenes betydning for Sivilombudsmannens arbeid” in Føllesdal, Ruud and Ulfstein (eds.), Menneskerettighetene og Norge. Rettsutvikling, rettsliggjøring og demokrati (2017) pp. 112–134, at p. 124.

7.3. Participatory rights

7.3.1. Right to environmental information

While Section 112, second paragraph, of the Constitution seems to limit the right to environmental information to “citizens”, foreign citizens and legal persons may nevertheless invoke the general right of access to information in Section 100, fifth paragraph of the Constitution. Article 4(1) and 2(4) of the Aarhus Convention grants a right to access information to the “general public”, i.e. both natural and legal persons.¹⁵The relationship between the “citizens” in Article 112, second paragraph and “[e]veryone” of the Environmental Information Act, was not mentioned in the preparatory work of the Act, see Ot.prp.no. 116 (2001–2002) p. 71. The expressions are also used interchangeably, see p. 20 and also NOU 2001: 2 p. 34. Article 3 (9) of the Aarhus Convention also prohibits discrimination on the basis of citizenship, nationality and residence, among other things.

In addition to the public’s general right of access, the authorities may in certain cases have an active duty to inform persons who are particularly vulnerable to environmental threats. Practices from the ECtHR show that inadequate information from the authorities, e.g. to persons living near factories that release harmful substances, may constitute a violation of the right to privacy under Article 8 of the ECHR.¹⁶See Guerra et al. v. Italy (14967/89), Sections 56–60. Requirements for the dissemination of environmental information in the event of imminent environmental threats are also regulated in Article 5(1)(c) of the Aarhus Convention.

In two cases under consideration by the ECtHR, the Court has explicitly referenced the Aarhus Convention in its questions to the parties.¹⁷ Association Burestop 55 et al. v. France (56176/18 et al.), communicated 18 November 2019; Duarte Agostinho et al. v. Austria et al., communicated 19 November 2020.

7.3.2. Right to participation in decision-making processes

Article 6–8 of the Aarhus Convention concerns the general public’s right to participate in decision-making processes. While Article 6 applies to the right to participation in the hearing of individual cases, Articles 7 and 8 apply to the decision-making processes under the preparation of regulations, plans, strategies etc. There are certain nuances between the provisions, but in essence they state that the general public should be given a real and effective opportunity to obtain information about and provide input in environmental matters, and that these inputs should be taken into account in the decision-making process.

The ECHR does not contain any right of participation for the general public, but the involvement of parties affected in environmental matters will be given emphasis when assessing legality pursuant to Article 8.¹⁸See Dubetska et al. v. Ukraine (30499/03) Section 143 and Grimkovskaya v. Ukraine (38182/03) Sections 67 and 72. See also Chapter 5 of the report on climate and the ECHR. Also in soft law material from the UN system, public participation is central.¹⁹See the UN Special Rapporteur on Human Rights and the Environment, “Framework Principles on Human Rights and the Environment,” 2018, Principle 9.

7.3.3. Right to effective legal remedies and access to justice

The rights to effective legal remedies and access to justice relate to the control and enforcement of rights. The right to effective legal remedies can be found in several of the general human rights conventions, such as Article 13 of the ECHR. This right is meant to ensure that everyone receives an effective review of human rights violations. The right to access to justice, which is included inter alia in Article 95 of the Constitution and Article 6 of the ECHR on the right to a fair trial, is more general and assumes that everyone has the right to have their litigation settled by an independent and impartial court.²⁰Here there is an important difference between ECHR Article 6 and Article 95 of the Constitution. Pursuant to the former, one has the right only to have ones “civil rights and obligations” decided by a court, while the Constitution gives everyone the right to have “their case” settled. In other words, Article 95 of the Constitution has a wider scope of application than ECHR Article 6, for more on this, see Aall, Rettsstat og menneskerettigheter (2018) p. 423 f.

The right to effective remedies in environmental cases is enshrined in Article 9 of the Aarhus Convention. The first and second paragraphs of the provision are about the enforcement of the right to environmental information in Article 4 and the right to participate in decision-making processes in Article 6. Generally speaking, the provisions state that there shall be access to try violations of these provisions before a court or another independent and impartial body. The third paragraph of the provision has a considerably wider scope of action, and states that:

“where they meet the criteria, if any, laid down in its national law,  members of the public [shall] have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”²¹On this point, the translation in NOU 2001 is: 2, Appendix 1, modified somewhat, in that “national law” is translated as “nasjonal rett” instead of “nasjonal lovgivning.”

A common feature of the procedures required under the first to third paragraphs is that they must ensure “adequate and effective remedies, including interim measures when this may be required to safeguard the appropriate right, which shall be fair, reasonable, timely and not prohibitively expensive.”²²The translation is modified at several points compared to NOU 2001: 2, Appendix 1.

The wide scope of Article 9, third paragraph, seen in conjunction with all the procedural requirements of the fourth paragraph, means that the provision could potentially play an important role in the design of the procedural rules of national legal systems. This also means that the design of these rules is of great importance for the enforcement and control of the substantive climate and environmental law.²³For more on this, see Nylund, “Klima, miljø og domstoler i et komparativt perspektiv” in Fauchald and Smith (2019) pp. 101–117.

An initial important question is who can bring cases before the courts or take advantage of other appeal schemes. The issue is central to the climate and environmental field since some issues involve ideal and public interests where it is not necessarily individuals who have a personal interests in the case. The scope of the right of appeal and action – especially for environmental organisations – is therefore significant to the effectiveness of control in this area.²⁴See Chapter 9 of the report on climate-relate legal cases based on human rights.

Article 6 of the ECHR and Article 9(3) of the Aarhus Convention  do not allow for so-called actio popularis actions in the environmental field. Actio popularis means that anyone will be able to bring an action in matters of public interest. The ECtHR, however, has acknowledged that environmental organisations may have rights under Article 6 after a closer examination of their attachment to the case.²⁵ L’Érablière A.S.B.L. v.  Belgium (49230/07), see Section 29 where the ECtHR stated that they specifically emphasized “the nature of the impugned measure, the status of the applicant association and its founders and the fact that the aim it pursued was limited in space and in substance.” The Aarhus Convention’s Compliance Committee has also concluded that there are limits to the strictness of the legal terms by which Member States may operate under Article 9 (3).²⁶Se United Nations Economic Commission for Europe (UNECE), The Aarhus Convention: An Implementation Guide (2^nd ed. 2014) p. 198, citing a case against Belgium (ACCC/C/2005/11) in which the Committee states that “… the parties may not take the clause ‘where they meet the criteria, if any, laid down in its national law’ as an excuse for introducing or maintaining so strict criteria that they effectively bar all or almost all environmental organizations from challenging acts or omissions that contravene national law relating to the environment.”

In Norwegian law, the conditions under which organisations may bring an action before the courts are regulated in Sections 1-3 and 1-4 of the Disputes Act. In general, it can be said that organisations have a wide right of action, and it is largely case law concerning the right of action of environmental organisations that has precipitated this wide access.²⁷See Backer, Norsk sivilprosess (2015) p. 236. Key decisions in the development of the law are Rt. 1980 p. 569 (Altasaken), Rt. 1992 p. 1618 (FIVH) and Rt. 2003 p. 833 (Stopp Regionfelt Østlandet). For appeals about individual decisions in administration, the view is that the right to appeal pursuant to Section 28 of the Public Administration Act is at least as wide as the right of action before the courts.²⁸Graver, Alminnelig forvaltningsrett (5. ed. 2019) p. 490 and Eckhoff and Smith, Forvaltningsrett (11th ed. 2018) p. 296. There is also a proposal to continue this in the new public administration act, see NOU 2019: 5 Ny forvaltningslov p. 381. In addition, “[a]nyone who believes to have been a victim of wrongdoing” from the administration’s side may appeal to the Parliamentary Ombudsman.²⁹Civil Ombudsman Act of 1962 Section 6.

Another important procedural issue concerns legal costs. While strict conditions for action can be a legal obstacle to sufficient access to justice, high legal costs can be a practical obstacle. According to the United Nations Economic Commission for Europe (UNECE), high costs are the biggest obstacle, alongside strict conditions for action, to access to legal remedies in environmental cases in many countries.³⁰UNECE (2014) p. 203. This will depend on various rules and mechanisms, such as court fees, access to free legal aid, the scope of the legal proceedings and the distribution of legal costs between the parties.

As regards the distribution of the costs of the case, the starting point in ECtHR practice on Article 6 of the ECHR is that although a “loser pays” principle, in which the losing party must bear the opponent’s legal costs, is a limitation on access to justice, the principle safeguards a legitimate purpose.³¹ Klauz v. Croatia (28963/10) Section 84 and Ulemek v. Croatia (21613/16) Section 107. In special cases, however, paying the opponent’s costs may be a disproportionate burden on the losing party. In a 2016 case, the ECtHR concluded that the application of the “loser pays” principle was contrary to the Convention, and justified this by the fact that the case raised an unresolved legal issue, that the opponent was the State and that the legal costs were substantial in view of the financial position of the losing party.³²Cindrić and Bešlić v. Kroatia (72152/13) Sections 122 and especially 110. See also Kjølbro, Den Europæiske Menneskerettighedskonvention: for praktikere (5th ed., 2020) p. 571.

As for the Aarhus Convention, as mentioned above, it is a requirement that judicial processes in the environmental field must not be “prohibitively expensive”, see Article 9, third and fourth paragraphs. The Convention’s Compliance Committee has dealt with several appeals about this. An overarching requirement, according to the Committee, is that the cost level “should not effectively bar all or almost all environmental organisations from challenging acts or omissions that contravene national law relating to the environment.”³³ACCC/C/2014/111 (18 June 2017), paragraph 76. In a case like this, the Committee will assess the entire cost system in its context. A “loser pays” arrangement is not in itself contrary to the Convention, but the issue of incompatibility with the Convention must be considered on the basis of “the outcome in each specific case and the existence of a clear rule that prevents prohibitively expensive procedures.”³⁴ACCC/C/2008/33 (24 September 2010), paragraphs 128–129. One of the factors the Committee emphasises in matters brought by environmental organisations is whether the case raises questions of public interest – if so, this calls for limiting the liability for costs in the event of a loss.³⁵ACCC/C/2008/33 (24 September 2010), paragraph 134, ACCC/C/2012/77 (2 July 2014), paragraph 73-74 and ACCC/C/2014/111 (18 June 2017), paragraph 75. Furthermore, a concrete assessment of the financial situation of the relevant environmental organisation must be made.³⁶ACCC/C/2014/111 (18 June 2017), paragraph 74. The Committee also seems to prefer a legal framework that ensures predictability and is not overly based on the judge’s discretion in the individual case.³⁷ACCC/C/2008/33 (24 September 2010), paragraphs 135–129.

Norwegian law is based on a general rule that the party that loses the case must pay the counterparty’s legal costs, see Section 20-2, first paragraph of the Dispute Act. There is an exception to this general rule if “weighty reasons make it reasonable” to exempt the losing party in whole or in part for the liability, see third paragraph. The exception rule specifies a non-exhaustive list of relevant assessment elements. Whether the case has been questionable is one of the assessment elements, but beyond this, neither the provision nor the preparatory works provide any clues of particular relevance to climate and environmental issues. Granted, the overarching criterion for “weighty reasons” is sufficiently discretionary to include, for instance, an assessment of whether the case raises questions of public interest, as demonstrated in the Court of Appeal’s assessment of the issue of legal costs in the climate action.³⁸See Borgarting Court of Appeal’s judgement of 23 January 2020 (LB-2018-60499) Section 6. The Court of Appeal exempted the environmental organisations from paying the state’s legal costs. One could nevertheless ask whether the current state of law provides sufficient predictability. It would in any case be more in line with the statements of the Aarhus Convention’s Compliance Committee if the Norwegian Parliament or the Supreme Court established clearer criteria for how the exemption rule in Section 20-2, third paragraph, is to be applied in climate and environmental cases, based on the Convention’s requirement that the processes should not be “prohibitively expensive.”

In addition, NIM believes it is worth noting, as several others have also pointed out, that few environmental cases are brought before the courts in Norway.³⁹Anker, Fauchald, Nilsson and Suvantola, “The Role of Courts in Environmental Law – a Nordic Comparative Study”, Nordic Miljörattslig Tidsskrift 2009 pp. 9–33, on p. 23. See also, based on these figures, Nylund (2019) p. 101, Bugge, Lærebok i miljøforvaltningsrett (2019) p. 241 and Bragdø-Ellenes, “Overprøving av vedtak i miljøsaker – i domstol eller klagenemnd?” in Fauchald and Smith (eds.) (2019) pp. 119–134, on p. 122. A possible explanation presented is exactly the legal cost involved, and there has been a question of whether Norway adequately safeguards Article 9, fourth paragraph of the Aarhus Convention in this regard.⁴⁰Bugge (2019), p. 241. Bragdø-Ellenes (2019) p. 122 also believes that the figures are partly due to the cost level. A further assessment of this will have to rely on a more thorough empirical review of the courts’ interpretation of the rules, something NIM has not had the opportunity to undertake. However, two more recent cases initiated by environmental organisations (the climate action and a case on the killing of wolves) can be used as an illustration.⁴¹In the wolf case, WWF sues the State over the validity of decisions on licenses for the killing of wolves. WWF succeeded in the Court of Appeal. The case is due before the Supreme Court and is scheduled for 12-19 January 2021. See Borgarting Court of Appeal’s judgement of 29 January 2020 (LB-2018-128035). In the District Court, environmental organisations were ordered to pay the opponent’s legal costs of NOK 580,000 and approximately NOK 450,000 respectively – the latter amount had even been reduced by 50 per cent.⁴²See Section 5.5. and Section 7 of the decisions, respectively. This was in addition to their own legal costs. It should be mentioned that the results in both cases changed in the Court of Appeal, and that the cases are coming up before the Supreme Court. In any case, one may compare the cost level to a case against the UK before the Aarhus Convention’s Compliance Committee, where the Committee found that it was contrary to the Convention to impose legal costs of about NOK 437,000 (£39,454) on the losing environmental organisations.⁴³ACCC/C/2008/27 (24 September 2010), paragraph 44. We have based the conversion on a course of 11,070, in accordance with the Norwegian Customs Service’s overview of historical conversion rates. See https://toll.no/no/verktoy/valutakurser/History?SelectedExchangeRate=GBP. This implies, in NIM’s view, that the authorities should consider conducting a review of the relationship between the legal cost rules in climate and environmental cases and the obligations under the Aarhus Convention.

More generally, several people have advocated for strengthening control mechanisms in the environmental field. There has been a debate about whether it is necessary to establish an environmental commissioner, an environmental appeals board or separate environmental courts.⁴⁴See in particular Bragdø-Ellenes (2019), also with further references in footnote 18 (p. 122). See also Nylund (2019), who argues that the procedural systems in Finland and Sweden, where environmental cases are heard in administrative tribunals and separate environmental courts respectively, are better suited to safeguard environmental considerations than the Norwegian system. See also the more general criticism at Bugge, (2019), Section 6.8.4. The UN Special Rapporteur on Human Rights and the Environment, in the report on Norway, also made a recommendation to “[c]onsider the creation of a specialised environmental court or tribunal.”⁴⁵A/HRC/43/53/Add.2, Section 95 (c). According to the Special Rapporteur, it is increasingly common for other nations to establish such specialised appeal bodies.⁴⁶A/HRC/43/53/Add.2, Section 27. Any duty to establish an environmental court or a similar body can probably not be derived from Norway’s human rights obligations. However, in light of the criticism raised against the current system from several quarters, as well as the importance of effective control mechanisms in the climate and environmental field, NIM agrees with the Special Rapporteur that the question should be considered.

7.4. The authorities’ duty to investigate

7.4.1. According to the rules of international law

Neither the Aarhus Convention nor international conventions on human rights require State authorities to conduct specific investigations into cases where a decision will or may have negative consequences for the climate and the environment. However, the ECtHR’s practice in pollution cases shows that the Court will consider whether impact studies have been made when assessing such cases against Article 8(2) of the ECHR. The Court has established the following general principle:

“In scrutinising the procedures at issue, the Court will examine whether the authorities conducted sufficient studies to evaluate the risks of a potentially hazardous activity […], whether, on the basis of the information available, they have developed an adequate policy vis-à-vis polluters and whether all necessary measures have been taken to this policy in good time […].”⁴⁷ Dubetska et al. v. Ukraine (30499/03) Section 143, also with further references.

In a 2011 case concerning traffic noise and pollution, the absence of an adequate investigation before a decision on the location of a road was one of the factors leading the ECtHR to conclude that the Convention had been violated.⁴⁸ Grimkovskaya v. Ukraine (38182/03) Sections 67 and 72.

7.4.2. Section 112, second and third paragraph, of the Constitution

In the 2020 climate case, the Norwegian Supreme Court held that paragraphs two and three of Section 112 read in conjunction set out a duty for the State to investigate the consequences of planned environmental intereferences.⁴⁹HR-2020-2472-P para. 183. The Court stated that an investigatory duty is necessary in order for the citizens to be able to safeguard their substantial rights under Section 112. Furthermore, the Court held that the requirements of the duty become stricter as the potential consequences of the interference become more severe. The duty to investigate is subject to judicial review with the level of scrutiny dependent on the severity of the consequences in question.

As to the more specific requirements of the duty to investigate, the Court held that a number of factors will have to be taken into consideration. In addition to the severity of the potential consequences, this includes the nature of the intervention in question and the geographical location of the intervention. In relation to petroleum activites in the Barents Sea, for example, the scope of the investigation will be affected by the specific challenges relating to the ice front and the polar front. Furthermore, the Court stated that the climate impact of an environmental intervention has to be given special consideration when assessing the scope of the duty to investigate, as the effects of GHG emissions will be the same regardless of where they occur.⁵⁰HR-2020-2472-P para. 225.

Section 112 thus establishes relatively strict requirements for impact assessments in connection to permits allowing major greenhouse gas emissions. Permits allowing for the extraction of oil and gas from the continental shelf (PUD) would have to assess the climate effect of the totality of the emissions the permit may entail, regardless of where the carbon is finally combusted. The investigation and disclosure of such matters is fundamental for citizens to be able to participate in decision-making and hold politicians accountable in elections.

8. Climate-Displaced People

Over the past few decades, climate change has truly begun to materialise. The world has seen a significant increase in extreme weather, heatwaves, droughts and floods. This has serious consequences for a significant portion of the world’s population.

8.1. Introduction

According to the UN Intergovernmental Panel on Climate Change (IPCC), there is a risk that climate change could lead to many people having to leave their homes, both as a result of natural disasters such as landslides, hurricanes and floods, and more gradual, long-term changes to the environment.¹See IPCC, “Impacts of 1.5^o C of Global Warming on Natural and Human Systems” in Global Warming of 1.5^o C. An IPCC Special Report on the impacts of global warming of 1.5^o C abovepre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, 2018, Section 3.4.10.2. See also IPCC, Climate Change 2014. Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects (AR5), 2014, Sections 12.4 and 19.4.2.1. See also Chapter 2 of the report, written by CICERO on commission from NIM. While numbers vary, the most common projection is that the world will have 150-200 million climate-displaced people by 2050.

Most people who will be displaced as a result of climate change are likely to be internally displaced.²See e.g. McAdam, Climate Change, Forced Migration, and International Law (2012) p. 31, with further references. Under international law, it is in principle States themselves who are responsible for ensuring the fundamental rights of their own citizens, including those displaced internally in their own country. But more people will also be crossing borders as a result of the consequences of climate change.³Ibid. This raises questions of whether climate-displaced people could be entitled to international protection, such as residency in Norway.

The international legal basis is that States themselves decide who is allowed to enter and reside in the country. This is part of state sovereignty, which is the guiding principle of international law.⁴See e.g. Shaw, International Law (8^th ed., 2017) p. 16 ff. However, the right to regulate residence has certain limitations, both under international law and under the Constitution. This chapter discusses the link between climate change and migration (8.2). The chapter highlights in particular the role of the UN Convention Relating to the Status of Refugees of 2 July 1951 (the Refugee Convention) (8.3), and what protection the guarantee against return (non-refoulement) offers people forced to flee across borders as a result of climate change (8.4). In particular, we will look  at provisions included in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The protection pursuant to Articles 2 and 3 of the ECHR also follows from Article 93 of the Constitution.

8.2. Climate-displaced people and the link between climate and migration

Both climate change and migration are complex phenomena, and consequently, the relationship between these is complex. Nevertheless, there is broad agreement that the two phenomena are closely linked.⁵See Kälin and Schrepfer, “Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches” (2010), UNHCR Legal Protection Research Series, pages 31-33. Available on https://www.unhcr.org/4f33f1729.pdf. In the UN Global Compact for Migration, which is signed by a majority of the world’s States, natural disasters, climate change and environmental degradation are highlighted as factors that can cause migration.⁶The Global Compact for Safe, Orderly and Regular Migration, adopted by the UN General Assembly on 19 December 2018 (A/RES/73/195), see Section 18(h)–(l). For the Council of Europe, see Parliamentary Assembly, Resolution 2307 (2019): A legal status for “climate refugees”, adopted on October 3, 2019. Among other things, the Parliamentary Assembly’s recommendation is to “develop in the asylum systems of Member States and in international law protection for people fleeing long-term climate change in their native country,” see item 5.4. Although migration is a complex phenomenon, where both social, economic and environmental conditions play a part, natural disasters and environmental change have always been central drivers of migration.⁷Kälin and Schrepfer (2010), pp. 31–33. As a result of climate change, there is an increase in the natural and environmental causes that have historically led to migration, such as landslides, floods and extreme weather.

In addition to climate change reinforcing the existing driving forces behind migration, climate change also leads to new migratory factors. As a result of rising sea levels, desertification, drying out of rivers and extreme heat, there is a risk that several areas of the world will no longer be able to provide sustenance, forcing people to leave their homes permanently.⁸Ibid.

On this basis, there are two general categories of climate displaced people.⁹There is no authoritative legal definition of the concept of climate displaced persons. The IOM has previously defined climate displaced persons as “persons or groups who, for compelling reasons of sudden or progressive change in the environment as a result of climate change that adversely affect their living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move within their country or abroad.” See e.g. IOM [2007] Discussion Note: Migration and Environment; 94^th session, MC/INF/288; Climate Change and Migration: Improving Methodologies to Estimate Flows [2008]. See also Lyster, “Protecting the Human Rights of Climate Displaced Persons: The Promise and Limits of the United Nations Framework Convention on Climate Change” in Grear and Kotzé (eds.) Research Handbook on Human Rights and the Environment (2015), p. 429. The first are people driven into exile as a result of climate and environmental-related natural disasters, such as floods, landslides and extreme weather.¹⁰See Kälin, “Conceptualising Climate-Induced Displacement” in McAdam (ed.), Climate Change and Displacement, Multidisciplineary Perspectives (2010) p. 85. As a result of climate change, such natural disasters occur with greater intensity and frequency, and more people are driven into exile as a result.

The other main category of climate displaced people are those that have to move as a result of more gradual environmental change, such as long-term effects of droughts and floods, poorer water supply and rising sea levels.¹¹Kälin and Schrepfer (2010), pp. 31–33. Unlike climate and environmental-related natural disasters, which will mainly lead to temporary forced migration, the gradual changes are expected to mainly lead to voluntary migration, in the sense that people choose to move before the areas they live in become completely unviable.¹²Ibid. It is nevertheless worth pointing out that while this type of migration may initially be voluntary, this group may become permanently displaced if habitats become increasingly unviable and it is no longer possible to move back. A subcategory of this group is residents of small low-lying islands, mainly in the Pacific Ocean, which will be partially or completely under water as sea levels rise.¹³Ibid. This is a group that risks ending up stateless.¹⁴See e.g. McAdam (2012), pp. 137–139 with further references, for a discussion of whether climate displaced persons may have protection under the 1945 UN Convention on Statelessness.

Furthermore, climate change can help reinforce other migration factors that are not directly climate related. Climate change can, among other things, exacerbate the occurrence of armed conflict, violence and unrest arising in whole or in part as a result of resource shortages, such as water and food shortages.¹⁵Kälin and Schrepfer (2010), pp. 31–33.

8.3. Protection under the Refugee Convention

The Convention Relating to the Status of Refugees (the Refugee Convention) is a treaty of international law that provides protection for refugees. Although in everyday speech one often talks of “climate refugees”, there is broad agreement internationally that people who must leave their homeland as a result of climate change are not considered refugees under the Refugee Convention.¹⁶See e.g. McAdam (2012) ch. 2, Section II for an overview.

This is because Article 1 A (2) of the Convention requires that persons have a well-founded fear of being persecuted in their homeland based on a particular ground for persecution. Climate and environmental-related causes are not among those grounds for persecution listed in Article 1 A (2). This is related to the fact that the Convention was written a few years after World War II, with the forms of flight caused by the war in mind. Furthermore, the Refugee Convention does not provide any protection for internally displaced persons.¹⁷This follows from the condition in Art. 1 A (2) that a refugee in the sense of the Convention must be “outside the country of his nationality,” or – if the person is stateless – “outside the country of his former habitual residence.”

Although climate change cannot in itself lead to recognition of refugee status under current international law, one could imagine situations where climate change would be a contributing factor to people being entitled to protection under the Refugee Convention.¹⁸See e.g. Weerasinghe, In Harm’s Way – International protection in the context of nexus dynamics between conflict or violence and disaster or climate change (2018) in the UNHCR Legal and Protection Policy Research Series, p. 10. One example could be an ethnic minority living in an area that becomes uninhabitable as a result of increased water levels, and then ending up being persecuted by the authorities when trying to settle elsewhere in the country. As mentioned above, climate change can also contribute to creating or amplifying armed conflicts, which in turn can lead to people being driven into exile. Climate change can furthermore reinforce existing patterns of discrimination and oppression of vulnerable groups, which could be entitled to protected under the Convention if they are driven into exile.¹⁹Se e.g. Scott, Finding Agency in Adversity: Applying the Refugee Convention in the Context of Disasters and Climate Change (2016) in Refugee Surv. Q. 26.17 no. 6–7, p. 28. The reasons why people are driven into exile are often interrelated, as conflict, persecution, natural disasters and destruction are often closely linked.²⁰Ibid. This is referred to e.g. by the UN High Commissioner for Human Rights as “nexus dynamics”, see https://www.unhcr.org/climate-change-and-disasters.html.

8.4. The Human Rights Protection against Return

8.4.1. Overview

Besides the Refugee Convention, human rights provide a basis for international protection. Pursuant to Articles 6 and 7 of the ICCPR and Articles 2 and 3 of the ECHR, a person cannot be returned to a country if there is a real risk of loss of life or that one will be subjected to torture or inhumane or degrading treatment or punishment.

A key difference from the protection under the Refugee Convention is that there is no requirement for persecution based on particular grounds for persecution.²¹Another difference is that the non-refoulement protection in Article 33 of the Refugee Convention is not absolute. For instance, persons can be excluded from refugee status if there is serious reason to assume that they have committed war crimes, crimes against humanity, etc., cf. Art. 1 F (a). Under human rights, however, the protection is absolute. In Norwegian law, this difference is reflected in Section 73, first paragraph v. second paragraph of the Immigration Act. In other words, protection based on human rights has a wider area of application. In the following we will discuss whether Articles 6 and 7 of the ICCPR and Articles 2 and 3 of the ECHR provide international protection for climate displaced people.

8.4.2. Articles 6 and 7 of the ICCPR

The issue of whether Articles 6 and 7 of the ICCPR may provide protection against return for people who migrate as a result of climate change was considered by the UN Human Rights Committee in the individual appeal case of Teitiota v. New Zealand.²² Teitiota v. New Zealand, case no. 2728/2016 (delivered 24 October 2019, published 7 January 2020, CCPR/C/127/D/2728/2016). The appellant in this case was a person from the island state of Kiribati in the Pacific Ocean, who had been rejected for asylum. The asylum application was based on rising sea levels in the home country, which according to the appellant had led to, among other things, lack of clean drinking water, difficulties obtaining food, violent conflicts over land, as well as frequent and powerful cases of flooding.²³It is worth mentioning that the decision does not say anything explicit about whether the same conditions could lead to protection against return, pursuant to the ban on torture and inhumane and degrading treatment in Article 7 of the ICCPR. The appeal was based solely on Article 6 of the ICCPR and the right to life. The Committee stated on a general basis that climate displaced people could have protection against return under Article 6  and 7 of the ICCPR, although the specific circumstances of the case were not currently sufficiently serious for the appellant to succeed. Nevertheless, the recognition that climate displaced persons may have protection against return is regarded as an important step in international legal development in this area.²⁴See e.g. Reeh, “Climate Change in the Human Rights Committee”, EJIL: Talk! (2020) available on https://www.ejiltalk.org/climate-change-in-the-human-rights-committee/ and Malafosse and Zipoli, “’Climate refugees’: a historic decision of the UN Human Rights Committee?”, Andrew & Renata Kaldor Centre for International Refugee Law  (2020) available on https://www.kaldorcentre.unsw.edu.au/news/%E2%80%9Cclimate-refugees%E2%80%9D-historic-decision-un-human-rights-committee.

The basis for the Committee’s judicial review was the general non-refoulement principles already established in other types of cases.²⁵See paragraph 9.3 of the decision. According to this practice, there must be good reasons to assume that there is a real risk of irreparable harm as mentioned in Articles 6 and 7 of the ICCPR in order for protection against return to apply. The basis is furthermore that the threat must be personal, and not a consequence of the general situation in the country, except in “the most extreme cases.”

According to the Committee, the right to life must be understood broadly, and the State has positive obligations to protect. The Committee further noted that the right implies a right to a life with dignity, and that no one should be subjected to actions or omissions that would result in an unnatural or early death.²⁶See paragraph 9.4 of the decision. This argument is based in part on the same basis as Portillo Cáceres v. Paraguay, to which the Committee also refers in the decision, mentioned in Chapter 6 of the report on climate and the UN human rights system. The Committee emphasised that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.”²⁷Ibid. An important point is that the state’s duty to protect the right to life also includes “reasonably foreseeable threats” to life. This suggests that the protection (and the state’s corresponding duty) could potentially take effect before climate change actually materialises.²⁸The Committee stated the following later on in the decision, under the specific assessment (see section 9.11): “[G]iven that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.”(our emphasis). In that case, it was estimated that Kiribati will become uninhabitable in 10 to 15 years, and the Committee emphasized that by that time it could be possible to implement protective measures, see paragraph 9.12.

In short, the decision shows that it is possible to achieve international protection under Article 6 of the ICCPR for people leaving their home country as a result of climate change.²⁹The significance of the treaty bodies’ various types of statements will be reviewed in Chapter 6 of the report on climate in the UN human rights system. However, there is a high threshold for protection because the protection in principle is personal, with the exception of extreme cases.

8.4.3. Articles 2 and 3 of the ECHR

Articles 6 and 7 have their parallels in Articles 2 and 3 of the ECHR. Under these provisions also there is a protection against return that means that the Convention States cannot expel or return a person who will be at real risk of losing his life, or be subjected to torture or degrading or inhumane treatment or punishment in the country of origin.³⁰ Soering v. United Kingdom (14038/88). A Convention State will also be prevented from expelling or returning a person to another country, where the person concerned is at a real risk of being sent on to a country where there is a real risk of treatment contrary to Articles 2 or 3 of the ECHR, cf. M.S.S. v. Belgium and Greece [GC] (30696/09), Hirsi Jamaa et al. v. Italy [GC] (27765/09). This protection includes the risk of being sent on from a third country to the country of origin and the potential actions or omissions of the host country.³¹ N v. Sverige (23505/09).

The ECtHR has not so far dealt with any issues concerning climate displaced people. It is however not inconceivable that the general principles developed in ECtHR case-law be applicable to climate-displaced persons.

First of all, the ECtHR’s Grand Chamber has made it clear that “[t]he source of the risk does nothing to alter the level of protection guaranteed by the Convention.”³² Tarakhel v. Switzerland Section 104. The ECtHR’s doctrine of protection against return has thus been expanded to include situations of “extreme material poverty”³³M.S.S. v. Belgium and Greece,Tarakhel v. Switzerland [GC] (29217/12). and “serious deprivation or want incompatible with human dignity.”³⁴ Budina v. Russia (45603/05). In M.S.S. v. Belgium and Greece, the Grand Chamber of the ECtHR found that Belgium’s return of an asylum seeker to Greece violated Article 3 of the ECHR since the living conditions for asylum seekers in Greece were generally too poor.³⁵ M.S.S. v. Belgium and Greece. Both Greece and Belgium were deemed to have violated Article 3 of the ECHR. Greece because the authorities had failed to improve living conditions for the appellant, and Belgium because the situation of asylum seekers in Greece was “well known” and “freely ascertainable from a wide number of sources” before the appellant was returned there.³⁶ M.S.S. v. Belgium and Greece Section 366. The appellant had for several months lived on the street, “with no resources or access to sanitary facilities, and without any means of providing for his essential needs”. The ECtHR argued that the situation did not safeguard the appellant’s “dignity” and that it was above the threshold for inhumane treatment, as his living conditions must have led to feelings of “fear, anguish or inferiority capable of inducing desperation.”³⁷ M.S.S. v. Belgium and Greece Section 263.

It was of no consequence that the appellant was not individually or separately affected.³⁸Cf. the Swiss Supreme Court, which appears to establish a requirement for individualised risk in its internal judicial procedural assessment of appeals from KlimaSeniorinnen. The case is discussed in more detail in Chapter 9 of the report on climate action based on human rights. The fact that the situation “described by the applicant exists on a large scale and is the everyday lot of a large number of asylum-seekers” was rather an argument suggesting that the appellant’s arguments were substantiated.³⁹ M.S.S. v. Belgium and Greece Section 255. In Tarakhel v. Switzerland, the Grand Chamber stressed that Article 3 of the ECHR makes stricter demands for living conditions for children and families with children, “to ensure that those conditions do not ‘create (…) for them a situation of stress and anxiety, with particularly traumatic consequences.’”⁴⁰ Tarakhel v. Switzerland, Section 119, referring to Popov v. France (39472/07 and 39474/07).

Emerging developments in national law show that climate and pollution could trigger “non-refoulement” under ECHR Article 3. In a 2020 German judgement concerning the return of an Afghan national, an administrative court stated that environmental conditions, such as the climate and natural disasters, are relevant factors for determining humanitarian conditions.⁴¹GH Baden-Wuerttemberg, judgement of 17 December 2020 – A 11 S 2042/20 – para. 25. See also Camilla Schloss, Climate migrants – How German courts take the environment into account when considering non-refoulement, Völkerrechtsblog, 03.03.2021, doi: 10.17176/20210303-153650-0. Similarly, in a 2021 French judgement, an administrative court ruled that the return of a Bangladeshi national would violate the non-refoulement requirement because the air quality in Bangladesh would pose a real risk to his life and health.⁴²CAA de BORDEAUX, 2ème chambre, 18/12/2020, 20BX02193, 20BX02195, Inédit au recueil Lebon. Jugdment available in French at https://www.dalloz.fr/documentation/Document?id=CAA_BORDEAUX_2020-12-18_20BX02193_dup#texte-integral.

8.5. Summary

To summarise, people who migrate as a result of climate change are not, as a basic general rule, entitled to protection under the UN Refugee Convention. The UN Human Rights Committee has nevertheless concluded that climate displaced people may be protected against return under Articles 6 and 7 of the ICCPR.  And while the ECtHR has not yet decided on cases concerning climate displaced persons, it has extended the protection against return to situations that are sufficiently precarious to arouse feelings of fear, anxiety and inferiority “capable of inducing desperation.”⁴³ M.S.S. v. Belgium and Greece Section 263. As evidenced by developments in some national courts, one may ask whether climate change could cause desperation analogous to the situation in MSS v. Greece and Belgium. Climate change could cause entire island States and coastal areas to be flooded by oceans, land areas becoming uninhabitable because of heat beyond human tolerance, droughts in population-dense areas dependent on water supply from glaciers about to disappear, as well as extreme weather at increasing frequency and extent. At the same time, it is a fact that the ECtHR has recently shown restraint in the field of immigration since the regulation of asylum and immigration policy is at the heart of state sovereignty.

9. Climate Litigation Based on Human Rights

Around 1550 climate actions are currently in progress in courts around the world. ¹United Nations Environment Program (UNEP), Global Climate Litigation Report: 2020 Status Review. Available on: https://www.unep.org/resources/report/global-climate-litigation-report-2020-status-review. As of today, approximately 41 are based on human rights, and the number is rising.²Setzer and Byrnes (2020), Global trend in climate change litigation: 2020 snapshot, Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science.

9.1.  Introduction

International climate cases may be categorised in different ways, such as by defendant, cause of action or legal basis. If we look at who the defendant is, and what the cause of action is, we can distinguish between cases against States over emissions cuts and cases against companies that extract coal, oil and gas with claims for compensation for climate damage. In time, we can expect to see more claims also against States.³See e.g. Sunde and Colombo, “Look to Norway –Klimasøksmål i klimaendringane sin tidsperiode” in Energi og Klima, available on energiogklima.no (first published in Klassekampen on 26 September 2017). As for the legal basis for the action, we can distinguish between cases based on national laws and regulations and cases based on international law.

Since there will be variations in national regulations and legal traditions, as well as factual differences from case to case, climate actions based on national regulations will not always be relevant beyond the nation’s borders. Lawsuits over the interpretation of international law, including international human rights, will nevertheless have some significance for other countries bound by those same rules. In general, individual national courts are not bound by interpretations from other national courts – even if the interpretation concerns rules by which that national court is also bound.⁴As far as international law is concerned, it essentially follows from the common principle of Article 38(1)(d) of the ICJ Statute, that court decisions – including national ones – are merely a subsidiary legal source. However, national court decisions may be relevant when deciding whether there is an international custom, see Article 38(1)(b). However, the interpretation of international law by national courts may have implications for other national courts as an explicit source of inspiration or, more indirectly, through influence on attitudes.

This chapter provides an overview of selected climate cases based on human rights world-wide, updated as to 23 March 2021. The overview includes both finally decided and pending cases.

9.2. Climate action based on the ECHR

9.2.1. The Netherlands

In the Netherlands, two climate actions have been brought on the basis of the ECHR. The first and best-known, the Urgenda case, resulted in a judgement from the Dutch Supreme Court on 20 December 2019.⁵Case number ECLI:NL:HR:2019:2007, available in English on https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007. Information about the action is also available on https://www.urgenda.nl/en/themas/climate-case/. The case concerned the reach of the State’s obligations under Articles 2 and 8 of the ECHR to reduce greenhouse gas emissions originating from Dutch territory. The background for the action was that in 2011, the Dutch State scaled down its target for reducing greenhouse gas emissions by the end of 2020, from a 30 percent reduction to 20 percent compared to 1990 levels.

The Court made it clear that each State is responsible for its own share of global emissions, and that State responsibility is not diminished by the fact that a single State’s emissions alone may have limited global significance. A State must therefore reduce greenhouse gas emissions from its own territory “in proportion to its share of the responsibility.” This is necessary both to avoid smaller States failing to take necessary measures, and because any reduction in greenhouse gas emissions will have a positive effect in the fight against climate change.

In the Court’s view, this obligation on the part of the Dutch State can be derived from Articles 2 and 8 of the ECHR, since dangerous climate change poses a “real and immediate risk” to the lives and well-being of the Dutch people. The fact that this risk will first materialise in a few decades, and that it will affect unspecified sections of the population rather than specific individuals or specific groups of people, did not, in the Court’s view, prevent the application of Articles 2 and 8, since “[t]he mere existence of a sufficiently genuine possibility that this risk will materialize means that suitable measures must be taken.”

As for the more detailed nature of the Government’s obligations, the Court stated that one must take into account “broadly supported scientific insights and internationally accepted standards,” including, in particular, reports from the IPCC. On the basis of the 2 degree and 1.5 degree targets, the Court found “common ground” for a need for States to reduce their own emissions by at least 25-40 percent compared to 1990 levels by the end of 2020. This consensus must, in the Court’s view, be taken into account when interpreting and applying Articles 2 and 8.

The Court also found that, since there is also broad agreement that deferred greenhouse gas reductions lead to more expensive and more comprehensive measures, as well as an increased risk of sudden and irreversible climate change, the Government is obliged to explain how, by postponing short-term greenhouse gas reduction targets, it will nevertheless be able to meet long-term climate targets. As the Dutch State could not provide such an explanation in connection with the downward adjustment from 30 to 20 percent reduction, the Court concluded that the State is obliged to meet the short-term target found necessary by the international community, namely a reduction in greenhouse gas emissions of at least 25 percent compared to 1990 levels by 2020.

The second human rights climate action in the Netherlands is aimed at the oil company Royal Dutch Shell. The case was filed in April 2019 by the association Milieudefensie and others.⁶Case documents are only partially available. Unofficial English translation of the writ of summons is available on https://en.milieudefensie.nl/news/court-summons-translation.pdf. The plaintiffs argue that Royal Dutch Shell has a positive legal obligation to reduce its greenhouse gas emissions under Articles 2 and 8 of the ECHR, as well as under Dutch legislation. The case is currently before the Court of first instance in The Hague, and the Court is expected to render judgement on 26^th of May 2021.⁷https://www.cliffordchance.com/insights/resources/blogs/business-and-human-rights-insights/climate-change-actions-against-corporations-milieudefensie-et-al-v-royal-dutch-shell-plc.html (last visited 19 March 2021).

9.2.2. Ireland

In June 2020, the Irish Supreme Court heard a case against Ireland brought by the association Friends of the Irish Environment.⁸ Friends of the Irish Environment v. The Government of Ireland & Ors, [2020] IESC 49, 31 July 2020. The decision is available on https://www.courts.ie/view/judgments/681b8633-3f57-41b5-9362-8cbc8e7d9215/981c098a-462b-4a9a-9941-5d601903c9af/2020_IESC_49.pdf/pdf. The association argued that Ireland’s national plan for greenhouse gas reduction violated its obligations under Articles 2 and 8 of the ECHR, since no objectives existed to reduce emissions sufficiently quickly. The case did not succeed in the District Court.⁹ Friends of the Irish Environment CLG v. The Government of Ireland & Ors, [2019] IEHC 747, 19 September 2019. Available on https://www.courts.ie/view/judgments/20562a43-5bed-4524-9b60-e18ef35aae44/7454e3ee-eeca-40be-9c79-6c2e23d165e8/2019_IEHC_747.pdf/pdf. The decision was appealed directly to the Supreme Court, which extraordinarily allowed the appeal to “leapfrog” over the Court of Appeal, citing the case as being of “general public and legal importance.”¹⁰[2020] IESCDET 13, 13 February 2020. Available on  http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200213_2017-No.-793-JR_na-1.pdf. http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200213_2017-No.-793-JR_na-1.pdfThe environmental organisations in the Norwegian climate action attempted to do the same after the district court’s judgement, but the Supreme Court did not agree to this, see HR-2018-661-U.

The Supreme Court overruled the lower court’s judgement and held that the greenhouse gas plan was invalid, as the plan in the Court’s view was not sufficiently specific with regard to how emissions cuts would be implemented. The government’s submission that the plan was a matter of “policy”, and that it was therefore beyond the competence of the Court, was not upheld. The Court stated that although the plan was based on policy, it still had to be in line with the framework set out in its legal basis, namely Irish climate legislation.¹¹Section 6.27 of the decision.

Although the main issues of the action were thereby settled, the Court decided, for the sake of judicial clarification, to also decide on whether the association had standing under Irish law to invoke the applied human rights. The Court declared that the rights to life and physical integrity are personal rights, and therefore not something that legal persons in principle can invoke on their own behalf. Under Irish law, there must be special reasons for legal persons to be able to bring an action for an alleged infringement of such rights. The Court found that the association could not demonstrate why it was necessary for the association – and not an individual – to file the action, which meant that no exception could be made to the principle that legal persons should not have access to file actions on such rights.¹²Section 7.22 of the decision. The Court therefore did not decide on the issue of whether the plan violated Articles 2 and 8 of the ECHR.

In the interests of legal clarification, the Court also made some statements on the issue of whether a right to “a healthy environment” could be read into the Irish Constitution, which unlike the Norwegian Constitution does not include an explicit environmental provision. The Court first pointed out the need to avoid conflating law and politics, but then concluded that if an individual claims that their rights have been violated, the Court is obliged to enforce the rights in question – even if the assessment of whether there is an offence may relate to political issues. The Court therefore stated that “[c]onstitutional rights and obligations and matters of policy do not fall into hermetically sealed boxes.”¹³See Sections 8.9-8.16 of the decision.

However, the Court found that it is unclear what a right to “a healthy environment” should entail, and whether this might add anything beyond the already existing rights to life and physical integrity. For this reason, the Court did not see any basis for establishing a constitutional right to “a healthy environment.” Subsequent questions about a “healthy environment” must therefore principally be considered on the basis of the right to life and personal integrity.

9.2.3. Switzerland

On 5 May 2020, the Supreme Court of Switzerland delivered a verdict in a climate action case.¹⁴Bundesgericht (BGs), Urteil vom. 5 Mai 2020 (1C_37/2019). The decision and other key documents in the case have been translated into English by the plaintiff organization and are available on www.klimaseniorinnen.ch/english/. The background for the case was that four older women over the age of 75 and a special interest organisation for this group (KlimaSeniorinnen) had approached the Swiss authorities with a demand that the authorities take a number of specific actions to fulfil Switzerland’s obligations under the Paris Agreement. As stated in the judgement, Article 25a of the Swiss Administrative Procedure Act has a special form of appeal process, whereby a request can be made that the authorities refrain from unlawful acts or discontinue such acts. One of the conditions for making such a request is that the case affects the rights or obligations of the person concerned (“Rechte oder Pflichten berühren“). The authorities rejected the claim and the women were not allowed to appear before the administrative tribunal. The case was then appealed to the Supreme Court.

The women argued that they were sufficiently affected to file an appeal, since the State had a duty of action under Articles 2 and 8 of the ECHR, as well as corresponding Swiss constitutional provisions. Their reasoning was that women over the age of 75 have a proven elevated risk of death during extremely hot summers, which is already an observable consequence of climate change.¹⁵See Section 5.1 of the decision.

The Swiss Supreme Court did not allow the appeal. At the heart of the Court’s reasoning was that any exceeding of the Paris Agreement’s objective of keeping the temperature increase “well below 2 degrees Celsius” is not imminent, that there is still enough time to avert a temperature increase above this threshold, and that the women’s rights for this reason are not sufficiently affected at this time. The Court held that, based on a relatively narrow assessment of legal sources relevant to the ECHR, there was no breach of the ECHR.¹⁶See in particular Section 5.3–5.4 of the decision. The issue of connection to a potential human rights violation is apparently part of the conditions for the administrative right to appeal. In Section 5.4 of the decision, the Court concludes that there was no substantive violation of Articles 2 or 8 of the ECHR, and that the women procedurally would not have victim status before the ECtHR under Article 34 of the ECHR.¹⁷In Section 5.4 of the decision, the Court apparently concludes that there was no substantive violation of Articles 2 or 8 of the ECHR, and that the women procedurally do not have victim status under Article 34 of the ECHR.[17]

The judgement is relatively short and thus lacks a detailed discussion of the issues at hand, but is in  apparent conflict with established climate science. The Court’s assessment that there is enough time to avert a temperature increase above the Paris Agreement’s target of 1.5 and well below 2 degrees, for instance, is difficult to reconcile with scientific evidence.¹⁸See Chapter 2 of the report, written by CICERO on commission from NIM. As greenhouse gas emissions – especially from CO₂ – have a long-lasting impact, half of the warming resulting from emissions will occur within a decade, while most of the remaining warming will occur over the next hundred years, and then a smaller amount on a millennial scale.¹⁹Ibid. In other words, warming as a result of historical and inevitably impending greenhouse gas emissions is locked in with long-term effects from the moment of emission.²⁰Ibid. It therefore makes little sense to assume that one can avert 1.5 or well below 2 degrees by reducing emissions just ahead of average temperatures reaching dangerous levels. By then it will already be too late.²¹Ibid.

It is also unclear how much the Court emphasised the fact that the women are unlikely to be alive by the time average temperatures may exceed the limits of the Paris Agreement. There are statements in the decision that might imply that this has been a weighty argument, and if so, it is unclear whether the Court would have reasoned differently if the appellants had been younger. Another uncertainty is whether the Court has actually taken a stand on the women’s argument that they are already personally affected by climate change, as a result of heatwaves in the summer. The IPCC’s risk analysis shows that the risk of heat-related illness and mortality is already at a moderate level as a result of the current one-degree temperature increase.²²See Chapter 2 of the report, written by CICERO on behalf of NIM, where it emerges that the IPCC already considers the risk of heat-related illness and mortality as moderate at the current warming of one degree. The risk will increase to high by further heating.

The organisation filed a complaint before the ECtHR, and in April 2021 the Court accepted the complaint, giving the case priority status.²³The communication and questions to the parties are available at http://hudoc.echr.coe.int/eng?i=001-209313.

9.2.4. Belgium

On 27 April 2015, a climate action against the Belgian State was brought by a civil society organisation.²⁴Case documents are only partially available. Information about the proceedings is available on https://www.klimaatzaak.eu/. The organisation has argued that the Belgian Government must take more forceful measures to reduce greenhouse gas emissions. Specifically, the plaintiffs requested that the State reduce emissions by 40 percent of the 1990 level by the end of 2020 and by nearly 90 percent by the end of 2050. The action is based on Articles 2 and 8 of the ECHR, as well as the Belgian civil law, the Constitution of Belgium and the Treaty on the Functioning of the European Union (TFEU). The case is pending at the French-speaking court of first instance in Brussels. The case is under consideration and has not yet been decided on.

9.2.5. Austria

In February 2020, Greenpeace Austria and others brought an action before the Austrian Constitutional Court.²⁵Case documents are not available. Read about the action on http://climatecasechart.com/non-us-case/greenpeace-v-austria/. They requested that the regulations that currently provide tax exemptions for flights, but not for train travel, must be found invalid. The plaintiffs argued that emissions from flights threaten basic human rights. Specifically, the plaintiffs argued that the rules on tax exemption for flights are contrary to Article 2 of the ECHR concerning the right to life, as well as Article 8 of the ECHR concerning the right to privacy and family life. The plaintiffs also argued that the regulations are contrary to the right to privacy and family life pursuant to Article 7 of the EU Charter of Fundamental Rights.

The case also contained a request for an interpretation statement from the European Court of Justice regarding the legal content of Article 37 of the Charter, which reads as follows: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. The plaintiffs wanted the EU Court of Justice to consider whether the provision should be understood as a provision of rights that can be enforced and tried legally by the courts. On September 30 2020, the Constitutional Court dismissed the case as inadmissible on the grounds that rail passengers do not have standing to sue over preferential tax treatment given to air travel.²⁶http://climatecasechart.com/non-us-case/greenpeace-v-austria/ (last visited 19 March 2021).

Another Austrian case regards a man suffering from a temperature-dependent form of multiple sclerosis. His condition affects muscles when temperatures rise above 25 degrees Celsius, and as climate change is leading to an increase in the number of days with a temperature of over 25 degrees, he wishes to sue Austria for lack of mitigating action. Under Austrian law, inaction by the the legislator cannot be legally challenged, and so the case is being brought directly before the ECtHR. According to the organisation Fridays for Future – which is supporting the lawsuit – the application will be lodged before the ECtHR on the 12^th of April 2021.²⁷https://klimaklage.fridaysforfuture.at/ (last visited 22 March 2021).

9.2.6. France

In November 2019, the French Constitutional Council settled a case filed by the Union des industries de la protection des plantes.²⁸Case number 2019-823 QPC of 31 January 2020. English translation is available on https://www.conseil-constitutionnel.fr/en/decision/2020/2019823QPC.htm. The case concerned claims that a ban on the production, storage and transportation of unapproved pesticides violated constitutional rights relating to balanced commercial conditions in agriculture and food production. The Constitutional Council pointed to the French Charter for the Environment, which initially states that “the future and very existence of mankind is inextricably linked with its natural environment”, and that “choices designed to meet the needs of the present generation should not jeopardise the ability of the future generations and other peoples to meet their own needs,” as well as to the French Constitution’s preamble, stating that the State should ensure for everyone “protection of their health.”²⁹See paragraphs 4 and 5 of the English translation. The Council further pointed out that the legislature must balance these rights with the right to free trade. In this regard, the Council stated that the legislature also has the right to take into account the effect an activity in France has on the environment beyond France’s borders. The Council found that the legislature’s trade-off in this case was not “manifestly unbalanced”, and the claim of wrongdoing was consequently rejected.³⁰See paragraphs 12 and 13 of the English translation.

As of March 2021, there are also three active climate actions in France based on the ECHR. One action was brought against the State by a municipality (Grande Synthe) near Dunkirk, which is at an elevation below sea level.³¹Case documents are not available, but a press release is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190123_Not-Yet-Available_press-release-1.pdf. The municipality is particularly vulnerable to climate change in the near future and requires the authorities to take measures to reduce greenhouse gas emissions in order to comply with obligations under Articles 2 and 8 of the ECHR. On November 19 2020, the Supreme Court for administrative justice (Conseil d’État) found the case admissible. The Court held that France has committed itself to a 40 % reduction in GHG emissions by 2030, and gave the government three months to provide evidence that it is taking adequate action towards meeting this target. Although the Court signaled that French and European law will constitute the legal basis for the final jugdgment, it highlighted that the Paris Agreement will be relevant for the interpretation of national law.³²http://climatecasechart.com/non-us-case/commune-de-grande-synthe-v-france/ (last visited 19 March 2021).

The second action was brought by the association Notre Affaire à Tous against France in March 2019.³³Case documents are not available, but a press release is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190314_NA_press-release-1.pdf. The dispute relates to whether France’s failure to reduce greenhouse gas emissions violates Articles 2 and 8 of the ECHR, as well as a general principle of international law on the right to live in a preserved climate system. In a decision on February 3^rd 2021, the Administrative Court of Paris held that State inaction in relation to climate change is the cause of ecological damage, and in response awarded the association one euro for moral prejudice, as requested by the association. Furthermore, the Court held that the State can be held responsible under EU and national law for failing to meet its own climate targets. However, the Court deferred the decision on whether or not to order the government to take stronger mitigating action against climate change, and gave the State two months to disclose the steps it is taking to meet its climate targets.³⁴http://climatecasechart.com/non-us-case/notre-affaire-a-tous-and-others-v-france/ (last visited 19 March 2021).

The third action was brought by 12 municipalities, one region and several environmental protection associations against the French oil company Total.³⁵The writ of summons is available in French on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200128_NA_complaint.pdf. The plaintiffs argue that Total has infringed French legislation, interpreted in light of Articles 2 and 8 of the ECHR, since the company has not reported climate risks and initiated measures to reduce emissions under the objectives of the Paris Agreement. The case was filed in March 2019 and is currently before the Administrative Court in Paris.

9.2.7. The European Court of Human Rights

In September 2020, four Portuguese children and two young adults brought an appeal before the ECtHR against 33 States, called Duarte Agostinho v. Portugal et al. The plaintiffs argue that the States have infringed their rights under Articles 2, 8 and 14 of the ECHR by failing to take adequate measures to limit the effects of climate change, including keeping the global temperature increase at 1.5 degrees.³⁶The appeal is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200902_12109_complaint.pdf. The Court has also at its own initiative requested that the parties consider whether there have been infringments of Article 3 or Article 1 of Protocol 1, alone or in conjunction with Article 14.³⁷The Court’s questions to the parties are available in French on http://hudoc.echr.coe.int/eng?i=001-206535. The countries in question are the EU Member States, as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. The case was communicated 13^th of November 2020, and has not yet been decided on.

In April 2021, the ECtHR communicated the Swiss case mentioned in section 9.2.3 above.

9.3. Individual communications about climate based on UN human rights conventions

9.3.1. New Zealand

In the 2019 case of Teitiota v. New Zealand, the UN Human Rights Committee decided on an individual communication by a person from the island state of Kiribati in the Pacific Ocean, whose asylum application had been rejected by New Zealand.³⁸UN Human Rights Committee, case number CCPR/C/127/D/2729/2016. The statement is available on https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/127/D/2728/2016&Lang=en. The individual applied for asylum because of rising sea levels in his home country, arguing, among other things, that sea level rise has led to a lack of clean drinking water and opportunities to obtain food. He further argued that rising sea levels have led to more frequent and more severe cases of flooding, as well as violent clashes caused by land disputes. He appealed the rejection of his asylum application to the UN Human Rights Committee for violating the right to life under Article 6 of the UN Convention on Civil and Political Rights (ICCPR). The Committee concluded that there was no breach of Article 6, and the communication therefore did not succeed. In its decision, the Committee also stated that climate displaced people could have protection against return under Article 6, if there is a real risk of loss of life, even if the specific circumstances of this particular case were not of sufficient seriousness at the time of the communication.³⁹The appeal is discussed in more detail in Chapter 8 of the report on climate displaced persons.

9.3.2. Australia

In Torres Strait Islanders v. Australia,  a group of indigenous appellants has filed a communication with the UN Human Rights Committee alleging that Australia is violating its obligations under the ICCPR.⁴⁰The appeal has not been made available, but a press release about the case is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190513_Not-Available_press-release-1.pdf. The case has been given appeal number 3624/2019. This is the first case in Australia to argue that a lack of climate action constitutes a breach of human rights obligations. The appellants, who are indigenous peoples from the low-lying Torres Strait Islands north of Queensland, argue that Australia is violating its duty to secure a number of rights enshrined in the Convention, by not taking sufficient action to stop climate change. In the long term, climate change will cause the islands to disappear below the surface of the ocean as a result of rising sea levels. The rights in question are the right to life (ICCPR, Article 6), the right to privacy and family life (ICCPR, Article 17) and the right of ethnic minorities to their culture (ICCPR, Article 27). The appellants have argued that both the Government’s failure to take action to reduce greenhouse gas emissions and a lack of climate adaptation measures on the islands constitute a violation of these obligations. The appeal is being considered by the Committee and has not yet been decided on.

9.3.3.Argentina, et al.

In September 2019, a group of 16 children lodged an appeal against Argentina, Brazil, France, Germany and Turkey to the UN Committee on the Rights of the Child for violations of several of the rights enshrined in the UN Convention on the Rights of the Child (UNCRC).⁴¹The appeal is available on https://childrenvsclimatecrisis.org/wp-content/uploads/2019/09/2019.09.23-CRC-communication-Sacchi-et-al-v.-Argentina-et-al-2.pdf. The appellants argue that these States have not taken adequate measures to prevent greenhouse gas emissions and subsequent climate change. They argue that climate change leads to violations of children’s rights under the Convention, specifically children’s right to life (UNCRC, Article 6), children’s right to health (UNCRC, Article 24), the principle of the child’s best interests (UNCRC, Article 3) and the cultural rights of children belonging to a minority or an indigenous people (UNCRC, Article 30). The communication, Sacchi et al. v. Argentina, et al. is currently before the Committee and has not yet been decided on.⁴²According to information on the Committee’s website, the appeal has been given case number 104/2019.

9.4. Climate action based on the EU’s Charter of Fundamental Rights

An action based on the EU Charter of Fundamental Rights was brought by Armando Carvalho and others, and unites plaintiffs from Europe, Fiji and Kenya, calling for an injunction in order for the EU, through the European Parliament and the European Council, to adopt more stringent emission reductions. They claim that the EU has infringed their rights under the Charter, particularly the rights to life (Article 2), physical integrity (Article 3), children’s rights (Article 24), right to work (Article 15), right to property (Article 17) and the right to equal treatment (Articles 20 and 21). The case was rejected by the Court of First Instance of the European Court of Justice on 8 May 2019, because the plaintiffs did not meet procedural conditions under Article 263, fourth paragraph, of the TFEU of being directly or individually affected by the cited EU regulations. On 25 March 2021, the Court of Justice of the European Union (CJEU) upheld the decision.⁴³Carvalho and others v. the European Parliament and the Council of the European Union, ECLI:EU:C:2021:252. The CJEU held that the acts at issue did not “affect the appellants by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons”.

9.5. Selected climate actions based on national legal rules

9.5.1. United Kingdom

In December 2017, the organisation Plan B and 11 citizens aged 9 to 79 brought an action against the United Kingdom.⁴⁴The decision and other key documents in the case are available on https://planb.earth/plan-b-v-uk/. The plaintiffs argued that the UK’s 2050 climate target is not in line with the Paris Agreement or recent research, and that the Government is therefore committed to enhance its target. In July 2018, the High Court decided not to hold a full hearing on the case, on the grounds that it was unlikely that the plaintiffs’ argument would be able to succeed. Among other things, the Court stated that the Paris Agreement does not imply any binding legal obligation on States to reach certain temperature levels by 2050. Appeals were not allowed.

In August 2018, the organisation brought a new action, this time alleging that the Government, when planning an expansion of the Heathrow airport, had failed to consider the plans in light of the Paris Agreement’s 1.5-degree limit.⁴⁵[2020] EXCA Civ 214, 27 February 2020. The decision and other key documents in the case are available on https://planb.earth/plan-b-v-heathrow-expansion/. The Government claimed that the Paris Agreement was not relevant to the State’s policies on climate change. In February 2020, the Court of Appeal unanimously ruled in favour of the organisation. The Paris Agreement was relevant to consider both under the the EU SEA Directive⁴⁶Directive 2001/42/EC (Strategic Environmental Assessment Directive). According to Annex I, “environmental protection objectives” must be taken into consideration, which are established at the “international level”, and the Paris Agreement is covered by this, paragraph 247. and under UK planning legislation.⁴⁷Paragraph 238. However, in December 2020, the Supreme Court overturned the Court of Appeal’s decision, and ruled in favour of the Government.⁴⁸. Friends of the Earth Ltd v Heathrow Airport Ltd [2020] UKSC52. Available on: https://planb.earth/plan-b-v-heathrow-expansion/.  The Supreme Court ruled that the Government had taken the obligations under the Paris Agreement sufficiently into consideration, seeing as the expansion of Heathrow Airport would require a Development Consent Order (DCO) where any further development would have to be measured against updated emission targets.⁴⁹Ibid. The plaintiffs have announced that the decision will be brought before the ECtHR.⁵⁰See https.//planb.earth/wp-content/uploads/2020/07/PAP-Letter-for-circulation.pdf and https://planb.earth/plan-b-v-heathrow-expansion/.

Plan B also brought an action in July 2020 claiming that the Government, in its economic design of “the COVID Recovery Programme”, failed to take into account national climate and human rights regulations, the Paris Agreement and other legal obligations.⁵¹See the letter from the organization on https://planb.earth/wp-content/uploads/2020/07/PAP-Letter-for-circulation.pdf. Since the initial action, the lawsuit has evolved into a collaboration with the Stop the Maangamizi campaign, and is currently led by three young British citizens who have family in regions of the world that are already experiencing severe effects of climate change (countries in Africa and the Americas, including the Caribbean and Latin America). The plaintiffs are arguing that the UKs failure to produce a plan that reduces emissions in line with the state’s obligations, and the continued financing of high emission actors, constitutes a violation of the right to life, the right to family and of the international duty to prevent harm.⁵²See case documents on https://planb.earth/plan-b-v-government-bailouts-for-polluters/ (Last visited 23 March 2021).

Another ongoing case was filed before the High Court of Justice in September 2020 by Friends of the Earth England, Wales, and Northern Ireland, and concerns the legality of the State’s decision to provide approximately $1 billion in financing to a large liquified natural gas (LNG) development in Mozambique. According to the organisation, the construction phase alone will increase Mozambique’s GHG emissions by up to 10 % by 2022. The organisation argues that the decision to invest is inconsistent with the UK’s obligations under the Paris Agreement, and that the decision is unreasonable (and thus substantively unlawful) due to the major impacts on climate change, biodiversity and human rights, and due to the State’s failure to adequately investige and consider these impacts.⁵³See case documents on https://friendsoftheearth.uk/system-change/climate-litigation-briefing-friends-earth-vs-uk-export-finance (Last visited 23 March 2021).

9.5.2. Germany

In Germany, there have been three human rights climate actions based on German legislation. The first was brought in October 2018 by Greenpeace Germany and three German farming families.⁵⁴Case VG 10 K 412.18. The action was brought before the administrative court in Berlin. At the time of the case, the German Government had adopted a goal of reducing greenhouse gas emissions by 40 percent of 1990 levels by the end of 2020. According to the Government’s own forecasts, Germany would cut 32 percent by the end of 2020, and thereby not meet the emissions reduction target. The plaintiffs argued that the German State, by failing to meet its goal of cutting emissions by 40 percent, would violate several rights enshrined in the German Constitution, specifically the right to life and health, the right to professional freedom, the right to property and the German constitutional provision on the right to a viable environment for future generations.

The Court found that the plaintiffs did not have standing to bring an action alleging that their individual rights had been infringed. However, Article 20(a) of the Constitution on the right to a viable environment could also be enforced by the courts, and on this issue the plaintiffs had standing. The Court therefore considered whether the Government’s measures to reduce emissions were in accordance with the Government’s duty to ensure fundamental rights enshrined in the German Constitution. The Court noted that the State has a wide margin of appreciation when it comes to what measures to adopt, provided that the measures are not completely unsuitable or inadequate.⁵⁵The State must take measures that are not “gänzlich ungeeignet oder völlig unzugänglich” (page 23). The Court concluded that the German Government’s new climate target of reducing emissions by 32 percent, rather than 40 percent, by the end of 2020 was not in violation of the German Constitution. Among other things, the Court pointed out that the Dutch Supreme Court in the Urgenda case had concluded that the obligation under Articles 2 and 8 of the ECHR was to reduce greenhouse gases by at least 25 by 2020.⁵⁶Pages 26–27 of the decision. The rejection was not appealed.

The second action was brought in November 2018. The organisation Bund für Umwelt und Naturschutz Deutschland and others have filed an action before the German Administrative Court against the German State.⁵⁷The writ of summons is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2018/20181122_Not-Available_complaint-1.pdf. The plaintiffs argue that the German State has violated the plaintiffs’ constitutional rights by failing to meet their own emissions reduction targets and the EU’s 2020 target. As such, this case is similar to the previous German climate action. The plaintiffs further argue that the German State has a legal obligation to base its climate policy on the current knowledge of climate change, rather than the 2-degree target. The case is under consideration and has not yet been decided on.

In February 2020, a group of German youths and individuals in Bangladesh and Nepal brought a third action against the German State, arguing that the Government’s emissions-cutting target of reducing greenhouse gas emissions by 55 percent of 1990 levels by 2030 is insufficient.⁵⁸The writ of summons is available in German on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200206_11817_complaint-1.pdf. According to the plaintiffs, Germany will have to reduce emissions by 70 percent. The plaintiffs argue that the State violates several constitutional rights, specifically the right to life and physical integrity (Article 2.2), the right to property (Article 14.1) and Article 20(a) of the Constitution that protects the foundation of life for future generations, by not making adequate cuts to greenhouse gas emissions in Germany and by allowing too much transmission of allocation of emissions through the carbon credit system.

In April 2021, the constitutional complaints were partially successful.⁵⁹Neubauer et al. v. Germany¸ BVerfG, Order of March 24th 2021 – 1 BvR 2656/18. The German Constitional Court held that the right to life and physical integrity in the German Constitution give rise to a positive obligation to reduce emissions to protect life and health from risks posed by climate change. The right to life and physical integrity could furthermore give rise to an objective duty to protect future generations. The Court referred in this context to ECtHR case law under Articles 2 and 8. The Court further held that the right to property, including social ties to the local environment and home, obliges the state to protect against threats from climate change. The standard for review adopted by the Constitutional Court was relatively high; measures could not to be manifestly unsuitable or intierely inadequate. A climate policy that relied exclusively on adaptation measures, or did not pursue climate neutrality in the near future would contravene these rights. Since the Climate Act pursued climate neutrality by 2050, and set out a specified reduction trajectory to reduce emissions by 55% by 2030 compared to 1990 levels, having reduced emissions by 40% by 2020, the Court held that the State had not violated its positive obligations.

The Court also held that Article 20(a) on the environment was justiciable before the Court, and placed the State under an obligation to limit global warming to the constitutionally relevant threshold of well below 2 degrees Celsius, and preferably 1.5 degrees Celsius above pre-industrial levels, translated into Germany’s share of the residual carbon budget, as stipulated by the IPCC and the German Climate Council (paras. 208, 212, 217). This obligation was reinforced by Articles 2.2 and 14.1 (para. 246). The Court noted that the State could not evade its responsibility by pointing to emissions in other states (para. 203). Rather, the global nature of greenhouse gas emissions and the reliance on the international community gave rise to an obligation to actually implement one’s own climate action measures at the national level and not to create incentives for other states to undermine the required cooperation (para. 203). The Court also noted that Article 20(a) limits the scope for political decision-making, since the democratic political process is organised on a shorter term basis which structurally runs the risk of underplaying long term ecological risks to which unrepresented future generations will be particularly affected (para. 206).

While it could not be ascertained at present that Article 20(a) had been violated, the Court held that the Climate Act was unconstitutional insofar as it failed to specifiy annual emission reductions after 2030. The Court reasoned that the rapid depletion of the finite carbon budget before 2030 unilaterally and irreversibly offloaded a drastic burden to cut emissions after 2030 on younger and future generations, exposing them to a disproportionate risk of infringements of their future rights which the State ought to take precautionary steps to protect. In that connection, it was not sufficient to set out ambitious targets for emission reductions in the future, as these targets in themselves were meaningless unless coupled with a specified, annual reduction rate according to the residual carbon budget. The Court further observed that it would not be consistent with the precautionary principle to rely on negative emissions technologies that were not yet scalable or developed, or emission trading (paras. 226-229).

With respect to the plaintiffs from Nepal and Bangladesh, the Court granted standing, but did not conclude as to the eventual scope of any positive obligations to cut emissions vis-à-vis them. The Court pointed, however, to the possible connection factor between greenhouse gas emissions emanating from Germany and the severe climate-induced impairments of their human rights.

9.5.3. Poland

In June 2019, the association ClientEarth, along with over 60 farmers, won a case against the company Polenergia. The company had been granted permission by regional authorities to build a new coal-fired power plant – which was planned to be one of the largest in Europe – in the middle of a fertile agricultural area. The permit was granted without taking either the local community or environmental challenges into account.⁶⁰Case documents are not available. More information on the case available on https://www.clientearth.org/europes-largest-new-coal-power-plant-stopped/. Poland’s highest administrative court found that the regional authorities had acted in violation of the law, since they did not take the local community into account when considering the building application. The Court also found that the authorities had not given sufficient weight to the NGOs’ assessment of the environmental consequences of the project.

In September 2019, the association filed a new action, this time against Europe’s largest coal-fired power plant, Belchatow.⁶¹Case documents are not available. More information on the case available on https://www.clientearth.org/were-challenging-europes-most-climate-damaging-power-plant/. The power plant is estimated to have released around 1 billion tonnes of CO₂ into the atmosphere and is thereby considered the single greatest source of of greenhouse gases emissions in Europe. ClientEarth points out that the company has no official plan to reduce its emissions, and requests that the company take steps to limit its CO₂ emissions – principally by stopping the combustion of coal by 2035. The association bases the action on a Polish legal provision stating that environmental organisations can file an action if they believe that a specific activity harms the environment as a common good. In a decision of 23 September 2020, a Polish court of first instance has ordered Belchatow to attend conciliation proceedings with ClientEarth to accelerate the closure of the coal-fired power plant and find a solution within three months. ClientEarth has called the decision a milestone, and a “major breakthrough for the environmental movement.”⁶²Ibid.

9.6. General trends and developments

This overview of settled and selected ongoing climate cases based on human rights internationally provides a basis for some reflections.

Firstly, it is worth noting that in the court decisions that exist so far, the climate science premises are considered undisputed facts. For instance, when Ireland’s Supreme Court allowed a direct appeal over the Court of Appeal in February 2020, part of the reasoning was that no further evidence was needed in the Court of Appeal since the parties agreed on the actual premises.⁶³IESCET 13 February 2020, paragraphs 8 and 9. The courts also consistently seem to apply climate science correctly. The Swiss decision in the action from KlimaSeniorinnen, however, stands out. Here it seems that the Court may have made an incorrect assessment when it comes to the scientific premises and implications.

Another consistent feature of several of the court decisions so far is that the parties disagree on whether environmental organisations or general sections of the population can assert this type of rights before the courts. The issue of whether environmental organisations have standing has prevented the consideration of the substance of the climate actions that so far have been brought before the European Court of Justice. The lack of a right of action under national law was also a decisive factor in Swiss law and partly in Irish law. Standing was not in dispute in the Dutch Urgenda case, which was brought as a so-called actio popularis. Standing could nevertheless have come to the forefront if the case had not succeeded nationally, and Urgenda had appealed the decision to the ECtHR.⁶⁴Leijten, «Human Rights v. Insufficient Climate Action» (2019) in Netherlands Quarterly of Human Rights vol. 37 no. 2 on pp. 112-118. As discussed above, the ECtHR does not generally accept actio popularis, but has at the same time allowed appeals from organisations on behalf of a larger group of individuals when it is a matter of particular types of offenses.⁶⁵See Chapter 5 of the report on the European Convention on Human Rights and climate.

Given that environmental organisations have the right to bring climate change cases before the courts, this raises the question of how far the courts can or should go in applying the rights to set aside decisions made by the other branches of government. In the cases that have been settled finally as of today, the courts in question have concluded that they have a certain right to intervene with other branches of government. In Urgenda, the Supreme Court of the Netherlands states that it is up to the legislative authority to decide how the emissions reductions are achieved, but that the courts are competent to decide whether the emissions reductions are sufficient compared to the obligations under the Paris Agreement.⁶⁶Paragraphs 8.3.2–8.3.4 of the judgement. The Irish Supreme Court acknowledged that although the Government’s national plan for greenhouse gas reductions was based on politics, the courts are obliged to consider whether the plan is in line with the legal framework.⁶⁷Paragraph 6.27 of the judgement, in conjunction with paragraph 8.16

If settled and ongoing actions are considered as a whole, we see that most human rights cases relate to general emission cuts and emissions targets, while the first Norwegian climate action stands out by relating to the validity of permits that potentially allow for future and specific emissions. This action may have more in common with the so-called Heathrow case in the UK, where Plan B Earth’s claim also failed because the climate effect of GHG emissions would be assessed at a later stage.

As for the rights, we see that the plaintiffs consistently argue that greenhouse gas emissions and subsequent climate change threaten the right to life and the right to privacy, family life and home. In some cases, the right to health, children’s rights and the right to property are also invoked. When it comes to Articles 2 and 8 of the ECHR, the argumentation mainly follows along the same lines as in Urgenda. We see the same tendencies in climate-related individual appeals before UN treaty bodies, where the corresponding rights under UN conventions on human rights have been applied by the appellants, as well as the human rights protection against return in the decision in the appeal against New Zealand.

One final general consideration is that over the last ten years there has been an increasing number of climate actions based on human rights. Prior to 2015, there had only been five climate actions globally based on human rights provisions.⁶⁸Setzer, Byrnes, ”Global trends in climate change litigation: 2020 snapshot” p. 14 ff. available on https://www.lse.ac.uk/granthaminstitute/. Since then, there has been a large increase in climate actions based on human rights, based on both national, regional and international legal rules. As of March 2021, there were at least 1,550 climate change cases filed in 38 countries.⁶⁹United Nations Environment Program (UNEP), Global Climate Litigation Report: 2020 Status Review, p. 4. This increase has been referred to as the “human rights turn” in climate action.⁷⁰Ibid.

One can expect that there will be more human rights climate actions as more and more cases are settled, and the content of existing human rights provisions are clarified from a climate perspective. This will contribute to a clarification of how the human rights framework can set boundaries on what both States and companies can legally do. For example, the UN High Commissioner for Human Rights, Michelle Bachelete, stated that the Urgenda verdict “provides a clear path forward for concerned individuals in Europe – and around the world to undertake climate litigation in order to protect human rights.”⁷¹UN Human Rights, Office of the High Commissioner, News, “Bachelet welcomes top court’s landmark decision to protect human rights from climate change”, 20 December 2019. There is every reason to expect that this “human rights turn” in climate action will continue in the future.

10. The Way Forward

This chapter summarises the report’s main message and gives an indication of NIM’s work on human rights-related climate commitments in the future.

10.1. Overview

As of the writing of this report, the CO₂ level in the atmosphere is 417 ppm.¹MetOffice, available here: https://www.metoffice.gov.uk/research/climate/seasonal-to-decadal/long-range/forecasts/co2-forecast That is higher than in at least 1 million years.²Chapter 2 of the report, written by Cicero. The last time the CO₂ level was as high as today, the average temperature was 3 to 6 degrees Celsius warmer and the sea level 25 to 40 meters higher than what we are familiar with.³Tripati et al., Coupling of CO₂ and Ice Sheet Stability Over Major Climate Transitions of the Last 20 Million Years, 10.1126/science.1178296, Science (New York, N.Y.)

The Paris Agreement’s goal of limiting warming, compared with pre-industrial times, to 1.5 degrees is expected to correlate with a CO₂ concentration of 430 ppm. The time window to limit greenhouse gas emissions is rapidly closing. By comparison, the CO₂ level was 386 ppm. just ten years ago. The Intergovernmental Panel on Climate Change estimates that the remaining carbon budget to reach the 1.5-degree target with a 66 percent probability, will be used up by 2030 if emissions levels from 2018 (approximately 42 GtCO₂) continue.⁴IPCC, Global Warming of 1.5 degrees C, 2018. If the 1.5-degree target is to be met with a 50 percent probability, greenhouse gas emissions must be reduced by 45 percent compared with 2010 levels by 2030. This means significantly greater cuts in annual greenhouse gas emissions than is the case today.

If warming increases by 2 degrees, equivalent to 450 ppm., this will, according to the IPCC, entail markedly higher climate risks. CICERO has described how 2-degrees of warming is sufficient to trigger self-reinforcing emissions of methane from the northern tundra or changes to global ocean currents, with potentially catastrophic consequences.⁵Chapter 2 of the report, written by Cicero.  The changes will be more dramatic the more greenhouse gas is emitted beyond critical limits of tolerance. That is what the climate agreements call “dangerous interference with the climate system.” In the Norwegian Climate Change Act it is defined as harmful effects.⁶Section 4 of the Climate Change Act.

In other words, the climate crisis is an existential threat to human life around the world. It has rightly been called the greatest threat to human rights ever.

10.2. Summary

The relationship between climate and human rights becomes evident in several areas. This report has analysed the legal basis for a human rights obligation to avert dangerous climate change under international human rights law.

We have argued that the right to life, privacy and home under Articles 2 and 8 of the ECHR entail positive obligations to protect against dangerous climate change. The ECHR is interpreted in light of other international law rules and principles, and can be informed by interpretive statements and practices from the UN system that climate change poses one of the most urgent threats to the right to life and health for present and future generations.⁷See Chapter 5 of the report. Furthermore, the commitments will be informed by the consensus established through the IPCC reports and the climate agreement system on what emissions cuts are required to limit warming to 1.5 degrees. As decisions on greenhouse gas emissions concern children and their future, the UN Convention on the Rights of the Child is also relevant. In particular, Article 3 on the child’s best interests should be a fundamental consideration in all decisions concerning children, and Article 12 on children’s right to be heard, are relevant to greenhouse gas emissions.

Worldwide, individuals and environmental protection associations have invoked human rights to limit further greenhouse gas emissions. As greenhouse gas emissions lead to long-term and irreversible changes on a millennial scale, we have argued that legal boundaries on the State are to some extent necessary to safeguard the rights not only of younger generations without voting rights, but also a potentially larger majority of future generations. Decisions concerning emissions over the next decade will be crucial for the living conditions of future generations in the future.

10.3. Companies’ human rights responsibilities

The commitments we have discussed in this report rest with State authorities. At the same time, it is obvious that there are companies that account for a large portion greenhouse gas emissions originating from the Norwegian territory. A timely question that this report has not discussed is whether companies can be held responsible for emissions to the detriment of the climate system. Under international law it is States that are subject to obligations, but the human rights responsibilities of the business community are increasingly on the international agenda.

The United Nations Guiding Principles on Business and Human Rights (UNGP) are based on States’ responsibility to enact legislation and regulations that ensure that companies do not cause human rights violations. At the same time, they specify that companies also have a responsibility to respect human rights, including through due diligence assessments of how their activities affect human rights. The responsibility of companies to respect human rights under the UNGP refers to all internationally recognised human rights, including the rights to life, privacy and health, among others.⁸UNGP Guiding Principle 12. This report has shown that these rights can also protect against the risk of dangerous climate change as a result of greenhouse gas emissions. Companies should therefore include this dimension in their due diligence assessments.

Such due diligence assessments are now applied to companies that extract oil, gas and coal. In France and the Netherlands, the oil and gas companies Total and Shell are being sued based on allegations that their lack of greenhouse gas cuts in accordance with the Paris Agreement’s 1.5-degree target is contrary to Articles 2 and 8 of the ECHR.⁹See Chapter 9 of the report. In the United States, actions have been filed against Exxon and others alleging targeted misinformation about climate change. The OECD’s UK Contact Point has recently deemed an appeal of misleading green advertising from the oil and gas company BP as “material and substantiated”, but closed the case when BP withdrew its advertising.¹⁰Decision, Initial Assessment: ClientEarth complaint to the UK NCP about BP of 16 June 2020, OECD. The appeal was closed when BP withdrew its campaign. The decision is available here: https://www.gov.uk/government/publications/client-earth-complaint-to-the-uk-ncp-about-bp/initial-assessment-clientearth-complaint-to-the-uk-ncp-about-bp It should be added that Article 112 of the Constitution also covers private enterprises. The constitutional preparatory work states that the provision constitutionally establishes the principle of landowners’ stewardship, and is intended as a signal to companies about the importance of environmental protection.

In accordance with NIM’s mandate to also advise private actors on the implementation of human rights, and NIM’s strategy to contribute to increased awareness of the UNGP, companies’ duties of due diligence on human rights will be part of our focus in the future.¹¹Act relating to the Norwegian National Human Rights Institution, Section 3(1)(b).

10.4. National Human Rights Institutions (NHRIs)

As an NHRI, NIM shall promote and protect human rights, in accordance with the Paris Principles. This includes human rights violations resulting from greenhouse gas emissions. In a 2020 report, the German NHRI found that nearly half of all accredited NHRIs world wide work on climate change and human rights.

• In December 2020, the Global Alliance of NHRIs (GANHRI) issued a statement on climate change, in which the NHRIs committed to contributing to climate action efforts in line with human rights obligations and principles of non-discrimination and participation at a national and international level.¹²GANHRI Statement, 4 December 2020, available here: https://ganhri.org/outcome-statement-nhris-and-climate-change/.
• In May 2021, the European Network of NHRIs (ENNHRI) published a paper on climate change and human rights, calling out the severe insufficiency of climate reduction policies across Europe, and pointing to the risks to fundamental human rights under the ECHR, interpreted in light of emerging norms of international and national law, with respect to Articles 2, 8, 14 and P1-1, and possibly Article 3.
• In 2015, the NHRI of the Philippines launched an investigation into the contribution of 47 oil, gas and coal companies to climate change in the country, and the human rights consequences of these changes. In 2019, the Institution announced its conclusions that companies could be held legally and morally responsible for climate change, and that people who are adversely affected by these should have access to effective legal remedies.¹³See more on this, see: https://www.ciel.org/news/groundbreaking-inquiry-in-philippines-links-carbon-majors-to-human-rights-impacts-of-climate-change-calls-for-greater-accountability/. Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights under International Law (2019), p. 151.

NIM does not take a stand on individual cases, but our advisory mandate includes interventions in human rights proceedings before the courts, cf. Section 15-8 of the Disputes Act. In order to shed light on public interests, we have therefore made a written submission on human rights-related interpretation issues in the climate action before the Supreme Court. This report is a first contribution to raising the level of knowledge and promoting debate about human rights-related climate obligations.

NIM will continue to monitor this area closely. We owe this to the smallest and most defenceless among us. We owe it to future generations.

Reference List

Laws and regulations

Climate Change Act. Act of 16 June 2017 no. 60 on climate targets.

Equality and Anti-Discrimination Act: Act of 16 June 2017 no. 51 relating to equality and a prohibition against discrimination.

NIM Act: Act of 22 May 2015 no. 33 relating to the Norwegian National Human Rights Institution.

Nature Diversity Act: Act of 19 June 2009 no. 100 relating to the management of biological, geological and landscape diversity.

Dispute Act: Act of 17 June 2005 no. 90 relating to mediation and procedure in civil disputes.

Environmental Information Act: Act of 9 May 2003 no. 31 relating to the right to environmental information and participation in decision-making processes relating to the environment.

Svalbard Environmental Protection Act: Act of 15 June 2001 no. 79 relating to the protection of the environment in Svalbard.

Human Rights Act: Act of 21 May 1999 no. 30 relating to the strengthening of the status of human rights in Norwegian law.

Petroleum Act: Act of 29 November 1996 no. 72 relating to petroleum activities.

Product Liability Act: Act of 23 December 1988 no. 104 relating to product liability.

Pollution Control Act: Law of 13 March 1981 no. 6 relating to protection against pollution and concerning waste.

Act of 9 April 1976 no. 21 on implementation in Norwegian law of the Environmental Protection Convention between Norway, Denmark, Finland and Sweden.

The Indemnity Act: Act of 13 June 1969 no. 26 relating to compensation in certain circumstances.

Parliamentary Ombudsman Act: Act of 22 June 1962 no. 8 relating to the Parliamentary Ombudsman for Public Administration.

Act of 27 February 1930 no. 3 relating to the Bouvet Island, Peter I’s Island and Queen Maud Land etc.

Constitution: The Constitution of the Kingdom of Norway of 17 May 1814.

Regulations relating to impact assessment (FOR-2017-06-21-854).

Regulations relating to restrictions on the manufacture, import, export, sale and use of chemicals and other products hazardous to health and the environment (FOR-2004-06-01-922).

Regulations relating to the Appeals Board for Environmental Information (FOR-2003-12-14-1572).

Regulations relating to the Act relating to Petroleum Activities (FOR-1997-06-27-653).

Regulations relating to environmental health care in kindergartens and schools etc. (FOR-1995-12-01-928).

Preparatory work for laws, public investigations and parliamentary documents

NOU 2019: 13 Når krisen inntreffer
NOU 2019: 5 Ny forvaltningslov
NOU 2018: 17 Klimarisiko og norsk økonomi.
NOU 2004: 28 Lov om bevaring av natur, landskap og biologisk mangfold (Naturmangfoldloven).
NOU 2001: 32 A Rett på sak.
NOU 2001: 2 Retten til miljøopplysninger.

Ot.prp. no. 51 (2004-2005).
Ot.prp. no. 116 (2001–2002).

Rec. 258 S (2019-2020).
Rec. 287 S (2018-2019).
Rec. 329 L (2016-2017).
Rec. 263 S (2014-2015).
Rec. 187 S (2013-2014).
Rec. 390 S (2011-2012).
Rec. 145 S (2003-2008).
Rec. 163 S (1991-1992).

Document no. 6 (2019-2020).
Document no. 12:31 (2011-2012).
Document no. 16 (2011-2012).
Parliamentary deliberations 1992 no. 253.
Document no. 12 (1987-1988).

Supreme Court decisions

HR-2020-2472-P.
HR-2020-972-U.
HR-2019-2301-A.
HR-2019-1206-A.
HR-2018-2096-A.
HR-2018-1906-A.
HR-2018-1783-A.
HR-2018-1258-A.
HR-2017-2428-A.
Hr-2017-2247-A.
HR-2017-333-A.
HR-2016-2554-P.
HR-2016-389-A.
HR-2016-304-S.
Rt. 2015 p. 93.
Rt. 2014 p. 1445.
Rt. 2014 p. 1292.
Rt. 2013 p. 1464.
Rt. 2013 p. 1345.
Rt. 2011 p. 347.
Rt. 2010 p. 1445.
Rt. 2010 p. 535.
Rt. 2009 p. 1388.
Rt. 2008 p. 1764.
HR-2005-833.
Rt. 2003 p. 833.
Rt. 1996 p. 1415.
Rt. 1992 p. 1618.
Rt. 1992 p. 64.
Rt. 1991 p. 1137.
Rt. 1991 p. 385.
Rt. 1989 p. 1004.
Rt. 1987 p. 538.
Rt. 1980 p. 569.
Rt. 1976 p. 1.
Rt. 1952 p. 554.
Rt. 1914 p. 419.

Decisions from Norwegian sub-authorities

LB-2020-16265.
LB-2018-128035.
LB-2018-60499.
LB-2006-23415/RG-2006-1197.

TOSLO-2019-107742.
TOSLO-2016-1666674.
20-042262TVI-JARE

Statements from other Norwegian government agencies

SOMB-1999-2 (case 1998-1399).
Ministry of Justice and Public Security – Legislation Department, “Vedrørende Prop. 35 L (2014–2015) Endringer i lov om utmark og vassdrag mv.”, 14 April 2015 (JDLOV-2015-2968).

Decisions from other national courts

Friends of the Irish Environment v. The Government of Ireland & Ors, [2020] IESC 49. Judgement delivered 31 July 2020. Available on: https://www.courts.ie/view/judgments/681b8633-3f57-41b5-9362-8cbc8e7d9215/981c098a-462b-4a9a-9941-5d601903c9af/2020_IESC_49.pdf/pdf

Friends of the Irish Environment CLG v. The Government of Ireland & Ors, [2019] IEHC 747. Judgement delivered 19 September 2019. Available on https://www.courts.ie/view/judgments/20562a43-5bed-4524-9b60-e18ef35aae44/7454e3ee-eeca-40be-9c79-6c2e23d165e8/2019_IEHC_747.pdf/pdf.

Verein KlimaSeniorinnen Schweiz v. Switzerland, Bundesgericht (BGer), Urteil vom. 5 Mai 2020 (1C_37/2019). Judgement delivered 5 July 2020. Available on: www.klimaseniorinnen.ch/english/.

Friends of the Earth Ltd v Heathrow Airport Ltd [2020] UKSC52. Judgement delivered 16 December 2020. Available on: https://planb.earth/plan-b-v-heathrow-expansion/.

Plan B v. United Kingdom, EXCA Civ 214. Judgement delivered 27 February 2020. Available on: https://planb.earth/plan-b-v-heathrow-expansion/.

Plan B v. United Kingdom, CO/16/2018. Judgement delivered 20 July 2018. Available on: https://planb.earth/plan-b-v-uk/.

Notre Affaire à Tous v. France, Tribunal Administratif de Paris: décision no. 1904967, 1904968, 1904972, 1904976/4-1. Decision delivered 3 February 2021. Available on: http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2021/20210203_NA_decision.pdf

Cour Administrative d’Appel de Bordeaux: décision no. 20BX02193, 20BX02195. Judgement delivered 18 December 2020. Available on: https://www.dalloz.fr/documentation/Document?id=CAA_BORDEAUX_2020-12-18_20BX02193_dup#texte-integral.

Commune de Grande Synthe, Conseil d’Etat: décision no. 427301. Decision delivered 19 November 2020. Available on: http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20201119_Not-Yet-Available_decision-1.pdf

Union des industries de la protection des plantes v. France, Conceil Constitutionnel: décision no. 2019-823 QPC. Decision delivered 21 July 2020. Available on: https://www.conseil-constitutionnel.fr/en/decision/2020/2019823QPC.htm.

Urgenda v. Netherlands, ECLI:NL:HR:2019:2007. Judgement delivered 20 December 2019. Available on: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007

ClientEarth v. Poland. Judgement delivered 19 July 2019. Information available on: https://www.clientearth.org/europes-largest-new-coal-power-plant-stopped/.

VGH Baden-Württemberg, A 11 S 2042/20. Judgement delivered 17 December 2020. Available on: https://openjur.de/u/2317963.html.

Family Farmers and Greenpeace v. Germany, VG 10 K 412.18. Judgement delivered 31 October 2019. Available on: http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20191031_0027117R-SP_judgment.pdf.

International conventions and declarations

The Paris Agreement of 12 December 2015.

The Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, 2006.

The Articles on State Responsibility (ARS), adopted by the United Nations International Law Commission in 2001.

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) of 25 June 1998.

The Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) of 11 December 1997.

The United Nations Framework Convention on Climate Change (UNFCCC) of 9 May 1992.

The Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) of 25 February 1991.

The UN Convention on the Rights of the Child of 20 November 1989. The Nordic Environmental Protection Convention of 19 February 1974, between Denmark, Finland, Norway and Sweden.

The Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) of 16 June 1972.

The Vienna Convention on the Law of Treaties of 23 May 1969.

The International Convention on Civil and Political Rights (ICCPR) of 16 December 1966.

The International Convention on Economic, Social and Cultural Rights (ICESCR) of 16 December 1966.

The Convention Relating to the Status of Refugees (Refugee Convention) of 28 June 1951.

The Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights/ECHR) of 4 November 1950.

The Statute of the International Court of Justice (ICJ Statute) of 26 June 1945. Directive 2011/42/EC on the assessment of the environmental effects of plans and programmes, most recently amended by Directive 2014/52/EU.

Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, revised by Directives 2011/92/EU and 2011/42/EC, most recently by Directive 2014/52/EU.

Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment.

Decisions of the European Court of Human Rights (ECtHR)

Association Burestop 55 et al. v. France (56176/18, 56189/18, 56232/18, 56236/18, 56241/18, 56247/18), communicated 18 November 2019.

M. Ôzel et al. v. Turkey (14350/05), 31 March 2020.

Vecbastika et al. v. Latvia (52499/11), 19 November 2019.

T.K. and S.R. v. Russia (28492/15), 19 November 2019.

Ulemek v. Croatia (21613/16), 31 October 2019.

Cordella et al. v. Italy (54414/13 and 54264/15), 24 January 2019.

S. V. and A v. Denmark (35553/12, 36678/12 and 36711/12), 22 October 2018.

Big Brother Watch et al. v. United Kingdom (58170/13, 62322/14 and 24960/15), 13 September 2018. Referred for hearing by the Grand Chamber 13 September 2018.

Centrum för rättvisa v. Sverige (35253/08), 19 June 2018. Referred for hearing by the Grand Chamber 4 September 2019.

Bursa Barosu Baskanligi et al. v. Tyrkia (25680/05), 19 June 2018.

Merabishvili v. Georgia (72508/13), 28 November 2017.

Tagayeva et al. v. Russia (26562/07), 13 April 2017.

Magyar Helsinki Bizottság v. Hungary (18030/11), 8 November 2016.

British Gurkha Welfare Society et al. v. United Kingdom (44818/11), 15 September 2016.

Cindrić and Bešlić v. Croatia (72152/13), 6 September 2016.

Costel Popa v. Romania (47558/10), 26 April 2016.

Roman Zakharov v. Russia (47143/06), 4 December 2015.

Ercan Bozkurt v. Turkey (20620/10), 23 June 2015.

Identoba v. Georgia (73235/12), 12 May 2015.

Tarakhel v. Switzerland (29217/12), 4 November 2014.

Bljakaj et al. v. Croatia (74448/12), 18 September 2014.

Brincat et al. v. Malta (60908/11, 62110/11, 62129/11, 62312/11 and 62338/11), 24 July 2014.

Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (47848/08), 17 July 2014.

Vilnes et al. v. Norway (52806/09 and 22703/10), 5 December 2013.

Vallianatos et al. v. Greece (29381/09 and 32684/09), 7 November 2013.

Klauz v. Croatia (28963/10), 18 July 2013.

Allen et al v. United Kingdom (5591/07), 12 July 2013.

Athanassoglou et al. v. Switzerland (27644/95), 15 November 2012.

Kolyadenko et al. v. Russia (17423/05, 20534/05, 20678/05, 23263/05 and 35673/05), 28 February 2012.

Aksu v. Turkey (4149/94 and 41029/04), 15 March 2012.

Hirsi Jamaa v. Italy (27765/09), 23 February 2012.

Popov v. France (39472/07 and 39474/07), 19 January 2012.

Gorovenky and Bugara v. Ukraine (36146/05 and 42418/05), 12 January 2012.

Di Sarno v. Italy (30765/08), 10 January 2012.

Grimkovskaya v. Ukraine (38182/03), 21 July 2011.

Giuliani and Gaggio v. Italy (23458/02), 24 March 2011.

Dubetska et al. v. Ukraine (30499/03), 10 February 2011.

M.S.S. v. Belgium and Greece (30696/09), 21 January 2011.

Ivan Atanasov v. Bulgaria (12853/03), 2 December 2010.

N. v. Sweden (23505/09), 20 July 2010.

Budina v. Russia (45603/05), 18 June 2009.

Greenpeace E.V. et al. v. Germany (18215/06), 12 May 2009.

L’Érablière A.S.B.L. v. Belgium (49230/07), 24 February 2009.

Allen et al. v. United Kingdom (3455/05), 19 July 2009.

Tătar v. Romania (67021/01), 27 January 2009.

Demir and Baykara v. Turkey (34503/97), 12 November 2008.

Budayeva et al. v. Russia (15339/02, 21166/02, 20058/02, 11673/02 and 15343/03), 20 March 2008.

Fägerskiöld v. Sweden (37664/04), 26 February 2008.

Fabris v. France (16574/08), 7 February 2008.

Saadi v. United Kingdom (13229/03), 29 January 2008.

Monnat v. Switzerland (73604/01), 21 September 2006.

Bosphorus et al. v. Ireland (45036/98), 30 June 2005.

Jugheli v. Georgia (38342/05), 21 April 2005.

Öneryıldız v. Turkey (48939/99), 30 November 2004.

Taşkın et al. v. Turkey (46117/99), 10 November 2004.

Gorraiz Lizarraga et al. v. Spain (62543/00), 27 April 2004.

Hatton v. United Kingdom (36022/97), 8 July 2003.

Kyrtatos v. Greece (41666/98), 22 May 2003.

Mastromatteo v. Italy (37703/97), 24 October 2002.

Bankovic, et al. v. Belgium et al. (52207/99), 12 December 2001.

Osman v. United Kingdom (87/1997/871/1083), 28 October 1998.

McGinley and Egan v. United Kingdom (10/1997/794/995-996), 9 June 1998.

Guerra v. Italy (116/1996/735/932), 19 February 1998.

Balmer-Schafroth et al. v. Switzerland (22110/93), 26 August 1997.

Goodwin v. United Kingdom (17488/90), 27 March 1996.

McCann et al v. United Kingdom (18985/91), 27 September 1995.

Agrotexim et al. v. Greece (15/1994/462/543), 24 October 1995.

Loizidou v. Tyrkia (15318/89), 23 March 1995.

Soering v. United Kingdom (14038/88), 7 July 1989.

Klass et al. v. Germany (5029/71), 6 September 1978.

Ireland v. United Kingdom (5310/71), 18 January 1978.

Statements and reports from European human rights bodies

Linos-Alexandre Sicilianos, speech delivered on 28 February 2020 at the high-level conference “Environmental protection and Human Rights”. Available on www.echr.coe.int.

Dunia Mijatović, speech delivered on 27 February 2020 at the high-level conference “Environmental protection and human rights”. Available on www.coe.int.

Linos-Alexandre Sicilianos, speech delivered on 31 January 2020 at the annual opening of the European Court of Human Rights. Available on www.echr.coe.int.

Statements, reports and decisions from UN agencies

UN General Assembly

Resolution 73/195 on Global Compact for Safe, Orderly and Regular Migration (2018), A/RES/73/195.

Un High Commissioner for Human Rights

Michelle Bachelet, opening remarks delivered on 9 September 2019 during the 42^nd session of the UN Human Rights Council. Available on www.ohchr.org.

Un Special Rapporteurs

Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik (2009), A/64/255.

Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox (2013), A/HRC/25/53.

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox (2016), A/HRC/31/52.

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox (2018), A/HRC/37/58.

Framework Principles on Human Rights and the Environment – the main human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox (2018).

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of safe, clean healthy and sustainable environment – Visit to Fiji, David R. Boyd (2020), A/HRC/43/53/Add.1.

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment – Visit to Norway, David R. Boyd (2020), A/HRC/43/53/Add.2.

UN Human Rights Council

Resolution 41/21 on human rights and climate change (2019), A/HRC/RES/41/21.

Resolution 37/8 on human rights and the environment (2018), A/HRC/RES/37/8.

Resolution 7/23 on human rights and climate change (2008), A/HRC/RES/7/23.

UN Human Rights Committee

General Comment no. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life (2018), CCPR/C/GC/36.

Portillo Cáceres v. Paraguay (2016), CCPR/C/126/D/2751/2016.

Teitiota v. New Zealand, (2019), CCPR/C/127/D/2728/2016.

UN Committee on the Elimination of Discrimination against Women

Concluding observations on the ninth periodic report of Norway (2017), CEDAW/C/NOR/CO/9.

General Recommendation no. 37 on Gender-related dimensions of disaster risk reduction in the context of climate change (2018) CEDAW/C/GC/37.

UN Committee on Economic, Social and Cultural Rights

General Comment no. 14 on the right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights) (2000), E/C.12/2000/4.

Concluding observations on the sixth periodic report of Norway (2020), E/C.12/NOR/CO/6.

UN Committee on the Rights of the Child

General Comment no. 15 on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) (2013), CRC/C/GC/15.

Concluding observations on the combined fifth and sixth periodic reports of Norway (2018), CRC/C/NOR/CO/5–6.

Joint statements

Joint statement on human rights and climate change by Committee on the Elimination of Discrimination Against Women, Committee on Economic, Social and Cultural Rights, Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Committee on the Rights of the Child, Committee on the Rights of Persons with Disabilities (2019).

Aarhus Convention Compliance Committee

ACCC/C/2008/27 United Kingdom (24 September 2010).

ACCC/C/2008/33 United Kingdom (24 September 2010).

ACCC/C/2012/77 United Kingdom (2 July 2014).

ACCC/C/2014/111 Belgium (18 June 2017).

International Court of Justice (ICJ)

Corfu Channel (United Kingdom v. Albania), decision 9 April 1949.

Pulp Mills on the River Uruguay (Argentina v. Uruguay), decision 20 April 2010.

Books

Aall, Jørgen, Rettsstat og menneskerettigheter, Bergen: Fagbokforlaget, 5th ed., 2018.

Alexy, Robert, A theory of Constitutional Rights, Oxford: Oxford University Press, 2010.

Andenæs, Johs., Alminnelig Strafferett, Oslo: Universitetsforlaget, 6^th ed., 2016.

Andenæs, Johs. and Fliflet, Arne, Statsforfatningen i Norge, Oslo: Universitetsforlaget, 10^th ed., 2018.

Atapattu, Sumudu, Human Rights Approaches to Climate Change. Challenges and Opportunities, London/New York: Routledge, 2016.

Aulie, Cathrine, Norsk lovkommentar til naturmangfoldloven, Rettsdata (2017).

Backer, Inge Lorange, Norsk sivilprosess, Oslo: Universitetsforlaget, 2015.

Boe, Erik, Innføring i juss. Volume 2: Statsrett og forvaltningsrett, Oslo: Universitetsforlaget, 1993.

Boyd, David R., The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment, Vancouver: UBC Press, 2012.

Bugge, Hans Chr., Lærebok i miljøforvaltningsrett, Oslo: Universitetsforlaget, 5th ed., 2019.

Bugge, Hans Chr. Norsk lovkommentar forurensningsloven, Rettsdata (2018).

Christoffersen, Jonas and Madsen, Michael R. (eds.), Menneskerettighedsdomstolen – 50 års samspil med dansk ret og politik, København: Karnov Group, 2019.

Dupuy, Pierre-Marie and Viñuales, Jorge E., International Environmental Law, Cambridge: Cambridge University Press, 2^nd ed., 2018.

Dworkin, Ronald, Taking Rights Seriously, Massachusetts: Harvard University Press, 1977.

Eckhoff, Torstein and Smith, Eivind, Forvaltningsrett, Oslo: Universitetsforlaget, 11th ed., 2018.

Eng, Svein, Rettsfilosofi, Oslo: Universitetsforlaget, 2007.

Fleischer, Carl August, Miljø og ressursforvaltning: grunnleggende forutsetninger, Oslo: Universitetsforlaget, 1999.

Graver, Hans Petter, Alminnelig forvaltningsrett, Oslo: Universitetsforlaget, 5th ed., 2019.

Harris, David; O’Boyle, Michael; Bates, Ed and Buckley, Carla, Law of the European convention on human rights, Oxford: Oxford University Press, 4^th ed., 2018.

Humphreys, Stephen (ed.), Human rights and climate change, Cambridge: Cambridge University Press, 2010.

Kjølbro, Jon Fridrik, Den europæiske menneskerettighedskonvention – for praktikere, København: Jurist- og Økonomforbundets forlag, 5th ed., 2020.

Kierulf, Anine and Kjølstad, Marius Mikkel, Norsk Lovkommentar til Grunnloven § 112, Rettsdata (2020).

Knoph, Ragnar, Rettslige standarder: særlig Grunnlovens § 97, Oslo: Grøndahl & Søn, 1939.

Legg, Andrew, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality, Oxford: Oxford University Press, 2012.

Leib, Linda Hajjar, Human Rights and the Environment. Philosophical, Theoretical and Legal Perspectives, Leiden/Boston: Brill, 2011.

McAdam, Jane, Climate Change, Forced Migration, and International Law, Oxford: Oxford University Press, 2012.

Nygaard, Nils, Rettsgrunnlag og standpunkt, Oslo: Universitetsforlaget, 2^nd ed., 2004.

Parfit, Derek, Reasons and Persons, Oxford: Oxford University Press, 1986.

Schei, Tore; Bårdsen, Arnfinn; Nordén, Dag Bugge; Reusch, Christian H.P. and Øie, Toril M., Tvisteloven – kommentarutgave, Volume II, Oslo: Universitetsforlaget, 2^nd ed., 2013.

Shaw, Malcolm N., International Law, Cambridge: Cambridge University Press, 8^th ed. 2017.

Shue, Henry, Basic Rights. Subsistence, Affluence, and U.S. Foreign Policy, New Jersey: Princeton University Press, 2^nd ed., 1996.

Smith, Eivind, Konstitusjonelt Demokrati, Bergen: Fagbokforlaget, 4^th ed., 2017.

Wewerinke-Singh, Margaretha, State Responsibility, Climate Change and Human Rights under International Law, Oxford: Hart Publishing, 2019.

Anthology articles

Askeland, Bjarte; Cyndecka, Malgorzata Agnieszka; Holmøyvik, Eirik; Konow, Berte-Elen; Nordtveit, Ernst and Schütz, Sigrid Eskeland “Klimarettslege utfordringar for rettsvitskapen” in Giertsen, Johan; Husabø, Erling Johannes; Iversen, Øystein L. and Konow, Berte-Elen (eds.), Rett i vest. Festskrift til 50-årsjubileet for juristutdanningen ved Universitetet i Bergen (Fagbokforlaget 2019) pp. 177 – 196.

Bragdø-Ellenes, Sunniva Cristina, “Overprøving av vedtak i miljøsaker – i domstol eller klagenemnd?” in Fauchald, Ole Kristian and Smith, Eivind (eds.), Mellom jus og politikk. Grunnloven § 112 (Fagbokforlaget 2019) pp. 119–134.

Bugge, Hans Chr., “Grunnlovsbestemmelsen om miljøvern: Hvordan ble den til?” in Fauchald, Ole Kristian and Smith, Eivind (eds.), Mellom jus og politikk. Grunnloven § 112 (Fagbokforlaget 2019) pp. 19–40.

Burger, Michael and Wentz, Jessica, “Climate Change and human rights” in May, James R.  and Daly, Erin (eds.), Human Rights and the Environment. Legality, Indivisibility, Dignity and Geography (Edward Elgar Publishing 2019).

Caney, Simon, “Human Rights, Responsibilites and Climate Change” in Beitz, Charles R.  and Goodin, Robert E. (eds.), Global Basic Rights (Oxford University Press 2007) pp. 227-247.

Falkanger, Aage Thor and Bartel, Ingvild Lovise “Menneskerettighetenes betydning for Sivilombudsmannens arbeid” in Føllesdal, Andreas; Ruud, Morten and Ulfstein, Geir (eds.), Menneskerettighetene og Norge. Rettsutvikling, rettsliggjøring og demokrati (2017) pp. 112–134, at p. 124.

Fauchald, Ole Kristian, “Har § 112 selvstendig betydning for vern av villaksen?” in Fauchald, Ole Kristian and Smith, Eivind (eds.), Mellom jus og politikk – Grunnloven § 112 (Fagbokforlaget 2019) pp. 227-252.

Fauchald, Ole Kristian, “Plikt til å utrede miljøkonsekvenser av lovgivning” in Syse, Aslak; Indreberg, Hilde; Tverberg, Arnulf and Bugge, Hans Chr. (eds.), Lov, liv og lære. Festskrift til Inge Lorange Backer (Universitetsforlaget 2016) pp. 187–200.

Holmøyvik, Eirik “Prøvingsrett og tilbakeverknadsforbod. Borthen-dommen i Rt. 1996 s. 1415 og rettsutviklinga” in Matningsdal, Magnus; Skoghøy, Jens Edvin A. and Øie, Toril M. (eds.), Rettsavklaring og rettsutvikling. Festskrift til Tore Schei på 70-årsdagen 19. februar 2016 (Universitetsforlaget 2016) pp. 210–242.

Hovind, Dagny Ås, “Krav til utredning av klimavirkninger: Grunnlovens § 112 annet ledd” in Fauchald, Ole Kristian and Smith, Eivind (eds.), Mellom jus og politikk. Grunnloven § 112 (Fagbokforlaget 2019) pp. 173–189.

Indreberg, Hilde, “Utfordringer for Høyesterett ved grunnlovfesting av flere menneskerettigheter” in Schei, Tore; Skoghøy, Jens Edvin A. and Øie, Toril M. (eds.), Lov, sannhet, rett – Norges Høyesterett 200 år (Universitetsforlaget 2015) pp. 393–420.

Kälin, Walter, “Conceptualising Climate-Induced Displacement” in McAdam, Jane (eds.), Climate Change and Displacement, Multidisciplinary Perspectives (Hart Publishing, 2010).

Lewis, Bridget, “Human rights and intergenerational justice” in Ismangil, Davis; von der Schaaf, Karen and van Trost, Lars (eds.), Climate Change, Justice and Human Rights (Amnesty International Netherlands 2020).

Lilleholt, Kåre, “Grunnsetningar i formueretten” in Høgberg, Alf Petter Høgberg and Sunde, Jørn Øyrehagen (eds.), Juridisk metode og tenkemåte (Universitetsforlaget 2019) pp. 334-342.

Lyster, Rosemary, “Protecting the Human Rights of Climate Displaced Persons: The Promise and Limits of the United Nations Framework Convention on Climate Change” in Grear, Anna and Kotzé, Louis J. (eds.) Research Handbook on Human Rights and the Environment (Edward Elgar, 2015).

Nylund, Anna, “Klima, miljø og domstoler i et komparativt perspektiv” in Fauchald, Ole Kristian and Smith, Eivind (eds.), Mellom jus og politikk. Grunnloven § 112 (Fagbokforlaget 2019) pp. 101-117.

O’Boyle, Michael, “Rights: reflections on the Soering case” in O’Reilly, James (eds.), Human Rights and Constitutional Law Essays in Honour of Brian Walsh (Round Hall Press 1992)

Skjerdal, Nicolai V., “Relativisering av domstolenes grunnlovskontroll – på tide å forlate tredelingslæren?”, in Graver, Hans Petter; Kraby, Ida Hjort and Stub, Marius (eds.), Forsker og formidler. Festskrift til Erik Boe på 70-årsdagen (Universitetsforlaget 2013) pp. 275–296.

Smith, Eivind, “Miljøparagrafen – kritisk lest” in Fauchald, Ole Kristian and Smith, Eivind (eds.), Mellom jus og politikk – Grunnloven § 112 (Fagbokforlaget 2019) pp. 151–172.

Strand, Vibeke Blaker, “FNs menneskerettskonvensjoner og FN-komiteenes håndheving av dem” in Høgberg, Alf Petter and Sunde, Jørn Øyrehagen (eds.), Juridisk metode og tenkemåte (Universitetsforlaget 2019) pp. 420–451.

Thengs, Gøran Østerman, “En sann rett med modifikasjoner? Om Grunnloven § 112 første og tredje ledd” in Fauchald, Ole Kristian and Smith, Eivind (eds.), Mellom jus og politikk – Grunnloven § 112 (Fagbokforlaget 2019) pp. 137–150.

Tverberg, Arnulf, “Det graderte grunnlovsvernet ved tolking av Grunnloven og prøving av lovers grunnlovsmessighet”, in Holmøyvik, Eirik (eds.), Tolkingar av Grunnlova (Pax 2013) pp. 256–303.

Journal articles

Anker, Helle Tegner; Fauchald, Ole Kristian; Nilsson, Annika and Suvantola, Leila, “The Role of Courts in Environmental Law – a Nordic Comparative Study”, Nordisk Miljörattslig Tidsskrift (2009) pp. 9–33.

Backer, Inge Lorange, “Miljøvern og økonomisk utnyttelse – prinsippet om bærekraftig utvikling”, Det 36. nordiske Juristmøte (2002), pp. 115-141.

Backer, Inge Lorange, “Domstolene og miljøet”, Lov og Rett vol. 32 no. 8 (1993) pp. 451-468.

Backer, Inge Lorange, “Grunnlovfesting av miljørettslige prinsipper”, Institutt for offentlig retts skriftserie no. 6 (1990).

Borvik, Bjørnar, “Nasjonal skjønnsmargin etter EMK – replikk til Jens Edvin A. Skoghøy”, Lov og Rett no. 10 (2011).

Bugge, Hans Chr., “’Bærekraftig utvikling’ og andre aktuelle perspektiver i miljøretten”, Lov og Rett no. 8 (1993), pp. 485–498.

Caney, Simon, “Just Emissions,” Philosophy & Public Affairs vol. 40 no. 4 (2012) pp. 255-300.

Fauchald, Ole Kristian, “Forfatning og miljøvern – en analyse av grunnlovens § 110 b”, Tidsskrift for rettsvitenskap no. 1-2 (2007), pp. 1-83.

Fauchald, Ole Kristian, “Bør retten til miljø anerkjennes som menneskerettighet?”, Retfærd no. 53 (1991), pp. 68–70.

Fauchald, Ole Kristian, “Miljø og menneskerettigheter”, Kritisk juss (1989) pp. 3–17.

Fredriksen, Halvard Haukeland, “Betydningen av EUs pakt om grunnleggende rettigheter for EØS-retten”, Jussens venner no. 6 (2013), pp. 371-399.

Garbe, Julius; Albrecht, Torsten; Levermann, Anders, Donges, Jonathan F. and Winkelmann, Ricanda, “The hysteresis of the Antarctic ice Sheet”, Nature, vol. 585 (2020).

Hawkins, Ed; Frame, David; Harrington, Luke; Joshi, Manoj; King, Andrew; Rojas, Maisa and Sutton, Rowan, “Observed Emergence of the Climate Change Signal: From the Familiar to the Unknown,” Geophysical Research Letters vol. 47 no. 6 (2020).

Hellerslia, Thom Arne, “Uttalelser fra FN-komiteene – en strukturell analyse” Jussens Venner, no. 53 (2018), pp. 71–111.

Høgberg, Alf Petter and Høgberg, Benedikte Moltumyr, “Tolkning av Grunnloven”, Jussens Venner no. 3 (2013) pp. 193–226.

Kälin, Walter and Schrepfer, Nina “Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches”, UNHCR Legal and Protection Policy Research Series (2010).

Leijten, Ingrid, «Human Rights v. Insufficient Climate Action», Netherlands Quarterly of Human Rights vol. 37 no. 2 (2019), pp. 112-118.

Lindberg, Agnes Harriet, “Fremtidige generasjoner som rettighetsbærere”, Salongen nettidsskrift for filosofi og idehistorie, published 30 March 2020.

Morissey, James, “Rethinking the debate on ‘environmental refugees’: from ‘maximilists and minimalists’ to ‘proponents and critics’”, Journal of Political Ecology vol. 19 no. 1 (2012), pp. 36-49.

Nordby, Marius Gulbranson, “Er avståelser tiltak?”, Lov og Rett no. 6 (2019), pp. 379-385.

Nyhus, Håkon Christian, “Høyesterett og EMD – Samme skjønnsmargin?”, Lov og rett no. 6 (2016).

Peters, Birgit, “Unpacking the diversity of procedural environmental rights: the European Convention on Human Rights and the Aarhus Convention”, Journal of Environmental Law, vol. 30 no. 1 (2018) pp. 1–27.

Reiertsen, Michael, “EMK og kommunene”, Lov og Rett no. 7 (2015), pp. 414-431.

Samset, Bjørn Hallvard; Sand, Maria; Smith, Chris; Bauer, Susanne E.; Forster, Piers M.;  Fuglestvedt, Jan S.; Osprey, Scott and Schleussner, Carl-Friedrich, “Climate Impacts From a Removal of Anthropogenic Aerosol Emissions”, Geophysical Research Letters vol. 45 no. 2 (2018).

Schei, Tore, “Har Høyesterett en politisk funksjon?”, Lov og Rett no. 6 (2011) pp. 319–335.

Scott, Matthew, “Finding Agency in Adversity: Applying the Refugee Convention in the Context of Disasters and Climate Change”, Refugee Survey Quarterly vol. 35 no. 4 (2016), pp. 26-57.

Sherwood, Steven; Webb, Mark; Annan, James D.;  Armour, Kyle C.; Forster, Piers M.; Hargreaves, Julia C.; Hegerl, Gabriele; Klein, Stephen A.; Marvel, Katherine D.; Rohling, Eelco J.; Watanabe, Masahiro; Andrews, Tim; Braconnot, Pascale; Bretherton, Christopher S.; Foster, Gavin L.; Hausfather, Zeke; von der Heydt, Anna S.; Knutti, Reto; Mauritsen, Thorsten; Norris, Joel R.; Proistosescu, Cristian; Rugenstein, Maria; Schmidt, Gavin A.; Tokarska, Katarzyna B. and Zelinka, Mark D., “An assessment of Earth’s climate sensitivity using multiple lines of evidence”, Reviews of Geophysics (2020).

Solheim, Stig H., “Judicial Control with Laws in the Economic Area – Legislature’s Assessment of The Constitution of the Law”, Journal of Forensic Science no. 1 (2014) pp. 1–48.

Sørensen, Christian Børge, “Læren om statens skjønnsmargin etter EMK og betydningen for norsk domstolskontroll med forvaltningen”, Tidsskrift for Rettsvitenskap no. 01–02 (2004).

Thengs, Gøran Østerman, “En standardtilnærming til Grunnloven § 112” Tidsskrift for Rettsvitenskap no. 1 (2017).

Tokarska, Katarzyna B.; Stolpe, Martin B.; Sippel, Sebastian; Fischer, Erich M.; Smith, Christopher J.; Lehner, Flavio and Knutti, Reto, “Past warming trend constrains future warming in CMIP6 models”, Science Advances vol. 6 no. 12 (2020).

Voigt, Christina, “State Responsibility for Climate Change Damages”, Nordic Journal of International Law vol. 77 no. 1-2 (2008), pp. 1-22.

Weerasinghe, Sanjula, “In Harm’s Way – International protection in the context of nexus dynamics between conflict or violence and disaster or climate change”, UNHCR Legal and Protection Policy Research Series (2018).

Wibye, Johan Vorland, “Hohfelds rettigheter”, Tidsskrift for Rettsvitenskap no. 5 (2018) pp. 493–533.

Reports

Center for International Environmental Law (CIEL): States’ Human Rights Obligations in the Context of Climate Change – 2019 update (2019).

FNs World Commission on Environment and Development: Report of the World Commission on Environment and Development: Our Common Future (1987).

Internal Displacement Monitoring Centre: Global Report on Internal Displacement 2020 (2020).

Intergovernmental Panel on Climate Change 2019 (IPCC SRCCL 2019): Climate Change and Land. An IPCC special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems (2019).

Intergovernmental Panel on Climate Change (IPCC SROCC 2019): Ocean and Cryosphere in a Changing Climate. An IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (2019).

Intergovernmental Panel on Climate Change 2018 (IPCC SR15): Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate (2018).

Intergovernmental Panel on Climate Change 2014 (IPCC AR5): Climate Change 2014. Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects (2014).

Intergovernmental Panel on Climate Change 2013 (IPCC AR5): Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2013).

Joana Setzer and Rebecca Byrnes (at the Grantham Research Institute on Climate Change and Environment and the Centre for Climate Change Economics and Policy): Global trends in climate change litigation: 2020 snapshot (2020).

The Appeals Board for Environmental Information: Annual report 2019 (2019).

Norwegian National Human Rights Institution (NIM): Compilation of Recommendations to Norway – the UN Human Rights Monitoring Bodies 2017-2020 (2020).

The International Law commission: Yearbook of the International Law Commission – Report of the Commission to the General Assembly on the work of its fifty-third session (2001).

The Norwegian Centre for Climate Services (NCCS): Climate in Svalbard 2100 – a knowledge base for climate adaption (2018).

Websites

Council of Europe: “Chart of signatures and ratifications of Treaty 213”, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213/signatures?p_auth=5tABARHI. Last accessed 8 September 2020.

Norwegian Institute of Public Health: “Karbondioksid (CO₂) og inneklima”, https://www.fhi.no/ml/miljo/inneklima/artikler-inneklima-og-helseplager/karbondioksid-co2-og-inneklima/. Last accessed 11 September 2020.

Global Carbon Project: “Global Carbon Budget 2019 – An annual update of the global carbon budget and trends,” https://www.globalcarbonproject.org/carbonbudget/. Last accessed 8 September 2020.

Norwegian Centre for Climate Services: https://klimaservicesenter.no/faces/desktop/index.xhtml. Last accessed 8 September 2020.

Norwegian Polar Institute: “Climate change in Antarctica,” https://www.npolar.no/tema/klimaendringer-antarktis/#toggle-id-3. Last accessed 14 September 2020.

Norwegian Polar Institute: “Climate change and effects on polar ecosystems,” https://www.npolar.no/tema/klimaendringer-effekter-polare-okosystemer/. Last accessed 14 September 2020.

Sabin Center for Climate Change: “Climate Change Litigation Databases,” http://climatecasechart.com/. Last accessed 11 September 2020.

The Language Council of Norway: “Bokmålsordboka/Nynorskordboka”, https://ordbok.uib.no/. Last accessed 11 September 2020.

Stanford Encyclopedia of Philosophy: “Intergenerational Justice,” https://plato.stanford.edu/entries/justice-intergenerational/. Last accessed 8 September 2020.

Statistics Norway: “Emissions to air”, https://www.ssb.no/en/klimagassn. Last accessed 8 September 2020.

The conversation: “The three-minute story of 800,000 years of climate change with a sting in the tail,” https://theconversation.com/the-three-minute-story-of-800-000-years-of-climate-change-with-a-sting-in-the-tail-73368. Last accessed 8 September 2020.

Norwegian Customs Service: “Historiske omregningskurser – valutakode GBP”, https://toll.no/no/verktoy/valutakurser/History?SelectedExchangeRate=GBP. Last accessed 11 September 2020.

United Nations Economic Commission for Europe (UNECE): “Communications from the public”, http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom.html. Last accessed 11 September 2020.

United Nations Refugee Agency (UNHCR): “Climate change and disaster displacement,” https://www.unhcr.org/climate-change-and-disasters.html. Last accessed 11 September 2020.

United Nations Treaty Collection: “7. D Paris agreement”, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&clang=_en. Last accessed 8 September 2020.

United Nations Environment Programme and Columbia University: “The Status of Climate Change Litigation: A Global Review,” https://wedocs.unep.org/handle/20.500.11822/20767. Last accessed 11 September 2020.

Urgenda – Samen Sneller Duurzaam: “Landmark decision by Dutch Supreme Court,” https://www.urgenda.nl/en/themas/climate-case/. Last accessed 11 September 2020.

 Camilla Schloss, Climate migrants – How German courts take the environment into account when considering non-refoulement, Völkerrechtsblog, 03.03.2021, doi: 10.17176/20210303-153650-0

Media articles

Lustgarten, Abraham, “The Great Climate Migration,” ProPublica and The New York Times Magazine (23 July 2020). Available at: https://www.nytimes.com/interactive/2020/07/23/magazine/climate-migration.html.

Malafosse, Camille and Zipoli, Domenico, “’Climate refugees’: an historic decision of the UN Human Rights Committee?,” Andrew & Renata Kaldor Centre for International Refugee Law (12 February 2020). Available at: https://www.kaldorcentre.unsw.edu.au/news/%E2%80%9Cclimate-refugees%E2%80%9D-historic-decision-un-human-rights-committee.

Reeh, Greta, “Climate Change in the Human Rights Committee”, EJIL:Talk! (18 February 2020). Available at: https://www.ejiltalk.org/climate-change-in-the-human-rights-committee/.

Sunde, Jørn Øyrehagen and Colombo, Esmeralda, “Look to Norway – Klimasøksmål i klimaendringane sin tidsperiode”, Energi og klima (26 September 2017). Available at: https://energiogklima.no/kommentar/look-to-norway/. The article was first published in Klassekampen on 26 September 2017.

Xu, Chi; Kohler, Timothy A.; Lenton, Timothy M.; Svenning, Jens-Christian and Scheffer, Marten, “Future of the human climate niche”, Proceedings of the National Academy of Sciences of the United States of America (27 October 2019). Available at: https://www.pnas.org/content/pnas/early/2020/04/28/1910114117.full.pdf.

Øystese, Kirsten Å., “Går utslippene ned eller teller vi feil?”, Energi og Klima (18 August 2020). Available at: https://energiogklima.no/kommentar/blogg/gar-utslippene-ned-eller-teller-vi-feil/.

Other sources

The European Court of Human Rights, “Guide on Article 2 of the European Convention on Human Rights”. Updated 30 April 2020.

International Organization for Migration, “Climate Change and Migration: Improving Methodologies to Estimate Flows” (2008).

International Organization for Migration, “Discussion Note: Migration and Environment”, MC/INF/288 (2007).

Stanczyk, Lucas, “How quickly should the world reduce its Greenhouse Gas Emissions?” [unpublished].

United Nations Economic Commission for Europe (UNECE), The Aarhus Convention: An Implementation Guide (2014).

Working paper on promoting rights-based climate finance for people and planet, Tessa Khan (2018), A/HRC/WG.2/19/CRP.4.

United Nations Human Rights – Office of the High Commissioner, “Bachelet welcomes top court’s landmark decision to protect human rights from climate change” (20 December 2019). Available on https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25450&LangID=E.

Photo credits

Front page: Fire outside Sotra, Norway. Cropped image. Photo: Pål Bentdal.

Chapter 1: Cropped image. Photo: NVE/Stig Storheil. Licence: CC BY-SA 4.0

Chapter 2: Photo: Donvictorio/istock photo.

Chapter 3: Cropped image. Photo: NVE/Odd Are Jensen. Licence: CC BY-SA 4.0

Chapter 4: Photo: Robert Bye/Unsplash.

Chapter 5: Photo: Ollo/istock photo.

Chapter 6: Cropped image. Photo: UN Photo/Violaine Martin.

Chapter 7: Markus Spiske/Unsplash

Chapter 8:Photo: R_Tee/iStock photo.

Chapter 9: Photo: Urgenda.

Chapter 10: Cropped photo. Photo: TedNad/istock photo.