Jenny Sandvig, Policy Director, Norway’s National Human Rights Institution
Introduction
I will now give a brief presentation on States’ human rights obligations to mitigate climate harm based on the recent reports of the Norwegian NHRI and the European Network of National Human Rights Institutions (ENNHRI).
Plan
We don’t have enough time today to go into detail, so I will focus on a few key aspects according to this plan. I will outline some background and developments, before analysing certain substantive rights under the ECHR, and the applicability of the ECHR to transnational and intertemporal harm. In conclusion, I will say a few words about the way forward.
Background
In May 2021, CO2-levels in the atmosphere reached 419 parts per million. CO2-levels are now higher than at any time in the least 3 million years, and only 11 ppm. short of the 1.5 C degree threshold of 430 ppm, and the 2 C degree threshold of 450 ppm. CO2-levels are shown to be correlated with global mean temperatures.
If we cross these thresholds, we face severe consequences for human health and welfare, due to heat, drought, fires, flooding, diseases, shortages in water and food supplies. We also face high risks of non-linear tipping points, which could cascade to a 4 degree “hot-house” Earth by the end of this century. Some of these tipping points may have been crossed already. Two weeks ago, we learnt that the Arctic is irreversibly on track to be ice-free during summer. The summer ice in the Arctic has up till now been a temperature stabilizer, interconnected with other tipping points, such as methane frozen in the Tundra and global ocean currents.
As noted by Supreme Courts in Canada, Australia, Colombia, Germany, the Netherlands, and Ireland, climate change poses an existential threat to human life. A 4 C degree warmer world would render large parts of the world uninhabitable. It would be fatal to ecosystems that depend on stable conditions to survive, and whose only means to adapt is through slow evolutionary processes.
To avoid these catastrophic consequences, global warming must be limited to 1.5 C degrees (Paris Agreement, art. 2.1.a). It requires deep and rapid emission cuts. According to the Climate Action Tracker, all European emission cut pledges are insufficient. According to the International Energy Agency, 1.5 C degrees would require that we stop searching for and developing new fields for oil, gas and coal. The world has already found and set in production enough fossil fuels.
Developments
It is increasingly recognised that environmental harm and climate change threaten human rights. This insight follows already from the UN Framework Convention on Climate Change (UNFCCC) article 1, which defines adverse climate change as “significant deleterious effects” on, inter alia, “human health and welfare”. Internationally, the UN Human Rights Committee and several UN Treaty Bodies have issued statements on how climate change is affecting human rights. The UN’s High Commissionaire for Human Rights has called climate change the gravest threat to human rights ever.
Nationally, there has been – as Francoise Tulkens called it – an explosion of climate cases. At least 41 of 1500 cases are based on human rights. Climate cases have so far been successful in States such as the Netherlands, Belgium, Germany, France, Ireland, Australia and Canada, and unsuccessful in places like Norway, Switzerland, and the UK.
Regionally, in Europe, we have seen the first climate complaints being brought to the European Court of Human Rights in Strasbourg, which is fast-tracking its first two cases of this kind from Portugal and Switzerland.
Substantive rights
So, do States’ have human rights obligations to cut emissions to avert these dangers? In our reports, we conclude that they do.
My remarks here will focus on the European Convention on Human Rights, but largely parallel rights exist in the UN Covenant on Civil and Political Rights, articles 6, 17, 26.
As a point of departure, the ECHR does not guarantee a right to a clean and quiet environment. The Court has however applied Articles 2, 8 and P1-1 extensively to environmental harm. I will discuss these in turn:
First, the right to life (Article 2) and physical integrity (Article 8, “private life”), largely overlap in the environmental context. They give rise to positive obligations for States to avert real and immediate or serious risks to human health and life from environmental harm that the State ought to know about, even in situations where it is merely a generalized risk of hypothetical harm that can materialize in 20-50 years (Taskin, paras. 197, 113; Hardy and Maile, para. 190; Cordella, para. 172; Tatar; Budayeva).
The European Court of Human Rights is yet to pronounce on the applicability of these obligations to GHG emissions, but the Supreme Court of the Netherlands, the Constitutional Court of Germany, and a first instance court in Belgium, have all concluded that these or parallel constitutional rights oblige States to avert dangerous climate change above 1.5 degrees C or well below 2 degrees C. The Norwegian Supreme Court and the UK Supreme Court have not ruled out the applicability of Article 2 and 8 to GHG emissions in general but have – for technical reasons – held that they do not apply to decisions made at a planning stage which would not in and of themselves lead to emissions. By contrast, the Swiss Administrative Supreme Court has noted that the risk of warming above 1.5 or 2 degrees C is not imminent, as such temperature increases would not be measurable before 2040. This analysis, in our view, overlooks that the warming effect of GHG emissions, and CO2 in particular, is latent and long-term. Given the lag, warming above 1.5 or well below 2 degrees C must be averted decades before such temperature increases can be measured, when it is still preventable (Tatar, para. 109). Given the latent effects of CO2 already emitted in the atmosphere, the risk of crossing 1.5 degrees is imminent now.
Second, the right to property is guaranteed by Article 1 of Protocol No. 1 (P1-1). Also under this provision, States are under a positive obligation to avert real and immediate risks to harm against protected property interests (Kolyadenko; Öneryildiz). Flooding and sea level rise threaten coastal and low-lying properties, and forest fires and drought threaten the use of property and agricultural lands. According to the German Constitutional Court, the right to property under the German Constitution entail positive obligations to avert climate change. In our view, P1-1 also applies.
So what does it mean that States are positively obliged to avert dangerous climate change? If we look to the ECtHR’s approach in other cases (Taskin, para. 115), a positive obligation has a substantive and a procedural dimension.
The substantive dimension is roughly that States must take measures that are necessary and adequate to protect against the risk (Lopez Ostra, para. 51). However, a disproportionate or impossible burden must not be imposed on the authorities. The Dutch Supreme Court looked to the ECtHR’s common ground doctrine to establish the necessary minimum reduction target for 2020 by 25 per cent, based on international agreements and scientific consensus, and found that the State had not substantiated that it would be disproportionate or impossible to cut emissions by this rate. The German Constitutional Court also relied on the IPCCs carbon budget for limiting global warming to 1.5 degrees (with 50 per cent probability). The District Court of the Hague relied on the IPCC and the IEAs assessments to conclude that Shell would breach a duty of care if it did not cut all emissions under its effective control by at least 45 per cent by 2030. It seems fair to assume that any assessment of necessary and adequate measures would reference these international carbon limits, converted to national carbon budgets and reduction trajectories consistent with limiting warming to 1.5 degrees.
The procedural dimension would for instance require States to accord “due weight” to the interests of the individual through “appropriate investigations and studies” to “predict and evaluate in advance the effects” of future harmful activities (Taskin, para. 118-119). This arguably applies to any facilitation of oil, gas or coal extraction, including the effects that would result from combustion. It will be interesting to hear from David Barnden today on the argumentative value of the Australian Sharma judgment he secured recently, and the duty of care established there to consider personal harm to children over their lifetime when facilitating 100 Mt CO2 from coal.
Nonetheless, States enjoy a “certain” (Cordella, para. 158; Lopez Ostra, para. 51; Guerra, para. 58) or “wide” (Budaeyva, para. 135) margin of appreciation in environmental matters. In Budeyeva, the Court noted that the margin would be narrow regarding “man-made” risks as opposed to natural hazards (para. 135). Climate change is man-made. The existential severity could also speak in favour of a narrow margin of appreciation. Moreover, as noted by the German Constitutional Court, the postponement of emission cuts today offloads an irreversible and disproportionate burden on younger and future generations. Construing positive obligations to avoid an unreasonable or impossible burden on Contracting States, might therefore well speak in favour of more stringent control of emission cuts today, to safeguard political leeway tomorrow.
National court decisions, overall, seem to show that courts have so far deferred from scrutinizing the means to cut emissions, but reviewed trajectories and targets more closely.
Transnational harm
There are two aspects which sets climate harm apart from local and short-lived environmental harm, which the Court’s case-law has dealt with so far. Climate harm is both transnational and intertemporal. How do we square these overarching dimensions with classical limitations of jurisdiction and actual harm? We have discussed these aspects more closely on a recent piece on EJIL:Talk!, and I will briefly touch upon some of our arguments here.
As a point of departure, jurisdiction under Article 1 of the ECHR is primarily territorial and may encompass acts producing effects abroad only in exceptional cases. The Court has not yet considered transboundary environmental harm but has established extra-territorial jurisdiction in situations where States have had effective control over either territory or persons abroad.
It has been argued that individual States cannot bear separate responsibility for climate harm, because it is caused by cumulative, global emissions. This drop in the ocean argument has not fared terribly well before judges. Courts in the Netherlands, Germany, Ireland, Belgium, Australia and the US indicate that States can be held individually to account for acts or omissions that contribute to climate change. This is in principle aligned with ECtHR case law (Andrejeva, para. 56) and international law (Articles on State Responsibility for International Wrongful Acts, Article 47; Corfu Channel Case, p. 23), according to which a State may have jurisdiction even though the act complained of may be attributed to several States.
Another question is whether a State also has jurisdiction for harms caused by their exported emissions. Interestingly, both the Norwegian Supreme Court and the Federal Court of Australia has reasoned that Norway and Australia, both major producers and exporters of fossil fuels, must consider harm caused to their residents territorially due to exported emissions. The District Court in the Hague has reasoned that Shell is responsible for cutting all emissions under its effective control, including combustion by end-use consumers.
A more difficult question is whether a State has extra-territorial jurisdiction over harms caused abroad by emissions under its effective control. This is a question in Duarte. The recent Big Brother Watch judgment could be read as an opening for such extra-territoriality. There are, however, two objections. First, extra-territorial jurisdiction for climate harm could be unlimited and universal, which the Court ruled out in MN v. Belgium. However, unlike MN, extra-territoriality would not be triggered unilaterally by residents abroad, but rather by the State’s own acts or omissions to cut emissions having transboundary harmful effects. A second objection would be that the Paris Agreement count territorial emissions. The Paris Agreement, however, is also premised on the customary no harm-rule, according to which a State should not cause extra-territorial harm (UNFCCC, preamble). The German Constitutional Court has also suggested that there is a possible connecting factor between GHG emissions emanating from Germany and severe climate-induced violations abroad (paras. 101, 175-178). Hence, there seems to be arguments in favor of extra-territoriality, at least within the legal space and territory of the Europe. It would counter the perverted effects of the uneven geographical burden of climate harm and ensure that Contracting States do not undermine fulfilment of the Convention rights in other Contracting States. Hence, it would ensure the collective enforcement of the Convention set out in the preamble, as provided for also in potential inter-state complaints, which Francoise Tulkens alluded to.
Intertemporal harm
A second aspect of climate harm is the intertemporal effects. GHG emissions today cause harm with latent, long-term and irreversible effect. Likewise, the omission to cut emissions offloads the burden to cut emissions on younger generations. To put it simply, the harmful acts and omissions are committed today, but the harms will be felt in the future. At the same time, the ECHR and the Convention’s machinery in its traditional form is concerned with remedying retroactive and individual harm.
As I have mentioned, in case-law to date, there is basis for a precautionary protection (Tatar, para. 109) against future harm, including hypothetical environmental harm (Taskin, paras. 197, 113; Hardy and Maile, para. 190) which would pose a health risk to entire populations (Cordella, para. 172; Tatar). The Dutch Supreme Court relied on this strand of cases to conclude that Article 2 and 8 apply to future climate change.
Moreover, to the extent substantive rights under the ECHR apply, the accessory prohibition against discrimination in Article 14 could provide a vehicle to assess the preliminary harm inflicted today upon children and younger generations over their lifetime. Article 14 prohibits not only direct discrimination, but also indirect discrimination. Age is a prohibited ground for discrimination. The disparate and long-term effects of climate harm would however affect younger generations over their lifetime. It is perhaps more fitting to approach this as indirect discrimination based on birth cohort or generation. Intergenerational equity has underpinned decisions by the German Constitutional Court and the Australian Federal Court, the First Instance Court in Bruxelles and the Supreme Court of Colombia. It resonates with a foundational purpose behind the Council of Europe, namely “the preservation of human society and civilization”. Certainly, this preamble was written with the scourge of war in mind, but the underlying intergenerational equity arguably applies to the existential and man-made threat of climate change and cascading tipping points beyond 1.5 degrees.
The Way Forward
How the Court in Strasbourg will approach these issues remain to be seen.
It can be noted that pending complaints face significant procedural hurdles, for instance regarding potential victimhood and the possibility for associations to launch representative complaints over personal rights. Since climate harm will increasingly materialize in the future, when warming above 1.5 C can no longer be prevented, we have argued (NIM, point 5.9.3) that climate rights would be “effectively unchallengeable” (see Centrum för Rättvisa, para. 166) if the Court would not allow potential victims to plead their case or deny associations the right to plead personal rights on behalf of collective member interests. As the Court noted in Gorraiz Lizarraga (para. 38), associations may well be the only effective way in which individuals can effectively challenge complex decisions.