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.