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).