People v Arctic Oil before Supreme Court of Norway – What’s at stake for human rights protection in the climate crisis?

During the past week, the Norwegian Supreme Court has been hearing the People v Arctic Oil case, a rights-based challenge to the Norwegian State’s grant of petroleum exploration licenses. The case raises myriad questions of significance regarding States’ human rights obligations in the context of climate change. Here, we consider two of them: the geographic scope of Norway’s human rights obligations, and the threshold of risk required to trigger the State’s positive obligations under the ECHR.

The case was instituted in 2016 by Greenpeace Nordic Association and Nature & Youth  (Young Friends of the Earth Norway) and challenges the grant of licenses to oil and gas companies to explore additional petroleum within the South Barents Sea, a previously unexploited area (impugned decision). The claimants allege, inter alia, a failure to exercise due diligence to protect against the human rights implications of climate change, contrary to the constitutional right to a healthy environment (Article 112 of the Constitution), and the rights to life and to private and family life under Articles 2 and 8 of the ECHR and the Constitution. To interpret these rights, the claimants rely on Norway’s commitments to prevent dangerous climate change under international climate change law, including the Paris Agreement, and scientific evidence that exploitation of any new oil and gas reserves is incompatible with keeping global temperature increase to below 1.5°C.

The case comes on the heels of decisions by apex courts in Europe regarding States’ action to mitigate climate change: two landmark decisions in favour of claimants in the Netherlands and Ireland (here and here) and an adverse decision in Switzerland (here). Two climate cases are pending before the European Court of Human Rights (ECtHR) (see here and here), while rights-based climate claims are afoot around the globe.

The claimants in the Norwegian case appeal from the judgment of the Court of Appeal (COA). That Court found, significantly, that the constitutional right to a healthy environment gives rise to a justiciable individual right to protection from environmental harm caused by climate change, including from the combustion of fossil fuels exported from Norway. However, it determined that the impugned decision did not violate the constitutional right or Articles 2 and 8 ECHR based on legal findings which the claimants now challenge and which have potentially broader relevance for climate litigation. First, citing the ‘jurisdiction clause’ in Article 1 ECHR, the COA found that the global consequences of climate change were beyond the scope of the State’s obligations under the ECHR, such that it could only assess the projected impacts of climate change in Norway (which it found to be ‘serious’, but ‘more limited and of a different nature than the global effects’, even at warming of 4.5°C). Second, it found that there was no ‘real and immediate’ risk of harm to life of persons within Norway, and no ‘direct and immediate link’ between the impugned decision and resulting harm.

Geographic scope of Norway’s human rights obligations

The fraught issue of the ‘scope’ of applicability of the ECHR – the ‘jurisdiction’ question or the extent to which the Convention applies ‘extra-territorially’ (ETA) – rears its ugly head in the Norwegian COA judgment.

Two transboundary elements arise in the case. First, the impugned decision relates to the exploration for fossil fuel reserves within Norway’s territory (and subsequent extraction and production of such resources within Norway) which will then be exported and combusted in third countries. It is common ground that greenhouse gas (GHG) emissions are released at each stage of the process, but the overwhelming amount are released via combustion. Secondly, the GHG emissions released at each stage will contribute to the global phenomenon of climate change, affecting Norway and all other countries. The COA found that Norway’s jurisdiction was limited to the risks of harm within Norway, inter alia, as the State is not responsible for impact on rights beyond its borders. Although the appellants contest the relevance of territoriality (and factual findings as to the gravity of the risk within Norway), the issue is therefore brought into the frame by the position of the State and the COA.

As has been well rehearsed in other entries on this blog, the ECtHR’s approach to the question of scope, and when the State can be said to exercise ‘effective authority or control’ abroad, has been faltering and fragmented. The ECtHR has carved out exceptions to the ‘primarily territorial’ scope of the Convention case by case, based variously on control of territory, physical power or control of persons and/or the exercise of public powers or authority abroad. These formulations were crafted in quite different contexts, such as military and law enforcement operations, involving lethal force or detention abroad, and the language of the judgments often reflects the facts of particular cases. Serious doubts arise as to the suitability of ‘control of territory’ (Bankovic) or ‘effective control of persons’ (Al Skeini et al) tests to deal with other contemporary threats that have not yet been adjudicated by the ECtHR; these include global surveillance practices before the ECtHR in recent years and transboundary environmental harm, whether from cross-border poisoning or contributions to dangerous climate change.

Restrictive and inconsistent ECtHR jurisprudence does not make the task easier for national courts. However, just as standards have evolved before the ECtHR (Bankovic was described by an English judge as ‘effectively overruled’ by Al Skeini: Al Saadoon v Secretary of State, para. 35), so will they need to continue to evolve to meet novel challenges in the environmental field. Moreover, as the German Constitutional Court recently reminded us (in the context of extra-territorial surveillance), national courts are not bound to the quagmires of ECtHR jurisprudence, and there is nothing to ‘exclude a more extensive protection of fundamental rights by the Convention states’ than by the ECtHR.

The Arctic Oil case certainly raises the question of what interpretation of scope is appropriate, to ensure that the Convention can be ‘practical and effective,’ in the very different context of climate change?

Guidance may be found in comparative law and practice, to which the ECtHR often refers pursuant to its ‘holistic’ approach to the interpretation of the Convention. The UN Human Rights Committee’s (UNHRC) General Comment no. 36 on the right to life (2018) recognises climate change as among ‘the most pressing and serious threats to … the right to life’ (para 62) and considers a State’s ‘jurisdiction’ to arise from its impact on the relevant rights:

‘a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner.’ (para 63, emphasis added)

The German Constitutional Court recently supported the focus on ‘control over rights’ (not persons or territory) in the context of extra-territorial surveillance, with the key question being the capacity to interfere with rights. A similar argument has been advanced by applicants in the pending case of Hanan v Germany concerning German airstrikes before the ECtHR Grand Chamber (discussed here).

Another approach of particular note, given the subject matter, is the 2017 Advisory Opinion of the Inter-American Court of Human Rights (IACtHR) on The Environment and Human Rights. This was the first time an international court squarely addressed GHG emissions and extraterritorial effect. The Court affirmed that:

‘[w]hen transboundary harm or damage occurs, a person is under the jurisdiction of the State of origin if there is a causal link between the action that occurred within its territory and the negative impact on the human rights of persons outside its territory. The exercise of jurisdiction arises when the State of origin exercises effective control over the activities that caused the damage and the consequent human rights violation’ (para 104, emphasis added)

‘Effective control’ in the environmental context then, according to the IACtHR, relates to control of domestic ‘activities’ rather than to persons or territory. While the Opinion necessarily leaves some questions unanswered (like causation and its operation in the climate context), it leads the way in firmly rejecting the idea that human rights obligations are inapplicable based on formalistic notions of territorial or personal control. Also of interest in the Opinion is that it embraces domestic acts and omissions of the State, making clear the Court’s view that positive obligations can also apply extraterritorially (further discussed here).

That said, the Norwegian case also prompts a more preliminary question: is the case really ‘extra-territorial’ at all? The claimants allege that it is not. The impugned conduct – the grant of government licenses – takes place within the State, in respect of exploration and drilling that would also take place on Norwegian territory, but where its effects would be inextricably internal and external. The ECtHR’s ‘exceptional’ extra-territorial jurisprudence, by contrast, developed in situations where state agents operated beyond its borders and allegedly violated the rights of persons also situated outside the State’s territory. One could query whether this makes a difference, given the wording of the jurisdiction clause and its focus on persons within the State’s jurisdiction?  Brief regard to ECtHR practice suggests, however, that it may.

The ECtHR has in fact treated decisions taken within the State, with human rights effects (often exclusively) on individuals abroad, as clearly within the State’s jurisdiction – notably without addressing ‘extraterritoriality’ at all. These include where legislative amendments impacted on  nationals abroad (Kovačić and Others v Slovenia), where judicial decisions prevented a mother overseas from reuniting with her child (Mubilanzila Mayeka and Kaniki Mitunga v Belgium) or in respect of sanctions regulations with exclusive effects abroad (Nada v. Switzerland). These facts are also very different from those concerning climate change. But as the jurisprudence continues to evolve, it will be necessary to consider whether it makes sense to think about the exercise of power as extra-territorial at all, as well as how the jurisdictional criteria can be applied to give meaningful effect to the Convention in diverse contexts.

A principled and coherent approach is needed that meets legitimate concerns, such as avoiding undue burdens on States, while avoiding artificial distinctions and vacuums of protection. One thing the case law as a whole reveals clearly is the desire to ensure that States are only accountable under the Convention for what is within their control. Where the case concerns the exercise of essential public functions on its territory, such as licensing fossil fuel exploration, there would seem little doubt that such ‘activities’ are within the State’s control.

Whether the ensuing risk was foreseeable, and whether the State failed to exercise due diligence, are merits decisions to be assessed on the facts (see below). But just as States cannot be held to account for what they cannot control, or for acts or omissions of other States, it would be ‘unconscionable’ (as both UNHRC and ECtHR have stated) if they could avoid the Convention’s applicability and the ECtHR’s oversight, in respect of their own domestic decisions in respect of climate change, with effects that are indissociably internal and external.

Risk threshold for positive obligations under the ECHR

Climate change litigation often revolves around the ‘positive obligations’ of States to take measures to prevent the human rights consequences of climate change. Positive obligations can be violated through omission, in the form of State failure to develop adequate climate laws or to sufficiently reduce their GHG emissions (as arises in many climate cases) or indeed when States go further and engage in overt acts (such as licensing fossil fuel exploration in this case) that run counter to those duties of protection. The ECtHR has noted that the State’s positive obligations under Articles 2 and 8 ECHR ‘largely overlap’ in the context of environmental harm (e.g. Budayeva et al v. Russia).

There are three elements of the positive obligations test that must be satisfied, namely: a sufficiently foreseeable and serious risk of harm (risk threshold); of which the State knew or ought to have known (knowledge requirement); and, in making the impugned decision, the State has failed to exercise due diligence in the adoption of necessary and appropriate measures reasonably available to it to prevent or protect from the risk of harm (due diligence).

While each element of the test raises issues, the Norwegian COA draws particular attention to the appropriate legal test for the risk threshold in the context of climate change. Determining that the State’s decision did not trigger its positive obligations under the ECHR, the COA asked whether the impugned decision posed a ‘real and immediate’ risk of harm to life under Article 2 (citing Oneryildiz v Turkey); and whether there existed a ‘direct and immediate link’ between the decision and the harm under Article 8 (citing Atanasov v Bulgaria).

In our view, this formulation of the risk threshold test does not reflect the full body of the ECtHR’s environmental jurisprudence, nor the particular features of climate-change induced harms. As with jurisdictional scope, the terms of the ECtHR’s jurisprudence varies, and must be understood in light of the facts and issues at stake. The ‘real and immediate’ risk criteria, set down in Osman v U.K., to identify the exceptional circumstances in which the State could reasonably be judged responsible for failing to prevent loss of life through common crime, cannot be straightforwardly transposed to the climate change context.

In some environmental cases, such as Oneryildiz v Turkey (2004), the ECtHR Grand Chamber has also employed  the ‘real and immediate’ risk test. However, as the Dutch Supreme Court in Urgenda v the Netherlands showed, this must be interpreted in light of the very different type of risks at stake; thus, while referring to ECtHR jurisprudence on ‘real and immediate’ risk, the Supreme Court emphasised that this did not require imminent risk of harm, but rather foreseeable and serious harm. The Supreme Court also found that it was not necessary to identify individual prospective victims of that harm (drawing on ECtHR decisions, such as Stoicescu v Romania). The serious risk of harm posed by climate change, interpreted in light of the precautionary principle, was sufficient to trigger the State’s positive obligations under Articles 2 and 8 ECHR.

Moreover, the ECtHR’s environmental jurisprudence has developed since the Oneryildiz case, and the ECtHR has applied a range of threshold tests that do not require ‘immediate’ risk of harm either. Instead they focus, understandably, on whether the risk is ‘foreseeable’ and entails ‘serious’ harm (see e.g. ‘serious health and environmental risks’ (Cordella v Italy); a ‘real risk’ to ‘life and health’ (Jugheli v Georgia); and a ‘serious risk of an ensuing death’ (Brincat v Malta)). Thus while ‘immediacy’ may be an appropriate element in some contexts, to safeguard foreseeability in the context of State’s obligations to prevent common crime, different considerations will often arise in the context of environmental harm.

There can be little doubt, as reflected in the precautionary principle (including the Rio Declaration on Environment and Development and the UNFCCC (Article 3(3)), that climate change poses a risk of ‘serious’ and ‘irreversible damage’. As the ECtHR has found, where there is a ‘serious and substantial risk’ of harm to human health, the State’s obligations are triggered even if the harm has not yet materialised (Tatar v Romania) (see further discussion here). Even the adverse ECtHR environmental cases cited by the COA are far from decisive: the ECtHR has indicated that the risk threshold under Article 8 may be satisfied if there exists a ‘risk of a sudden deterioration’ (Atanasov v Bulgaria) – which is precisely the risk that is posed by tipping points in the context of climate change – or if the State’s conduct is ‘so inadequate as to constitute a serious infringement of the principle of precaution’ (Asselbourg et al v Luxembourg).

Whether a State’s action with respect to climate change mitigation is in violation of ‘due diligence’ obligations is naturally complex and fact dependent. What is clear is that positive obligations mean there is no need for the harm to have already materialised nor for the risk of harm to be ‘imminent’, if it is otherwise foreseeable and serious. In Urgenda, the Dutch Supreme Court found that, in the face of the serious and irreversible harm posed by climate change, notwithstanding its global nature, the State was required to do ‘its part’ to avert it.

Conclusion

The present case offers the Norwegian Supreme Court the opportunity to interpret and apply established ECtHR jurisprudence on the issues addressed above – scope and threshold test for the State’s positive obligations under the ECHR – in a manner that gives meaningful effect to the Convention in the context of the climate crisis. This is not unusual; it is how the Convention has evolved and stayed relevant since its inception seventy years ago. But nor is it a mechanical process of copying and pasting a formula from other cases in a way that decontextualizes language and reasoning with anomalous results. Cases such as these, while not arising in a vacuum, require lawyers and judges to interpret and apply (without distorting) the legal framework, in line with established approaches to treaty interpretation that have been developed by the ECtHR for years. These include interpreting the Convention as a ‘living instrument’ relevant to contemporary challenges, applied ‘purposively’ and ‘contextually’, so that rights are given real effect. Conversely, the Convention cannot be interpreted in a way that renders it irrelevant in face of the most pressing human rights challenge of our time.