© Lasse Fløde / Greenpeace
Application to the European Court of Human Rights
On 15 June 2021, Greenpeace Nordic (hereafter Greenpeace) and Young Friends of the Earth Norway, along with six young climate activists, announced that they will file an application with the European Court of Human Rights (ECtHR).
In 2016, the Norwegian government opened up new areas for oil drilling, further north in the Barents Sea than ever before, in the fragile and diminishing Arctic.
The applicants argue that the decision to issue licences for oil and gas extraction in the Norwegian Arctic violates their fundamental human rights and increases the risk of harm due to climate change. The government’s failure to assess the climate impact of the licences should lead the ECtHR to rule the decision invalid under the European Convention of Human rights (ECHR). More than 95% of the emissions from Norwegian oil originate from the combustion of fossil fuels, but these emissions are wholly excluded from the government’s environmental impact assessments. The applicants argue that this is in clear violation of the common ground established by EU Directives.
After filing, a judge from the ECtHR decides whether the case is admissible. If admitted, it is communicated to the respondent state (Norway) for a response. Outside parties may also submit interventions, providing further information to the Court on issues in which they are competent. After the Norwegian government responds, the Court decides whether the case will be heard, and at what timeline. Then, the case is heard by one of the chambers of the court, which deliberate on the case and make a judgment.
A majority of the applications which are filed with the ECtHR are rejected, and having exhausted national remedies increases the chance of admission. As the People vs. Arctic Oil court case has already exhausted national remedies by taking the case through three rounds in the Norwegian courts of law, the case is in a unique position to apply to the ECtHR.
The individual applicants include six young activists: Ingrid Skjoldvær (27), Gaute Eiterjord (25), Ella Marie Hætta Isaksen (23), Mia Cathryn Chamberlain (22), Lasse Eriksen Bjørn (24), and Gina Gylver (20). The applicants are personally impacted by the climate crisis, which is exacerbated by oil extraction in the Arctic, as climate change threatens their health, livelihood and future. The individual applicants are or have recently been members and representatives of Young Friends of the Earth Norway.
Young Friends of the Earth Norway (Natur og Ungdom) is the largest environmental youth organisation in Norway. The organisation represents more than 9,000 individual members and 60 local groups across the country. It is well-respected in Norway, where it is the youth branch of the Norwegian chapter of Friends of the Earth (Naturvernforbundet).
Greenpeace is a global leader in the fight for climate justice with offices in over 50 countries across the world. It is an independent global network that acts to change attitudes and behaviours, protect and conserve the environment and promote peace. Greenpeace does not accept money from governments, political parties or corporations. It is the independent regional office Greenpeace Nordic which is co-plaintiff in this case.
European Convention on Human Rights
Articles 2 and 8 of the European Convention on Human Rights (ECHR) state that individuals have a right to life and private life. Within these two articles, the Court has previously interpreted a right to protection from environmental harm. Articles 2 and 8 were central in the Urgenda case, where the Dutch Supreme Court found that Dutch climate targets were too low given the scientific consensus about potential harm from climate change.
The six young Norwegian activists also allege violation of Article 14 of the ECHR about discrimination based on age, the disproportionate burden the climate crisis imposes on youth, and discrimination based on membership of minority population for two of the applicants who are from the Sámi people.
The ECtHR has not previously issued a judgment in a climate case, but has recently communicated two cases, one about the consequences of forest fires in Portugal and one about the consequences of heatwaves in Switzerland.
International relevance and possible outcomes
This ECtHR case could potentially set an international precedent. Laws in over 100 countries explicitly recognise the right to a healthy environment. Because these rights are universal, judges around the world are taking into account the interpretations of other jurisdictions. In addition, if the European Court affirmed that states are responsible for their greenhouse gas emissions even after export, it could have an impact on both courtrooms and boardrooms around the world. As with the Urgenda case in the Netherlands, we can expect courts around the world to look to this case to guide and inspire the interpretation of this right in their domestic legal systems.
The plaintiffs are alleging that the licences issued by Norway in the 23rd licencing round are invalid, as they violate fundamental human rights. As such, a victory involves the ECtHR agreeing with this, and issuing a judgment in the plaintiffs’ favour.
A win can also mean the Court finds that Norwegian oil and gas policy does not take climate considerations sufficiently into account, such as assessing climate impact when issuing new licences for oil and gas extraction. In the context of the 23rd licencing round, this implies that the court finds the licences to be invalid. This is the same conclusion as the minority opinion in the Norwegian Supreme Court. If the ECtHR issues this judgment, it will create significant pressure on Norway to change its oil and gas policy. If the result is the application of a “Paris test” of new Norwegian oil and gas expansion, it would be a huge victory.
The ECtHR is not a supernational body with the power to overrule judgments from national courts of law. However, the ECtHR may instruct Norway to change policies or implement actions to amend the environmental damage.
Having the case accepted for deliberation is a victory in itself, as the majority of applications to the ECtHR are rejected. If the application is admitted, this is a recognition that the question of Norwegian oil and gas extraction is important enough to be heard by an international court.
On 18 October 2016, with the backing of a wide coalition, Greenpeace and Young Friends of the Earth Norway filed a historic legal case against the Norwegian government, challenging the granting of new oil drilling licenses in a newly opened area for the first time in 20 years.
The environmental organisations argued that this violated the right to a healthy and safe environment, which is protected by the Norwegian Constitution, and, further, that this drilling would make it impossible for Norway to meet its obligations under the Paris Agreement.
The case was heard in the Oslo District Court in November 2017, then in the Court of Appeal in Oslo in November 2019, and finally in the Supreme Court in November 2020. It is the world’s first case to challenge drilling for new oil and gas based on the Paris Agreement, and it is the first time the environmental rights contained in Norwegian Constitutional Article 112 have been invoked in Court.
The Paris Agreement
Norway was among the first countries in the world to sign the Paris climate agreement and the first industrialised nation to ratify it. The Paris Agreement commits its signatories to:
«Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.»
The 1.5°C goal of the Paris Agreement means that Arctic oil must stay in the ground. In light of climate science and the sheer amount of oil currently discovered or in production, the world will have no chance of staying below a 1.5°C temperature increase if further Arctic oil is extracted.
Granting new licences in the Arctic cannot be reconciled with Norway’s commitments, expressed in its signing and ratifying the Paris Agreement.
After having broken new ground in the Norwegian courts of law, by bringing to light the constitutional right to a healthy environment, the People vs. Arctic Oil continues to be a groundbreaking and innovative case, taking to court the right to be protected from dangerous climate change for all citizens and youth and future generations in particular. The fight for a liveable future is taking place in the streets, in school strikes and demonstrations all around the world. As the case proceeds to the European Court of Human Rights, it presents a chance for future generations to have their voices heard. The outcome is up to the Court.