David R. Boyd, United Nations Special Rapporteur on human rights and the environment
September 23, 2019
Today, I conclude my mission to Norway, which began on 12 September. Norway is a genuinely beautiful country, and I was delighted by the warmth, generosity, and strong dedication towards human rights and environmental protection of the Norwegians and Sámi people whom I encountered.
In many ways, Norway has a strong environmental record, as suggested by the fact it ranks fourteenth out of 180 nations on the Environmental Performance Index published by Yale and Columbia universities. Norway is also one of the wealthiest nations in the world, with a per capita income of $US 81,807 and a Government Pension Fund worth approximately $US 1.1 trillion. With great wealth, however, comes great responsibility for protecting human rights and the environment.
I was appointed as the United Nations Special Rapporteur on human rights and the environment by the UN Human Rights Council beginning August 1, 2018. The role of the Special Rapporteur is to promote the implementation of human rights obligations relating to the enjoyment of right to a safe, clean, healthy and sustainable environment. One of my tasks is to carry out country visits in order to prepare a public report to the Human Rights Council that describes good practices and challenges in the protection of human rights and the environment. Norway is my second UN country mission, following a visit to Fiji in December 2018. It is worth noting that Fiji is a small island state that is already experiencing devastating impacts from climate change, while Norway is a major oil and gas producer whose main exports contribute to the anthropogenic greenhouse gas emissions responsible for climate change.
During my twelve-day visit, I participated in more than thirty meetings with a wide range of people and organizations, including the Minister of Climate and Environment, Minister of Agriculture and Food, Attorney General, government officials from the Ministry of Climate and Environment, Norwegian Environment Agency, Ministry of Finance, Ministry of Food and Agriculture, Ministry of Foreign Affairs, Ministry of Local Government and Modernisation, Ministry of Petroleum and Energy, Ministry of Trade, Industry and Fisheries, Ministry of Transport, members of Parliament’s Energy and Environment committee, two Supreme Court justices, the Parliamentary Ombudsman, the Government Pension Fund Global, the Council of Ethics, the Norwegian National Human Rights Institution, representatives from roughly a dozen civil society organizations, Norwegian businesses, and concerned citizens. I spoke with a group of inspiring Norwegian youths who have been active in the School Strike for Climate movement, met with representatives of the Municipality of Oslo and went on a walking tour of some of the city’s green features.
For three days, I visited the Sámi communities of Kárášjohka/Karasjok (the home of the Sámi Parliament) and Guovdageaidnu/Kautokeino, spending time with representatives from the Governing Council of the Sámi Parliament, the Saami Council, Sámi reindeer herders, the International Centre for Reindeer Husbandry, the Sámi University of Applied Science, and the Finnmark Estate.
I would like to thank the Government of Norway for its invitation. I am particularly grateful to Eirik Talleraas and Ingrid Erno (United Nation Development Programme), Beate Berglund Ekeberg (Ministry of Climate and Environment), Jon Petter Gintal (Sámi Parliament), and Alia El-Khatib (Office of the UN High Commissioner for Human Rights) for their invaluable assistance in organizing this visit. I also appreciate the openness of the individuals and organizations with whom I met, and their willingness to provide rapid and fulsome responses to my requests for additional information.
Due to limits on the length of end of mission statements by Special Rapporteurs, I will focus on a handful of key issues, while deferring consideration of human rights aspects related to water, food, biodiversity, procedural rights, urban sustainability, business, and the Government Pension Fund Global to my comprehensive final report to the UN Human Rights Council.
To its credit, Norway has ratified all of the major global human rights treaties. Environmental protection is essential to fulfilling many of the rights recognized in these agreements, including the rights to life, health, food, water, culture, and development. Of critical importance is protecting the rights of those who may be most vulnerable to environmental harms and climate change, including women and children. Since 2014, Norway has supported HRC resolutions on human rights and the environment. In 2019, Norway led the process of adopting a strong Human Rights Council resolution on environmental human rights defenders. Norway also supported a resolution at the 2019 United Nations Environment Assembly (UNEA-4) on “Promoting gender equality and the human rights and empowerment of women and girls in environmental governance.” In a recent White Paper, the Norwegian Ministry of Foreign Affairs observed that “human rights are a central element in climate and environmental policy.”
Norway has not ratified several optional protocols establishing mechanisms through which citizens can bring complaints about their rights, including the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure and the Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights. I encourage Norway to ratify these important instruments.
Norway has also ratified all of the major international environmental treaties and was among the States that led the recent and successful effort to strengthen the Basel Convention to address exports of mixed plastic waste. At the national level, Norway’s Constitution has recognized the right to a healthy environment since 1992 (Article 110b). The specific wording of the article dedicated to this right, included in the chapter of the constitution called “Human Rights,” was strengthened in 2014 (Article 112):
112. Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.
In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out.
The authorities of the state shall take measures for the implementation of these principles.”
There continues to be a debate in Norway about the interpretation of this vitally important provision. The Norwegian Government’s position is that “Section 112 has not been formulated to provide individual rights in the traditional sense. Instead, the first and second paragraphs express principles regarding societal aims with regard to environment, conservation of nature and management of natural resources.” However, in a major lawsuit challenging the government’s expansion of the offshore petroleum industry in the Barents Sea through the 23rd licensing round in 2016, the Oslo District Court looked at the ordinary meaning of the words in Section 112, examined the preparatory works in the drafting of this provision, and concluded that Article 112 is clearly a rights provision.
The right to a safe, clean, healthy and sustainable environment is found in 100 national constitutions in all regions of the world, as well as the Aarhus Convention (to which Norway is a party), parts of Asia, Africa, Latin America and the Caribbean, and the Middle East. It is a fundamentally important human right, in that individuals’ lives, health, and dignity depend upon clean air, clean water and adequate sanitation, healthy food, non-toxic environments in which to live, work, study, and play, healthy ecosystems and biodiversity, and a safe climate. At this time in human history—faced with a global environmental crisis of unprecedented severity—recognizing, respecting, protecting and fulfilling the right to a healthy environment has never been more important. I therefore urge the Norwegian Government to modify its position and adopt the interpretation of Article 112, supported by the decision of the Oslo District Court, recognizing that it is a clear expression of the human right to live in a healthy environment.
Norway has a comprehensive suite of national laws that protect various elements of the right to a healthy environment as well as sector specific laws that regulate activities with potentially negative environmental consequences. Among the most important of these laws are the Pollution Control Act, Nature Diversity Act, Planning and Building Act, Climate Change Act, and Marine Resources Act. In recent years, many of these laws have been amended to improve their effectiveness and to strengthen penalties for violations. The Supreme Court of Norway has issued a series of important decisions related to sentences for environmental violations, relying on both the increased maximum penalties and Article 112 of the Constitution to justify higher fines and significant terms of imprisonment.
Vital laws in the implementation of many of Norway’s international human rights obligations include the Human Rights Act of 1999 and the Equality and Anti-Discrimination Act.
Finally, it is important to note that since 1994 Norway has been part of the European Union’s internal market through the Agreement on the European Economic Area (EEA Agreement). As a result, roughly 80 percent of Norwegian legislation in the field of climate and environment is based on EU legislation as a consequence of the EEA Agreement.
Climate Change: The Norwegian Paradox
One of the world’s most urgent challenges is climate change, which is violating human rights across the planet today and threatening to do so on a vast scale in the years ahead. Earlier this month the UN High Commissioner for Human Rights, Michelle Bachelet, warned that “The world has never seen a human rights threat of this scope.” Norway, as one of the world’s wealthiest nations and as one of the world’s leading producers of oil and gas, must accept substantial responsibility for leading efforts in mitigation, adaptation, and addressing loss and damage.
In some aspects, Norway is at the forefront of the global transition to a fossil-fuel free economy. Norway’s electricity system is predominantly emissions-free. Norway has the highest share of electric vehicle sales in the world by a wide margin. Norway is the first country to ban the use of fossil fuels for heating buildings. Norway prohibits flaring from petroleum facilities and bans the disposal of organic materials in landfills, thus preventing methane emissions. Norway’s International Climate and Forest Initiative, which provides substantial funding to nations with large areas of tropical forest to prevent deforestation, is a leading good practice. Norway is one of the largest donors to the Green Climate Fund, which finances mitigation and adaptation in developing countries, and recently announced a doubling of its contribution for the 2020-2023 period.
However, the Norwegian paradox is that its leadership in some aspects of addressing the global climate emergency is enabled by wealth generated by a large petroleum industry. Norway is the world’s 15th largest exporter of oil and the world’s 2nd largest exporter of natural gas (after Russia). Emissions from this sector are well above 1990 levels and exploration for additional oil and gas continues in Norway, despite clear evidence that human society cannot burn existing reserves of oil, gas and coal while meeting the targets established in the Paris Agreement.
Between 1990 and 2017, Norwegian emissions rose three percent, to roughly 53 million tonnes. The three largest sources are transport (31 percent), the petroleum industry (28 percent), and industry (21 percent). Norway’s 2020 target is to reduce emissions 30 percent from 1990 levels. Norway’s 2030 target, representing its Nationally Determined Contribution under the Paris Agreement, is to reduce emissions 40 percent below 1990 levels. The 2050 target is to reduce emissions by 80 to 95 percent below 1990 levels. The 2030 and 2050 targets are incorporated in the Climate Change Act of 2017. Norway is encouraging the EU to increase its 2030 climate target from 40 percent to 55 percent below 1990 levels.
Approximately half of Norway’s reductions required by 2030 (from industrial and aviation emissions) will be achieved through participation in the European Union Emissions Trading System (EU ETS), where companies can either reduce their own emissions or purchase credits/allowances representing reductions made by other companies. The majority of Norwegian emissions not covered by the EU ETS are from transport, waste incineration, and agriculture.
Based on their assessment concluding that currently implemented policies will only reduce emissions 7 percent by 2030, the NGO Climate Action Tracker rates Norway’s climate change policies as “highly insufficient.” The Climate Action Tracker analysis does not incorporate the use of flexibility mechanisms. Data provided by the Government of Norway estimate that 2030 emissions will be 45.3 million tonnes, a decline of roughly 10 percent from 1990 levels. The Government’s intention for addressing the remaining emissions gap (approximately 30 percent) is to implement stronger actions in the coming years and use flexibility mechanisms to purchase international credits. The Norwegian Environment Agency and other government bodies are currently working on a set of stronger measures to address non-ETS emissions.
Norway was one of the first States to establish a carbon tax, which has risen over time and applies to different sectors at different rates, but with the standard rate set at 500 NOK/tonne. Some sectors, including aviation and the petroleum industry, are covered by both the EU ETS and the carbon tax. While the carbon tax represents an acknowledged good practice, it has not prevented Norwegian emissions from continuing to rise.
Norway enjoys a large hydroelectric system and a growing number of wind farms, resulting in an electricity system that is 98 percent emissions free. There is a coal fired power plant (and two coal mines) on the island of Svalbard, and some industries burn small amounts of fossil fuel for their own facilities. I encourage Norway to expedite the process of achieving 100 percent clean electricity, as a model for the world. Switching to clean energy on Svalbard could potentially be achieved through a combination of solar, wind, and energy storage technologies.
Because electricity in Norway is relatively green, plentiful, and inexpensive, consumption levels are very high, with an average of 30,000 kilowatt-hours per household per year. While this is partially due to the use of electricity for heating, there would appear to be substantial opportunities for conservation, which would enable Norway to export more clean electricity to European nations where it is needed. The Government of Norway has banned the use of fossil fuels for heating buildings as of 1 January, 2020. For years, programs and subsidies have anticipated this change, encouraging home-owners and businesses to switch to electricity and district energy systems.
Norway is at the forefront of the global transition to zero emission transportation. No other country has such a high level of electric vehicle sales, currently at approximately 45 percent of new passenger vehicle sales. Electric vehicles now comprise almost ten percent of all registered passenger vehicles in Norway. Norway’s goal is for all new passenger vehicle sales to be zero emission by 2025, although this is a target not set in legislation or regulation. The public policies responsible for the high level of electric vehicle sales in Norway include tax incentives and user advantages. Electric vehicles (EVs) are exempted from the value added tax, registration fees, and road tolls. EV drivers can access free parking, free charging stations, and bus lanes. There is a large EV charging network (over 2,500 charging stations with over 12,000 public charging points) that has been publicly financed but is now attracting private investment.
Norway is also a pioneer in the use of electric ferries, with one ferry in operation and plans for 70-80 more to be added in the near-term (roughly one-third of the fleet). Approximately 80 percent of railways are powered by electricity. As a leader in the shipping industry, Norway also has ambitions to reduce emissions from domestic shipping and develop solutions for international shipping.
Biofuels are blended into petrol and diesel for road vehicles, at a current rate of 12 percent, rising to 20 percent in 2020. Norway follows the European Union guidance on sustainable biofuels, and acknowledges there are ongoing challenges related to preventing negative land use changes (where food crops or natural forests are replaced with biofuel crops).
Despite these efforts, it will be challenging for Norway to reach its goal of reducing emissions from the transport sector 50 percent from 2005 levels by 2030. The population continues to grow, car ownership continues to increase, and Norwegians hold onto their vehicles for a long time, meaning it will take years for the existing passenger vehicle stock to be replaced by zero emission vehicles. As well, governments continue to invest heavily in expanding and upgrading roads, which indirectly encourages travel by means of private motor vehicle.
Carbon Capture and Storage
The recent report from the Intergovernmental Panel on Climate Change on the changes needed to limit global warming to a 1.5°C increase highlights the importance of carbon capture and storage (CCS) as a complement to other means of reducing greenhouse gas emissions. Norway pioneered the use of CCS in 1996 with the Sleipner project, where carbon dioxide from offshore natural gas development was pumped into a deep saline reservoir beneath the ocean floor. As of 2016, approximately 16 million tonnes of carbon dioxide were injected, and studies show no evidence of leakage.
Norway is now considering a major multi-billion dollar CCS pilot project involving either the cement industry or a waste incineration facility, with an investment decision anticipated in 2020 or 2021. If successful at a reasonable cost, which is a major challenge, such a project could set an important precedent globally and open the door for exporting Norwegian technology in this field.
International Climate and Forest Initiative
Norway’s International Climate and Forest Initiative (NICFI) has a budget of up to 3 billion NOK ($US 350 million) to reduce deforestation and forest degradation in developing countries, while improving the livelihoods of people living in or near these forests. The initiative is led by the Ministry of Climate and Environment and the Norwegian Agency for Development Cooperation. Deforestation and forest degradation not only contribute to climate change, but also cause the loss of biodiversity and jeopardize the human rights of people who depend on healthy forests.
The NICFI has an explicit commitment to advancing the rights of Indigenous Peoples and forest dependent communities, and evaluations indicate that this is a crucial element of empowering them to become effective forest stewards. Since 2016, gender equality is also explicitly addressed. After ten years of experience, Norway commissioned several evaluations of the initiative and is in the process of implementing recommendations from those evaluations, such as focusing future efforts on tropical forests and countries where progress is being made. In the context of efforts to produce forests, several civil society organizations raised concerns about the human rights implications of high levels of Norwegian imports of Brazilian soy to provide feed for aquaculture, cattle, and dairy.
In light of the global climate emergency I would like to draw attention to the following particularly relevant recommendations from my recent report to the UN General Assembly on climate change and human rights:
78. Developed States should demonstrate leadership by:
(a) Prohibiting further exploration for additional fossil fuels, since not all existing reserves can be burned while still meeting the commitments of the Paris Agreement;
(b) Requiring all new natural gas power plants to use carbon capture and storage technology and requiring existing gas plants to be retrofitted with carbon capture and storage technology;
(c) Rejecting any other expansion of fossil fuel infrastructure;
(d) Prohibiting the expansion of the most polluting and environmentally destructive types of fossil fuel extraction, including oil and gas produced from hydraulic fracturing (fracking), oil sands, the Arctic or ultra-deepwater.
80. States should also consider the following mitigation priorities:
(a) Triple investment in renewables, electricity storage and energy efficiency to roughly $2 trillion per year in the short term, increasing to $3 trillion by 2050;
(b) Accelerate actions to reduce short-lived climate pollutants (methane, black carbon, ground-level ozone and hydrofluorocarbons), including through the ratification and implementation of the Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer; the expansion of programmes to replace polluting cookstoves and fuels with clean technologies; and binding regulations to address methane emissions from the oil and gas industry, agriculture and waste
91. Twenty-eight years after the Alliance of Small Island States first proposed a mechanism to address loss and damage, it is time for action. States should agree on a common definition of the concept, including economic costs (such as damages to crops, buildings and infrastructure) and non-economic losses (such as loss of life, livelihoods, territory, culture, habitats or species). States must establish one or more new financing mechanisms that generate revenue to fund payments for loss and damage suffered by vulnerable developing countries, such as small island developing States, because of climate change.
92. Financing for loss and damage could be provided through an air travel levy, a levy on fuels used by the aviation and shipping industries, or a climate damages levy on the revenues of fossil fuel companies. A basic global air travel levy would raise $40–$100 billion annually (at $10–$25 per person per flight, given that current passenger levels exceed 4 billion per year). Air travel causes significant, largely unregulated emissions, and is used primarily by relatively wealthy people. A progressive air travel levy could impose higher payments on business- and first-class tickets, as well as on longer flights. Nine States, including Cameroon, Chile, France and the Republic of Korea, have already adopted an air-ticket solidarity levy, with the proceeds going towards Unitaid, a global health initiative.
Indigenous Peoples, Human Rights, and the Environment
One of the highlights of my visit to Norway was three days spent in Karasjok, Kautokeino, and other sites in Finnmark County, where I was hosted by the Sámi Parliament. The Sámi people have lived in Norway, Sweden, Finland, and Russia for many thousands of years. Only in recent decades, however, has the Government of Norway begun to respect the indigenous rights of the Sámi people. Important steps forward have included the Sami Act (1987), the inclusion of Sámi rights in the Constitution of Norway (1988), the establishment of the Sámi Parliament (1989), the Finnmark Act (2005), and an agreement on procedures for consultation between the Sámi Parliament and state authorities (2005).
Despite these positive developments, there remain serious concerns related to human rights and the environment. Reindeer husbandry is at the heart of Sámi culture and provides a livelihood for thousands of people. Healthy and productive environments are essential for both the herders and the reindeer. Both Sámi reindeer herders and Sámi organizations expressed deep worries about threats to the sustainability of reindeer husbandry caused by the encroachment, fragmentation, and cumulative impact of existing and proposed developments including mines, wind farms, hydroelectric power plants, powerlines, railways, cabins, tourism activities, and the infrastructure associated with these developments, especially roads. As the Special Rapporteur on the rights of indigenous peoples observed in 2011, these “activities have resulted in loss and fragmentation of pasture lands, with detrimental effects on reindeer” and proposed “natural resource extraction and development projects threaten to diminish areas available for grazing.”
According to the Sámi, traditional ecological knowledge, which must be considered in assessments of these developments, is not being given sufficient weight. Projects of particular concern include the proposed Davvi wind farm, the Nussir copper mine, and re-opening of the gold mine at Bidjovagge.
The Nussir mining project was also criticized by environmental organizations, who noted that Norway is one of only a handful of nations worldwide that continues to allow submarine disposal of mine tailings (along with Chile, Indonesia, Papua New Guinea, and Turkey). A report by Norway’s Institute of Marine Research concluded that submarine tailings disposal in fjords would contaminate the water, reduce populations of fish and crustaceans, and cause significant ecosystem disruption. I was surprised to learn that submarine tailings disposal would be approved in a National Salmon Fjord, as is the case with the Nussir project. The Government of Norway has amended its position and will not allow future projects to use submarine tailings disposal, but Nussir is not covered by this change in policy.
Reindeer herders also strongly oppose the heavy-handed orders forcing them to reduce the size of their herds, an action the Norwegian Government says was necessary to protect the health of reindeer and the ecological health of regions that were being over-grazed. The forced slaughter has caused extensive anguish in Sámi communities, and is the focus of a complaint to the UN Human Rights Committee.
I endorse the recommendations made by the Special Rapporteur on the rights of Indigenous peoples in 2011 and 2016, noting with concern that progress in implementing these recommendations has been slow. For example, there is widespread agreement that the Mining Act needs to be updated to clarify and protect Sámi rights. A new agreement that would extend the consultation process for Sámi people and rights to include county and municipal governments has been delayed, but would be an important step forward. I also urge both the Government of Norway and the Sámi Parliament to take the necessary steps within their authority to expedite completion and ratification of the Nordic Sámi Convention.
The Sámi also depend highly on access to fisheries, yet they face challenges in securing adequate access. For example, the Sámi have requested an increase in their quota for cod, to a seemingly modest 1.2 percent share of the Total Allowable Catch. In 2016, the Norwegian Institute of Human Rights recommended that the Sea Sámi's right to fish be established by law, since it is part of the practice of their culture and based on their historical fishing customs. The Sámi are also deeply concerned about the impact of fish farms on wild Atlantic salmon.
Like most Indigenous peoples worldwide, the Sámi are environmental human rights defenders. In view of its longstanding and ongoing leadership at the international level in protecting environmental human rights defenders, Norway could provide a model for the world in protecting the rights of Indigenous peoples, protecting the environment, and highlighting the connections between human rights, healthy ecosystems, and healthy people. The Government of Norway should redouble its efforts to secure the free, prior, and informed consent of the Sámi before making any decisions that affect their rights, as set forth in the UN Declaration on the Rights of Indigenous Peoples.
While clean water is now globally recognized as a fundamental human right, this is not yet the case for clean air despite the fact that air pollution kills millions of people annually, including hundreds of thousands of children under the age of five. Surely clean air is one of the basic elements of the right to live in a safe, clean, healthy and sustainable environment.
In general, Norway has very good air quality. As recently as a few years ago, this was not the case. In 2015, a legal action was brought against Norway by the European Free Trade Association’s Surveillance Authority for failure to comply with the limits on air pollution established by European Union Directive 2008/50/EC on ambient air quality and cleaner air for Europe. The EFTA Court of Justice concluded that Norway had repeatedly exceeded limits for particulate matter, sulphur dioxide and nitrogen dioxide between 2008 and 2012, thus violating the EU air quality law.
Today, all of the Norwegian cities listed in the World Health Organization’s Urban Air Quality database have annual levels of fine particulate matter (PM2.5, the main pollutant implicated in causing respiratory illness, cardiovascular disease, stroke, and lung cancer) at or below the WHO guideline (annual mean of 10 micrograms per cubic meter). As well, Norway had no exceedances of the European Union air quality limit for nitrogen dioxide in 2018, in contrast to many other European nations.
The improvements in Norwegian air quality are directly connected to stronger environmental laws, policies and other measures at both the national and local level, particularly in the transport sector (discussed earlier in the section on climate change). These improvements reinforce the importance of taking an integrated approach to air pollution and climate change. Norway appears to be successfully implementing all seven steps outlined in the Special Rapporteur’s 2019 report on air pollution and human rights. For example, there is an extensive air quality monitoring network, information on air quality is widely available, including detailed daily updates, and standards are in place through a combination of European Union legislation (e.g. Air Quality Directive) as well as Norwegian law (the Pollution Control Act). To further improve air quality, Norway’s limit values for particulate matter have been made more rigorous, and more ambitious national goals for air quality have been set. Local governments in Norway also play a major role in protecting air quality through planning, zoning, and oversight of transport.
I will more comprehensively address these issues, as well as Norway’s human rights progress and challenges related to water, food, biodiversity, urban sustainability, procedural rights, business, and the Government Pension Fund Global in my report to the UN Human Rights Council, which I will present in March 2020.
I would like to conclude by reiterating my heartfelt appreciation to all of the Norwegians and Sámi people who took the time to share their views with me over the past two weeks. It has been an honour and a privilege to learn about this beautiful Nordic nation, the environmental challenges Norway faces, and the genuine determination to overcome these challenges in order to respect, protect, and fulfill every Norwegian’s right to live in a clean and healthy environment.
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