In Search of a Fair Share: Article 112 Norwegian Constitution, International Law and an Emerging Inter-Jurisdictional Discourse in Climate Litigation

Minnerop, Petra; Rostgaard, Ida

Abstract

Climate change is a common sphere where an inter-jurisdictional judicial discourse gradually evolves. Engaging with the reasoning of other courts strengthens controversial judicial pronouncements in a complex area of law and it reduces the risk of being an “outlier” when domestic law is applied in the light of international law on climate change. It upholds the promise of cooperative international law where states address a common concern of humankind collectively, in this instance, through their judicial branches. A coordinated, interjurisdictional judicial discourse protects the climate if regulatory gaps arise or domestic efforts of governments in reducing emissions remain inadequate. Conversely, deference to executive branches implies granting a wide margin of appreciation to governments, even in pursuing policies that risk achieving the Paris Agreement’s temperature goal. The latter approach nurtures the perception that climate change is an inherently foreign policy issue, largely excluding judicial review. This Article rebuts this perception and offers a legal analysis from the viewpoint that justiciable climate change standards are defined by international law and that domestic law—including constitutional law—must be interpreted and applied in the light of this international law. It spells out legal parameters of effective rights protection within this framework of international and national law and uses the right to a healthy environment in the Norwegian Constitution as primary example to develop an analytical argument that can be transferred to other jurisdictions. This analytical argument comprises the full dimension of the legal consequences that arise from the threat that extraterritorial emissions pose to that constitutional right, given the global nature of climate change impacts. In January 2020, the Borgarting Court of Appeal was the first to recognize that extraterritorial emissions resulting from combustion of Norwegian oil are significant for determining the risk for the right to a healthy environment. This recognition was confirmed by the Supreme Court of Norway in December 2020. This insight paves the way for judiciaries to scrutinize the cumulative effects of global emissions for their impact on the protection of constitutional rights to a healthy environment. Judgments of other courts are used as “comparative units” to substantiate that the dichotomy between deference to governments and access to justice can be overcome if courts refuse to accept climate change as a “no-go” area; and even enter into an inter-jurisdictional judicial discourse to strengthen their position.

Citation

Minnerop, P., & Rostgaard, I. (2021). In Search of a Fair Share: Article 112 Norwegian Constitution, International Law and an Emerging Inter-Jurisdictional Discourse in Climate Litigation. Fordham international law journal, 44(4), 847-922

• Journal Article Type: Article
• Acceptance Date: Sep 21, 2020
• Publication Date: 2021
• Deposit Date: Sep 25, 2020
• Publicly Available Date: Nov 8, 2022
• Journal: Fordham international law journal.
• Print ISSN: 0747-9395
• Publisher: Fordham University School of Law
• Peer Reviewed: Peer Reviewed
• Volume: 44
• Issue: 4
• Pages: 847-922
• Public URL: https://durham-repository.worktribe.com/output/1261684
• Publisher URL: https://www.fordhamilj.org/volume-44-issue-4/2021/4/5/in-search-of-a-fair-share-article-112-norwegian-constitution-international-law-and-an-emerging-inter-jurisdictional-judicial-discourse-in-climate-litigation