CLIMATE CHANGE AND HUMAN RIGHTS • Take measures to prevent third parties (e.g. private companies) over which they hold influence from interfering with the enjoyment of human rights in other countries • Take steps through international assistance and cooperation, depending on the availability of resources, to facilitate fulfillment of human rights in other countries, including disaster relief, emergency assistance, and assistance to refugees and displaced persons • Ensure that human rights are given due attention in international agreements and that such agreements do not adversely impact upon human rights.167 The OHCHR has noted that these standards and principles are “consistent with and further emphasize” the principle of “common but differentiated responsibilities” contained in the UNFCCC,168 and the various provisions of the UNFCCC which call for international cooperation and financial and technical assistance between countries.169 According to one author, the obligation of international cooperation would likely require the following actions from countries with respect to climate change: (i) setting mitigation targets that are consistent with the full enjoyment of human rights (and implementing those targets); (ii) funding adaptation measures in vulnerable countries; and (iii) crafting international agreements that do not adversely affect human rights.170 Other components of this obligation may include the provision of financial assistance and/or technology transfer for climate change mitigation measures in countries that lack resources to implement those measures, and compensating people for harm incurred as a result of climate change. (iv) Obligations to Address Transboundary Harm States also have a duty to address transboundary environmental harms, which is closely related to, and partially premised on, their duties of international cooperation. This obligation also derives in part from customary international law, which primarily deals with a state’s obligations vis-à-vis other states, as opposed to a state’s obligations to individuals. The ICJ has clarified that, as a matter of customary international law, it is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”171 Specifically, there is a “principle of prevention” that requires a state to “use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.”172 The ICJ’s holding is consistent with the principle of sic utere (also known as the “no harm” rule).173 It is less clear whether states have an independent obligation, as a matter of international human rights law, to prevent transboundary harms where the harms originate from activities that occur within their own jurisdiction but have adverse effects on the enjoyment of human rights in other jurisdictions. As noted above, the CESCR has interpreted the ICESCR as encompassing extraterritorial obligations of this nature. The language of the convention strongly supports this interpretation—states are directed to cooperate internationally, and to use the maximum available resources, to protect the numerated human rights for all persons.174 There is no jurisdictional limitation. However, many developed countries have disagreed with this interpretation, and thus there is not a clear consensus on the extraterritorial application of the convention.175 167 OHCHR (2009), supra note 71, at ¶ 86 (citing CESCR General Comments No. 12, No. 13, No. 14, No. 15). 168 Id. at ¶ 87 (citing UNFCCC Art. 4, pp. 4 and 9). 169 These include: Article 3(5), which recognizes that Parties “should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them to better address the problems of climate change;” Article 4(1)(c), which specifies that Parties should “[p]romote and cooperate in the development, application, and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions” of GHGs; and Article 4(1)(e), which directs parties to “[c]ooperate in preparing for adaptation to the impacts of climate change,” by developing integrated resource management and protection plans, among other things. 170 Mark Limon, Human Rights and Climate Change: Constructing a Case for Political Action, 33 Harv. Envtl. L. Rev. 439, 455 (2009). 171 Pulp Mills Case (2010), supra note 93, at p. 101 (citing Corfu Channel (United Kingdom v. Albania), Merits, Judgment (1949)). See also Trail Smelter (United States v. Canada), 3 R.I.A.A. 1938, 1963 (Mar. 11, 1941) (“no state has the right to use or permit the use of its territory in such a manner as to cause injury… in or to the territory of another or of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”). 172 Id. at 56, citing Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, p. 29 (1996)). 173 Marte Jervan, The Prohibition of Transboundary Environmental Harm. An Analysis of the Contribution of the International Court of Justice to the Development of the No-harm Rule, PluriCourts Research Paper No. 14-17 (2014). 174 ICESCR Art. 2. 175 Matthew Craven, The Violence of Dispossession: Extra-Territoriality and the Economic, Social, and Cultural Rights, in Economic, Social and Cultural Rights in Action (M.A. Baderin & R. McCorquodale eds. 2007). T H E O B L I G AT I O N S O F G O V E R N M E N T S A N D P R I VAT E A C T O R S T O R E S P O N D T O T H E H U M A N R I G H T S I M P L I C AT I O N S O F C L I M AT E C H A N G E 25