II.
Fundamental Principles of Legal and Moral Responsibility (CIEL, Plan B)
As noted in the preceding section, the UNGPs embody and elucidate underlying
principles of corporate responsibility drawn from decades of human rights instruments and
jurisprudence. In assessing the role and responsibilities of Carbon Majors with respect to climate
change and human rights, the Commission can and should draw on that larger body of human
rights law and fundamental principles of legal and moral responsibility that apply across legal
domains. CIEL and Plan B addressed these principles in their respective briefs.
While establishing causal links between a respondent’s actions and a petitioner’s harms is
a necessary condition of legal responsibility in most circumstances, judicial bodies and human
rights institutions alike routinely seek evidence that a respondent not only caused or contributed
to a petitioner’s harm, but that the respondent was culpable for that harm in some way. Common
elements for evaluating that culpability have emerged in multiple domains of law, including the
laws of human rights, tort, and civil liability. 322
Jurists and legal scholars have frequently observed that reasonable foreseeability of harm
and ability to avoid it are core tenets of determining responsibility. Jurisprudence regarding the
right to life, discussed in greater detail in Sections II and IV of this joint summary amicus brief,
is instructive in this regard. While formulations vary slightly among jurisdictions, the test for
breach generally consists of three common elements:
(i)
(ii)
(iii)
Was the person/entity aware of the risk to life or would a reasonable
person/entity in similar circumstances have been so aware?
Was the risk real and substantial?
Did the person/entity take reasonable and proportionate steps to prevent the
loss of life?323
In a case involving State responsibility for human rights violations, for example, the
European Court of Justice has held that where national authorities were aware of serious risks of
a methane explosion from a waste facility, but failed to act to avoid or minimize that risk, the
State defendant violated its obligations under applicable human rights instruments. 324 More
recently, and in the context of climate change, a Dutch court held that, in the face of clear
evidence that the Netherlands was aware of climate risks, the State had a concomitant duty to act
on and address those risks:
The court also takes account of the fact that the State has known since 1992, and certainly
since 2007, about global warming and the associated risks. These factors lead the court to
322
For a detailed discussion, including relevant scholarship, see CENTER FOR INTERNATIONAL ENVIRONMENTAL
LAW, SMOKE AND FUMES: THE LEGAL AND EVIDENTIARY BASIS FOR HOLDING OIL COMPANIES ACCOUNTABLE FOR
CLIMATE CHANGE, 5 (Nov. 2017), http://www.ciel.org/wp-content/uploads/2017/11/Smoke-Fumes-FINAL.pdf.
323
Plan B brief, at § 6.1.2.
324
Öneryıldız v. Turkey [GC], App. no. 48939/99, Eur. Ct. H. R., at § 71 (2004) (stating “The Court considers that
this obligation [i.e to take positive steps to uphold the right to life] must be construed as applying in the context of
any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial
activities, which by their very nature are dangerous …”); see also Plan B brief, at § 6.1.2.
67
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