the opinion that, given the high risk of hazardous climate change, the State has a serious
duty of care to take measures to prevent it. 325
Similarly, in addressing responsibility for common law torts, for example, Justice Oliver
Wendell Holmes of the US Supreme Court observed that liability may be properly imposed when
the harm in question was both reasonably foreseeable and avoidable. 326 Numerous scholars have
reiterated and expanded upon Justice Holmes’ analysis. 327
In its treatise on “Corporate Complicity & Legal Accountability,” the International
Commission of Jurists explicitly addressed the fundamental tenets of responsibility underlying
the laws of tort in common law jurisdictions, of non-contractual obligations in civil law
countries, and the law of human rights. Recognizing the growing importance of civil liability in
assuring corporations are held accountable for their role in human rights violations, and further
recognizing that laws of civil liability and human rights protect similar fundamental interests, the
International Commission of Jurists undertook a comparative analysis of laws of tort and civil
liability across countries, and explored “the ways in which, across jurisdictions, civil liability
may arise for companies and/or their officials when they are complicit in gross human rights
abuses.”328
The International Commission of Jurists distilled the principles of civil liability (i.e.
responsibility) into four basic questions, which it found equally applicable to determining
whether companies were complicit in gross human rights abuses, and which the Commission
may find instructive in this instance:
1. Was harm inflicted to an interest of the victim that is protected by law?
2. Did the company’s conduct contribute to the infliction of the harm?
3. Did the company know or would a prudent company in the same circumstances
have known that its conduct posed a risk of harm to the victim?
4. Considering this risk, did the company take the precautionary measures a prudent
company would have taken in order to prevent the risk from materializing? 329
325
Urgenda Foundation v. Kingdom of the Netherlands, Judgment: Regarding the failure of the Dutch State to take
sufficient actions to prevent dangerous climate change (District Court of the Hague 2015); see also Plan B brief, at §
6.2.
326
CIEL, SMOKE AND FUMES: THE LEGAL AND EVIDENTIARY BASIS FOR HOLDING OIL COMPANIES ACCOUNTABLE
FOR CLIMATE CHANGE, supra note 323, at 5.
327
See id. (for a discussion of additional scholarship, including from HLA Hart, Stephen Perry, John C. P. Goldberg,
and Benjamin Zipursky).
328
Id. at 5-6 (citing INTERNATIONAL COMMISSION OF JURISTS, CORPORATE COMPLICITY & LEGAL ACCOUNTABILITY,
VOLUME 3: CIVIL REMEDIES (2008), available at http://www.icj.org/wp-content/uploads/2009/07/Corporatecomplicity-legal-accountability-vol3-publication-2009-eng.pdf).
329
CIEL, SMOKE AND FUMES: THE LEGAL AND EVIDENTIARY BASIS FOR HOLDING OIL COMPANIES ACCOUNTABLE
FOR CLIMATE CHANGE, supra note 323, at 6.
68
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