SMOKE AND FUMES 5 As Justice Oliver Wendell Holmes of the US Supreme Court observed, tort liability may be properly imposed when the harm in question was both reasonably foreseeable and avoidable.15 Legal philosopher H.L.A. Hart reiterated these two criteria, namely, the capacity to foresee the harm and the ability to avoid the harm, as both necessary and sufficient conditions for responsibility for harmful outcomes.16 Professor Stephen R. Perry of the University of Pennsylvania School of Law distills these elements into an “outcomeresponsibility” theory of tort liability. As Perry explains, an actor agent “is outcome-responsible for a harmful outcome if and only if he causally contributed to it, possessed the capacity to foresee it, and had the ability and opportunity to take steps, on the basis of what could have been foreseen, to avoid it.”17 In a review of Hart and Perry, Goldberg & Zipursky affirm and further elaborate on the essential elements of responsibility. “A person is outcome-responsible for a loss if the person’s volitional action was a necessary condition for the loss’s having occurred, and if the loss was avoidable, in that the person could reasonably have foreseen that his action might cause the loss, and the person was capable of acting so as not to cause it. Critically, for any © PublicDomainPictures/Pixabay Both tort law and international human rights law are rooted in this underlying concept of responsibility. The legal analysis presented in this section is not intended to prove the elements of particularized claims, but rather to distill the core components of responsibility in the areas of tort law, human rights law, and products liability. When determining whether someone can be held liable for a harm—and assuming the burden of showing causation has been met—tort law and human rights law both converge on two core elements of responsibility: An actor is responsible for a harm when they have 1) the ability to foresee a harm, and 2) the ability and opportunity to avoid or minimize that harm. given loss, there can be more than one outcome responsible actor[.]”18 Both Perry and Goldberg & Zipursky extend this theory to include the sale of products. When someone who produces or markets a particular product has the ability to foresee certain potential harms to flow from that product, this risk of harm gives rise to an obligation to Both tort law and international human rights law are rooted in this underlying concept of responsibility. undertake further research. Perry observes that, “the company that negligently fails to carry out appropriate further research [is] outcome-responsible for the harms that result from releasing its product onto the market[.]”19 Goldberg & Zipursky are even more explicit, concluding that “[a] seller can cogently be deemed morally responsible for its product having caused an injury when the injury was an avoidable consequence of selling the product.”20 Corporate Responsibility for Human Rights Violations Arising from Climate Change In light of this analysis, the parallels between responsibility under tort and civil law, and the essential elements of responsibility for human rights violations become clear. Accordingly, we find the same elements reflected in the work of human rights bodies and mandate holders. 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.21 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 Commission 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