CLIMATE CHANGE AND HUMAN RIGHTS COP has yet to establish any clear mandate for countries, climate finance mechanisms, or other entities to ensure access to a grievance mechanism for those who are harmed by the impacts of or responses to climate change. (b) Substantive Obligations Both the ICESCR and ICCPR contain substantive rights, such as the rights to life, health, and an adequate standard of living, accompanied by a combination of: (i) negative obligations for states to refrain from taking action that would interfere with rights, (i.e., a duty to respect rights); and (ii) positive obligations for states to protect and fulfill rights.112 As noted by the UN General Assembly: “Each state has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political, and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.”113 Based on these obligations, the CESCR, regional courts, and UN special rapporteurs have concluded that states have a general duty to “adopt legal and institutional frameworks that protect against, and respond to, environmental harm that may or does interfere with the enjoyment of human rights.”114 The framework must ensure that the state will respect human rights in all of its activities and decisions, and include protections to prevent third parties from creating environmental harms that interfere with the exercise of human rights.115 In addition, the European Court of Human Rights (ECtHR) has held that states must also take reasonable measures to protect citizens against the reasonably foreseeable effects of natural disasters.116 The adverse impacts of climate change clearly qualify as “environmental harms” that can interfere with the exercise of human rights. Thus, states must enact legal and institutional frameworks to protect against and respond to those impacts. More specifically, there are at least five types of obligations that may arise in this context: (1) adaptation obligations, requiring states to enact frameworks for protecting people against the effects of climate change; (2) domestic mitigation obligations, requiring states to regulate the sources of GHG emissions; (3) international cooperation obligations, requiring states to participate in international negotiations for an effective global climate agreement; (4) transboundary mitigation obligations, requiring states to mitigate the effect of their activities on the human rights of persons outside of their jurisdiction; and (5) an obligation to ensure that mitigation and adaptation activities do not themselves contribute to human rights violations. There are at least three overarching principles which apply to all of these obligations. First, states are “obliged to take measures towards the full realization of economic, social, and cultural rights to the maximum extent of their available resources.”117 This means that states “must take deliberate, concrete and targeted measures, making the most efficient use of available resources, to move as expeditiously and effectively as possible towards the full realization of rights.”118 112 Regarding implementation, the ICESCR specifies that each party shall “take steps, individually and through international assistance and cooperation… to the maximum of its available resources, with a view to progressively achieving the full realization of” the rights contained therein. ICESCR Art. 2. The ICCPR contains slightly different language, requiring each party to “respect and to ensure to all individuals within its territory and subject to its jurisdiction” the rights recognized therein, and to “take the necessary steps…to adopt such laws or other measures as may be necessary to give effect” to those rights. ICCPR Art. 2, pp. (1)-(2). Based on this language, the treaty bodies have concluded that both agreements contain a combination of positive and negative obligations. HR Committee General Comment No. 31, pp. 5-7, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004); HRC General Comment No. 6, pp. 1, 5, UN Doc. HRI/GEN/1/Rev.1 (1994); CESCR General Comment No. 3, pp. 1-2 UN Doc. E/1991/23 (Dec. 14, 1990). 113 G.A. Res. 53/144, Art. 2, p. 1, UN Doc. A/RES/53/144 (March 8, 1999). 114 Mapping Report, supra note 64, at pp. 47 (citing statements from these entities to support this proposition). See, e.g., CESCR, General Comment No. 14, pp. 4, 15, 36, UN Doc. E/C.12/2000/4 (Aug. 11, 2000) (to achieve full realization of right to health, states must adopt measures to protect citizens from environmental hazards, and implement policies “aimed at reducing and eliminating pollution of air, water and soil”); Fadeyeva v. Russia, 45 Eur. Ct. H.R. 10 (2005); Öneryildiz v. Turkey, 2004-XII European Court of Human Rights 1, ¶p. 89 (“The positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2… entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.”); López Ostra v. Spain, 20 Eur. Ct. H.R. 277 (1994); Tătar v. Romania, App. No. 67021/01, Eur. Ct. H.R. (Jan. 27, 2009); Ogoniland Case (2011), supra note 95; Hatton and Others v. United Kingdom, 37 Eur. Ct. H.R. 28, ¶ 98 (2003). See also GabcíkovoNagymaros (Hungary v. Slovakia), 1997 I.C.J. 7 (Sept. 25) (separate opinion of Judge Weeramantry) (describing the protection of the environment as a “sine qua non for numerous human rights such as the right to health and the right to life itself”). 115 Mapping Report, supra note 64, at pp. 47-6. 116 See, e.g., Budayeva and Others v. Russia, App. Nos. 15339/02, 21155/02, 20058/02, 11673/02 and 1543/02, Eur. Ct. H.R. (March 20, 2008). 117 OHCHR Report (2009), supra note 71, at p. 75 (citing CESCR General Comment No. 3, pp. 1-2). 118 Id. at p. 76 (citing CESCR General comments No. 3 and No. 14). 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 19