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