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Netherlands International Law Review

, Volume 65, Issue 2, pp 185–215 | Cite as

Climate Change and State Responsibility for Human Rights Violations: Causation and Imputation

  • Ottavio Quirico
Article
  • 234 Downloads

Abstract

The Paris Agreement provides that States ‘should respect, promote and consider their respective obligations on human rights’ in ‘taking action to address climate change’. Should therefore States be held responsible for anthropogenic greenhouse gas emissions in breach of fundamental obligations, that is, the duties to respect, protect and fulfil first, second and third generation human rights? The key cases of the Inuit Petitions to the Inter-American Commission on Human Rights and Kivalina demonstrate that there are serious objective and subjective impediments to holding a State responsible for greenhouse gas emissions. By contrast, the decision of the Hague District Court in Urgenda has the potential to prompt a paradigm shift, whereby the evolution from first to second and third generation human rights allows streamlining fundamental issues of causation, extraterritoriality, attribution of responsibility and policy discretion. It is therefore arguable that the international recognition of a human right to a sustainable environment would require the plaintiff to only demonstrate direct causation, instead of indirect causation, thus fundamentally shifting the burden of proof to the defendant. Furthermore, such a right would allow attributing responsibility pro rata, based on minimum reduction targets outlined in the UNFCCC regime, overcoming issues of extraterritoriality and policy discretion. The human right to a sustainable environment entails asserting the fundamental nature of the no-harm rule.

Keywords

Anthropogenic greenhouse gas emissions Human rights Fundamental right to a sustainable environment State responsibility Causation Attribution of responsibility 

1 Introduction

In light of relevant scientific evidence, it is commonly held that even containing global temperature increase within 2 °C would have negative implications for human rights.1 Accordingly, the preamble to the 2015 Paris Agreement proclaims a State duty to ‘respect, promote and consider’ human rights obligations ‘when taking action to address climate change’.2 The Agreement has been defined as a ‘human-rights friendly’ document,3 but it has been underscored that it uses soft language when the perspective of a temperature increase of 3–4 °C would have catastrophic implications for fundamental rights.4

In practice, a few cases have raised the question of the impact of environmental phenomena induced by climate change, such as ice-melting, on a wide range on fundamental rights, for example, the claims to property, health, life, physical integrity, residence, movement, inviolability of home and self-determination. However, the outcome is controversial and not uniform. Two Inuit Petitions submitted to the Inter-American Commission on Human Rights (IAComHR) against the US and Canada for failing to adopt adequate mitigation and adaptation measures have not produced any appreciable results.5 A further action undertaken in US courts by the Inuit community living in Kivalina, Alaska, against energy companies, including Chevron, Shell and ExxonMobil, was unsuccessful.6 Fundamentally, in these cases the impossibility of establishing a causal link between greenhouse gas (GHG) emissions and their environmental effects affecting human rights is the reason for rejection.

Subjective and objective obstacles prevent the establishment of causation and attribution of responsibility. Obstacles notably include the plurality of agents contributing to GHG emissions and intervening factors aggravating environmental phenomena that negatively affect human rights. The Office of the High Commissioner for Human Rights (OHCHR) has indeed underscored that ‘the physical impacts of global warming cannot easily be classified as human rights violations, not least because climate change-related harm often cannot clearly be attributed to acts or omissions of specific States’.7 Despite scientific improvement, the Special Rapporteur to the Human Rights Council (HRC) on human rights and the environment, John Knox, recently upheld the stance of the OHCHR.8

In 2015, a Dutch District Court reversed the negative approach in Urgenda. In this case, the Foundation Urgenda commenced a lawsuit against the State of the Netherlands for not adequately regulating GHGs, based, inter alia, on the rights to life and to private and family life under Articles 2 and 8 of the European Convention on Human Rights (ECHR).9 Although the decision of the Court is only indirectly based on human rights, since it primarily focuses on a general duty to prevent environmental damage, and is still under appeal, the Court effectively enjoined the State of the Netherlands to improve its climate change mitigation policies.10

In light of the existing tension between theory and practice, whereas it is ideally assumed that human rights obligations should shape State climate policies,11 it is still largely uncertain to what extent and how this should effectively take place.12 This is confirmed by the practice of human rights treaty bodies, which take an exhortative approach vis-à-vis States on the question, but fall short of clarifying the legal implications of climate change for fundamental rights.13 Against such a background, based on the key cases of the Inuit Petitions, Kivalina and Urgenda, this article addresses the question through the lens of the core issues of causation and attribution of responsibility that lie at the heart of the relation between State responsibility for GHG emissions and human rights violations.

The article focuses primarily on mitigation, that is, ‘anthropogenic intervention to reduce the sources or enhance the sinks of greenhouse gases’.14 Mitigation addresses the causes of climate change via GHG emission constraints and is de-localised, hence highly problematic in terms of liability. Complementary considerations concern adaptation, that is, ‘adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’.15 Adaptation addresses the effects of climate change via localised measures, such as river or coastal dykes, and is therefore less questionable in terms of attribution of responsibility.

With regard to human rights, the article adopts a classical tripartite framework, including the duties to respect, protect and fulfil fundamental claims,16 as well as first, second and third generation human rights.17 Thus, the analysis focuses on negative and positive duties by moving from civil and political claims to economic, social and cultural rights, and eventually the collective claims to development and environment. This approach presupposes the indivisibility and interdependence of human rights.18

The investigation assumes that States have an obligation to respect, protect and fulfil first, second and third generation human rights, regardless of whether they are embedded in the International Covenant on Civil and Political Rights (ICCPR),19 the International Covenant on Economic, Social and Cultural Rights (ICESCR),20 or other instruments.21 This is a valid approach, despite the fact that the duty to respect human rights is mostly grounded in first generation claims, whilst the duties to protect and fulfil human rights are mostly associated with second generation human rights. In fact, the comprehensive text of the preamble to the Paris Agreement, referring to a State obligation to ‘respect, promote and consider’ human rights in climate policies, supports an inclusive interpretation. Even more explicitly, Article 2 of the Draft Paris Agreement asserted ‘respect, protection, promotion and fulfilment of human rights for all’.22

The analysis is divided into three parts, progressing from ‘classical’ first and second generation human rights to the evolving third generation claim to a (climatically) sustainable environment. First, the article considers the objective legal obstacles that hamper the possibility of determining the implications of climate policies with respect to first and second generation human rights, that is, causation and territoriality. Concerning causation, the research focuses on the difficulty of establishing a direct link between GHG emissions and human rights violations, including issues of rising atmospheric temperatures and consequent environmental implications. With respect to territoriality, the investigation pits the trans-boundary nature of climate change against the sovereign dimension of human rights obligations. Secondly, the article explores subjective problems concerning attribution of responsibility. This part of the analysis addresses imputation, which is particularly problematic because of the innumerable sources of GHG emissions, and the political question doctrine. A third part of the research assesses the impact of the prospective third generation right to a (climatically) sustainable environment on the subjective and objective problems that affect the relation between climate change and first and second generation human rights, de lege ferenda.

2 Objective Elements of Human Rights Violations

2.1 Causal Nexus

In their first Petition to the IAComHR, the Inuit alleged violations of fundamental rights, inter alia, because of State ‘action’, that is, overall GHG emissions by the US. Indeed, the Petition argues that ‘by its acts’ the US ‘violates the human rights of the Inuit’ as ‘it emits the most fossil fuels and is responsible for the largest amount of cumulative emissions of any nation on Earth’ and ‘has contributed more than any other nation to the rise in global temperature’.23 The focus is on the negative obligation to abstain from interfering with fundamental rights.

The Petition also asserts that the US should ensure the ‘full and effective enjoyment’ of the fundamental claims of indigenous people in the Arctic, by safeguarding their land and environment, particularly by adopting special measures to implement such rights.24 This approach is underpinned by the obligation to fulfil human rights, which has a positive content and compels States to act and take measures so as to mitigate GHG emissions, thus facilitating, providing and promoting basic needs. Moreover, the request for relief in the Petition prompted the IAComHR to order that the US ‘establish and implement’ a ‘plan to protect Inuit culture and resources’ and ‘mitigate any harm to these resources caused by US greenhouse gas emissions’.25 Such a view is still based on the obligation to fulfil human rights, which thus proves fundamental not only as concerns mitigation measures, but also with respect to adaptation policies.

In the second Inuit Petition to the IAComHR, the Arctic Athabaskan Council alleged that Canadian policies do not adequately regulate black carbon emissions, causing ice-melting in the nearby Arctic environment, in breach of human rights such as the claims to culture, property, health, means of subsistence and self-determination.26 In fact, according to the Petition, ‘Canada’s failure to sufficiently regulate black carbon emissions is violating Arctic Athabaskan peoples’ human rights’.27 This assumption is grounded in the positive obligation to protect human rights, which implies for States a duty to prevent and punish violations of fundamental rights committed by third parties.28

Consequently, the Petitions claim that the US and Canada are ‘obligated under international law to take responsibility for [their] contributions to global climate change both by limiting emissions and by paying reparations’ under a ‘duty to provide appropriate remedy and redress’ to the Inuit.29 The Inuit Petitions assume that the duties to respect, protect and fulfil fundamental rights oblige States to redress human rights violations caused by GHG emissions.30 However, in order to establish responsibility the Petitions should overcome the fundamental objection that there is no direct causal nexus between anthropogenic GHG emissions and breaches of first and second generation human rights.31

The IAComHR has not (yet) addressed the second Inuit Petition and dismissed the first one by assuming that ‘the information provided does not enable [the Commission] to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration [on the Rights and Duties of Man]’.32 According to a scholarly opinion, this would entail an implicit reference to the impossibility of establishing a causal link between GHGs emitted in the US and human rights infringements.33

The link between GHG emissions and first and second generation human rights is indirect and includes two more steps, that is, rising atmospheric temperatures (climate change) and further environmental changes (general causation).34 These intermediate steps make the breach of first and second generation human rights a secondary consequence (specific causation) of anthropogenic GHG emissions.35 In light of cumulative causal circumstances, determining a connection between rising temperatures and specific environmental events, such as hurricane Katrina, which then affect human rights in particular situations, is a complex issue.36 Therefore, attribution of responsibility for breaching the obligations to respect, protect and fulfil specific human rights is a difficult task, which has been made particularly clear by the European Court of Human Rights (ECtHR) with regard to the right to life.37

Under specific circumstances, causation is not seriously problematic. Notably, it is quite certain that anthropogenic GHG emissions have a decisive impact on sea-level rise,38 thus affecting the claim to self-determination of peoples living in low-lying island States.39 Furthermore, it is easier to hold a State responsible when it actively takes mitigation measures affecting human rights, for example, reforestation policies that negatively impact on the life of indigenous peoples.40 The same can be said of adaptation, for instance, relocation measures that do not adequately fulfil the rights to work and adequate housing.41 Therefore, a case-by-case assessment is necessary. However, from the perspective of first and second generation human rights the fundamental problem is determining the extent to which an injured person is required to adduce evidence of an indirect causal link between the injury suffered and State positive or negative conduct causing it.

In this context, relevant specialised organs have generally underscored the negative impact of climate change on fundamental rights, with specific regard to vulnerable groups,42 but have not yet clarified how to simplify the indirect causal nexus between State climate policies and human rights infringements.43 Thus, in a recent resolution the HRC expressed concern because ‘climate change has contributed and continues to contribute to the increased frequency and intensity of both sudden-onset natural disasters and slow-onset events’ that ‘have adverse effects on the full enjoyment of all human rights’.44 The most analytical study so far developed by the OHCHR, concerning the right to health, also relies on indirect causation.45 In its 2017 concluding observations on Norway, the Committee on the Elimination of Discrimination against Women (CEDAW) stated that ‘expanding extraction of oil and gas in the Arctic by the State party and its inevitable greenhouse gas emissions undermine its obligations to ensure the substantive equality of women with men’.46 These statements are insufficient for a particular individual or group of individuals to prove damage in competent fora and claim reparation from the State, which is critical to effectively relying on fundamental rights against climate change.47 In fact, along the lines of the stance of the OHCHR the Special Rapporteur on human rights and the environment recently acknowledged that it is ‘virtually impossible to disentangle the complex causal relationships linking emissions from a particular country to a specific effect’.48

In light of the precautionary principle, the environmental case law of international human rights bodies has mainly focused on the concept of evidence of the ‘probability of the occurrence’ of a violation of an individual applicant’s right.49 Such a standard of proof is in line with Article 3 of the UN Framework Convention on Climate Change (UNFCCC),50 which provides that ‘[t]he Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects’, despite a ‘lack of full scientific certainty’ in the case of ‘serious or irreversible damage’.51 Proof may be facilitated by collective action, as in the main lawsuits so far commenced based on climate change, that is, the two Inuit Petitions, Kivalina and Urgenda. In fact, it is easier to demonstrate the probability of diffuse damage than specific individual damage.52

In Kivalina, the Inuit collective claimed that global warming severely erodes the land where their city sits, threatening imminent destruction. In this respect, the District Court for the Northern District of California required evidence of a ‘substantial likelihood that the defendant’s conduct caused plaintiff’s injury’ or was the ‘seed of the injury’.53 The Court excluded that ‘plaintiffs must show to a scientific certainty that defendant’s effluent, and defendant’s effluent alone, caused the precise harm suffered by the plaintiffs’.54 On this basis, the Court concluded that the distance of Kivalina City from the zone of discharge of GHGs, basically involving the entire globe, in conjunction with environmental factors other than rising atmospheric temperatures, discontinues the nexus between GHG emissions and violations of fundamental rights, particularly the right to property.55 Based on this interpretation, determining a causal link between anthropogenic GHG emissions and breaches of first and second generation human rights is a complex task.

In Urgenda, the Hague District Court reached a thoroughly opposite conclusion. Indeed, in light of the assessment reports of the Intergovernmental Panel on Climate Change (IPCC),56 the Court held that the fact that ‘Dutch emissions only constitute a minor contribution to global emissions does not alter the State’s obligation to exercise care towards third parties’.57 As a consequence, based on the concept of ‘risk regulation’,58 the Court determined that ‘a sufficient causal link can be assumed to exist between Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate’, since ‘the fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emissions contribute to climate change’.59

The argument of the Dutch Court in Urgenda definitely focuses on the duty of care under Dutch tort law, rather than human rights, which were considered inapplicable to a non-natural person such as Urgenda.60 However, the Court clearly noted that the human rights invoked by the plaintiff, particularly under ECHR Articles 2 (Right to Life), 8 (Right to Private and Family Life), and 13 (Right to an Effective Remedy), are pertinent ‘as a source of interpretation when detailing and implementing open private-law standards’.61 Fundamental claims therefore become part of the factors to be taken into account in determining damage caused by climate change. As such, the reasoning of the Court concerns not only general causation, but also specific causation, including fundamental rights.62 This leads to the conclusion that the duty of care facilitates establishing a causal link between anthropogenic GHG emissions and the violation of first generation human rights.

2.2 Extraterritorial Damage

The two Inuit Petitions to the IAComHR assume that it is possible to hold States responsible for excessive GHG emissions in breach of human rights extraterritorially. In fact, the Inuit and Athabaskan people claim that the US and Canada should comply with human rights duties they owe to the Inuit and Athabaskan groups living in the Arctic Circle, irrespective of their location in Canada rather than the US. More specifically, according to the petitioners unsustainable GHGs emitted by the US and Canada are in breach of individual human rights, such as property, food, water and physical well-being, of specific natural persons situated in both countries.63 However, the question is quite controversial, because it is usually assumed that the obligations to respect, protect and fulfil human rights have territorial application. This is supposedly inconsistent with the extraterritorial scope of climate policies, with particular regard to mitigation measures, which necessarily have a transboundary effect.64 Thus, the question arises as to whether States should frame their climate policies in order respect, protect and fulfil human rights extraterritorially.

As concerns first generation human rights, under Article 2(1) of the ICCPR a State party ‘undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction’ the rights recognised in the Covenant. Prima facie, this text precludes an extensive interpretation, whereby a State (A) should mitigate its GHG emissions and take adaptation measures to protect the right to life of individuals living in other countries (A–Bx, A–Cy, A–Dz …). In order to resolve the issue, the International Court of Justice (ICJ) interpreted ICCPR Article 2(1) disjunctively, reading the wording ‘within [State] territory and subject to its jurisdiction’ as ‘within [State] territory or subject to its jurisdiction’.65 Furthermore, the Human Rights Committee (HRCte) held it ‘unconscionable to so interpret responsibility under Article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory’.66

The question is less complex as concerns second generation human rights. Indeed, under Article 2(1) of the ICESCR a State party must undertake steps, to the maximum of available resources, ‘individually and through international assistance and co-operation’ for achieving progressively the full realisation of the rights recognised in the Covenant, particularly via the adoption of legislative measures.

With specific regard to the right to water, according to the Committee on Economic, Social and Cultural Rights (CESCR) international cooperation would fundamentally require a State not to interfere, directly or indirectly, with second generation human rights in other countries.67 This approach is sufficient to support an extraterritorial extension of the obligations to respect and protect human rights, whereby a State (A) should mitigate its excessive GHG emissions in order to respect the right to water of natural persons situated in other States (A–Bx, A–Cy, A–Dz …). Furthermore, the CESCR has supported an extraterritorial interpretation of the duty to fulfil the right to water in third States.68

The CESCR has adopted an extensive approach also with regard to the right to food. In fact, the Committee held that States have not only an obligation to respect the right to food in third countries, but also a duty to protect and fulfil such a right, by taking steps ‘to facilitate access to food and to provide the necessary aid’.69 The CESCR supported this comprehensive stance even more explicitly in assessing the scope of application of the right to health. In fact, the Committee recognised that the right to health compels a State to ‘respect the enjoyment of the right to health in other countries’, to ‘prevent third parties from violating the right in other countries’ and to ‘facilitate access to essential health facilities, goods and services in other countries, wherever possible, and provide the necessary aid when required’.70

With specific regard to climate change, the UN OHCHR applied within the context of the right to sustainable development the extensive approach that the CESCR took with respect to the rights to food and health.71 Indeed, the Commissioner underscored the relevance of ‘the recognition of the extraterritorial [human rights] obligations of States [which] allows victims of […] dangerous climate change to have access to remedies’.72 This stance is in line with the Aarhus Convention,73 which compels a polluting State to make its jurisdictional remedies available to the victims of the extraterritorial harm caused by GHG emissions.74 Whilst the OHCHR only clearly formulated this interpretation with respect to economic, social and cultural rights, not as concerns civil and political rights,75 the Special Rapporteur on human rights and the environment supports its extension to all human rights.76

Considering the question from the angle of external State action, there is a limited possibility of envisaging an extraterritorial extension of jurisdiction in order to hold a State responsible for human rights breaches.77 Courts and human rights treaty bodies require the proof of a ‘jurisdictional link’ between a State and foreign territory where a breach takes place,78 notably based on ‘authority and control’, for the purpose of attributing responsibility for extraterritorially unlawful conduct.79 Alternatively, a State should have ‘actual authority and responsibility’ over persons acting abroad.80 Some scholars claim that natural and legal persons emitting trans-boundary GHG emissions in foreign countries would trigger the responsibility of the State of nationality.81 However, it is difficult to assume that GHGs emitted by individuals and corporations abroad be under the ‘control’ of the State of nationality, since they do not exercise State authority.82 These parameters make it quite complex to hold a State responsible for GHGs emitted by subsidiary companies of national private corporations situated abroad in breach of human rights duties binding a State vis-à-vis natural persons extraterritorially.

The problem of extraterritoriality, however, does not concern all human rights in the same way. For instance, it is assumed that the right to self-determination, which is both a first and second generation human right under ICCPR and ICESCR Article 1, has an internal and external dimension.83 It is thus possible to maintain that the right to self-determination commits a State vis-à-vis the nationals of another State to take adequate mitigation and adaptation policies.

Fundamentally, the issue of extraterritoriality can be overcome in two ways. First, the extraterritorial application of all human rights, constraining a State’s mitigation and adaptation policy, is possible under Article 55 of the UN Charter.84 This rule compels ‘universal respect for, and observance of, human rights and fundamental freedoms for all’.85 Article 55 thus allows room for an erga omnes interpretation of all human rights obligations of a State, including first, second and third generation human rights, both internally and externally.86 These human rights obligations would shape a State’s climate policy vis-à-vis natural and legal persons situated in third countries (A–BX, A–CY, A–DZ …).

Alternatively, it is possible to assume that external inter-State obligations complement domestic obligations established by international human rights treaties.87 Within this framework, it is conceivable that a State’s (A) human rights duties apply externally by envisaging an inter-State obligation not to interfere with the ability of other States (A–B, A–C, A–D …) to comply with their own obligations to respect, protect and fulfil individual human rights (B–X, C–Y, D–Z).88 This intermediate obligation would be nothing other than an indirect compulsion on a State (A) to respect, protect and fulfil the fundamental rights of the citizens of foreign States (A–B–X, A–C–Y, A–D–Z …). Such is the minimum threshold implied by the interstate obligation to cooperate,89 which is a key element in addressing climate change through human rights, as highlighted by consistent views and practice of relevant specialised organs.90

Thus, for example, since desertification induced by Russian unsustainable GHG emissions threatens water availability in the Sahel, it constrains the capacity of States such as Senegal and Mali to respect, protect and fulfil the fundamental rights of their respective citizens. As a consequence, it can be maintained that unsustainable GHG emitters have a duty to respect, protect and fulfil the right of Senegal and Mali to implement adequate policies with respect to critical needs such as food, water and health. Russia would thus have an indirect extraterritorial obligation to reduce GHG emissions, so as to respect, protect and fulfil the fundamental rights of the citizens of Senegal and Mali. Of course, within the limits of the best efforts standard,91 an indirect extraterritorial application of the obligations to respect, protect and fulfil human rights is less compelling on States than a direct one as concerns climate policies.92

Arguably, however, despite the doctrinal debate they have raised, such questions are not critical, if one considers the external implications of merely internal human rights obligations. In fact, in defining its climate policies a State is compelled to respect, protect and fulfil fundamental obligations it has towards its own citizens (A–X, A–Y, A–Z …). A merely internal duty to respect, protect and fulfil human rights thus compels a State (de jure) to take adequate adaptation and mitigation policies against climate change. De facto, these policies have beneficial extraterritorial effects. Notably, the District Court in Urgenda considered that the Netherlands has an exclusively internal obligation to minimise GHG emissions vis-à-vis its own citizens.93 Clearly, this duty also entails beneficial extraterritorial implications for the citizens of other countries, because of the global common nature of the atmosphere.

A restrictive approach, however, entails some jurisdictional shortcomings. In fact, based on merely internal human rights obligations, the IAHComR should only be competent ratione loci to examine the Inuit Petitions to the extent that they allege violations of claims protected under the American Declaration on the Rights and Duties of Man respectively occurring within US and Canadian territory,94 with the exception of the right to self-determination.

3 Subjective Elements

3.1 Attribution of Responsibility

In addition to the objective problem of causation, the subjective question of attribution of liability is crucial to establishing responsibility for human rights violations caused by anthropogenic GHG emissions. National and international human rights organs have mostly dealt with the issue together with causation. For instance, in its 2016 concluding observations on the Philippines, the CESCR broadly held that ‘the livelihood of small-scale fishers has been under threat owing to declining fish stocks in coastal areas as a result of climate change’.95 Similarly, the analytical study of the OHCHR on climate change and the right to health does not clarify how to attribute responsibility for GHG emissions to specific States.96 Significantly, the Special Rapporteur on human rights and the environment underscored the complexity of the ‘causal relationship’ between ‘emissions from a particular country’ and ‘a specific effect’.97

Albeit intertwined, causation and imputation are different questions. Indeed, causation is the objective process whereby factors additional to GHG emissions determine human rights infringements. Attribution of responsibility is concerned with the issue that different subjects, specifically, more than one State and other natural and legal persons, generate GHG emissions over time. In this respect, at first glance, spatial and temporal considerations make it difficult to apportion liability between different States for breaching negative and positive human rights obligations. The Special Rapporteur on human rights and the environment indeed acknowledged that ‘[u]nlike most environmental harms to human rights that have been considered by human rights bodies, climate change is truly a global challenge’, since ‘[g]reenhouse gases emitted anywhere contribute to global warming everywhere’.98

In Kivalina, the Court for the Northern District of California held that the impossibility of linking any particular environmental effects of global warming to any specific emissions by any identifiable natural or legal persons, at any particular time, prevents imputation. Under the circumstances of the case, the Court excluded attribution of responsibility because indistinct sources of GHGs have caused sea-level rise affecting the city of Kivalina and the fundamental rights of its inhabitants individually and cumulatively over centuries.

Specifically, the Court held that the plaintiff did not sufficiently prove ‘the “seed” of [the] injury’. In other words, the Court considered that there was no sufficient evidence to prove that GHGs causing damage to the collective in Kivalina could be attributed to ExxonMobil and other energy corporations.99 In fact, according to the Court ‘the source of the greenhouse gases are undifferentiated and cannot be traced to any particular source, let alone defendant’ and GHGs ‘rapidly mix in the atmosphere’, merging with the accumulation of emissions in the rest of the world.100 The Court went on to affirm the impossibility of determining ‘which emissions’, that is, ‘emitted by whom and at what time in the last several centuries and at what place in the world’ caused ‘global warming related injuries’.101

Critically, following the case of Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,102 the Court in Kivalina noted that, when pollutants are subject to federal legislation establishing limits to emissions, exceeding such limits creates a ‘substantial likelihood’ that the polluter caused harm, notably when the source of pollution is diffuse.103 In the absence of any federal regulation establishing GHG emission caps, however, such a presumption does not apply in the case of climate change.104 Thus, the impossibility of attributing responsibility is ultimately grounded in the impossibility of establishing a causal link, owing to the absence of legislation governing GHG emission limits: the objective and subjective elements are strictly interwoven.

Similarly, the silence of the IAComHR concerning the first Inuit Petition has been implicitly interpreted as an affirmation of the impossibility of attributing responsibility for GHG emissions to the State.105 However, this is only a possible interpretation, since the Commission rejected the application because it considered the information provided insufficient to determine a violation of human rights.106

By contrast, in Massachusetts v. Environmental Protection Agency (EPA), reversing an appeals decision, the US Supreme Court provided a positive answer to the question as to whether it is possible to attribute GHG emissions to a specific legal person, notably a State agency. In fact, the Court held that public health considerations compel the EPA to regulate GHG emissions.107 In this case, the State of Massachusetts sued the EPA, alleging that, in the context of motor vehicle regulation, under the Clean Air Act the Agency ought to regulate emissions of carbon dioxide. The Court held the EPA responsible for not providing a reasonable explanation for its refusal to decide whether GHGs cause climate change or contribute to it.108 Following the precautionary approach, the Court considered that uncertainty surrounding the effects of climate change is not a valid reason not to take action against CO2 emissions.109 The Court considered that GHG emissions from motor vehicles, including carbon dioxide, count as ‘pollutants’ under the Clean Air Act.110

The critical point is the assumption that attributing responsibility and quantifying damage is certainly difficult with respect to private legal persons, as in Kivalina.111 However, the question is less problematic at the aggregate State level, given the limited number of States included in international society and the fact that their respective emission trends are known.112 In light of this premise, the case of Urgenda provides a possible approach to the question. In fact, in this dispute the Court considered that the duty of care sets the minimum threshold of ‘hazardous negligence’ as the subjective standard for attributing responsibility,113 in light of the ‘nature and extent of the damage ensuing from climate change’.114 As we have seen,115 since human rights are ‘a source of interpretation’ to determine ‘private-law standards’,116 they become part of the consequences of climate change that a State must diligently foresee. According to this approach, the Dutch State should have diligently foreseen the effects of climate change on human rights and should have accordingly acted to prevent them, so as to avoid negligent responsibility. Although it is necessary to determine the subjective degree of fault for attributing responsibility on a case-by-case basis in international law,117 the ‘due diligence’ standard matches the minimum threshold set for imputing human rights violations, particularly under the duty to protect fundamental rights.118

If at least the required minimum standard of negligence is fulfilled, the further question arises of apportioning responsibility in order to quantify damages. Scholars have underscored that this is a critical point, which raises the question of the applicability of joint and several liability.119 In fact, under Article 47 of the Draft Articles on State Responsibility (DASR) adopted by the International Law Commission (ILC) in 2001, if several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. This entails a determination of the consequences that the principle has for an equitable allocation of obligations between States with respect to GHG emissions.120

In our view, the absence of compulsory international jurisdiction prevents the option of joint and several liability, whereby all emitters are individually and reciprocally liable for full damage.121 In fact, the absence of compulsory jurisdiction makes it difficult to recoup compensation from States bound in solido. A State should therefore be responsible pro rata proportionately to the percentage of total damages.122 The District Court of The Hague in Urgenda upheld this approach. In this case, the Court based its reasoning as concerns attribution of responsibility on the same premise that underpins arguments concerning causation, that is, the fact that the limited Dutch contribution to global GHGs is not irrelevant with respect to the State duty of care.123 Along these lines, the Court concluded that the proportionate contribution of Dutch GHG emissions aggravates climate change and further negative environmental effects. This is decisive for attributing responsibility to the Netherlands pro rata, because of the absence of adequate GHG mitigation policies necessary to protect Dutch citizens.124

Proportionality should be further shaped by considering per capita emissions and the principle of common but differentiated responsibility (CBDR). In Urgenda, both issues are taken into account. Indeed, on the one hand, the decision of the District Court of The Hague refers to CBDR as embedded in the UNFCCC under the preamble and Article 3.125 On the other hand, the fact that excessive per capita emissions in the Netherlands are ‘one of the highest in the world’ is crucial to the judgment.126 Even more explicitly, the first Inuit Petition pointed out the disproportionate per capita emission trend in the US:

With only 4.7% of the world’s population, the US produced 24% of global emissions in 2000. On a per-person basis, US emissions in 2000 were more than five times the global average. They were nearly two-and-a-half times the per capita emissions in Europe, and nine times those in Asia and South America. Only five countries exceeded the US in per capita emissions in 2000—Qatar, the United Arab Emirates, Kuwait, and Bahrain—all of which have much smaller populations and huge reserves of highly carbon-intensive commodities. Yet among the countries with significant emissions, the US had the highest level of per capita emissions.127

The question did not arise in the second Inuit Petition. This is partially due to the fact that the Arctic Athabaskan Council focuses on the negative effects of black carbon emissions on the rights of the Athabaskan people because of the proximity of Canada to the Arctic, rather than based on the quantity of Canadian black carbon emissions.128 The fact that in this dispute emissions are localised simplifies attribution of responsibility, as in the case of adaptation.

3.2 Policy Discretion

States have a margin of discretion in defining their policies,129 including GHG mitigation and adaptation, and this is all the more true of States that have not signed up to binding international commitments. In this respect, the current status of ratification of the Kyoto Protocol is not particularly reassuring, since the US is not a party to it, Canada withdrew in 2012 and engagement under the Doha amendment from 2015 to 2020 has not proceeded expeditiously.130 The Paris Agreement is more promising, given that 197 countries have signed it, including Canada, Russia, Japan and China, and 178 States have ratified the Agreement thus far.131 However, a margin of discretion remains, when considering that climate change regulation mainly embeds soft law,132 multilateral environmental agreements rely more on collaboration than enforcement,133 and positive human rights duties are obligations of means rather than result, not exactly matching binding GHG reduction targets.134 In fact, in accordance with the stance of the Special Rapporteur on human rights and the environment,135 the recommendations of relevant human rights treaty bodies uphold discretion. For instance, in its 2014 concluding observations on Finland the CESCR urged the party to ‘adopt the appropriate measures to address the adverse effect of climate change on the Saami people’s land and resources’,136 without providing specific directives on the content of recommended action. In light of these considerations, the enforceability of GHG reduction targets under the Paris Agreement is questionable. Moreover, the US withdrew from the Agreement in 2017, with effect from 4 November 2020.137

In Kivalina, the US District Court of California confirmed the limited enforceability of GHG mitigation and adaptation measures, holding that the political question doctrine bars the possibility of approaching GHG emissions as human rights breaches. The Court considered that the political question theory is ‘a species of the separation of powers doctrine and provides that certain questions are political as opposed to legal, and thus, must be resolved by the political branches rather than by the judiciary’.138 In this respect, the defendant corporations alleged that determining GHG emission caps is a matter of foreign policy falling under the exclusive competence of political organs.139 The Court did not consider that this excludes a judicial decision on the matter, since ‘[t]he indisputably international dimension of this particular environmental problem [climate change] does not render the instant controversy a non-justiciable one’.140 However, the Court considered a jurisdictional decision precluded by two fundamental arguments.

First, the Court in Kivalina held that that the evaluation of a nuisance claim does not focus entirely on the unreasonableness of the harm produced. By contrast, the fact-finder must also balance the utility and benefit of the alleged nuisance against the harm caused. Contrary to cases where damage is localised and produced by distinguishable polluters, the Court held that, in the case of GHG emissions, the sequence of events leading to the injury is indistinguishable.

In a global warming scenario, emitted greenhouse gases combine with other gases in the atmosphere which in turn results in the planet retaining heat, which in turn causes the ice caps to melt and the oceans to rise, which in turn causes the Arctic sea ice to melt, which in turn allegedly renders Kivalina vulnerable to erosion and deterioration resulting from winter storms.141

Furthermore, the Court pointed out that ‘emission of greenhouse gases’ comes ‘from innumerable sources located throughout the world and affecting the entire planet and its atmosphere’.142 The complex causal nexus between GHG emissions and injury as well as the impossibility of attributing such emissions to specific polluters thus determine a situation whereby it is impossible to reach a resolution of the case in any ‘reasoned’ manner.143 The case thus compelled the Court to move beyond areas of judicial expertise, precluding jurisdiction.

Second, in Kivalina the Court held that it was impossible for the judiciary to decide the case ‘without an initial policy determination of a kind clearly for nonjudicial discretion’.144 In order to determine damage, the Court should have established the acceptable limit of the level of GHGs emitted by the defendant corporations at the time of the injury. Such a judgment would have required balancing damage and public utility, in a way that interferes with the independence of political organs.145 Furthermore, according to the Court determining who is responsible for GHG emissions, thus only apportioning responsibility to a few energy corporations and choosing among emitters in the US and the entire world, would constitute a further exercise of political discretion.146

In Urgenda, the District Court of The Hague adopted a thoroughly different stance. Based on tort law as interpreted, inter alia, in light of human rights, the Court upheld the claimants’ submissions and ordered the Dutch State to pursue adequate GHG mitigation policies.147 The defence raised the political question, which became a key issue in the case. The Court thus considered the possibility that a State take measures to respect the target of a maximum 2 °C increase in average temperatures by undertaking measures beyond those required under the UNFCCC regime in light of the separation of powers (trias politica). The Court reasoned that the trias politica does not prevent a jurisdictional organ from imposing a GHG reduction target on the State, since the government remains free to determine the modalities to realise such a target.148 The Court thus held that the State is responsible for minimising GHG emission levels under a legal duty of care. In light of the independence of the judiciary, the Court did not instruct the State of The Netherlands as to how to achieve the legally required GHG reduction targets, but let it free to choose the means of such a reduction. Furthermore, the Court exercised restraint and limited the reduction target to a low 25% threshold, so as not to interfere with the sphere of political discretion.149

4 Implications of a Third Generation Right to a (Climatically) Sustainable Environment

The preceding analysis is mainly centred on first and second generation human rights and shows that assuming tripartite human rights obligations as a basis for judicial action against States is problematic in many respects. The question therefore arises as to whether third generation human rights, particularly the fundamental right to a (climatically) sustainable environment,150 could help to resolve problems of causation, attribution of responsibility, policy discretion and extraterritoriality.151 The issue is fundamental, because, on the one hand, it is acknowledged that environmental protection is essential to enjoying human rights.152 On the other hand, climate change is currently crucial to environmental sustainability and can thus play a decisive role in the process leading to the recognition of a right to a healthy environment. In this respect, scholars speak of a human right to ‘climatic stability’.153

The first Inuit Petition upheld a human rights interpretation of the claim to live in a sustainable environment, according to which GHG emissions should be stabilised at sustainable levels, from the standpoint of both indigenous peoples’ rights and customary international law.154 The Petition basically claims that, as an indigenous group, the Inuit have a specific right to environmental protection. This would further compel the US to respect, protect and fulfil different first and second generation fundamental rights, such as the claims to culture, health, water, food and self-determination.155 The second Inuit Petition takes the same stance, particularly based on the 2008 Declaration of the Organisation of American States on Human Rights and Climate Change in the Americas.156 This interpretation is not so plain and for the time being must be considered progressive international law development,157 but initiatives are underway to accelerate it. Notably, in 2012 the Special Rapporteur on human rights and the environment did not exclude the possibility of recognising the human right to a sustainable environment as a general principle of law based on domestic regulation.158 In March 2015, a group of experts in international law, human rights and environmental law met in Oslo and adopted the Principles on Global Climate Obligations.159 The preamble to the Principles recognises that human rights threatened by climate change include, besides classical first and second generation human rights, such as the rights to life, water and health, the right to ‘a clean environment’.160

Substantially, the question of the establishment of an independent human right to a sustainable environment has traditionally raised scepticism. Scholars have highlighted advantages and disadvantages. First, it is negatively assumed that a human right to a sustainable environment would ‘turn an essentially political question into a legal one’, taking power away from democratically accountable politicians and giving it to courts or treaty bodies.161 Secondly, it is argued that existing first and second generation fundamental claims are sufficient to address environmental problems from a human rights perspective, focusing ‘attention on what matters most to individuals’, for instance ‘life, private life, or property’.162 Crucially, however, it is positively underscored that the human right to a sustainable environment would allow transcending the anthropocentric approach to environmental protection, in favour of an eco-centric view, whereby the environment deserves protection per se.163 Alan Boyle thus concludes that ‘there may therefore be some merit in revisiting the question [of the establishment of a human right to a sustainable environment], particularly in the context of climate change, where some vision of a decent environment has global implications’.164 In this respect, the recognition of a fundamental right to a sustainable environment can make a significant contribution, notably when compared to classical first and second generation human rights. In fact, the definitive establishment of a fundamental right to a sustainable environment would help to systemically address problems of causation, extraterritoriality, attribution of liability and policy discretion that are inherent in State responsibility under classical human rights obligations.

First, the fundamental right to a sustainable environment would permit to simplify the causal nexus between climate change and human rights breaches. In fact, whereas first and second generation human rights infringements are a secondary consequence (specific causation) of anthropogenic GHG emissions,165 the right to a sustainable environment is directly affected (general causation) by such conduct. The recognition of a human right to a sustainable environment would streamline the pattern including anthropogenic GHG emissions (1), rising atmospheric temperatures (2), further environmental consequences (3), and infringement of (human) rights of (present and future) generations (4). The obligations to respect, protect and fulfil the right to a (climatically) sustainable environment would thus make a State directly responsible for the sole fact of releasing excessive GHGs into the atmosphere.166 This would exclude the necessity of proving specific causation [(3) and (4)], and thus the infringement of any further individual rights, confining evidence to general causation [(1) and (2)]. The simplification of the causal nexus is a necessary implication of the acknowledgment that the enjoyment of human rights depends on a safe, clean, healthy and sustainable environment.167

A human right to a sustainable environment thus helps to answer the question at what point the occurrence of climate change actually breaches an international obligation from a human rights perspective.168 In other words, the right to a sustainable environment would exclude the need to adduce evidence of those causal elements, namely rising atmospheric temperatures and further environmental effects, which blur the causal nexus between excessive GHG emissions and first and second generation human rights. This turns indirect causation into direct causation and shifts the burden of proof from the plaintiff to the defendant.169 Fundamentally, this is the reasoning applied by the District Court of The Hague in Urgenda, but primarily based on a general duty of care.170 The recognition of a fundamental right to a sustainable environment would allow transposing the same reasoning into the human rights framework. The High Court of Lahore in Pakistan has in fact already affirmed this transposition, by stating that the State of Pakistan must reduce its GHG emissions based, inter alia, on the fundamental right to a sustainable environment. Indeed, in light of the ‘right to a clean and healthy environment’ the Court held that ‘[f]rom environmental justice, which was largely localized and limited to our own ecosystems and biodiversity’ it is necessary ‘to move to Climate Change Justice’, whereby ‘[f]undamental rights lay at the foundation of these two overlapping justice systems’.171

Secondly, with regard to the scope of application in space and time, scholars agree that it is necessary to conceive of the human right to a sustainable environment as protecting a ‘common good’ or ‘common concern of humanity’.172 The right to a sustainable environment would thus create an omnium and erga omnes right, held by any legal persons vis-à-vis all others in the international community. In light of the reciprocal complementarity between the concepts of right and duty,173 this claim should entail a corresponding omnium and erga omnes obligation, binding any legal persons, including States, to all other legal persons of international society. In other words, the fundamental duty-right to a sustainable environment should be universal both as a claim and as an obligation. This is implicitly underscored by the observations of human rights treaty bodies recommending compliance with the Sustainable Development Goals,174 notably principle 13, which enhances mitigation of climate change effects globally.175

By nature, the duty-right to environmental protection would be extraterritorial and constrain State sovereignty with respect to GHG emissions on a global scale, according to the general interest of humankind.176 In this respect, the Oslo Principles recognise that States bear human rights responsibility for the transboundary effect of GHG emissions.177 As to its application in time, the omnium and erga omnes nature of the right to a sustainable environment should encompass not only present generations, but also future ones, according to the idea of intergenerational justice.178 Future generations would have a claim that present generations, including State and non-State persons, do not emit exceeding GHG emissions, whilst at the same time being in turn burdened with a duty to respect the claim to limited emissions of other future generations.179

The Oslo Principles posit the universal nature of the duty-right to a healthy environment by stating that ‘[e]very above-permissible-quantum country is required to reduce the GHG-emissions within its jurisdiction or control to the permissible quantum within the shortest time feasible’.180 Articles 1–8 of the Draft Statute for an International Environmental Court submitted to the attention of the UN Rio Conference in 1992 spell out in detail the universal scope of the right to a sustainable environment. The Statute is particularly based on the necessity of minimising GHG emissions and is consistent with the Principles on Human Rights and the Environment annexed to the 1994 Ksentini Report to the UN Commission on Human Rights.181 The Statute defines the scope of the right to a sustainable environment as omnium, erga omnes and indefinitely applying in time.182 Furthermore, the Statute posits a strict correlation between the universal right to a sustainable environment and the general duty to use rationally natural resources.183 This approach entails the peremptory and extraterritorial nature of State responsibility,184 including a general obligation to fulfil the right to a sustainable environment.185 Such a frame compels States to adopt policies preventing and repairing environmental damage.186 Similarly, the early readings of the ILC’s DASR envisaged the erga omnes liability of the State for massive atmospheric pollution, including GHG emissions.187 However, the last version of the Draft Articles approved by the ILC in 2001 eventually relinquished such an explicit approach.188

De lege lata, Article 24 of the African Charter on Human and Peoples’ Rights (ACHPR)189 provides a collective definition of the fundamental right to a sustainable environment: ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development’.190 Article 22 of the Charter establishes a corresponding collective duty under the interlinked right to development: ‘States shall have the duty, individually or collectively, to ensure the exercise of the right to development’. Such a universal approach is in line with the Brundtland Report, which includes an Annex on Legal Principles, stating that ‘[a]ll human beings have the fundamental right to an environment adequate for their health and wellbeing’.191 In light of this, the fact that the Paris Agreement refers to the need for States to take into account the right to development in their climate policies becomes potentially crucial to linking global warming and a fundamental claim to environmental protection. In this context, Enry Shue foresees a revolution in energy policy as a human rights fulfilment.192 In fact, the right to a sustainable environment entails the universal right to sustainable energy, as recognised by the UN via the Sustainable Energy for All Initiative.193 This approach is consistent with the concluding observations of specialised human rights organs, which uniformly recommend the adoption of renewable energy policies as a critical means for States to respect, protect and fulfil human rights.194 However, for the time being the status of the right to development is at least as uncertain as that of the right to a sustainable environment.195

Thirdly, simplifying causation would help to address issues of attribution of liability. In a context where excessive GHG emissions in breach of the right to a sustainable environment directly trigger State responsibility, imputation could simply be proportionate to quantified GHG reduction targets, as defined under the UNFCCC regime, based on due diligence. The UNFCCC and related regulation, notably the Paris Agreement, would thus define the minimum threshold of human rights risk allowed within the climate change regime.196 The UNFCCC would therefore provide a basic yardstick to address the ‘credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts’ envisaged in the Oslo Principles as a basis for reducing GHG emissions, within the context of the precautionary principle.197 Accordingly, human rights treaty bodies recommend that developed and developing countries comply with GHG reduction targets nationally determined under the UNFCCC and the Paris Agreement in the light of fundamental rights.198 In this context, the Special Rapporteur on human rights and the environment envisages the necessity of tightening up nationally determined contributions under the Paris Agreement in order to achieve the declared objective of containing global GHG emissions within 2 or 1.5 °C.199

Combining the UNFCCC and human rights regimes would be consistent with the principle of systemic integration between human rights and climate change regulation, according to Article 31 of the 1969 Vienna Convention on the Law of Treaties.200 This approach also addresses the concerns formulated by the US District Court in Kivalina that the absence of a prescribed limit to GHG emissions prevents the presumptive attribution of responsibility for human rights infringements caused by climate change.201 Moreover, a fundamental obligation to protect the environment would at least contribute to constraining the margin of discretion States enjoy in framing climate policies,202 addressing the political question. In fact, reduction targets quantified under the UNFCCC would exempt judicial organs from the task of determining minimum GHG emission caps. At least with respect to minimum targets, jurisdictional organs would thus not have to balance issues of public utility and damage, respecting the trias politica.

Given the absence of a human right to a sustainable environment in the current international legal system, contrary to regional regulation such as the ACHPR, it is quite complicated for the subjects affected by climate change to claim human rights infringements in international fora such as the HRCte or the ICJ.203 In this respect, Oslo Principle 25 envisages that States ‘accept the jurisdiction of independent courts or tribunals in which the State’s compliance with its obligations as set forth in these Principles can be challenged and adjudicated’. By means of an extensive interpretation, some scholars argue that the duty to do no harm, which is a general principle of international law, entails an obligation of due diligence. This may further entail a State duty under general international law to act in such a way as to prevent climate change, at least beyond a particular threshold, notably a maximum 2 or 1.5 °C increase in average temperatures.204 This obligation would be part of the general principles of international law and would further imply a duty to ensure that State climate policies respect human rights commitments under international law.205 International practice, however, has not yet confirmed this approach.

Also with respect to the progressive international establishment of a human right to a sustainable environment, the decision of the Dutch District Court in Urgenda is likely to have profound effects. It is indeed arguable that the judgment has spawned a paradigm shift in national case law, prompting courts to develop a creative jurisprudence and recognise the binding effect of human rights on State climate policies, particularly focusing on the right to a (climatically) sustainable environment.206 Notably, in the case of Juliana v. US, the US Court for the District of Oregon denied a motion to dismiss a claim challenging the US Government’s failure to take sufficient action to reduce GHG emissions, based on the assumption that undoubtedly ‘the right to a climate system capable of sustaining human life is fundamental to a free and ordered society’.207 The case is currently at the pre-trial stage. In May 2017, the Court ‘emphatically rejected’ any contentions that the topic of climate change is a non-justiciable political question, holding that it is ‘quintessentially a subject of scientific study and methodology’ within the competence of jurisdictional bodies.208 More specifically:

The court may make findings that define the contours of plaintiffs’ constitutional rights to life and a habitable atmosphere and climate, declare the levels of atmospheric CO2s which will violate their rights, determine whether certain government actions in the past and now have and are contributing to or causing the constitutional harm to plaintiffs, and direct the federal defendants to prepare and implement a national plan which would stabilize the climate system and remedy the violation of plaintiff’s rights.209

Thus, the Court underscored that collecting evidence at trial is necessary to clarify factual questions such as whether climate change is occurring, to what extent it depends on fossil fuel production, whether the US deliberately chose to encourage and promote fossil fuel production with knowledge of the dangers created by such a policy and if governmental actions are a substantial cause of injury to the plaintiffs.210 In May 2018, the Court also rejected a defendant’s motion to preclude all evidential discovery based on the separation of powers doctrine.211 The Court is now called to make a further decision on a request for summary judgment based on critical issues of redressable injury traceable to the defendants’ action.212

In this context, in 2018 the Special Rapporteur on human rights and the environment suggested that the HRC consider recognising the ‘human right to a healthy environment’ in ‘a global instrument’.213 Such a critical step is motivated by the observation that the overwhelming recognition of such a fundamental right at the regional and national level as well as its increasing application by courts ‘has proved to have real advantages’, raising ‘the profile and importance of environmental protection’ and providing ‘a safety net to protect against gaps in statutory laws’.214

5 Conclusion

An analytical investigation of climate policies in light of tripartite human rights based on the cases of the Inuit Petitions and Kivalina shows that it is currently quite complex to adjudicate upon State responsibility for climate change damage based on ‘classical’ first and second generation human rights obligations. This is true of civil, political, economic, social and cultural rights, and depends particularly on objective difficulties in establishing causation and subjective issues concerning attribution of liability. Along the lines of the decision of the Dutch District Court in Urgenda, it is thus argued that achieving global recognition of the fundamental right to a (climatically) sustainable environment facilitates addressing problems inherent in holding States responsible for climate change damage under human rights law. Such a right implies asserting the fundamental nature of the no-harm rule.

First, concerning the material element of State responsibility, the human right to a sustainable environment would help to address the basic issue of causation. It permits to hold a State directly responsible for the sole fact of emitting excessive GHGs into the atmosphere, thus confining evidence to general causation and excluding the necessity of proving specific causation. With regard to its scope of application, if conceived of as an omnium and erga omnes duty and right, the fundamental claim to a sustainable environment would contribute to overcoming the discrepancy between the territorial scope of application of human rights and the transboundary nature of GHG emissions. As to its application in time, the universal scope of the claim would also protect future generations, along the lines of the idea of intergenerational justice.

Secondly, with respect to the subjective component of State responsibility, within the context of the right to a sustainable environment excessive GHG emissions would trigger proportionate State liability, based on quantified GHG reduction targets outlined in the UNFCCC regime. The UNFCCC would therefore define the minimum threshold of human rights risk tolerated within the climate change regulatory system. In this context, given the difficulty of recovering damage in solido in the absence of compulsory international jurisdiction, State responsibility should be determined pro rata proportionately to per capita emissions. Furthermore, the justiciability of the claim would constrain policy discretion, exempting courts from the task of determining minimum reduction targets, thus facilitating adjudication and enforcement.

Footnotes

  1. 1.

    OHCHR (2009), paras. 16 et seq.; Knox (2016), paras. 24–32.

  2. 2.

    UNFCCC (2015), Annex, preamble.

  3. 3.

    Atapattu (2016), pp. 50–51.

  4. 4.

    Ibid.

  5. 5.

    Inuit, Petition to the Inter-American Commission on Human Rights, seeking relief from violations resulting from global warming caused by acts and omissions of the United States, 7 December 2005 (hereinafter: First Inuit Petition); Arctic Athabaskan Council, Petition to the Inter-American Commission on Human Rights, seeking relief from violations of the rights of Arctic Athabaskan peoples resulting from rapid Arctic warming and melting caused by emissions of black carbon by Canada, 23 April 2013 (hereinafter: Second Inuit Petition).

  6. 6.

    Native Village of Kivalina and City of Kivalina v. ExxonMobil corporation and others, US District Court, Northern District of California, Oakland Division, Order granting defendants’ motions to dismiss for lack of subject matter jurisdiction, 663 F.Supp.2d 863, 30 September 2009 (hereinafter: Kivalina); Kivalina 696 F.3d 849, Ninth Circuit Court of Appeals, 21 September 2012.

  7. 7.

    OHCHR (2009), para. 96.

  8. 8.

    Knox (2016), para. 35.

  9. 9.

    Adopted 4 November 1950, in force 3 September 1953, 213 UNTS 221. See Urgenda Foundation v. The State of The Netherlands, Hague District Court, Case C/09/456689/HA ZA 13-1396, Summons, 28 November 2013, paras. 72–80, 88–89.

  10. 10.

    Urgenda Foundation v. The State of The Netherlands, Hague District Court, Case C/09/456689/HA ZA 13-1396, Judgment, 24 June 2015, ECLI:NL:RBDHA:2015:7145 (in Dutch), ECLI:NL:RBDHA:2015:7196 (English translation) (hereinafter: Urgenda).

  11. 11.

    OHCHR (2009), paras. 80 et seq., particularly para. 86; Knox (2016), paras. 22, 33.

  12. 12.

    Knox (2016), para. 34. See also the sceptical stance of the US (2008, para. 4).

  13. 13.

    Knox (2014), pp. 3 et seq.; Centre for International Environmental Law and Global Initiative for Economic, Social and Cultural Rights (2018), pp. 5–7.

  14. 14.

     IPCC (2001), Annex B, Glossary of Terms.

  15. 15.

     Ibid.

  16. 16.

    Knox (2016), para. 86.

  17. 17.

    Shelton (1991), pp. 122–125; Knox (2018b), Annex, para. 5.

  18. 18.

    World Conference on Human Rights (1993), para. 5.

  19. 19.

    Adopted 16 December 1966, in force 23 March 1976, 999 UNTS 171.

  20. 20.

    Adopted 16 December 1966, in force 23 March 1976, 993 UNTS 3.

  21. 21.

    CESCR (1999b), para. 46; HRCte (2004), para. 6; Knox (2018b), Annex, paras. 4–5.

  22. 22.

    Ad Hoc Working Group on the Durban Platform for Enhanced Action (2015).

  23. 23.

    First Inuit Petition, above n. 5, p. 103.

  24. 24.

    Ibid., pp. 70–72.

  25. 25.

    Ibid., p. 118.

  26. 26.

    Second Inuit Petition, above n. 5, p. 59.

  27. 27.

    Ibid., pp. 21, 49 et seq.

  28. 28.

    De Schutter (2014), p. 427; Knox (2016), paras. 66 et seq. See also the Second Inuit Petition, above n. 5, p. 87, Request for relief, para. 3(c).

  29. 29.

    First Inuit Petition, above n. 5, p. 103; Second Inuit Petition, above n. 5, p. 54.

  30. 30.

    This approach is underpinned by the jurisprudence of international human rights bodies. See, in particular, CESCR (1999a), para. 32: ‘All victims of such violations [of the right to food] are entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition’. See also Voigt (2008), pp. 18–19; Knox (2016), para. 63.

  31. 31.

    OHCHR (2009), para. 96; Knox (2016), para. 34.

  32. 32.

    IAComHR (2006).

  33. 33.

    Osofsky (2009), pp. 283–284; Harrington (2007), p. 526; De La Rosa (2014), p. 259.

  34. 34.

    Blau (2017), p. 14.

  35. 35.

    HRC (2008), preamble; HRC (2009), preamble; OHCHR (2009), paras. 16 et seq. and Annex. For a scholarly opinion, see Voigt (2008), p. 15; Koivurova, Duyck and Heinämäki (2013), pp. 292–304.

  36. 36.

    OHCHR (2009), para. 23; Knox (2016), para. 35.

  37. 37.

    See, for instance, Budayeva and others v. Russia, ECtHR, Appl. Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 30 November 2004, para. 12 and Aalbersberg and 2084 other Dutch citizens v. The Netherlands, ECtHR, Comm. No. 1440/2005, 14 August 2005, para. 6.3. See also Metropolitan nature reserve (Panama), IAComHR, Case No. 11.533, 22 October 2003, para. 34.

  38. 38.

    IPCC (2014a), pp. 42–44.

  39. 39.

    IPCC (2014b), Ch. 29, Small Islands, p. 1618. See also Willcox (2012), p. 2; Committee on the Rights of the Child (CRC) (2013), para. 7; Knox et al. (2015), pp. 15–16.

  40. 40.

    Elver (2015), para. 66.

  41. 41.

    Gromilova (2014), pp. 80–94.

  42. 42.

    AComHPR (2016), para. 2; Knox (2016), paras. 81–82; Knox (2018a), para. 15; Knox (2018b), Annex, paras. 39, 47.

  43. 43.

    Knox (2017), para. 26.

  44. 44.

    HRC (2018), para 1.

  45. 45.

    OHCHR (2016a), paras. 4 et seq.

  46. 46.

    CEDAW (2017b), para. 14.

  47. 47.

    Knox (2016), paras. 62–64.

  48. 48.

    Ibid., para. 35.

  49. 49.

    Asselbourg and 78 others and Greenpeace Luxemburg v. Luxemburg, ECtHR, Appl. No. 29121/95, 29 June 1999, para. 1; Tătar v. Romania, ECtHR, Appl. No. 67021/01, 27 January 2009, paras. 25 et seq.

  50. 50.

    Adopted 9 May 1992, in force 21 March 1994, 1771 UNTS 107.

  51. 51.

    See also Voigt (2008), p. 16.

  52. 52.

    Community v. Peru, IAComHR, Report 69/04, 15 October 2004, para. 42; Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights (AComHPR), Comm. No. 276/03, 4 February 2010, para. 246; AComHPR v. Kenya, African Court on Human and Peoples’ Rights (ACtHPR), Appl. No. 006/2012, 26 May 2017, para. 216. See also Metropolitan nature reserve, above n. 37, para. 32.

  53. 53.

    Kivalina (2009), above n. 6, pp. 16, 20–21, emphasis added.

  54. 54.

    Ibid., p. 17.

  55. 55.

    Ibid., p. 21. For a critical approach, see Lawson (2011), pp. 480–481.

  56. 56.

    Available at http://www.ipcc.ch (accessed 3 July 2018).

  57. 57.

    Urgenda, above n. 10, para. 4.79.

  58. 58.

    Ibid., para. 4.19.

  59. 59.

    Ibid., para. 4.90.

  60. 60.

    Ibid., para. 4.45.

  61. 61.

    Ibid., para. 4.46.

  62. 62.

    See also Stein and Castermans (2017), p. 306.

  63. 63.

    First Inuit Petition, above n. 5, pp. 10–12; Second Inuit Petition, above n. 5, pp. 8–10.

  64. 64.

    Knox (2009), p. 200; Knox (2016), para. 41.

  65. 65.

    Legal consequences of the construction of a wall in the occupied Palestinian territory (Advisory Opinion), 9 July 2004, ICJ Report 2004, p. 136, paras. 108–111, emphasis added. See also McInerney-Lankford, Darrow and Rajamani (2011), pp. 40–41.

  66. 66.

    Burgos v. Uruguay, HRCte, Comm. No. 52/1979, 29 July 1981, para. 12.3.

  67. 67.

    CESCR (2003), paras. 31, 33.

  68. 68.

    Ibid., para. 34.

  69. 69.

    CESCR (1999a), para. 36.

  70. 70.

    CESCR (2000), para. 39.

  71. 71.

    OHCHR (2009), paras. 86–88.

  72. 72.

    OHCHR (2011), para. 72.

  73. 73.

    Adopted 28 June 1998, in force 30 October 2001, 2161 UNTS 447.

  74. 74.

    Arts. 2(5) and 3(9). See also Boyle (2012), p. 638.

  75. 75.

    OHCHR (2009), para. 86; OHCHR (2011), paras. 69–71.

  76. 76.

    Knox (2016), para. 41.

  77. 77.

    Harrington (2007), p. 524.

  78. 78.

    Banković and Others v. Belgium and 16 other contracting States, ECtHR, Appl. No. 52207/99, 12 December 2001, para. 61.

  79. 79.

    Issa and others v. Turkey, ECtHR, Appl. No. 31821/96, 16 November 2004, para. 71; HRCte (2010), para. 5.

  80. 80.

    Armando Alejandre Jr, Carlos Costa, Mario de la Pena, y Pablo Morales v. Cuba, IAComHR, Report No. 86/99, 29 September 1999, para. 23; HRCte (2004), para. 10; HRCte (2008), para. 14; Inter-State petition Ip-02, admissibility, Franklin Guillermo Aisalla Molina, Ecuador—Colombia, Inter-American Court of Human Rights (IACtHR), Report No. 112/10, 21 October 2010, paras. 89–100; Al-Skeini v. UK, ECtHR, Appl. No. 55721/07, 7 July 2011, para. 136.

  81. 81.

    Knox (2009), p. 203.

  82. 82.

    Boyle (2015), pp. 233–234.

  83. 83.

    Committee on the Elimination of Racial Discrimination (1996), para. 4. It is thus surprising that, unlike the first Inuit Petition, the Athabaskan Petition does not focus on the claim to self-determination as a basis for action against Canada’s black carbon emissions.

  84. 84.

    Adopted 24 October 1945, in force 24 September 1973, 1 UNTS XVI.

  85. 85.

    Emphasis added.

  86. 86.

    HRCte (2004), para. 2.

  87. 87.

    Shelton (2009), pp. 236 et seq.

  88. 88.

    Knox (2009), pp. 205–206, 209, 212–213; McInerney-Lankford, Darrow and Rajamani (2011), p. 43; Knox et al. (2015), para. 4.

  89. 89.

    CESCR (1999b), para. 56; CESCR (2003), para. 31; CESCR (2009), para. 58; OHCHR (2009), paras. 84–85. For a scholarly opinion, see Knox (2009), pp. 212–213.

  90. 90.

    CRC (2013), para. 67; Knox (2016), paras. 41–42, 79, 83; Knox (2017), para. 36; CRC (2017), para. 51; Knox (2018b), Annex, para. 36; HRC (2018), para. 6.

  91. 91.

    Voigt (2008), pp. 13, 15; Knox (2016), para. 48.

  92. 92.

    Hall and Weiss (2012), p. 343.

  93. 93.

    Urgenda, above n. 10, para. 4.64. See also Knox (2016), para. 68.

  94. 94.

    Harrington (2007), p. 524.

  95. 95.

    CESCR (2016a), para. 45.

  96. 96.

    OHCHR (2016a), paras. 12–22.

  97. 97.

    Text accompanying n. 48.

  98. 98.

    Knox (2016), para. 34.

  99. 99.

    Kivalina (2009), above n. 6, p. 20. See also Peloffy (2013), p. 143.

  100. 100.

    Kivalina (2009), above n. 6, p. 20, emphasis added.

  101. 101.

    Ibid., emphasis added.

  102. 102.

    73 F.3d 546, 558 (5th Cir. 1996).

  103. 103.

    Kivalina (2009), above n. 6, p. 19.

  104. 104.

    Ibid.

  105. 105.

    Text accompanying n. 33.

  106. 106.

    Text accompanying n. 32.

  107. 107.

    Massachussets v. EPA, 127 SCt 1438, Case No. 05-1120 (2007), Robert CJ and Scalia J dissenting.

  108. 108.

    Ibid., p. 32.

  109. 109.

    Ibid., p. 31.

  110. 110.

    Ibid., p. 26.

  111. 111.

    Posner (2007), pp. 1938–1939.

  112. 112.

    US Environmental Protection Agency (2017). See also Lawson (2011), p. 486.

  113. 113.

    Urgenda, above n. 10, para. 4.54.

  114. 114.

    Ibid., para. 4.63.

  115. 115.

    Text accompanying n. 61.

  116. 116.

    Urgenda, above n. 10, para. 4.46.

  117. 117.

    Crawford (1999), p. 438; Voigt (2008), pp. 9–15.

  118. 118.

    Velásquez Rodríguez v. Honduras, IACtHR, Ser. C No. 4, 29 July 1988, para. 172; The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v. Nigeria, AComHPR, Comm. No. 155/96, 27 October 2001, para. 52; Tătar v. Romania, above n. 49, para. 107. See also Varhuas (2016), pp. 39–40.

  119. 119.

    Voigt (2008), pp. 19–20.

  120. 120.

    Sands (2016), p. 31.

  121. 121.

    Deakin, Johnston and Marchesinis (2013), p. 880.

  122. 122.

    Ibid.

  123. 123.

    Urgenda, above n. 10, para. 4.79.

  124. 124.

    Ibid., para. 4.89.

  125. 125.

    Urgenda, above n. 10, paras. 2.36, 2.38.

  126. 126.

    Ibid., para. 4.79.

  127. 127.

    First Inuit Petition, above n. 5, p. 69.

  128. 128.

    Second Inuit Petition, above n. 5, p. 3: ‘[…] although relatively smaller than emissions from lower latitudes, emissions from within or near the Arctic have a disproportionate effect because there is a greater likelihood they will deposit on Arctic snow and ice’.

  129. 129.

    See, for instance, Hämäläinen v. Finland, ECtHR, Appl. No. 37359/09, 16 July 2014, para. 67.

  130. 130.

    UNFCCC (2011), pp. 3 et seq.; UNFCCC (2018a). Despite declared commitment to international climate change regulation by the Trudeau administration, Canada is still not a party to the Kyoto Protocol.

  131. 131.

    UNFCCC (2018b).

  132. 132.

    Vihma (2013), pp. 162–163.

  133. 133.

    UNFCCC (2008); Samaan (2011), pp. 265 et seq.; UNFCCC Ad Hoc Working Group on the Durban Platform for Enhanced Action (2014), paras. 23 et seq.

  134. 134.

    De Schutter (2014), pp. 479, 531.

  135. 135.

    Knox (2016), para. 68.

  136. 136.

    CESCR (2014), para. 9, emphasis added.

  137. 137.

    Trump (2017).

  138. 138.

    Kivalina (2009), above n. 6, p. 6.

  139. 139.

    Ibid., p. 8.

  140. 140.

    Ibid., p. 9.

  141. 141.

    Ibid., p. 13.

  142. 142.

    Ibid., pp. 12–13.

  143. 143.

    Ibid., p. 13.

  144. 144.

    Ibid., p. 14.

  145. 145.

    Ibid., p. 14.

  146. 146.

    Ibid., pp. 14–15. For a critique, see Lawson (2011), pp. 479, 489–490.

  147. 147.

    Urgenda, above n. 10, para. 5.1.

  148. 148.

    Ibid., para. 4.101.

  149. 149.

    Ibid., paras. 4.93–4.102.

  150. 150.

    Also defined as the right to a ‘satisfactory’, ‘safe’, ‘clean’, or ‘healthy’ environment (Ksentini (1994), para. 242; OAS (1997), Art. XIII; UNESCO (1999), Art. 1; Knox (2012), paras. 12–14; Knox (2015), para. 73).

  151. 151.

    McInerney-Lankford, Darrow and Rajamani (2011), pp. 36–39.

  152. 152.

    Gabcikovo-Nagymaros project (Hungary v. Slovakia), 25 September 1997, ICJ Reports 1997, p. 7, Opinion Weeramantry, p. 91; Shelton (1991), pp. 112–117; OHCHR (2009), para. 18; OHCHR (2011), para. 7; Knox (2012), para. 19.

  153. 153.

    Bell (2013), pp. 159, 163–164.

  154. 154.

    First Inuit Petition, above n. 5, pp. 73–74.

  155. 155.

    Ibid.

  156. 156.

    OAS (2008). See the Second Inuit Petition, above n. 5, pp. 54–56.

  157. 157.

    See, for instance, Weston and Bollier (2013), p. 285, Addendum, The international legal status of the human right to a clean and healthy environment.

  158. 158.

    Knox (2012), para. 14.

  159. 159.

    Expert Group on Global Climate Obligations (2015).

  160. 160.

    Ibid., preamble. See also the Commentary to the Principles on Global Climate Obligations, pp. 16 et seq.

  161. 161.

    Boyle (2012), p. 627.

  162. 162.

    Ibid.

  163. 163.

    Ibid., p. 629.

  164. 164.

    Ibid., p. 627.

  165. 165.

    See HRC (2008), preamble; HRC (2009), preamble; OHCHR (2009), paras. 16 et seq. and Annex; Knox (2016), para. 34.

  166. 166.

    Voigt (2008), pp. 15–16; Limon (2009), pp. 469–473.

  167. 167.

    Knox (2013), para. 17; Knox (2018b), Annex, para. 4.

  168. 168.

    Sands (2016), p. 31.

  169. 169.

    Hayward (2004), pp. 103–106.

  170. 170.

    Text accompanying nn. 56–62.

  171. 171.

    High Court of Lahore, Case W.P. No. 25501/2015, Order of 4 September 2015, para. 7.

  172. 172.

    See, for instance, Boyle (2012), p. 633.

  173. 173.

    Hohfeld (1913), pp. 30, 33.

  174. 174.

    UN (2015), principle 13; Knox (2018b), Annex, para. 54.

  175. 175.

    CRC (2016), para. 49.

  176. 176.

    Freedman (2013), p. 954.

  177. 177.

    Expert Group on Global Climate Obligations (2015), preamble.

  178. 178.

    Council of Europe Parliamentary Assembly (2009), para. 1. See also Depledge (2007), pp. 238–239; Shue (2014), p. 62.

  179. 179.

    Beckman and Pasek (2001), pp. 12 et seq.; Hiskes (2006), p. 93; Coomans and Künnemann (2012), pp. 126, 130–131.

  180. 180.

    Principle 13.

  181. 181.

    Ksentini (1994), Annex.

  182. 182.

    Art. 1 posits the basic principle that ‘everyone has a fundamental right to the environment and an absolute duty to preserve life on earth for the benefit of present and future generations’ (emphasis added).

  183. 183.

    Art. 5: ‘Everyone is under a duty to utilise natural resources with equity and care, by ensuring the maximum saving of energy […] [and] minimum consumption of resources’.

  184. 184.

    Art. 7: ‘States are legally responsible to the entire International Community for acts that cause substantial damage to the environment in their own territory, in that of other States or in areas beyond the limits of national jurisdiction’ and ‘shall adopt all measures to prevent such damage’ (emphasis added).

  185. 185.

    Art. 6: ‘States shall recognise and guarantee the human right to the environment, and foster conditions that make this right effective’.

  186. 186.

    Art. 8: ‘States, in particular, shall […] prohibit all activities that may cause irreversible damage to the basic natural processes of the biosphere and, as a precautionary measure, suspend those activities whose effects cannot be determined until all such uncertainty has been removed; e) take action to restore degraded ecosystems; f) prevent the transfer of environmental harm and risks to other parts of the world’.

  187. 187.

    Ago (1976), para. 155; ILC (1996), p. 60, Art. 19.

  188. 188.

    ILC (2001), p. 29, Arts. 40–41. Similarly, individual responsibility for environmental damage was excluded within the context of the Draft Code of Crimes against the Peace and Security of Mankind (see Tomuschat (1996)).

  189. 189.

    Adopted 27 June 1981, in force 21 October 1986, 1520 UNTS 217.

  190. 190.

    See The Social and Economic Rights Action Centre, above n. 118, para. 49.

  191. 191.

    Annex 1 to the Brundtland Report (1987), principle 1.

  192. 192.

    Shue (2014), p. 58.

  193. 193.

    Available at https://www.seforall.org (accessed 3 July 2018).

  194. 194.

    See, for instance, Knox (2016), para. 78; CESCR (2016b), para. 54; CESCR (2017a), para. 12; CEDAW (2017a), para. 40.

  195. 195.

    See, for instance, Vandenbogaerde (2013), p. 208.

  196. 196.

    Nickel (1993), p. 285.

  197. 197.

    Principles 1 and 6.

  198. 198.

    OHCHR (2016b), pp. 2–5; CESCR (2017a), para. 11; CESCR (2017b), para. 43.

  199. 199.

    Knox (2016), paras. 76–77.

  200. 200.

    Adopted 23 May 1969, in force 23 May 1969, 1155 UNTS 331. See ILC (2006), paras. 37–43.

  201. 201.

    Kivalina (2009), above n. 6, p. 19.

  202. 202.

    Bell (2013), p. 167.

  203. 203.

    Bodansky (2017), p. 694.

  204. 204.

    Sands (2016), p. 31.

  205. 205.

    McInerney-Lankford, Darrow and Rajamani (2011), p. 46.

  206. 206.

    Stein and Castermans (2017), p. 318.

  207. 207.

    Juliana v. United States, 217 F Supp (3d) 1224, (D Or 2016), para. 82.

  208. 208.

    Ibid., Order of 1 May 2017, pp. 8–9.

  209. 209.

    Ibid. p. 8, emphasis added.

  210. 210.

    Ibid., p. 9.

  211. 211.

    Ibid., Orders of 25 May 2018 and 29 June 2018.

  212. 212.

    Ibid., Motion for summary judgment of 22 May 2018, pp. 7–14.

  213. 213.

    Knox (2018b), para. 14.

  214. 214.

    Ibid., para. 13.

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Copyright information

© T.M.C. Asser Press 2018

Authors and Affiliations

  1. 1.School of LawUniversity of New EnglandArmidaleAustralia
  2. 2.Centre for European Studies, Australian National UniversityCanberraAustralia
  3. 3.European University InstituteSan Domenico di FiesoleItaly

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