A/HRC/31/52
establishment and implementation of procedures to provide such remedies, particularly with
respect to measures supported by international finance mechanisms.
64.
As explained above, the Special Rapporteur recognizes the complications inherent in
determining whether contributions to climate change may constitute violations of human
rights obligations. At the same time, he emphasizes that finding a human rights violation is
not a prerequisite for addressing the damage suffered by those most vulnerable to climate
change. He applauds the decision taken at the nineteenth session of the Conference of the
Parties to establish the Warsaw International Mechanism for Loss and Damage, and he
notes that article 8 of the Paris Agreement provides that the parties should enhance
understanding, action and support with respect to loss and damage from climate change.
Article 8 identifies areas of potential cooperation and facilitation, including early warning
systems, emergency preparedness, risk insurance and resilience of communities, livelihoods
and ecosystems. As the parties implement article 8, the Special Rapporteur urges them to
incorporate a human rights perspective in identifying the types of loss and damage to be
addressed.
C.
Substantive obligations
65.
States have obligations 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 (see A/HRC/25/53, paras. 44-57). In principle, the content of the
obligations of States to protect against environmental harm depends on the content of their
duties with respect to the particular rights threatened by the harm. Nevertheless, despite the
variety of rights that may be implicated, human rights bodies have reached similar
conclusions.
66.
They have made clear that these obligations apply to environmental harm caused by
corporations and other private actors as well as by governmental entities. Specifically, in
accordance with the Guiding Principles on Business and Human Rights, endorsed by the
Human Rights Council in 2011, States are required to “protect against human rights abuse
within their territory and/or jurisdiction by third parties, including business enterprises”,
including by “taking appropriate steps to prevent, investigate, punish and redress such
abuse through effective policies, legislation, regulations and adjudication” (see
A/HRC/17/31, annex, principle 1). In accordance with the Guiding Principles, States also
have an obligation to provide for remedies for human rights abuses caused by corporations,
and corporations themselves have a responsibility to respect human rights. These three
pillars of the normative framework for business and human rights apply to all
environmental human rights abuses, including impairments of human rights in relation to
climate change.
67.
In applying their duty to protect against environmental harm that interferes with the
enjoyment of human rights, States have discretion to strike a balance between
environmental protection and other societal goals, such as economic development and the
promotion of other human rights. But the balance struck cannot be unreasonable or result in
unjustified, foreseeable infringements of human rights. In examining whether the balance is
reasonable, a number of factors may be considered, including whether the level of
environmental protection resulted from a decision-making process that satisfies the
procedural obligations described above; whether it accords with national and international
standards; whether it is not retrogressive; and whether it is non-discriminatory. Finally,
States must implement and comply with the standards that they have adopted. The
following sections explain how these norms apply to climate change, at the national and at
the international levels.
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