A/HRC/25/53
the State had “fallen short of the minimum conduct expected of governments.”57 The InterAmerican Commission on Human Rights has stated that “effective enforcement of the
environmental protection measures in relation to private parties, particularly extractive
companies and industries… is essential to avoid the State’s international responsibility for
violating the human rights of the communities affected by activities detrimental to the
environment.”58 And the European Court has held that States are obligated to take positive
steps to protect against environmental harm to the right to private and family life, whether
the pollution was caused by governmental or private action. In either case, “the applicable
principles are broadly similar.”59
3.
Obligations relating to transboundary environmental harm
62.
Many grave threats to the enjoyment of human rights are due to transboundary
environmental harm, including problems of global scope such as ozone depletion and
climate change. This raises the question of whether States have obligations to protect
human rights against the extraterritorial environmental effects of actions taken within their
territory.
63.
There is no obvious reason why a State should not bear responsibility for actions
that otherwise would violate its human rights obligations, merely because the harm was felt
beyond its borders. Nevertheless, the application of human rights obligations to
transboundary environmental harm is not always clear. One difficulty is that human rights
instruments address jurisdiction in different ways. Some, such as the Universal Declaration
of Human Rights and the African Charter, contain no explicit jurisdictional limitations, and
the International Covenant on Economic, Social and Cultural Rights may even provide an
explicit basis for extraterritorial obligations (art. 2, para. 1). But other treaties, including the
International Covenant on Civil and Political Rights, the Convention on the Rights of the
Child, the European Convention on Human Rights and the American Convention on
Human Rights, limit at least some of their protections to individuals subject to or within the
jurisdiction of the State, leaving it unclear how far their protections extend beyond the
State’s territory. Another problem is that many human rights bodies have not addressed
extraterritoriality in the context of environmental harm.60
64.
Nevertheless, most of the sources reviewed that have addressed the issue do indicate
that States have obligations to protect human rights, particularly economic, social and
cultural rights, from the extraterritorial environmental effects of actions taken within their
territory. The Committee on Economic, Social and Cultural Rights has interpreted the
International Covenant on Economic, Social and Cultural Rights as requiring its parties “to
refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to
water in other countries” (general comment No. 15, para. 31), and has stated that parties
should also take steps to prevent third parties within their jurisdiction, such as their own
citizens and companies, from violating the rights to water and health in other countries
(general comment No. 15, para. 33; and general comment No. 14, para. 39). Several special
rapporteurs have adopted similar interpretations. In 2011, the Special Rapporteur on the
right to food and the Special Rapporteur on extreme poverty and human rights joined with
57
58
59
60
Ogoniland case, paras. 57, 58.
Inter-American Commission on Human Rights. Second report on the situation of human rights
defenders in the Americas, 2011, para. 315. Available at
https://www.oas.org/en/iachr/defenders/docs/pdf/defenders2011.pdf. See generally IACHR report,
sect. IV.A.
Lopez Ostra v. Spain, No. 16798/90, 9 December 1994, para. 51; Hatton v. United Kingdom,
No. 36022/97, 8 July 2003, para. 98.
See, for example, Council of Europe, Manual, p. 25.
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