State responsibility to act in relation to harms originating outside the State Question 7: Does a State have an obligation in international law to protect its citizens from violations to their right to life that are caused by environmental harms originating either in the territory of another State, or in international air or water space – what mechanisms exist to address such violations? Response States have obligations under international law to protect their citizens (and individuals in their territories) from violations to their right to life that are caused by environmental harm wherever such harm originates. This is because states have a responsibility to respect, protect and fulfil all human rights – see the answer to term of reference 4. Background In principle, state responsibility for an environmental harm remains, regardless of whether the harm is felt externally or internally. An affected state may seek remedies from the state causing harm through a variety of mechanisms as listed in chapter 6 of the UN Charter. These may include recourse to the International Court of Justice. An affected state may also be in breach of its human rights obligations to individuals within its territory if it fails to take action against the state that is responsible for the harm. In some cases, citizens of the state affected by such harm may resort to remedies available in the state causing the harm; (see for example the US Alien Torts Claim Act discussed above at question 5) however there are often practical impediments in undertaking such actions. While an affected state may take action against a polluting state, the affected state may still need to take domestic measures with the aim of limiting the impact of the harm to its citizens and its territory. Failure to do so may breach obligations to its own citizens. Environmental Harms in International Waters The UN Convention on the Law of the Sea 97 lays down the fundamental obligation of all states to protect and preserve the marine environment. It further urges all states to cooperate on a global and regional basis in formulating rules and standards, and to take measures to protect the marine environment. With regard to environmental degradation caused by shipping, UNCLOS provides that it is the duty of the ‘flag state’ to enforce the rules adopted for the control of marine pollution from vessels, irrespective of where a violation occurs. This serves as a safeguard for the enforcement of international rules in waters beyond the national jurisdiction of the coastal state, that is, on the high seas. The Convention also gives enforcement powers to the ‘port state’, or the state where a ship is destined. The port state can enforce any type of international rule or national regulations adopted in accordance with the Convention, or applicable international rules, as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their offshore terminals. In doing so, it incorporates a method developed in existing Conventions for the enforcement of treaty obligations dealing with shipping standards, marine safety and pollution 97 Entered into force 16 November 1994. - 28 -