those actors. The UN Human Rights Committee has held the state responsible for the activities of private actors where private actors implement state legislation, such as the running of prisons.64 The ECHR has held the state responsible for the activities of private actors where their activities relate to human rights obligations of the state, such as education and legal aid. 65 States are not responsible for the acts of non-state actors undertaken in the non-state actor’s private capacities; 66 however, the State may be liable for its failure to take appropriate measures or exercise due diligence to prevent, punish, investigate or redress the harm caused by the acts of private persons or entities where those acts violate human rights. 67 The obligations on the state to protect, respect and fulfil human rights, as discussed above, are essential in determining when a state will be responsible for failing to prevent or address violations of human rights by non-state actors.68 Applicable Environmental Principles State responsibility should be interpreted consistently with key principles of international environmental law. These key principles include: • • • • Preventive Action: the obligation to prevent, reduce, limit or control activities that cause or may cause damage to the environment in violation of accepted international standards; Precautionary: where there is potential for environmental harm, scientific uncertainty does not excuse inaction; those engaging in activity should mitigate the likelihood of environmental harm, unless they can prove the absence of harm; 69 Polluter-pays: the polluter is responsible for the harms they cause and for its rectification; and Common but differentiated responsibility: in the pursuit of sustainable development, all states should act to prevent damage to the environment, bearing in mind that developed countries should take a lead role due to the pressures their societies have and continue to place on the global environment and of the technologies and financial resources they command The failure of state regulation While many factors influence the capacity of the State to effectively regulate the unsustainable exploitation of the environment, corruption figures prominently. No State is immune from corruption. Corrupt practices impact adversely on individual citizens, the broader community and the environment, with reports and cases documenting the negative impact on the realisation of human rights. Examples that have come before regional and domestic fora include: the inappropriate granting of concessions to exploit public or private land, particularly land occupied by indigenous peoples, the illegal dumping of toxic waste, and the approval of property developments in the absence of, or in contradiction to relevant environmental impact assessments. The state has a duty to protect and promote human rights and NHRIs should consider the role they might play in advocating for regulation against corrupt practices that impact on the realisation of human rights. In particular, NHRIs could encourage the use of and implement procedural rights, which may be used to keep the public and private sector accountable for their actions. See Part 4 for a description of the key elements of relevant participatory rights. 64 Asia Pacific Forum, above n 4. 66. Ibid. 66 Ibid 69. 67 Ibid 55, 69. 68 Ibid 69-70. 69 There is significant support for the application of the precautionary principle where the potential environmental harm is serious and irreversible, (see Rio Declaration, Principle 15). However, there is a divergence in support for a broader application of the principle, with opponents citing a lack of clarity and the potential for over-regulation. For a further discussion on this principle, refer to Sands, above at note 6, pp 266-279. 65 - 22 -