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Operationalizing extraterritorial obligations in the context of climate project finance – the Barro Blanco case

Jane A Hofbauer

Keywords: extraterritorial obligations; project finance; climate policies; obligation to regulate; development banks; effective control

Abstract

The Barro Blanco project exemplifies the relationship between the broader objective of protecting the Earth's climate to reduce the vulnerability of people to climate change and the narrower objective of encouraging finance to achieve clean(er) development and energy production. The latter objective is often implemented without adequate human rights safeguards. Yet, with the climate change regime offering little or no means of effective redress for affected communities, with home states and project operators being under pressure to ensure timely completion of the project, and with the grievance mechanisms of lenders resulting in non-binding outcomes, the human rights regime potentially offers the greatest hope for victims in terms of access to justice. Despite such promise, however, the jurisdictional scope of application of human rights treaties poses potential barriers to climate justice. It is against this background that this article explores whether the particular situation of (climate) project finance falls within the ambit of extraterritorial human rights obligations. The article also considers (broader) extraterritorial obligations arising in the context of (climate) policies, in particular the obligation of home states to regulate those actors that they are in a position to exert influence over.

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