CLIMATE CHANGE AND HUMAN RIGHTS For each set of obligations, we describe the “hard law” (treaty provisions, case law) underpinning the obligations, as well as soft law (UN declarations, comments from UN treaty bodies) and interpretations from UN special rapporteurs and other experts. As noted above, the actual scope of legal obligations for any specific country may depend on treaty ratification status, except to the extent that some of these obligations may now constitute customary international law that is binding all countries.86 (a) Procedural Obligations Human rights law imposes various procedural obligations on governments with respect to the environmental impacts of their activities. These include obligations to gather and disseminate information about environmental impacts, to facilitate public participation in environmental decision-making, and to provide access to remedies for environmental harm. These obligations are based in civil and political rights, but “they have been clarified and extended in the environmental context on the basis of the entire range of human rights at risk from environmental harm.”87 As discussed below, governments also have unique obligations with respect to decisions that affect indigenous peoples and their lands, such as a duty to obtain the free, prior and informed consent (FPIC) of indigenous peoples before undertaking decisions that would adversely affect any lands or resources that they have traditionally owned or occupied. (i) Ensuring Access to Information and Conducting Environmental Assessments ICCPR Art. 19 and UDHR Art. 19 recognize the right of all persons “to seek, receive and impart information.” At a minimum, the ICCPR and UDHR require states to provide public access to any government information of public interest.88 The Human Rights Committee (HR Committee), the treaty body for the ICCPR, has not explicitly discussed whether the right of access to information entails a corresponding obligation for states to conduct environmental impact assessments (EIA). However, the International Court of Justice (ICJ) has held that, as a matter of customary international law, states have an obligation vis-à-vis other states to conduct environmental assessments where there is a risk that a proposed activity “may have a significant adverse impact in a transboundary context, in particular, on a shared resource” and disclose the results of that EIA to countries that may be adversely affected. 89 Accordingly, states should assess how activities within their jurisdiction will adversely affect the climate (a shared resource) and provide adequate notice to the international community. For example, states should conduct GHG assessments for activities that are likely to have significant GHG impacts—such as programmatic decisions about fossil fuel development, large fossil fuel-fired power plants, and fuel economy standards—and make the results publicly available. The right of access to information is generally viewed as a prerequisite to the exercise of other procedural rights relating to public participation and access to remedies, and these procedural rights have been interpreted as critical to the exercise of substantive human rights, such as the rights to life, health, and privacy.90 As such, many regional human rights courts have held that states have an obligation to assess and disclose foreseeable environmental risks as part of their positive duties to protect, respect, and fulfill various human rights.91 This includes any environmental risks caused by government activity, as well as other environmental risks that threaten the exercise of human rights (since states have an obligation to protect rights against harms caused by third parties). 86 87 88 89 90 91 16 See supra, note 59. Mapping Report (2013), supra note 64, at p. 29. HR Committee, General Comment No. 34, pp. 18-19, UN Doc. CCPR/C/GC/34 (Sept. 12, 2011) Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 I.C.J. 14, 83, p. 204 (April 20). See, e.g., CESCR, General Comment No. 14, p.3, UN Doc. E/C.12/2000/4 (Aug. 11, 2000) (recognizing that the right to health “is closely related to and dependent upon the realization of other human rights” including access to information); Okechukwu Ibeanu, Special Rapporteur on the Adverse Effects of Illicit Movement and Dumping of Toxic Wastes on Human Rights, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, 2, UN Doc. A/HRC/7/21 (Feb. 18, 2008) (noting that the rights to information and participation are “both rights in themselves and essential tools for the exercise of other rights, such as the right to life, the right to the highest attainable standard of health, the right to adequate housing and others”). See Öneryildiz v. Turkey, 2004-XII European Court of Human Rights 1, p. 90 (deriving right to information from right to life); Taşkin v. Turkey, 2004-X Eur. Ct. H.R. 179, pp. 118, 119, 126 (deriving right to information from right to privacy and home life); Ogoniland Case (Social and Economic Rights Action Center v. Nigeria), Decision Regarding Communication 155/96 (African Commission on Human & Peoples’ Rights, Oct. 2011), 96 AJIL 937, para 53 (2002) (deriving right to information from the rights to health and a healthy environment); Claude-Reyes et al. v. Chile, Inter-Am. Ct. H.R. (ser. C) No. 151 (2006) (deriving right to information from right to freedom of expression). T H E O B L I G AT I O N S O F G O V E R N M E N T S A N D P R I VAT E A C T O R S T O R E S P O N D T O T H E H U M A N R I G H T S I M P L I C AT I O N S O F C L I M AT E C H A N G E