Monday, December 6, 2010

Do states have human rights?

By Professor Cesare Romano

This is Professor Cesare Romano's second dispatch from the Conference of the Parties of the Climate Change Convention and Kyoto Protocol in Cancun. Romano reported from the conference last week.

Something that happened in Cancun, at the Conference of the Parties of the Climate Change Convention and Kyoto Protocol (COP/MOP), made me wonder whether and to what extent states enjoy the same human rights individuals do.

To cut a rather long story short, virtually all major modern multilateral environmental treaties are endowed with a body and a procedure to ensure states' compliance with their obligations under the agreement. These are the so-called "non-compliance procedures."

The UNFCCC and Kyoto Protocol have a non-compliance body, made of independent experts, and a procedure to handle cases of non-compliance. Recently, Croatia was found in violation of certain of its obligations by the Compliance Committee's Enforcement Branch. In Cancun, Croatia raised a very interesting question. Namely, it argued that it had a right to appeal the Enforcement Branch's report, asking the matter to be referred to the plenary COP/MOP.

The non-compliance procedure of the UNFCCC and the Kyoto Protocol does not provide for any second degree of jurisdiction. It was never meant to be a judicial procedure, but rather a diplomatic mechanism to address issues of non-compliance in a non-confrontational, non-judicial and consultative way.

Croatia's request is the first appeal to the Conference of the Parties by a party concerning a Compliance Committee's decision. Does Croatia have a right to an appeal? There was a rather intense debate this week on the matter, with polarized views. There was obviously concern about creating a precedent and uncertainty about how the appeal should be handled. Should the matter be considered by the Conference of the Parties and then referred back to the Enforcement Branch, or should a final decision be taken by the Conference?

The EU acknowledged Croatia's right to appeal and identified the need to be clear concerning procedural issues so that the same approach can be used in future appeals. The EU stressed, however, that the COP/MOP's decision must be limited to the basis on which Croatia's appeal has been launched. The EU argued that if the COP/MOP decides to overturn the underlying decision, it can refer the case back to the Enforcement Branch. Croatia, however, protested that referring the case back to the Enforcement Branch would not lead to a fair and just outcome. Consultations on the matter are likely to continue beyond Cancun.

The whole incident, and Croatia's argument that it has a "right to appeal," made me wonder what might be the basis of this right. It certainly can't be argued that it is international practice to provide states appearing before international judicial and quasi-judicial procedures, like this, an appeal. Two levels of jurisdiction are quite rare among international courts and tribunals and other quasi-judicial procedures. The WTO is probably one of the few examples. Customary international law or general principles of law can't therefore provide the legal basis for Croatia's claim. But two levels of jurisdiction are more common among bodies that consider complaints brought by or against individuals. This is the case of human rights courts, courts of regional economic and political integration agreements, and international criminal courts. That is because a right to appeal is a fundamental human right, which makes me wonder whether Croatia is arguing here that it has a right to an appeal as a matter of human rights.

All of this happened during a week in which several other states around the world somehow claimed their right to privacy, a fundamental human right, was violated when WikiLeaks gave the world the chance to eavesdrop their otherwise very confidential conversations. Is this a new trend?

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