Is the CDM Executive Board (as a UN body) bound by international human rights law? In other words, do its decisions have to take into account human rights considerations?
Charter of the United Nations: Applicability of Human Rights Law to the UN
The United Nations (UN) is bound by human rights under Articles 1(3) and 55(c) of the Charter of the United Nations (UN Charter). Pursuant to Article 1(3), one of the purposes of the UN is to “achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms […]”. Article 55(c) of the UN Charter requires that “the United Nations shall promote […] universal respect for and observance of, human rights and fundamental freedoms for all […]”. The political and judicial organs of the UN have interpreted the provisions of the UN Charter to constitute legal obligations.[1]
The UN therefore has a constitutional obligation to place limitations on the authority and lawful purposes and functions of the UN and its entities.
Legal Personality and Customary Law
Additionally, the UN is an organisation with legal personality[2] and therefore is subject to customary international law. The components necessary for legal personality of an organisation are defined as:
- a permanent association of states, with lawful objects, equipped with organs;
- a distinction, in terms of legal powers and purposes, between the organisation and its member states; and
- the existence of legal powers exercisable on the international plane and not solely within national systems of one or more states.[3]
The fundamental principles of human rights form part of customary or general international law and the UN, as an organisation with legal personality, is bound by these principles and laws.
The CDM Executive Board as an entity of the UN and Decision 1/CP.16 (Report of the Conference of the Parties on its 16th session, Cancun, 2010)
The CDM Executive Board (CDM EB) is responsible for the supervision of the Kyoto Protocol’s clean development mechanism under the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (COP/MOP). The CDM EB is fully accountable to the COP/MOP and is considered an entity of the UN.
The CDM EB appears to fulfil the legal personality criteria described in the section on legal personality above and therefore is subject to international law. By virtue of the UN being a legal person, the CDM EB would be subject to international customary law and its human rights principles.
Additionally, in paragraph 8 of Decision 1/CP.16, the Conference of the Parties emphasises “that Parties, should in all climate change related actions, fully respect human rights”.
Conclusion
Human rights and international human rights laws are therefore applicable to the UN and its entities (including the CDM EB) as a result of: (i) the UN Charter; and (ii) international human rights standards reaching both the UN and its entities.
The CDM EB, as part of the UN, is bound by international customary law which encompasses fundamental human rights. The UN Charter explicitly requires the Parties to have regard to human rights and Decision 1/CP.16 specifies that Parties should respect human rights in all climate change related actions. It follows that the CDM EB must consider human rights when overseeing the selection and review of projects.
The CDM rules do not refer to human rights directly, and methodologies as they currently stand only set technical requirements in relation to emission limits.
The mandate of the CDM EB should be re-assessed and redefined to give force to the provisions of the UN Charter and other rules governing UN bodies.
[1] Adv. Op. on Namibia: ICJ Reports (1971), at 56-57.
[2] The Reparation case, ICJ Reports (1949), 174.
[3] Brownlie, Principles of Public International Law, 7th Ed, pp 677-678.