Professor Cesare P.R. Romano, W. Joseph Ford Fellow and director of the International Human Rights Center at LMU Loyola Law School, is no stranger to firsts. In 2010, he created the school's first international human rights center. Subsequently, he has led his students to litigate several groundbreaking international human rights cases. He also helped students on the law school’s International and Comparative Law Review create the Inter-American Court of Human Rights Project, the first English-language database of judgments rendered by the Inter-American Court. A prolific scholar, he also recently undertook to write the first exhaustive treatise on the human rights to benefit from progress in science and its applications: Romano C./Boggio, A., "The Human Right to Science: History, Development, and Normative Content," (Oxford University Press 2024)(co-authored with Andrea Boggio).
What inspired you to write your newest book, "The Human Right to Science"?
The book is the result of personal frustration. I cannot think of a better reason to spend eight years writing a 800-page book!
The main treaty that codifies the human right to science is called the International Covenant on Economic Social and Cultural Rights, one of the two main pillars of the United Nations human rights system. The protocol that makes it possible for individuals who have suffered a violation of their rights protected under the Covenant to bring a complaint (communication, in U.N. jargon) to the Committee on Economic Social and Cultural Rights (CESCR) entered into force in 2012. In 2013, with the students of the International Human Rights Center here at LMU Loyola Law School, we brought the very first communication before the Committee. It was a case against Ecuador regarding a refugee kid who wanted to play soccer. Unfortunately, it was rejected on admissibility, on a technicality. When I spoke to members of the committee afterwards, I asked, “It's a great case. Why did you reject that?” And they said, “We wanted to start with something easier.” All right, let me try again.
Next we brought a case against Italy regarding the country’s laws regulating access to artificial reproductive technology and research on human embryos. The victims in this case were a couple who had recourse to in-vitro fertilization to try to have a child. Ten embryos were produced over two cycles of in-vitro fertilization. Nine were affected by a serious, fatal genetic disorder. Only one was disorder-free, but it was only of average quality meaning there were high chances there might be a spontaneous abortion after transfer in uterus. At first, the woman declined to have the embryo implanted. However, because Italian law does not make it possible to withdraw consent to the procedure, she eventually agreed, after being threatened with legal action, and had a miscarriage. As to the other nine embryos, the couple wanted to donate them to scientific research on that specific disorder, but they could not because Italian law prohibits that.
We brought a case to the Committee alleging a violation of the woman’s right to health, because she could not withdraw her consent, and the right to science because of the impossibility of doing research on those embryos. While we won the case on the argument of the right to health, on the right to science the committee turned our claim down on a faulty scientific reasoning: They said that we failed to prove that had scientists have had access to those embryos, they would've been able to find the cure for the disorder. But that's not the way science works!
A couple of months after the decision, I asked some members of the Committee I met at an event, why they missed the opportunity to adjudicate on the right to science. Their reply was, “We don't understand what this right to science is and what obligations it entails.” That did not surprise me, since the right to science is the least known and least studied and least understood of the full human rights. Challenge accepted. Let me write the book about it.
I teamed up with Andrea Boggio, a professor of legal studies at Bryant University and a specialist on health policy, with whom I co-authored a few years ago another book on the legal aspects of the modification of the DNA of human germline cells. Eight years later, the book is out, and now I'm working on a second set of cases (against France and against Italy) claiming a violation of the right to science. Now the Committee will not be able to say they do not know what obligations the right entails!
How do you articulate the right to science in your book?
The book breaks down the right to science in several sub-rights that are distinct enough that they can be described with precision. Everyone has the right to a fair trial. Great. Everyone agrees that it's a human right. However, what does it mean? Well, it means that you need to have a competent attorney, you need to be notified of the charges, and many more rights. Boggio and I did the same for the right of science. We broke it down into 22 specific rights, some of which are relevant for scientists and others for the general public.
Our greatest challenge was that we could not write a book about what we believe the right is or should be. What we believe or want is irrelevant. Instead, we had to ground it in State practice. States make international law, and it is their practice, and the practice of international organizations, that creates the law. There you find the normative content of the right. Mind you, we did not invent anything. The right to science has been around since 1948. But we needed to remind everyone that the right is already there and what it actually means so that we can have intelligent conversations about how science can and should be regulated.
Why aren’t there more cases claiming violation of the right to science?
To have a viable international case you need two elements. First, you need a victim, someone who can show they have suffered a prejudice as a consequence of an action (or inaction) of a State that is subject to the jurisdiction of the given human rights body. This is difficult for various reasons. Second, and this is the most difficult aspect: The victim must have exhausted domestic remedies. They must have litigated the matter nationally, at all levels of jurisdiction. Once that has been done, you have a window of only 12 months to bring your communication before the Committee. It often happens you find good cases, but you are outside the 12-month window. Or you find people who have not yet litigated the case domestically or not yet exhausted domestic remedies. To find viable cases you need to have connections all over the world, be aware of when the good cases are coming up in domestic courts, and follow them. That's why I work a lot with scientists around the world. If they win their case domestically, more power to everyone. I'm happier also because if you win the case domestically, you have greater chance of enforcement. But, if nothing works and there is still a problem, and if I'm alerted that this is happening, and if there is someone who wants to put out their face and be the victim, then you can try. It takes time, and it is a slow process.
What is the end game?
It’s a game of chess that I've been playing over two decades of just little by little building the law. I build my own step, and then I stand on the next step, and I build from that. As I said earlier, now that we know what the right to science is and what obligations states have, we need to litigate it, to develop an international jurisprudence. I’m busy doing exactly that.
In the book Andrea and I put forth a couple of novel ideas, the things that can be done to activate the right to science. One is that we need a global treaty on science. If you look at the international treaties that touch on science, they all come from a place of fear, and they're all aimed at putting obstacles to scientific research in certain areas to ward off potential dangers. But we don't have a treaty that actually commits states to fund the science, to facilitate science, to make science open and accessible for everyone. It would help to have a commitment to open science, a commitment to science as a vehicle for peace and a dialogue that is not political.
The second idea is the creation of a special mandate on science and human rights within the United Nations. Currently, there are more than 40 U.N. special mandates, on issues as different as extreme poverty to albinism. The holders of these mandates are called special rapporteurs. They are individuals who are experts on the given topic., who are given the mandate to promote and develop international law on the specific topic. I've been working for years to persuade the U.N. Human Rights Council to create a special rapporteur on science. I had pushback because they were saying that the mandate on science is within the portfolio of the mandate on culture, and a special rapporteur on culture already exists. But culture includes dance, cooking, language, and many more matters. While science is a cultural activity, it is too big and consequential to have only a fraction of the attention it gets. It requires its own person. Recently, things started changing. The Special Rapporteur on Culture has issued a document recommending the Human Rights Council to create the special mandate on science and take science out of her portfolio. Hopefully, if the position is created, Andrea or I could have a shot, and, if we get it, then we will have a pulpit within the system where we can push for the treaty.
How do you pick your battles?
First, I read a lot, in many fields. Then, when something tells me what I am looking at is not fair, or it is arbitrary, or it is discriminatory, I start following the hunch and begin digging. For instance, reproductive rights can happen only if science makes it possible for the magic to happen. The problem is sometimes the state gets in between science and the capacity of science to create beautiful, healthy, happy families with beautiful babies for reasons that have nothing to do with anything rational but only with preconceptions. How do we challenge that? How can we use the system to change the law?
What can lawyers learn from scientists?
Method. Science is method. There's no science without method, and lawyers have a lot to learn from that. It's the way it frames things and shapes your mind. I mean, for me it has been a fascinating process. I have done that for the past 15 years of my life. I had to learn a lot of hard science in a lot of disciplines – from biotechnology to climate change, to meteorology to physics. And it changed my mind. Having an understanding of what science is and how it works makes you approach law in a different way.
What can law students take away from the work of scientists?
The beauty about science is that it is completely open-ended. You can go in a million different directions and places. I encourage my students to approach law in the same way and see where it can go without preconceptions. It’s just embracing the pure inquire spirit of the law and see where it can take you.
What do you think it says about the power of scholarship?
Actually, scholarship changes the world every day. Science is the perfect example. The work of scientists in the labs needs to be translated to the work in real applications. But the translation between the blue-sky science to the application is done through the medium of law, which shapes it and constraints it, determining what is possible, what is not, and what the outcomes are. That is why legal scholars and scientists must work together.