A Call At OHCHR For Policy Action On Right To Enjoy Benefits Of Scientific Progress

The right of people to enjoy the benefits of scientific progress, the subject of an article in the International Covenant on Economic, Social and Cultural Rights, has received little attention and needs new attention in UN agencies, according to panellists yesterday at the Office of the United Nations High Commissioner for Human Rights (OHCHR). Human rights need to enter the arena in fora where scientific progress and its application are being discussed, they said in a public consultation on the ideas.

With the increasing role of the private sector in scientific progress, some potential adverse effects, and some concerns about intellectual property rights, there is a need to spark a discussion in multiple arenas, in particular in UN specialised agencies, so that this right is implemented, they said.

Hosted by OHCHR, a public consultation was organised by the Independent Expert in the field of cultural rights, Farida Shaheed, on the right to enjoy the benefits of scientific progress and its application.

According to Shaheed, who was appointed independent expert in the field of cultural rights by the UN Human Rights Council in October 2009, human beings should be placed in the centre of the discussion on the right to take part in cultural life. This right is an inherent part of dignity, she said. The Covenant entered into force in January 1976.

The right to enjoy the benefits of scientific progress and its application “moves us from the present to the future,” as it gives people the right to conceive of the future, she said. “It is not just accessing current technologies, but how I see my life in the future and how can progress help me live a dignified life.”

As an illustration in the context of climate change and energy, she said that energy and water are essential to life, and the ability to access those as a human right and not a privilege is important. The question would be how this can be conceptualised as a right.

The increasing role of the private sector in research is a matter of concern, including the intellectual property rights covering new technologies, but IP rights are only one aspect of the issue, she said.

Shaheed held the public consultation after experts met for two days to identify core content of what could be possible obligations of state parties, and how the right to enjoy the benefits of scientific progress and its application relates to other specific rights. A report devoted to the issue will be presented in June 2012 by the independent expert.

According to Eibe Riedel, member of the Committee on Economic, Social and Cultural Rights, Article 15.1 of the Covenant has been under-addressed by state parties and civil society alike. Article 15.1 of the International Covenant on Economic, Social and Cultural Rights states that parties to the Covenant recognise the right of everyone “to enjoy the benefits of scientific progress and its applications.” Article 15.1 (c) states that states should recognise the right to “benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The article should not be treated paragraph by paragraph, he said, but rather as a whole, and a realistic approach needs to be taken to analyse the content and the meaning of the article. For example, a controversial issue related to Article 15.1(c) is the problem of determining to what extent, and whether, IP rights are human rights, he said. A General Comment should not be the first step, although it is likely to happen, he told Intellectual Property Watch later. The elaboration of a general comment, he said, is a process generally spanning two to five years and involves a wide process of consultations, comments, non-papers and drafts. In the meantime, the Committee is supporting the work of the independent expert, he said.

“In order to make a human right meaningful in the international human right system, it is necessary to translate the right into concrete obligations for the states,” Audrey Chapman, professor at the University of Connecticut (US) School of Medicine, said. Three types of obligations are incumbent upon states: respect, protection and fulfilment, she said.

The right to enjoy the benefits of scientific progress and its application underscore the importance of science, she said. States should not undermine the efforts of scientists to research, publish, and share their results with other scientists, inside and outside of the country’s borders. States should not erect barriers to interfere with scientific collaboration. Such forms of interference would include forms of censorship, restrictions of access to the internet or of distribution of scientific journals, she said.

There is also a concern that intellectual property restrictions can impede access to data needed for research, and policies need to prevent this from happening, she said. Public participation is an important human rights principle and ongoing public outreach is necessary so that the public better understands and participates in decision-making about priorities in science and technology, she said.

According to Chapman, there is an increasing realisation that human rights impose extra territorial obligations, in particular for countries “who have the means to share” and where science and technology are the strongest, to provide technical assistance and to try to make most essential technologies available in less developed countries.

Need for Human Rights Perspective in UN Agencies

The hope of this discussion, said Shaheed, is “to kick off a discussion in multiple arenas.” Coherence is needed at the international policy level but also within the UN system, she said, as the human rights perspective needs to be integrated in the work of UN specialised agencies.

A delegate from Pakistan said that the most important point was to address the issue of access and that the privatisation of science and knowledge has led to some concerns. In particular, he asked how the role of the private sector could be regulated at the international level, as the intellectual property regime was restricting the right to enjoy the benefits of scientific progress and its application.

According to Riedel, much more mainstreaming of human rights is needed in specialised UN agencies, but the role of state parties is also of prime importance. State parties should be engaged to have regulatory mechanisms and to see “that private actors do not exploit their monopoly situation and misappropriate the powers given to them,” he said. “State parties have all the means to regulate nationally,” he added. It is also important to engage more actively the two principal actors in the IP regime, the World Intellectual Property Organization (WIPO) and the World Trade Organization, because the issue is trade-related, he said.

A WIPO representative, in the audience, said that there is a clear relationship between IP and access to progress of science. The IP system is a way to protect the human right of creators, he said. The international system offers ways to achieve the goal of Article 15.1(c) of the Covenant, he said. The IP system gives protection to the inventors but also allows access, as any patent application release all the details of the invention. The main goal of patents is to diffuse technology, he said, but also encourage innovation. Another WIPO representative added that WIPO supports accessibility of patent information in patent applications.

Shaheed said that Article 15 should be considered in reference to Article 1 of the Covenant, recognising for all peoples the right of self-determination, and to freely determine their political status, and freely pursue their economic, social and cultural development.

She welcomed contributions from member states and civil society to the consultation until 16 December. A questionnaire can be downloaded from the OHCHR website.