Science as a Human Right: Defining the Normative Content of the Right to Enjoy the Benefits of Scientific Progress and its Applications

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S

CIENCE AS A HUMAN RIGHT

:

DEFINING THE NORMATIVE CONTENT OF THE

RIGHT TO ENJOY THE BENEFITS OF SCIENTIFIC

PROGRESS AND ITS APPLICATIONS

Antanina Maslyka

E-mail: antanina.maslyka@gmail.com Student No. 11610654

Master track: Public International Law (Research Master’s Programme)

Supervisor:

Mw. Prof. Dr. Y.M. (Yvonne) Donders

Date of submission: 12 August 2019

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Abstract

Nowadays, the world heavily relies on the benefits of technological progress in order to solve many development-related and socio-economic problems faced by humanity. Rapid developments in the areas of science and technology, however, make the process of their regulation increasingly difficult resulting in regulatory gaps (a regulatory patchwork of legal regimes) and a decrease in the protection of those who are involved in such activities and/or whose interests might be affected.

In these situations of uncertainty, individuals seek to protect their interests through the appeal to human rights and states increase their cooperation directed at the development of international norms with the purpose of replacing regulatory ‘patchwork’ and decreasing the existing uncertainty. In this light, it is relevant to scrutinize how international human rights law through the right to enjoy the benefits of scientific progress and its applications (REBSPA) in particular can contribute to the development of the normative framework for the governance of science, research and technological development, and shed the light on the human dimension of science.

Addressing this issue, this research project seeks to analyze whether, by fleshing out the normative content of the REBSPA, it is possible to improve the conceptual clarity of this right and make it more actionable in a sense that right holders are aware of their entitlement, duty bearers – of their respective obligations under the REBSPA, and, by extension, to strengthen the contribution of international human rights law to the development of the normative framework for the governance of science and technological development.

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Abbreviations

ADRIP American Declaration on the Rights of Indigenous Peoples ASEAN Association of Southeast Asian Nations

CBD Convention on Biological Diversity

CEDAW Convention on the Elimination of All Forms of Discrimination against Women CESCR Committee on Economic, Social and Cultural Rights

CFREU Charter of Fundamental Rights of the European Union CIOMS Council for International Organizations of Medical Sciences CoE Council of Europe

CRC Convention on the Right of the Child CRCtee Committee on the Rights of the Child

CRPD Convention on the Rights of People with Disabilities ECHR European Convention on Human Rights

ECOSOC UN Economic and Social Council ECtHR European Court of Human Rights ESC Economic, Social and Cultural

EU European Union

HRCtee Human Rights Committee

IACtHR Inter-American Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice

OAS Organization of American States

REBSPA Right to enjoy the benefits of scientific progress and its applications UDHR Universal Declaration of Human Rights

UN United Nations

UNDRIP UN Declaration on the Rights of Indigenous Peoples

UNESCO United Nations Educational, Scientific and Cultural Organization VCLT Vienna Convention of the Law of Treaties

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Table of International Instruments

TREATIES

Charter of the United Nations (adopted 26/06/1945, entered into force 24/10/1945) 1 UNTS 16 (UN Charter)

Statute of the International Court of Justice (adopted 26/06/1945, entered into force 24/10/1945) 3 Bevans 1179 (ICJ Statute)

International Covenant on Civil and Political Rights (adopted 16/12/1966, entered into force 23/03/1976) 999 UNTS 171 (ICCPR)

International Covenant on Economic, Social and Cultural Rights (adopted 16/12/1966, entered into force 03/01/1976) 993 UNTS 3(ICESCR)

Vienna Convention on the Law of Treaties (adopted 23/05/1969, entered into force 27/01/1980) 1155 UNTS 331 (VCLT)

Convention on the Elimination of All Forms of Discrimination against Women (adopted 18/12/1979, entered into force 03/09/1981) 1249 UNTS 13 (CEDAW)

Convention on the Rights of the Child (adopted 20/11/1989, entered into force 2/09/1990) 1577 UNTS 3 (CRC)

Convention on the Rights of Persons with Disabilities (adopted 13/12/2006, entered into force 03/05/2008), A/RES/61/106, Annex I (CRPD)

Convention on Biological Diversity (adopted 05/06/1992, entered into force 29/12/1993) 1760 UNTS 79 (CBD)

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity (adopted 29/10/2010, entered into force 12/10/2014) (Nagoya Protocol)

UN INSTRUMENTS

Committee on Arrangements for Consultation with Non-Governmental Organizations (20/08/1946) E/CT.2/2

Drafting Committee of the Commission of Human Rights, Summary Record of the Fifteenth Meeting (23/06/1947) E/CN.4/AC.1/SR.15

Report of the Working Group on the Declaration on Human Rights (10/12/1947) E/CN.4/57

Working Group on the Declaration of Human Rights, Summary Record of the Ninth Meeting: Discussion of the Report of the Drafting Committee (E/CN.4/21, Annex F) Article 35 (10/12/1947) E/CN.4/AC.2/SR.9

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Commission on Human Rights, Summary Record of the Seventieth Meeting: Statement of the USSR Representative on Consideration of Article 30 (11/06/1948) E/CN.4/SR.70

Commission on Human Rights, Summary Record of the Seventieth Meeting: Statement of the France Representative on Consideration of Article 30 (11/06/1948) E/CN.4/SR.70

UN General Assembly Third Committee, Summary Record of the Hundred and Fiftieth Meeting: Statement of the Belgium Representative on Consideration of Article 25 (20/11/1948) A/C.3/SR.150 UN General Assembly Third Committee, Summary Record of the Hundred and Fifty-First Meeting: Statement of the China Representative (22/11/1948) A/C.3/SR.151

Universal Declaration of Human Rights (1948) GA res 217A (III), UN Doc A/810

Commission on Human Rights, Seventh Session, Agenda Item 3(b), Draft International Covenant on Human Rights and Measures of Implementation, Suggestions Submitted by the Director-General of UNESCO, (27/04/1951) E/CN.4/541⁄Rev.1

Commission on Human Rights, Seventh Session, Agenda Item 3(b), Working Group on Economic, Social and Cultural Rights, Compilation of Proposals Relating to Economic, Social and Cultural Rights, (27/04/1951) E/CN.4/AC.14/2/Add.4

Commission on Human Rights, Seventh Session, Agenda Item 3(b), Draft International Covenant on Human Rights and Measures of Implementation, Chile: Proposal on the Right to Education and Cultural Rights Based on Suggestions of UNESCO, (7/05/1951) E/CN.4/613/Rev.1

Commission on Human Rights, Seventh Session, Agenda Item 3, Draft International Covenant on Human Rights and Measures of Implementation, 228th Meeting, (28/06/1951) E/CN.4/SR.228 Commission on Human Rights, Eighth Session, Draft International Covenants on Human Rights and Measures of Implementation, Part III of the Draft Covenant drawn up by the Commission at its Seventh Session, 292nd Meeting, (27/05/1952) E/CN.4/SR.292

Commission on Human Rights, Eighth Session, Draft International Covenants on Human Rights and Measures of Implementation, Part III of the Draft Covenant drawn up by the Commission at its Seventh Session, 293rd Meeting, (27/05/1952) E/CN.4/SR.293

UN General Assembly, Twelfth Session, Third Committee, Agenda Item 33, Draft International Covenants on Human Rights, 797th Meeting, (31/10/1957) A/C.3/SR.797

United Nations, Proclamation of Tehran, Final Act of the International on Human Rights (1968), UN Doc. A/CONF.32/ 41 available at:http://legal.un.org/avl/pdf/ha/fatchr/Final_Act_of_TehranConf.pdf [accessed 13/06/2019]

UN General Assembly, Charter of Economic Rights and Duties of States, 12/11/1974, UN Doc A/RES/3281 (xxix)

UN General Assembly, Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, 10/11/1975, UN Doc A/RES/3384 (xxx)

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ECOSOC, Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social, and Cultural Rights, 28/05/1985, E/Res/1985/17

UN Commission on Human Rights, Note verbale dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights (‘Limburg Principles’), 8/01/1987, E/CN.4/1987/17

Rio Declaration on Environment and Development (13 June 1992) UN Doc. A/CONF.151/26 (vol. I)

United Nations, Vienna Declaration and Programme of Action, World Conference on Human Rights (1993) UN Doc. A/CONF.157/ 23

UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, 13/08/2007, A/RES/61/295

ECOSOC, Report of the Fiftieth and Fifty-First Sessions of the Committee on Economic, Social and Cultural Rights (2014) UN Doc E/2014/22 E/C.12/2013/3

UN Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed: The right to enjoy the benefits of scientific progress and its applications (2012) UN Doc A/HRC/20/26

CEDAW Committee, General recommendation No.34 adopted by the Committee: on the rights of rural women, 4/03/2016, CEDAW/C/GC/34

CEDAW Committee, General recommendation No.36 adopted by the Committee: on the rights of girls and women in education, 16/11/2017, CEDAW/C/GC/36

CESCR, Concluding observations on the combined second and third periodic reports of Armenia (2014), E/C.12/ARM/CO/2-3

CESCR, Concluding observations on the initial and second periodic reports of Djibouti (2014), E/C.12/DJI/CO/1-2

CESCR, Concluding observations on the second periodic report of Lithuania (2014), E/C.12/LTU/CO/2

CESCR, Concluding observations on the sixth periodic report of Colombia (2017), E/C.12/COL/CO/6

CESCR, Concluding observations on the sixth periodic report of Bulgaria (2019), E/C.12/BGR/CO/6 CESCR, Consideration of the combined 2nd_-4th_{periodic reports of States Parties (Vietnam),}

14/03/2013, E/C.12/VNM/2-4

CESCR, Consideration of initial reports of States Parties due in 1990 (Gambia), 6/11/2013, E/C.12/GMB/1

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CESCR, Consideration of initial reports of States Parties due in 1990 (Uganda), 5/12/2013, E/C.12/UGA/1

CESCR, List of issues in relation to the sixth periodic report of Canada (2015), E/C.12/CAN/Q/6 CESCR, List of issues in relation to the sixth periodic report of Denmark (2018), E/C.12/DNK/Q/6 CESCR, General Comment No. 3: The Nature of States Parties' Obligations (Art.2(1) of the ICESCR), 14 December 1990, E/1991/23

CESCR, General Comment No.6: The Economic, Social and Cultural Rights of Older Persons, 8/12/1995, E/1996/22

CESCR, General Comment No.13: The Right to Education (Art.13 of the Covenant), 8/12/1999, E/C.12/1999/10

CESCR, General Comment No.14: The Right to the Highest Attainable Standard of Health (Art.12 of the Covenant), 11/08/2000, E/C.12/2000/4

CESCR, General Comment No.17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of Which He or She is the Author (Art.15(1)(c) of the Covenant), 12/01/2006, E/C.12/GC/17

CESCR, General Comment No.19: The right to social security (Art.9 of the Covenant), 4 February 2008, E/C.12/GC/19

CESCR, General comment No.20: Non-discrimination in economic, social and cultural rights (art.2(2) ICESCR), 2/07/2009, E/C.12/GC/20

CESCR, General comment no 21, Right of everyone to take part in cultural life (art.15(1)(a) ICESCR), 21/12/2009, E/C.12/GC/21

CESCR, General Comment No.22: The Right to Sexual and Reproductive Health (Art.12 of the ICESCR), 02/06/2016, E/C.12/GC/22

CESCR, General comment No.24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, 10/08/2017, E/C.12/GC/24 CESCR, Guidelines on Treaty-Specific Documents to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, E/C.12/2008/2 (24/03/2009)

CESCR, Report on the forty-fourth and forty-fifth sessions ((E/2011/22 - E/C.12/2010/3) available at https://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx [accessed 13/05/2019]

CESCR, Report on the Twenty-Second, Twenty-Third and Twenty-Fourth Sessions (2001) UN Doc E/2001/22, E/C.12/2000/21, ANNEX V “Non-governmental organization participation in the activities of the Committee on Economic, Social and Cultural Rights” available at https://www.un.org/documents/ecosoc/docs/2001/e2001-22.pdf [accessed 30/05/2019]

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UN Committee on the Rights of the Child, General comment No. 12 (2009): The right of the child to be heard, 20/07/2009, CRC/C/GC/12

UN Human Rights Committee, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10/03/1992

Special Rapporteur H. Waldock, ‘Sixth Report on the Law of Treaties’ (1966) YILC, Document A/CN.4/186 and Add.1-7

Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (21/03/2011) A/HRC/17/31

Open-ended Intergovernmental Working Group on Transnational Corporations and other Business Enterprises with Respect to Human Rights, Draft of the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business

Enterprises (version as of 16/07/2019) available at

https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_ LBI.pdf [accessed 30/07/2019]

UNESCO INSTRUMENTS

UNESCO, Constitution of the United Nations Educational, Scientific and Cultural Organisation (UNESCO), 16/11/1945

UNESCO, ‘Resolution 4.52. Study of the ‘Right to Participate in Cultural Life.’ Basic document REPORT’ (2/05/1952) UNESCO/CUA/42

UNESCO, Universal Declaration on the Human Genome and Human Rights, 11/11/1997 available at https://www.refworld.org/docid/404226144.html [accessed 10/05/2019]

UNESCO, International Declaration on Human Genetic Data, 16/10/2003 available at https://www.refworld.org/docid/4042241f4.html [accessed 10/05/2019]

UNESCO, Universal Declaration on Bioethics and Human Rights, 19/10/2005 available at http://www.unesco.org/new/en/social-and-human-sciences/themes/bioethics/bioethics-and-human-rights/ [accessed 10/05/2019]

UNESCO, Recommendation on Science and Scientific Researchers, 13/11/2017 available at https://en.unesco.org/themes/ethics-science-and-technology/recommendation_science [accessed 11/05/2019]

UNESCO, Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its

Applications (2009) available at

https://www.aaas.org/sites/default/files/VeniceStatement_July2009.pdf [accessed 12/02/2019] UNESCO, The Right to Enjoy the Benefits of Scientific Progress and its Applications (UNESCO, 2009) available at https://unesdoc.unesco.org/ark:/48223/pf0000185558 [accessed 10/03/2019]

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UNESCO WCS, Declaration on Science and the Use of Scientific Knowledge (1999) available at http://www.unesco.org/science/wcs/eng/declaration_e.htm accessed [02/07/2019]

UNESCO WCS, Science Agenda-Framework for Action (1999) available at http://www.unesco.org/science/wcs/eng/framework.htm#3_4 [accessed 02/07/2019]

UNESCO WCS, Introductory Note to the Science Agenda – Framework for Action (1999) available at https://unesdoc.unesco.org/ark:/48223/pf0000120706/PDF/120706mul.pdf.multi [accessed 13/06/2019]

UNESCO International Bioethics Committee, Report of the IBC on the Principle of the Sharing of Benefits (2 October 2015) SHS/YES/IBC-22/15/3 REV.2

REGIONAL INSTRUMENTS

American Declaration of the Rights and Duties of Man, OAS Res XXX, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003); 43 AJIL Supp 133 (1949)

American Convention on Human Rights (adopted 21/11/1969, entered into force 18/07/1978) 1144 UNTS 123

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (adopted 17/11/1988, entered into force 16/11/1999), 28 ILM 156 (1989) American Declaration on the Rights of Indigenous Peoples, (15/06/2016) AG/RES.2888 (XLVI-O/16)

League of Arab States, Arab Charter on Human Rights, (2004) available at http://www.eods.eu/library/LAS_Arab%20Charter%20on%20Human%20Rights_2004_EN.pdf [accessed 5/05/2019]

Protocol to the African Charter on Human and Peoples’ rights on the Rights of Women in Africa (adopted 11/07/2003, entered into force 25/11/2005) CAB/LEG/66.6

Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 04/11/1950, entered into force 03/09/1953) 213 UNTS 221

Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (adopted 04/04/1997, entered into force 12/01/1999) ETS No. 164

Revised European Social Charter (adopted 3/05/1996, entered into force 1/07/1999) ETS 163 Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p 391–407 Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p 17–35

Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration, 18/11/2012 available at https://www.refworld.org/docid/50c9fea82.html [accessed 4/05/2019]

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Table of Cases

INTERNATIONAL COURT OF JUSTICE

Corfu Channel (The United Kingdom v Albania) (Judgment) [1949] ICJ Reports 4

United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep 3

Oil Platforms (Islamic Republic of Iran v. United States of America) (Judgment) [1996] ICJ Rep 803 Kasikili/Sedudu Island (Botswana/Namibia) (Judgement) [1999] ICJ Rep 1045

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion) [2004] ICJ Rep 136

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Inter-American Commission on Human Rights, RESOLUTION 23/81 Case 2141 (UNITED STATES) (06/03/1981)

INTER-AMERICAN COURT OF HUMAN RIGHTS

The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Mexico v United States, Advisory Opinion OC-16/99, IACtHR Series A no.16, 1/10/1999

EUROPEAN COURT OF HUMAN RIGHTS

Loizidou v Turkey [1995] ECtHR, Application no.15318/89 Bataliny v. Russia [2015] ECtHR, Application no.10060/07

UNCOMMITTEE ON ECONOMIC,SOCIAL AND CULTURAL RIGHTS

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Introduction

Nowadays, the world heavily relies on the advances of scientific research and technology in order to discover the secrets of life and solve the puzzles of death; to find solutions that will help to eradicate various diseases; to increase life expectancy and improve overall living standards; and to solve many development-related and socio-economic problems faced by humanity.

Without a doubt, these scientific and technological advances bring numerous benefits. However, they also ‘generate new uncertainties and failures, with the result that doubt continuously undermines knowledge, and unforeseen consequences confound faith in progress.’1_{There is a}

growing need in making scientific research and technological innovations more accountable to society.2

This need can be addressed by various instruments, including regulatory governance of technological developments and legal instruments. Each of these instruments, however, face their own challenges. Regulatory governance is no longer a domain singularly operated by states. Many powerful actors, including developed states, international institutions and private business entities, operating in global markets that extend beyond national borders are capable of exercising various forms of control and influence on developing countries while the latter attempt to develop regulatory measures for the management of science, technology and innovation. Rapid developments in the area of scientific research also make the process of its legal regulation increasingly difficult. Lack of a unified approach to legal regulation of this matter has an erosive effect that results in a ‘patchwork’ of legal regimes being created by countries independently of each other. Various countries undertake attempts to adopt laws governing scientific advancements, but the level of protection provided to individuals in these national legal acts differs from country to country and, therefore, can lead to a decrease in protection or a complete disregard of the human rights of those affected by the advancements of science.

In these situations of uncertainty, individuals seek to protect their interests through the appeal to human rights and states increase their cooperation directed at development of international norms with the purpose of replacing regulatory ‘patchwork’ and decreasing the existing uncertainty. In this light, it is relevant to scrutinize how international human rights law through the right to enjoy the benefits of scientific progress and its applications (REBSPA) in particular can contribute to the development of the normative framework for the governance of science, research and technological 1_{S. Jasanoff, ‘Technologies of Humility: Citizen Participation in Governing Science’ (2003) 41 Minerva 223,224.} 2_{K. Barham, A.-M. Hubert, ‘The International Human Right to Science and its Application to Geoengineering}

Research and Development’ (2016) available at https://ablawg.ca/2016/09/07/international-human-right-to-science/ [accessed 28/01/2019].

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development, and shed the light on the human dimension of science as science is ‘rarely addressed through a human rights lens.’3

It is the premise of this research project that the REBSPA is capable of contributing to the development of a normative framework that will allow balancing out the rights and interests of those engaged in and affected by the scientific advancements and the developments of modern science and technology. The REBSPA, being enshrined in the provisions of major international human rights law instruments,4_{qualifies as an autonomous and self-standing right worthy of protection for its}

continuous contribution to the improvement of living standards of all members of society.5_{Its binding}

character is not questioned as such and its vital role in addressing negative effects of globalization and eradicating poverty has been recognized by certain scholars6_{and international bodies.}7_Yet,

human rights experts and practitioners, for the most part, are ‘oblivious to its existence’ because its content has not been specified enough.8

There is also no unified and internationally accepted position as to what the normative content of the REBSPA is and how it should be interpreted and implemented, which substantially impedes its advancement. This right is generally either overlooked or addressed by the international bodies (e.g. by the Committee on Economic, Social and Cultural Rights (CESCR)) in a very inconsistent manner. Namely, in many of its concluding observations to state reports submitted to the CESCR and in the adopted lists of issues, the Committee does not address the REBSPA at all.9_{In the most recent}

view, adopted by the CESCR in March 2019, in response to the communication arguing, among other things, the violation of the REBSPA by Italy due to limitations on conducting the research on embryos existing in the country, the Committee refused to elaborate on the possible meaning(s) of the REBSPA by denying the victims’ standing to submit a claim.10_{Additionally, the recommendation to}

develop a general comment on the REBSPA addressed to the CESCR was proposed by the UN

3_{A.R. Chapman, ‘Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and its}

Application’ (2009) 8 Journal of Human Rights 1 [Chapman].

4_{Universal Declaration of Human Rights (1948) GA res 217A (III), UN Doc A/810, art.27 (UDHR); International}

Covenant on Economic, Social and Cultural Rights (adopted 16/12/1966, entered into force 03/01/1976) 993 UNTS 3, art.15(1)(b) (ICESCR).

5_{A. Plomer, Patents, Human Rights and Access to Science (Broadheath: Edward Elgar 2015), chapter 5.} 6_{M. Mancisidor, ‘Is There such a Thing as a Human Right to Science in International Law?’ (2015) 4}

ESIL 1–6 [Mancisidor]; W.A. Schabas, ‘Study of the Right to Enjoy the Benefits of Scientific and Technological Progress and its Applications’ in Y. Donders, V. Volodin (eds), Human Rights in Education, Science and Culture:

Legal Developments and Challenges (Farnham: Ashgate Publishing 2007),297 [Schabas].

7_{UNESCO, Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications (2009)}

available at https://www.aaas.org/sites/default/files/VeniceStatement_July2009.pdf [accessed 12/02/2019] [Venice Statement]; UN Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Farida

Shaheed: The right to enjoy the benefits of scientific progress and its applications (2012) UN Doc A/HRC/20/26,¶¶1-5

[SR Report].

8_{E. Morgera, ‘Fair and Equitable Benefit-Sharing at the Cross-Roads of the Human Right to Science and International}

Biodiversity Law’ (2015) 4(4) Laws 803,806 [Morgera].

9_{E.g. CESCR, List of issues (LoI) in relation to the sixth periodic report of Denmark (2018), E/C.12/DNK/Q/6;}

CESCR, Concluding observations on the sixth periodic report of Bulgaria (2019), E/C.12/BGR/CO/6.

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Special Rapporteur in the field of cultural rights in 2012,11_{but this work has not been finalized yet.}

In November 2013 the CESCR agreed to carry out the background research on the REBSPA,12_and

the latest general discussion on the draft of the general comment was conducted in October 2018 with no tangible results following.

The state practice with regard to the implementation of the REBSPA is also quite inconsistent as states, in the absence of any general guidance form the CESCR, interpret and, therefore, report on this right differently. In particular, the following activities were reported by the countries as examples of implementation of states’ obligations under the REBSPA: contribution of science and technology to the export turnover of aquaculture farming;13_{development of Internet café’s infrastructure;}14

development and use of sign language, tactile language interpreter tools in all public institutions;15

etc.

Moreover, there is no agreement as to which approaches need to be used in order to define the normative content of the REBSPA. Two already existing approaches with regard to defining the normative content of the economic, social, and cultural rights (ESC rights): (1) identifying the minimum level of obligations to ensure the realization of a core of a right in question and (2) broadly describing the essence of the right are seen as not appropriate to elucidate the normative content of the REBSPA.16_{It is understood that these approaches need to be adapted in order to elicit the}

normative content of the REBSPA, but it is unclear as to how to do it.17_{It is, therefore, of the essence}

to increase scholarly efforts in this direction.

It is important to acknowledge this gap and fill it by further clarifying and elaborating the normative content of the REBSPA for it to become actionable in a sense that right holders are aware of their entitlement, duty bearers – of their respective obligations under the REBSPA, and all relevant interests are balanced against each other. Against this backdrop, this research project will explore how the normative content of the REBSPA could be constructed in order to improve its conceptual clarity and actionability. The research question informs the goals of this research project, which will be exploratory and normative in nature. In order to achieve these goals, both descriptive (lex lata) and normative (lege ferenda) approaches will be used.

11_{SR report, (n8),¶75(b).}

12_{Report of the Fiftieth and Fifty-First Sessions of the Committee on Economic, Social and Cultural Rights (ECOSOC)}

(2014) UN Doc E/2014/22 E/C.12/2013/3,¶74.

13_{CESCR, Consideration of the combined 2}nd_-4th_{periodic reports of States Parties (Vietnam), 14/03/2013,}

E/C.12/VNM/2-4,¶616.

14_{CESCR, Consideration of initial reports of States Parties due in 1990 (Gambia), 6/11/2013, E/C.12/GMB/1,¶130.} 15_{CESCR, Consideration of initial reports of States Parties due in 1990 (Uganda),5/12/2013, E/C.12/UGA/1,¶215.} 16_{UNESCO, The Right to Enjoy the Benefits of Scientific Progress and its Applications (UNESCO, 2009),7-8 available}

at https://unesdoc.unesco.org/ark:/48223/pf0000185558 [accessed 10/03/2019].

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The exploratory goal will be achieved by conducting an investigation into and analysis of the sources of international law, including international treaties, rules of customary law, general principles of law and other instruments as subsidiary means relevant for the determination of applicable rules of law that contain both provisions on human rights specifically referring to science and/or scientific progress and human rights that are connected or relevant to the REBSPA. The analysis will also cover legal instruments that do not necessarily contain provisions related to human rights and science but still refer to science and/or scientific progress in other domains. The analysis will be conducted in accordance with the general rules of interpretation described in arts.31 and 32 of the Vienna Convention of the Law of Treaties (1969) (VCLT).18_{This contribution will allow to}

identify the existing gaps and flesh out the elements necessary for constructing the normative content of the REBSPA. The normative goal will be achieved by developing a set of proposals and recommendations on the basis of identified gaps in the normative content of the REBSPA as the result of the conducted explorative analysis.

The research project will proceed as follows. Chapter 1 will explore the sources providing the legal basis for the REBSPA. This analysis will include international and regional human rights instruments that contain both provisions on human rights specifically referring to science and/or scientific progress and human rights that are connected or relevant to the REBSPA. Other non-human rights international and regional instruments that do not contain provisions related to human rights and science but still refer to science and/or scientific progress in other domains will be analyzed. Chapter 2 will elaborate on the meaning of terms used in art.27 UDHR and art.15(1)(b) International Covenant on Economic, Social and Cultural Rights (ICESCR) (science,’ ‘scientific research,’ ‘scientific progress,’ and ‘to share in / to enjoy the benefits’) and their relevance for better understanding of the normative content of the REBSPA. Chapter 3 will concentrate on approaches to defining the normative content of the ESC rights and will propose to use an approach concentrating on determining the minimum core of the REBSPA as a baseline for fleshing out the normative content of this right. It will also identify and analyze a set of principles and values relevant for formulating the minimum core of the REBSPA. Chapter 4 will capitalize on the findings of chapter 3 and focus on analyzing the elements relevant to elucidation the normative content of the REBSPA (right holders, duty bearers and responsibility holders, nature and scope of obligations and responsibilities), followed by formulating the proposals and recommendations for constructing the normative content of the REBSPA.

18_{Vienna Convention on the Law of Treaties (adopted 23/05/1969, entered into force 27/01/1980) 1155 UNTS 331}

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1. Legal basis of the REBSPA

Before addressing the normative content of the REBSPA, it is relevant to analyze the legal basis of this right. This chapter will primarily focus on existing international and regional human rights instruments that contain both provisions on human rights specifically referring to science and/or scientific progress and human rights that are connected or relevant to the REBSPA. Legally binding human rights instruments applicable at international and regional levels will be followed by the non-binding international and regional human rights instruments. Additionally, other international legal instruments that do not necessarily contain provisions related to human rights and science but still refer to science and/or scientific progress in other domains will be analyzed. The non-human rights international legal instruments do not confer human rights to third parties, i.e. individuals or communities and, therefore, do not constitute an immediate legal basis for the REBSPA. They, nevertheless, provide some insight into how issues related to science and/or scientific progress are perceived by international actors from angles that are not necessarily grounded in human rights. Conducting a comprehensive analysis of these instruments will assist with clarifying the legal basis of the REBSPA and further discerning of elements that are relevant for determining the normative content of the REBSPA.

International human rights law is situated within the general framework of public international law. Therefore, the analysis of human rights instruments containing provisions with regard to human rights referring to science as well as other relevant international and regional legal instruments will be conducted in accordance with the general rules of interpretation described in arts. 31 and 32 of the Vienna Convention of the Law of Treaties (1969) (VCLT). Under art.31 VCLT, treaties should be interpreted in good faith according to the ordinary meaning of the terms of the treaty in question in their context and in the light of its object and purpose. Context, object and purpose can be determined on the basis of subsequent international legal instruments and subsequent practice of application of the treaty in question. Additionally, supplementary means of interpretation (i.e. travaux preparatoires) can be used in cases when interpretation of the treaty provisions according to art.31 leaves some ambiguities or results in an unreasonable conclusion (art.32 VCLT). Application of rules of interpretation as described in arts.31 and 32 VCLT to the treaties adopted before entry into force of the VCLT is not prohibited since provisions of arts.31 and 32 reflect customary international law.19

In addition to these tools of interpretation, academic sources will also be used.

19_{Oil Platforms (Islamic Republic of Iran v. United States of America) (Judgment) [1996] ICJ Rep 803,¶23;} Kasikili/Sedudu Island (Botswana/Namibia) (Judgement) [1999] ICJ Rep 1045,¶18.

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Human rights instruments that contain both provisions on human rights specifically referring to science and/or scientific progress and human rights that are connected or relevant to the REBSPA

1.1. Legally binding human rights instruments

1.1.1. International human rights instruments

a. Universal Declaration on Human Rights (UDHR)

Art.27(1) UDHR stipulates that ‘everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.’ The adoption of the UDHR was a seminal step in the process of development of the contemporary international human rights legal framework.20_{The inclusion of the REBSPA in the UDHR was caused}

by at least three factors.

First, the horrors of World War II showed how destructive science can be when abused. In response to that, certain delegations involved in the process of drafting of the UDHR (USSR in particular) tried to push for the inclusion of provisions saying that science should serve the progress and development and its task should be ‘to work for the advancement of peaceful aims and to make human life better.’21_{However, these proposals were met with considerable opposition. The opponents}

argued that attempts to assign a political mission to science should not be tolerated and that the sole aim of science should be the search for truth;22_{‘science should not be placed at the service of an}

ideology’ or harnessed to any political ends as this might be utilized for the purposes prejudicial to the rights of the individual.23_{In the end, the line of argumentation presented by the USSR and its}

supporters was voted down and the language of the final version of art.27(1) UDHR can be seen as neutral and not promoting the politicization of science.

Second, the establishment of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1945, whose mandate includes ‘promoting collaboration among the

20_{United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep}

3,¶¶91-92. Initially, the UDHR, being adopted as a declaration of the UN General Assembly, qualified as a non-binding legal instrument. However, the recognition of its provisions and principles in practically every international and regional human rights treaty and reliance of the ICJ and other judicial bodies on the UDHR as a source of fundamental human rights principles allows to suggest that the UDHR can now be considered as a legally binding human rights instrument.

21_{Commission on Human Rights, Summary Record of the Seventieth Meeting: Statement of the USSR Representative on} Consideration of Article 30 (11/06/1948) E/CN.4/SR.70 in W.A. Schabas (ed), The Universal Declaration on Human Rights: The travaux preparatoires. Volumes I-III (CUP 2013),1864 [UDHR travaux preparatoires].

22_{UN General Assembly Third Committee, Summary Record of the Hundred and Fiftieth Meeting: Statement of the}

Belgium Representative on Consideration of Article 25 (20/11/1948) A/C.3/SR.150 in UDHR travaux preparatoires, (n21),2723-2726.

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nations through education, science and culture,’24_{and its active involvement in the process of drafting}

of the UDHR.25

Third, a similar provision on the right to enjoy the benefits of scientific discoveries was already included in the American Declaration of the Rights and Duties of Man26_{adopted six months earlier}

than the UDHR. The delegates from Latin America actively campaigned for the inclusion of the same human rights into the UDHR.27

b. ICESCR (1966)

i. Article 15(1)(b)

The ICESCR contains a specific provision on the REBSPA which can be found in art.15(1)(b). According to this provision, States Parties to the ICESCR ‘recognize the right of everyone ... to enjoy the benefits of scientific progress and its applications.’ This provision of the ICESCR is legally binding on the States Parties and should also be read in conjunction with art.2(1) ICESCR which underscores the importance of individual and collective efforts of States Parties and the notion of progressive realization of ESC rights enshrined in the ICESCR.28

Initial draft of art.15 ICESCR was prepared by UNESCO.29_{According to the travaux}

preparatoires of the ICESCR, the proposals to include the REBSPA were also presented by a number of delegations. In particular, the USSR delegation pushed for the inclusion of provisions that tie the development of science to the ‘interests of progress and democracy, and maintenance of peace.’30

The proposal of the US delegation (together with delegations from Egypt, Yugoslavia, and others) considered relevant the inclusion of the REBSPA within the framework of the right to education.31

UNESCO, however, focused on proposing the inclusion of separate provisions promoting the enjoyment of the benefits of scientific progress and its applications within the framework of state’s obligations to encourage ‘the preservation, development and propagation of science and culture.’32

24_{UNESCO, Constitution of the United Nations Educational, Scientific and Cultural Organisation (UNESCO),}

16/11/1945, art.I(1).

25_{Chapman, (n3),5.}

26_{American Declaration of the Rights and Duties of Man, OAS Res XXX, reprinted in Basic Documents Pertaining to}

Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003); 43 AJIL Supp 133 (1949), art.XIII.

27_{Chapman, (n3),5.}

28_{F. Coomans, ‘A dual perspective on the right to enjoy the benefits of scientific progress’ in G. Corradi, K. de Feyter,}

E. Desmet and K. VanHees (eds), Critical Indigenous Rights Studies (Abingdon: Routledge 2019),90 [Coomans].

29_{B. Saul, D. Kinley, J. Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary,}

Cases and Materials (OUP 2014),1177 [Saul et al.].

30_{Commission on Human Rights, Seventh Session, Agenda Item 3(b), Working Group on Economic, Social and}

Cultural Rights, Compilation of Proposals Relating to Economic, Social and Cultural Rights, (27/04/1951)

E/CN.4/AC.14/2/Add.4 in B. Saul (ed), The International Covenant on Economic, Social and Cultural Rights: Travaux

Preparatoires. Volume I-II (OUP 2016),741 [ICESCR travaux preparatoires]. 31_Ibid.

32_{Commission on Human Rights, Seventh Session, Agenda Item 3(b), Draft International Covenant on Human Rights}

and Measures of Implementation, Suggestions Submitted by the Director-General of UNESCO, (27/04/1951) E/CN.4/541⁄Rev.1 in ICESCR travaux preparatoires, (n30),683.

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This proposal was supported by Chile and other countries.33_{In justifying its proposals, UNESCO}

underlined their connection with the provisions of art.27(1) UDHR. UNESCO representatives underscored that any provisions concerning science to be included in the ICESCR should be as precise as possible but also realized that their formulation would not be an easy process.34_According

to UNESCO, interventions by the state in the cultural and scientific fields did raise certain concerns as these areas were traditionally perceived as being realized by individuals themselves. In particular, enjoyment of benefits of scientific progress was largely possible due to the work conducted by private institutions which, in many countries, were not accountable to the public authorities. In this light, UNESCO argued for the need for states (represented by their public authorities) to be able to take measures aimed at promotion of participation in scientific progress.35

The position of UNESCO was that ‘the omission of all reference to science from the Covenant was scarcely conceivable.’36_{According to UNESCO, science should be considered as a part of}

culture, and scientific advancements have a potential to improve human welfare in health, economics and other areas.37_{The UNESCO representative argued further that the REBSPA should be treated as}

a determining factor for the exercise of other human rights. ‘The dissemination of scientific knowledge could contribute largely to the removal of certain prejudices, for example, racial prejudices, which constitute a direct threat to the whole edifice of human rights.’38_{The arguments}

presented by UNESCO did persuade the Drafting Committee of the need to give the right to culture, including the REBSPA, a separate provision. However, their desire for brevity prevailed and the final version of art.15(1)(b) was very concise. The proposals made by the delegation of the USSR and its supporters were not accepted and it was agreed that including the ends which science would serve should be avoided so it would not provide any pretext for state control of activities related to scientific research. Nevertheless, it was also agreed that States Parties should take all measures necessary for stimulating international contacts and cooperation in the field of science.39

ii. Articles 12 and 13

Arts.12 and 13 ICESCR declare the rights of everyone to the enjoyment of the highest attainable standard of physical and mental health and to education respectively. Although, the

33_{Commission on Human Rights, Seventh Session, Agenda Item 3(b), Draft International Covenant on Human Rights}

and Measures of Implementation, Chile: Proposal on the Right to Education and Cultural Rights Based on Suggestions of UNESCO, (7/05/1951) E/CN.4/613/Rev.1 in ICESCR travaux preparatoires, (n30),724.

34_{Commission on Human Rights, Seventh Session, Agenda Item 3, Draft International Covenant on Human Rights and}

Measures of Implementation, 228th Meeting, (28/06/1951) E/CN.4/SR.228 in ICESCR travaux preparatoires, (n30),476 [E/CN.4/SR.228]. 35_Ibid. 36_Id,477. 37_Ibid. 38_Ibid. 39_Id,478.

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provisions of these articles do not contain explicit references to the REBSPA, the importance of science for the realization of these rights is recognized by the CESCR in its general comments. In particular, the ICESCR States Parties are expected to provide everyone with scientifically appropriate health, including sexual and reproduction health, facilities, goods, information and services.40

Additionally, the education on sexuality and reproduction should also be scientifically accurate.41_The

study of technologies and related sciences should be included in technical and vocational education which constitutes a part of the right to education under the ICESCR.42

c. International Covenant on Civil and Political Rights (1966) (ICCPR)

The indivisibility, interrelatedness and interdependence of human rights has been widely recognized.43_{Although strategy implementations for civil and political rights and for ESC rights may}

differ, certain elements of the former might be of use when determining the legal basis and normative content of the latter. With regard to the REBSPA, at least four provisions of the ICCPR are of particular relevance. Namely, the prohibition of torture or inhuman or degrading treatment (art.7), freedom of movement (art.12) the right to freedom of expression and to seek and receive information as an element of the right to hold opinions (art.19), and the right to freedom of association (art.22).

Under art.7 ICCPR, no one shall be subjected without their free consent to medical or scientific experimentation. Conducting various experiments involving human subjects is a vital part of scientific progress. Therefore, it is important to ensure the protection of those involved in these activities. Freedoms of movement, expression, association and access to information are crucial for the scientific community to be able to effectively contribute to progress. In this light, provisions of the above-mentioned articles of the ICCPR should be considered relevant in determining the legal basis and, by extension, normative content of the REBSPA.

d. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979)

40_{CESCR, General Comment No.14: The Right to the Highest Attainable Standard of Health (Art.12 of the Covenant),}

11/08/2000, E/C.12/2000/4,¶12(d) [CESCR GC14]; CESCR, General Comment No.22: The Right to Sexual and

Reproductive Health (Art.12 of the ICESCR), 02/05/2016, E/C.12/GC/22,¶¶21,47 [CESCR GC22]. 41_{CESCR GC22, (n40),¶9.}

42_{CESCR, General Comment No.13: The Right to Education (Art.13 of the Covenant), 8/12/1999, E/C.12/1999/10,¶16}

[CESCR GC13].

43_{United Nations, Proclamation of Tehran, Final Act of the International on Human Rights (1968), UN Doc.}

A/CONF.32/ 41,¶13 available at:http://legal.un.org/avl/pdf/ha/fatchr/Final_Act_of_TehranConf.pdf [accessed

13/06/2019] [Tehran Proclamation]; United Nations, Vienna Declaration and Programme of Action, World Conference

on Human Rights (1993),UN Doc. A/CONF.157/ 23,¶5 available at http://www.un-documents.net/ac157-23.htm

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The CEDAW does not contain provisions specifically referring to the REBSPA. Nevertheless, scientific and technological knowledge is considered relevant when the review of various protective legislative measures (e.g. measures offering protection to women during pregnancy in types of work considered to be harmful to them) addressed at women in the field of employment is to be conducted.44

e. Convention on the Right of the Child (CRC) (1989)

While the CRC also does not contain direct references to the REBSPA, it underlines the importance of international cooperation between the CRC States Parties directed at facilitating access to scientific and technical knowledge especially with regard to education,45_{emphasizing the}

importance of scientific knowledge and progress for education. Additionally, under art.12(1) CRC States Parties are under an obligation to ensure that children capable of forming their own views have the right to express these views ‘in all matters affecting the child.’ This right is understood to include the participation of children in pediatric research and clinical trials.46

f. Convention on the Rights of People with Disabilities (CRPD) (2006)

The CRPD provisions do not mention the REBSPA among the rights listed in the Convention. Nevertheless, measures directed at encouraging cooperation in research and facilitating access to scientific and technological knowledge are mentioned as relevant for the realization of the CRPD objectives.47_{The CRPD also stipulates that persons with disabilities shall not be subjected to any}

medical or scientific experimentation without their free consent.48

1.1.2. Regional human rights instruments

In addition to the international legal human rights framework, certain regional human rights instruments also contain provisions on human rights specifically referring to science and/or scientific progress and human rights that are connected or relevant to the REBSPA.

44_{Convention on the Elimination of All Forms of Discrimination against Women (adopted 18/12/1979, entered into}

force 03/09/1981) 1249 UNTS 13,art.11(3).

45_{Convention on the Rights of the Child (adopted 20/11/1989, entered into force 2/09/1990), 1577 UNTS 3,art.28(3).}

46_{UN Committee on the Rights of the Child (CRCtee), General comment No. 12 (2009): The right of the child to be} heard, 20/07/2009, CRC/C/GC/12,¶103 [CRCtee GC12]; P. Grootens-Wiegers, I.M. Hein, J.M. van den Broek, and

M.C. de Vries, ‘Medical decision-making in children and adolescents: developmental and neuroscientific aspects’ (2017) 17(120) BMC Pediatrics 1,2.

47_{Convention on the Rights of Persons with Disabilities (adopted 13/12/2006, entered into force 03/05/2008),}

A/RES/61/106, Annex I, art.32(1)(c).

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a. Organization of American States (OAS)

The American Declaration of the Rights and Duties of Man (1948) was adopted six months before the UDHR and is the first human rights instrument in the world that contained provisions on the REBSPA.49_{Under art.XIII, ‘every person has the right ... to participate in the benefits that result}

from intellectual progress, especially scientific discoveries.’50_{Furthermore, art.26 of the American}

Convention on Human Rights (1969) stipulates that the States Parties should also aim for the adoption of measures allowing progressive realization of the ESC rights.51_{The Protocol to the American}

Convention on Human Rights in the Area of Economic, Social and Cultural Rights 1988 contains art.14(1)(b) according to which the States Parties recognize the right of everyone to enjoy the benefits of scientific and technological progress.52_{Recognizing the importance of the connection between}

human rights and scientific advancements in the region is considered as one of the priority areas of the OAS.53

b. League of Arab States

The revised version of the Arab Charter on Human Rights was adopted in 200454_{and it}

recognizes the right of ‘every person to enjoy the benefits of scientific progress and [its] applications’ and the right not to ‘be subjected to medical or scientific experimentation ... without his free consent and full awareness of the consequences.’55_{While inclusion of these rights, along with others, in the}

Arab Charter is considered a positive step, the absence of important and universally recognized human rights principles in its provisions signifies that there is no common vision among Arab States with regard to how this particular right, along with others, should be implemented and protected.56

c. African Union

49_{The Inter-American Commission on Human Rights developed a set of legal arguments suggesting that the American}

Declaration of the Rights and Duties of Man is legally binding on those members of the OAS who did not ratify the American Convention on Human Rights. This argumentation can be seen in e.g. RESOLUTION 23/81 Case 2141 (UNITED STATES) (06/03/1981),¶¶15-16 available at http://www.cidh.org/annualrep/80.81eng/USA2141.htm [accessed 24/06/2019].

50_{American Declaration of the Rights and Duties of Man, (n26), art.XIII.}

51_{American Convention on Human Rights (adopted 21/11/1969, entered into force 18/07/1978) 1144 UNTS 123,art.26.} 52_{Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural}

Rights (adopted 17/11/1988, entered into force 16/11/1999), 28 ILM 156 (1989),art.14(1)(b).

53_{J. Wyndham, ‘Hearing at the Inter-American Commission on Human Rights on the Right to Enjoy the Benefits of}

Scientific and Technological Progress’ (25/10/2011),1 available at

https://www.aaas.org/sites/default/files/IACHR_Testimony_Wyndham.pdf [accessed 10/04/2019].

54_{The Arab Charter on Human Rights is legally binding on those Member States of the Arab League that ratified or}

acceded to the Charter.

55 _League _of _Arab _{States, Arab} _Charter _on _Human _Rights, _{(2004),arts.9,42} _available _at

http://www.eods.eu/library/LAS_Arab%20Charter%20on%20Human%20Rights_2004_EN.pdf [accessed 5/05/2019].

56_{P. Naskou-Perraki, ‘The Arab Charter on Human Rights: A new start for the protection of human rights in the Arab}

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The provisions of the African Charter on Human and Peoples’ rights do not contain any refences to the REBSPA. However, in the Protocol to the African Charter on Human and Peoples’ rights on the Rights of Women in Africa (2003) specific consideration is given to the prohibition of all medical or scientific experiments on women without their informed consent (art.4(2)(h)) and to the promotion of education and training for women, particularly in the field of science and technology (art.12(2)(b)).57_{It is important to underline that these provisions are not treated as elements of the}

REBSPA per se, but are included within the right to life, integrity and security of the person (art.4 of the Protocol) and the right to education and training (art.12 of the Protocol) respectively.

d. European Union (EU)

Within the EU, the need to protect fundamental human rights is addressed by the provisions of the Charter of Fundamental Rights of the European Union (CFREU).58_{According to the Preamble}

of the CFR, it is particularly ‘necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments.’ The CFREU does not include a separate provision on the REBSPA. Nevertheless, art.13, according to which the scientific research shall be free of constraint, might be relevant for the purposes of the present research project. Although the Explanations relating to the CFREU stipulate that freedom of scientific research protected by art.13 is primarily deduced from the right to freedom of thought and expression,59_the

Commentary to the CFREU suggests that scientific freedom, being a driver of progress and societal change, ‘has a value beyond free expression,’60_{and, therefore, can be considered relevant for other}

human rights and fundamental freedoms, including the right to education, etc.

e. Council of Europe (CoE)

Within the general human rights framework of the CoE, there are no references to the REBSPA either in the European Convention on Human Rights (ECHR) (1950)61_{or in the Revised}

European Social Charter (1996).62_{However, the issues related to scientific freedom are usually}

addressed by the European Court on Human Rights within the scope of arts.9 and 10 ECHR, covering freedom of thought and freedom of expression respectively.63

57_{Protocol to the African Charter on Human and Peoples’ rights on the Rights of Women in Africa (adopted}

11/07/2003, entered into force 25/11/2005) CAB/LEG/66.6,arts.4(2)(h),12(2)(b).

58_{Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p 391–407. The Charter applies to EU}

Member States and bodies when they implement the EU law (art.51(1)).

59_{Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p 17–35,art.13.}

60_{D. Sayers, ‘Article 13’in S. Peers, T. Hervey, J. Kenner and A. Ward (eds) The EU Charter of Fundamental Rights: A} Commentary (Bloomsbury Publishing 2014),399 [Sayers].

61_{Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 04/11/1950, entered into force}

03/09/1953) 213 UNTS 221.

62_{Revised European Social Charter (adopted 3/05/1996, entered into force 1/07/1999) ETS 163.} 63_{Sayers, (n60),380.}

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Additionally, certain provisions on human rights specifically referring to science and/or scientific progress and human rights that are connected or relevant to the REBSPA can be found in the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (1997) (Oviedo Convention).The Preamble of the Oviedo Convention stipulates that ‘progress in biology and medicine should be used for the benefit of present and future generations’ and further stresses the need for international co-operation to ensure that all humanity may enjoy the benefits of biology and medicine.64_{Additionally, art.2 of the Oviedo}

Convention points out that the interests and well-being of individuals must prevail over the sole interest of society or science. This limitation aims at preventing any possible misuse of medicine and biology that might result in a situation that endangers human dignity.

The travaux preparatoires of the Oviedo Convention show that the Working Party responsible for drafting the Convention did consider adding further limitations on scientific research in the area of medicine and biology (i.e. limitations related to national security). This suggestion, however, did not get the support necessary for it to be included in the final draft of the Convention, as it was considered that an explicit reference to national security in the context of scientific research in the area of medicine and biology would give rise to abuse from the side of states.65

1.2. Non-binding human rights instruments

This section will address the provisions of non-binding human rights instruments that contain provisions on human rights specifically referring to science and/or scientific progress and human rights that are connected or relevant to the REBSPA. The analysis covers the instruments adopted at both international and regional levels.

1.2.1. United Nations (UN)

a. The Vienna Declaration and Programme of Action (1993)

Adopted at the World Conference on Human Rights, the Vienna Declaration and Programme of Action contains an explicit reference to the REBSPA. According to the Declaration, everyone has the REBSPA. Furthermore, an emphasis on possible negative consequences of scientific advances in areas of biomedicine and information technology for human dignity and integrity of the individual

64_{Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of}

Biology and Medicine (adopted 04/04/1997, entered into force 12/01/1999) ETS No. 164, Preamble (Oviedo Convention).

65_{Steering Committee on Bioethics, Convention on Human Rights and Biomedicine (ETS No. 164): Preparatory work}

on the Convention, (28/06/2000) CDBI/INF (2000),15 available at

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was made.66_{In this light, international cooperation with the focus on ensuring universal respect for}

human rights and dignity is to be prompted.67

b. UN Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007)

The UNDRIP underlines the universality and interdependence of human rights and that indigenous peoples have the right to the full enjoyment of all human rights and fundamental freedoms under international human rights law. The UNDRIP does not contain a specific reference to the REBSPA of indigenous peoples but it underlines that indigenous peoples have the right to ‘maintain, control, protect, and develop their ... traditional knowledge ... as well as the manifestations of their sciences, technologies and cultures ...’.68_{There is no consensus as to whether traditional knowledge}

should be considered as a part of science. It is, however, understood, that traditional knowledge itself is a wide concept and can cover knowledge, know-how and practices of indigenous peoples in spheres of agriculture, healthcare, environment, biodiversity, etc.69_{Additionally, the terms ‘sciences’ and}

‘technologies’ are understood to cover ‘any findings, insights and knowledge.’70_{This suggests that}

advancements made by indigenous peoples can be seen as ‘their own proper science and technology.’71_{It has been argued that traditional knowledge should not be put in direct opposition to}

‘scientific traditions of western science’ since modern science is often based on ancient scientific knowledge-based practices of indigenous communities. 72_{There have been calls to recognize that}

modern science is not the only form of knowledge and that knowledge of traditional societies should be relied on in order to establish stronger links between modern science and the broader knowledge heritage of humankind.73_{Against this background, the UNDRIP provisions represent the first full}

recognition of human rights of indigenous peoples with regard to traditional knowledge and science. Despite the fact that the language of these provisions does not fully correspond with the language of the UDHR and the ICESCR with regard to the REBSPA, their importance as standard-setting provisions offering additional protection to the indigenous peoples at the international level cannot be denied.74

66_{Vienna Declaration, (n43),¶11.} 67_Ibid.

68_{UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples,}

13/08/2007, A/RES/61/295,art.31(1) [UNDRIP].

69_{T. Stoll, ‘Chapter 11. Intellectual Property and Technologies. Article 31’ in J. Hohmann, M. Weller (eds), The UN} Declaration on the Rights of Indigenous Peoples: A Commentary (OUP 2018),311.

70_Id,317. 71_Ibid.

72_{G.S. Nijar, ‘Traditional Knowledge Systems, International Law and National Challenges: Marginalization or}

Emancipation?’ (2013) 24(4) EJIL 1205,1207.

73_{UNESCO WCS, Introductory Note to the Science Agenda – Framework for Action (1999), ¶¶35-36 available at}

https://unesdoc.unesco.org/ark:/48223/pf0000120706/PDF/120706mul.pdf.multi [accessed 13/06/2019] [WCS Introductory Note].