New CESCR General Comment 25 Analyzes Right to Scientific Progress
The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has published new interpretation and guidance on the relationship between science and the enjoyment of economic, social, and cultural rights. See CESCR, General comment No. 25 (2020) on science and economic, social and cultural rights, UN Doc. E/C.12/GC/25, 30 April 2020. In fleshing out Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Committee defines the scope of States’ obligation to support and share scientific research and the advances it makes possible, with regard to everyday life and in crises such as pandemics. The Committee chose to focus on this topic because “science is one of the areas of the Covenant to which States parties give least attention in their reports and dialogues.” See id. at para. 2. Specifically, the General Comment outlines ICESCR States parties’ obligations with respect to the right to enjoy the benefits of scientific progress and its applications (Art. 15(1)(b)); the conservation, development, and diffusion of science (Art. 15(2)); freedom to engage in scientific research (Art. 15(3)); and, promotion and cooperation in the scientific field (Art. 15(4)). See id. at para. 3.
Scientific Progress – Normative Framework
The General Comment repeatedly refers to the UN Educational, Scientific and Cultural Organization’s (UNESCO) Recommendation on Science and Scientific Researchers, and also draws from the Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications, the Universal Declaration on Bioethics and Human Rights, the report of the Special Rapporteur in the field of cultural rights on the right to enjoy the benefits of scientific progress and its applications, and the CESCR’s own General Comment No. 17 (2005) on 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.
The Committee adopts the UNESCO definition of science, stating that science “encompasses natural and social sciences, refers both to a process following a certain methodology (‘doing science’) and to the results of this process (knowledge and applications).” See id. at paras. 4-5. The CESCR adds that “knowledge should be considered as science only if it is based on critical inquiry and is open to falsifiability and testability,” and that applied science (or science applications) refers to the implementation of science to a specific population need and includes new technologies that come from scientific knowledge. See id. at paras. 5-7.
The Committee also adopts a broad interpretation of the right to enjoy the benefits of scientific progress, protected by Article 15(1)(b) of the ICESCR. See id. at para. 9. Relying on the Vienna Convention on the Law of Treaties—the instrument that regulates the interpretation of treaties—the Committee rejects a narrow interpretation of the right and states that it not only refers to the science “derived from research conducted by scientists,” but also includes “citizen science” (science by ordinary people). See id. at paras. 9-10. Therefore, the Committee clarifies that Article 15(1)(b) encompasses the right to receive the benefits of scientific progress as well as the right to participate in scientific activities. See id. at paras. 10-11.
Moreover, the CESCR elaborates on the elements required to “respect the freedom indispensable for scientific research,” as outlined in Article 15(3). See id. at para. 13. At minimum, this freedom includes the protection of researchers from undue influence; opportunity for researchers to set up autonomous research institutions; researchers’ freedom to question the ethical dimensions and values of scientific projects, and to withdraw if they choose to; and, freedom to cooperate and share data, nationally and internationally as well as with policymakers and the public. See id. at para. 13.
The right to enjoy the benefits of scientific progress places both positive and negative obligations on States, and contains five “interrelated and essential elements” as well as certain limitations. See id. at para. 15. The five elements of the right are: 1) availability, which refers to States’ obligation to “take steps for the conservation, the development and the diffusion of science;” 2) accessibility, which requires that everyone has equal access to scientific progress and its application, as well as to information regarding the risks and benefits posed by science; 3) quality, which refers to States’ obligation to regulate scientific applications and ensure access to verifiable science; 4) acceptability, which requires efforts to ensure science is explained and disseminated in a manner that facilitates public and community acceptance, and that incorporates ethical standards; and, 5) protection of freedom of scientific research. See id. at paras. 16-20. Any limitation on the right to participate in and enjoy the benefits of scientific progress must be established by law, promote the general welfare, and be “proportionate to the aim pursued.” See id. at para. 21.
In general, States parties to the Covenant have an obligation to “take steps, to the maximum of their available resources, for the full realization of the right to participate in and to enjoy the benefits of scientific progress and its applications.” See id. at para. 23. Moreover, States have a duty to eliminate all forms of discrimination, which includes taking steps to “overcome persistent inequalities” in scientific education, design, and implementation policies. See id. at paras. 24-27. The Committee calls on States to pay special attention to groups that have “experienced systemic discrimination in the enjoyment of the right to participate in and to enjoy the benefits of scientific progress.” See id. at para. 28. In particular, the General Comment includes additional guidance and measures to remedy the exclusion of women, persons with disabilities, persons living in poverty, and Indigenous people in scientific progress. See id. at paras. 29-40.
In addition to elaborating on State obligations to respect, protect, and fulfill the right to enjoy the benefits of scientific progress, the General Comment lays out “core obligations” that a State party must satisfy, or make “every reasonable effort to comply with.” See id. at paras. 41-51. State core obligations include the obligation to eliminate laws and policies that limit access to certain groups or individuals, such as laws and policies that undermine women’s and girl’s participation in scientific areas; implement a “participatory” national framework and strategy that includes remedies for violations of this right; ensure access to basic scientific education and skills; prioritize research in areas where there is need for scientific progress, such as health, food, and other basic needs; adopt mechanisms and policies that are based on “accepted scientific evidence;” ensure that health professionals are trained using technologies and medicines that result from scientific progress; promote accurate scientific information and avoid “deliberately misinforming the public,” and implement protections against pseudoscience-based practices; and, foster development of international contacts and cooperation in the scientific field, among others. See id. at para. 52.
Interdependence with Other Rights
The General Comment also touches on the role of the right to participate in and to enjoy the benefits of scientific progress as a tool for the realization of other economic, social and cultural rights. See id. at para. 63. Specifically, the rights to food and health. See id. at paras. 63-71. The General Comment highlights that while scientific and technological advancements have contributed to the reduction of famine by making food more accessible, States should ensure that scientific progress does not violate the rights of people working in rural areas and integrates the needs of peasants. See id. at paras. 64-65. With respect to the right to health, the Committee calls on States to “prioritize the promotion of scientific progress to facilitate better and more accessible means for the prevention, control and treatment of epidemic, endemic, occupational and other diseases.” See id. at para. 67.
Morever, the General Comment dedicates a section to new emerging technologies, acknowledging that these may enhance the enjoyment of economic, social and cultural rights, but also warning that without adequate policies and measures in place, these may “intensify social inequalities” or “reinforce discrimination.” See id. at paras. 72-76.
International Cooperation & National Implementation
Finally, the General Comment expands on the “duty to cooperate internationally towards the fulfilment of all economic, social and cultural rights,” as required by articles 2 and 15(4) of the ICESCR. See id. at para. 77. The General Comment opportunely notes that “[p]andemics are a crucial example of the need for scientific international cooperation to face transnational threats,” and emphasizes that the role of the World Health Organization should be supported and remains fundamental. See id. at para. 82. Further, it reiterates that States have an “extraterritorial obligation to regulate and monitor the conduct of multinational companies over which they can exercise control.” See id. at para. 84. This includes ensuring that these companies exercise due diligence and respect the right to participate in and enjoy the benefits of scientific progress, as well as providing legal remedies to victims of these companies. See id.
While States have some discretion in achieving the full realization of economic, social and cultural rights, the General Comment lays out four key measures that States must put in place to advance the right to participate in and enjoy the benefits of scientific progress. See id. at paras. 86-89. These include the establishment of a normative legal framework that protects against all forms of discrimination; the development of a national plan to promote and disseminate scientific progress to all individuals, taking into account protections against misleading pseudoscience as well as ensuring ethical standards in science; the identification of benchmarks to monitor the implementation and progress of the right to enjoy the benefits of scientific progress at the national level; and, the establishment of judicial and administrative mechanisms that will allow victims of this right to access appropriate remedies. See id.
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