Emergence of the Right to Science and Culture in UDHR and ICESR

UDHR and its Drafting History of the Right to Science and Culture

UDHR was built on the ashes of wars.[1] Drafters of UDHR were trying “to repair damage of war, and to help construct the foundation of a just peace”.[2] This historical root has a connection with the right to science and culture, albeit weaker than civil and political rights have.

Discussions on Author Clause

UDHR was not authored by single person. As Morsink puts it, “numerous official representatives from dozens of countries made hundreds of amendments in hundreds of meetings and cast more than a thousand votes”.[3] Drafting of UDHR includes seven formative drafting stages: (1) the first session of the Commission of Human Rights; (2) the first session of the Drafting Committee established by the Commission; (3) the second session of the Commission; (4) the second session of the Drafting Committee; (5) the third session of the Commission; (6) the Third (Social and Humanitarian) Committee of the General Assembly (held from September to December 1948); and (7) the Plenary Session of the same 1948 Assembly.[4]

John Humphrey, a Canadian scholar and the representative of the UN Secretariat to the Commission on Human Rights, prepared a four-hundred-page blueprint for UDHR, which was consulted by the Drafting Committee[5] during the UDHR’s formation.[6] Humphrey did not include in his document anything comparable to today’s Author Clause. It was René Cassin, a French delegation, who suggested the inclusion of Author Clause.[7] However, the first session of the Drafting Committee of 1947 decided not to include Author Clause in UDHR.[8]

In the following year, again the French delegation proposed Author Clause, with minor stylistic changes, to the third session of the Commission on Human Rights which held from May 24 to June 18, 1948.[9] The French proposal received support from delegations from Latin America including Mexico, Cuba, Chile and Uruguay.[10] However, opponents outnumbered. Opponents reasoned that protection of author’s material interests was not properly speaking a basic human right and there was no special need to provide an additional protection to property right.[11] Especially, the US delegation opposed the proposal on the grounds that copyright was a problem of international law.[12] Finally, at the third session, the French proposal was rejected by 6 votes to 5, with 5 abstentions.

This vote, however, was reversed at the Third Committee, more specifically at the 152nd session.[13] Concerning Author Clause, initially proposed by the French delegation, positions were divided largely along the line between the common-law tradition and civil law countries.[14] Most Latin American states, under the influence of the continent civil law traditions, supported the French proposal. By contrast, the US delegation from the common-law tradition objected on the grounds that protection of author, the main element of the proposed Author Clause, belonged to the domain of copyrights. Also, the UK delegation insisted that “copyright was not a basic human right and objected to the inclusion of rights targeted at specific classes of people, rather than principles that were valid for all men”.[15] India under the common-law influence joined the US and the UK in opposition.[16] In spite of such opposition, the proposed Author Clause passed the Third Committee. Morsink explains this was because the Third Committee had a much larger membership of representatives from Latin America, meaning that the proponents could count on a much larger Latin American vote.[17]

Discussions on ‘Dissemination Side’

Unlike Author Clause, drafters were relatively easy in reaching an agreement on the inclusion of the right to take part in cultural life and the right of everyone to enjoy the benefits of scientific advances.

Most debate on the right to take part in cultural life was about whether it should recognize rights of a certain group other than a nation, in particular the right of minority groups. For some governments, the group rights could threaten the nation state and territorial integrity.[18] Therefore, the text of Article 27 of UDHR appears not to respect diversity and pluralism by assuming that cultural participation will take place in the “one” culture of the “nation-state”,[19] which was improved later in ICESCR.[20] The word “freely” after the phrase “to take part” was proposed by Peruvian delegation and supported by the UK representative because she thought “it useful to emphasize that participation in the cultural life of a community must be free”.[21]

Regarding the right to share in scientific progress and its application, which was in part a reflection of drafters’ optimistic view that science had a potential to improve human life and living conditions,[22] there was some disagreement on the ideological foundation. Socialist bloc led by Soviets and their allies wanted “science confined to politically defined objectives serving international peace and economic development”,[23] or to place science “at the service of progress and democracy”.[24] The Western groups strongly opposed this language for fear that it would put the science “at the service of politics”.[25] Having met this opposition, Mr. Pavlov from the USSR denounced the Western countries as places where “science was subservient to militarism and … intellectual forces were concentrated on producing a terrible weapon of aggression for the destruction of millions of peaceful human beings”.[26] This debate ended up with rejection of the  amendment of the Soviet bloc.

ICESCR and Drafting History of the Right to Science and Culture

ICESCR, adopted in 1966 together with the International Covenant on Civil and Political Rights (ICCPR), was a product of approximately 20 years of negotiations of an effort to transform UDHR of 1948 into a legally binding obligation. In 1946, the United Nations Commission on Human Rights (CHR),[27] directed by the United Nations Economic and Social Council (ECOSOC), was established “to weave the international legal fabric that protects our fundamental rights and freedoms”.[28] Upon the request of General Assembly to include articles specifically on economic, social and cultural rights in addition to civil and political rights for the initial draft Covenant prepared by the Commission in 1950, the Commission, assisted by the International Labour Union, the UNESCO and the World Health Organization (WHO) completed a new draft in 1951.[29] After long period of discussions, the Third Committee (Social, Humanitarian and Cultural matters) could submit completed draft Covenant to the UN General Assembly in 1966.[30] The provisions for cultural rights were substantively discussed at the seventh (April-May, 1951) and eighth (May 1952) sessions of CHR and at the twelfth session of the Third Committee of the General Assembly (October to November 1957).[31]

In 1951 when ECOSCO first considered inclusion of economic, social and cultural rights in a human right covenant, UNESCO proposed articles for the right to science and culture. Most discussion of Article 15 focused on the right to take part in cultural life.[32] The initial UNESCO draft, which became the basis for the Commission’s discussions in the seventh session,[33] read:

The Signatory States undertake to encourage by all appropriate means, the conservation, the development and the diffusion of science and culture.

They recognize that it is one of their principal aims to ensure conditions which will permit every one:

  1. To take part in cultural life;
  2. To enjoy the benefits resulting from scientific progress and its applications;
  3. To obtain protection for his moral and material interests resulting from any literary, artistic or scientific work of which he is the author.

Each signatory State pledges itself to undertake progressively, with due regard to its organization and resources, and in accordance with the principle of non-discrimination enunciated in paragraph 1, article 1 of the present Covenant, the measures necessary to attain these objectives in the territories within its jurisdiction.[34]

Discussions on Author Clause

Unlike the provisions for ensuring participation in cultural life and benefiting from scientific progress, the provision on author’s right was under debate from the outset. The representative of UNESCO supported the inclusion of author’s right on the grounds that “it had already been included in the Universal Declaration on Human Rights and represented a safeguard and an encouragement” for creators.[35] However, the nay-sayers outnumbered, and the proposal for author’s right was rejected by 7 votes to 7, with 4 abstaining.[36]

The same pattern of discussion reoccurred a year later in the eight session of the Commission. The French delegation resubmitted the original provision and maintained that a provision for the protection of author was necessary for rewarding “professional workers” and “it was not a matter only of material rights; the scientist and artist had a moral right to the protection of his work, for example against plagiarism, theft, mutilation and unwarranted use”.[37] Opposition was reiterated from delegations of the US, the UK and Yugoslavia, asserting that the issue was too complex to be included in the Covenant and should be addressed elsewhere, thereby the passage on author’s right was once again rejected.[38]

For this reason, the draft Covenant submitted in 1957 by the Commission to the twelfth session of the Third Committee of the General Assembly did not include Author Clause.[39] At this time, the French delegation abandoned to re-submit the proposal for author’s right.[40] Instead, the representatives of Uruguay and Costa Rica[41] co-sponsored an amendment introducing Author Clause.[42] Their underpinning was the same as the UNESCO proposal of 1951 and the French proposal of 1952: the fact that UDRP contained such a clause.[43] The French delegation and the representative of UNESCO supported the inclusion of Author Clause.

The Uruguayan delegation strongly sought backing from other delegations by emphasising necessity for conforming with existing code of human rights, i.e., UDHR and for international cooperation to combat copyright piracy.[44] Against this proposal, the USSR’s representative tried to revoke the grounds of proposal, noting that the fact of inclusion of Author Clause in UDHR “did not mean that it should be repeated automatically in the Covenant” and pointed out the non-universal nature of Author Clause – not rights concerned all mankind, instead concerned a particular group.[45] He also criticized the changed position of UK and recalled that “after a long discussion the Commission on Human Rights had rejected by an overwhelming majority a proposal” for author’s right.[46] To carry out his position, the delegation of USSR suggested alteration of the proposal for the author’s right to be protected by national legislation, which was supported by Romania.[47] Facing objection from USSR and other representatives, the Uruguayan delegation expressed his firm decision to maintain his proposal by presenting another foundations:

“It felt all the more justified in doing so since it had other excellent reasons: first, the addition of that paragraph would not lengthen the text of article 16 unduly; secondly, UNESCO had already achieved outstanding success in the matter and the adoption of that paragraph would give new impetus to the work of that organization and enhance its prestige; lastly, the right of the author and the right of the public were not opposed to but complemented each other. Respect for the right of the author would assure the public of the authenticity of the works presented to it”.[48]

The amendment proposed by Uruguay was finally adopted by 39 votes to 9, with 24 abstentions.[49] The existence of Author Clause in UHDR was the decisive factor in the triumph of proponents of author’s right. Due to UDHR, at least two delegations (from the UK and Chile) changed their position from ‘nay’ in the seventh eighth sessions of the Commission of 1951 and 1952 to ‘yes’ in the Third Committee of 1957.[50] The Author Clause of UDRP also contributed in making other delegations including Israel[51] become more sympathetic to the author’s protection than before. Further, the proposer, the delegation of Uruguay, was able to come out very strongly: “he could not believe that any delegation could have valid reasons for opposing the insertion of a text which has already been adopted, since it appeared in article 27 of the Universal Declaration on Human Rights. There was no reason to vote against that text, other than a refusal to implement the Declaration on that point”.[52]

For inventors, no delegation mentioned the word ‘inventor’ or ‘discovery’, only one delegation (Saudi Arabia) said “It should also be pointed out that the Committee had not adopted any article on the right to property, and in substance the Costa Rican and Uruguayan amendment dealt with literary and artistic property, as well as the rights of scientists and inventors”.[53]

Discussions on ‘Dissemination Side’

The idea of the right to take part in cultural life, which was proposed by UNESCO,[54] was generally supported by states in the Commission on Human Rights and General Assembly as an important human right.[55] There were differing views on certain concept or notion contained in the UNESCO’s draft – whether to specify the cultural participation right to be “of the communities to which he belongs”.[56]

For the science right, drafter of ICESCR debated on the goal or function of scientific progress as did during the UDHR drafting. Czechoslovakian delegation proposed to insert a phrase “in the interest of the maintenance of peace and co-operation among nations”.[57] She felt this amendment facing no opposition as it was common knowledge that when technical and scientific progress was applied to the wrong ends, it could be harmful to humanity. In reality, however, objections prevailed and some delegation (for instance Greece) regarded the amendment “even dangerous”,[58] or might provide a pretext for State control over scientific research and creative activity (U.K. delegation).[59] Other representative opined that peace was best promoted by ensuring the greatest possible scientific and cultural freedoms.[60] The representative of UNESCO did not view that the Czechoslovakian proposal was detrimental to creative freedom due to the UNESCO Constitution, suggesting to change the wording of the proposal in an exemplary manner (inserting “in particular”),[61] which was accepted by the representative of Czechoslovakia.[62] Nonetheless, the Committee rejected the Czechoslovak amendment by 35 votes to 21, with 16 abstentions.[63]

Lessons from the Drafting History of UDHR and ICESCR

The first lesson learnt from the drafting history of UDHR and ICESCR is that their essential purpose was to “promote universal access to science and culture”[64]. Most delegations having contributed the drafting process were less interested in the moral and material interests of the authors than everyone’s right to take part in culture. Maria Green, who prepared a background paper on the drafting history for the CESCR in 2000, observed that while there was not much disagreement on the notion of the right of everyone to enjoy the benefits of scientific advances, the discussion of authors’ rights was more fraught, and more complex.[65] Many delegations sought to modify or completely exclude the proposed Author Clause. The strength of those oppositions appears to be unique in the history of the international bill of rights[66]. This indicates that the Author Clause is “far from self-evident”,[67] and its drafting history supports “relatively weak claims of IP as a human right”.[68]

Secondly, the protection side of the right to science and culture, i.e., the author’s right is inseparably interlinked with the dissemination side, and has no stand-alone footing for the human rights claim. Travaux of both UDRP and ICESCR shows that Author Clause was “supported primarily because of their instrumental character in realizing other rights”.[69] This lesson requires the holistic approach for understanding the right to science and culture, as taken in this thesis. In the holistic approach, balance striking task of contemporary trade-centric IP regime needs to be reoriented toward a direction that puts more emphasis on cultural participation and broader access to the benefits of scientific progress and its applications.

Third, in Author Clause, the protection of material interests of authors received less attention than moral interests. Some delegations conceived the protection of moral interests of authors as a means to protect intellectual workers “against improper action on the part of publishers”.[70] For instance, the Mexican delegation, who was one of the strongest supporters of Author Clause and a designer of Author Clause for the American Declaration, defended the author’s rights as “the rights of the individual as an intellectual worker, scientist, or writer”,[71] and Australian counterpart argued, in her opposition to Author Clause that “the indisputable rights of intellectual worker could not appear beside fundamental rights of a more general nature, such as freedom of thought, religious freedom or the right to work”.[72] Further, the moral rights of authors were not claimed as a necessary legal or moral tool for the protection of an expression of human dignity. Caterina Sganga notes that although copyright law has evolved over time primarily to protect the economic interests of publishers, natural law conceptions of moral rights were originally conceived to protect authors from publishers.[73]

Fourth, consensus on the protection of interest of inventors as opposed to authors is highly questionable. As discussed in the following Section 3-2-2-2, inventors were intentionally removed from Author Clause. Therefore, it is plausible to state that the existing patent laws cannot claim the backing of human rights,[74] and “there is no human right to patent protection under Article 15” of ICESCR.[75]

[1] Brown, G. (Ed.). (2016). The Universal Declaration of Human Rights in the 21st Century: A living document in a changing world. Open Book Publishers, p. 29.

Prost, A., & Winter, J. (2013). René Cassin and human rights: from the Great War to the Universal Declaration. Cambridge University Press, p. 238.

[3] Morsink, J. (1999). The Universal Declaration of Human Rights: Origins, Drafting and intent. University of Pennsylvania Press, p. 28.

[4] United Nations. (1950). Yearbook of the United Nations 1948-1949. United National Publications: U.S.A., pp. 524-527; Morsink, 1999, pp. 4, 11.

[5] Drafting Committee on an International Bill of Human Rights, first session, held on 9-25 June 1947.

[6] United Nations (n.d.). History of the Document. Retrieved on 9 November 2016 from http://www.un.org/en/sections/universal-declaration/history-document/index.html.

[7] Shaver, L. & Sganga, C. (2009). The right to take part in cultural life: Copyright and human rights.  Wis. Int’l LJ27, 63, p. 29. René Cassin inappropriately took credit as the principal author of the UDHR ( Shaver, L. (2010). The Right to science and culture. Wisconsin Law Review, 6(1), 121-184, p. 145).

[8] Morsink, 1999, p. 220.

[9] Ibid.

[10] The Mexican delegation successfully proposed the IP Clause in the American Declaration, which greatly influenced the discussions of UDHR, and among the Latin American countries, Ecuador took an opposing stance on the grounds that the protection of literary and scientific property should be dealt with under the general Article on property rights (Haugen, 2007a, pp. 174-175).

[11] Helfer, L. R. & Austin, G. W. (2011). Human rights and intellectual property: Mapping the global interface, Cambridge University Press, pp. 177-178.

[12] Morsink, 1999, p. 221.

[13] UNGA, Third Committee, A/C.3/SR/.152 (22 November 1948). The full name of the Third Committee is The Social and Humanitarian Committee of the General Assembly, held from September to December 1948.

[14] Haugen, H. M. (2007). Patent rights and human rights: Exploring their relationship. The Journal of World Intellectual Property, 10(2), 97-124, p. 176; Shaver, 2010, p. 148.

[15] Morsink, 1999, p. 221.

[16] Shaver & Sganga, 2009, p. 32.

[17] Morsink, 1999, p. 221.

[18] Stamatopoulou, E. (2008). The right to take part in cultural life. UN CESCR E/C.12/40/9, p. 8.

[19] Ibid.

[20] Stamatopoulou explains that in the final text, Article 27 of UDHR includes the prescriptive word the in the phrase “the right freely to participate in the cultural life of the community”, while in ICESCR the word the is intentionally deleted: ‘the right of everyone to take part in cultural life’ (2008, p. 10). Therefore, it was improved from homogenous to multicultural right, meaning that the right includes cultural right of minority and to other communities and groups.

[21] Records of UNGA (1948): Item 77: Draft international declaration of human rights (E/800), p. 624.

[22] London, L., Cox, H. & Coomans, F. (2016). Multidrug-resistant TB: Implementing the right to health through the right to enjoy the benefits of scientific progress, Health and Human Rights Journal, 18(1), 25-41, p. 27.

[23] Claude, R. P. (2002). Science in the service of human rights. University of Pennsylvania Press, p. 12.

[24] Records of UNGA (1948): Item 77: Draft international declaration of human rights (E/800), p. 623.

[25] Ibid, p. 620.

[26] Ibid, p. 623.

[27] This body was replaced by the Human Right Council in 2006 by the UN General Assembly.

[28] Canada’s Human Right Commitments, 2015.

[29] Ibid.

[30] For official records on the drafting ICESCR, see Procedural History of Audiovisual Library of International Law provided by UN at http://legal.un.org/avl/ha/icescr/icescr.html and Dag Digital Repository of the UN at repository.un.org.

[31] Green, M. (2000). Drafting history of the Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights. U.N. Doc. E/C.12/2000/15, pp. 4-13.

[32] Saul, B., Kinley, D., & Mowbray, J. (2014). The international covenant on economic, social and cultural rights: commentary, cases, and materials. OUP Oxford, p. 1177.

[33] Green, 2000, ¶17.

[34] UNESC Document E/CN.4/AC.14/2, p. 4. UNESCO presented the Commission with two versions (one long and one short) of a draft provision. For the long version, see Green, 2000, ¶15.

[35] ECOSOC Document E/CN.4/SR.228, ¶ 13.

[36] Green, 2000, ¶¶ 21, 25.

[37] ECOSOC Document E/CN.4/SR.292, ¶¶ 8-9.

[38] Green, 2000, ¶¶ 28, 31.

[39] Helfer & Austin, 2011, p. 178.

[40] But later, the French representative to CHR proposed a provision for the author’s rights (UNGA, Third Committee, A/2929, chap. VIII, ¶ 54).

[41] Costa Rica became the co-sponsors by the invitation of Uruguayan representative (UNGA, Third Committee, A/C.3/SR.798, ¶ 31, also see UNGA, Third Committee, A/C.3/L.636/Add.1).

[42] UNGA Document A/C.3/L.636/Rev.1).

[43] Saul, Kinley & Mowbray, 2014, p. 1225.

[44] UNGA Third Committee, A/C.3/SR.799, ¶ 30 (Mr. Tejera (Uruguay) replied to the USSR representative that “while he recognized that the moral and material interests of authors were in most countries protected by national legislation, the insertion of a provision on the subject in the draft Covenant was necessary in order to give an impetus to national legislation and to make sure that it was brought into conformity with existing international instruments”.); UNGA Third Committee, A/C.3/SR.797 ¶ 17 (“Mr. Tejera (Uruguay) … considered that a reference to author’s copyright was imperative. For lack of international protection, literary and scientific works, for example, were frequently pirated by foreign countries, which paid no royalties to the authors”.).

[45] UNGA, Third Committee, A/C.3/SR.798, ¶ 19.

[46] Ibid, ¶ 18.

[47] Ibid, ¶ 52.

[48] UNGA, Third Committee, A/C.3/SR.798, ¶ 32.

[49] UNGA Third Committee, A/C.3/SR.799, p. 190.

[50] The UK delegation even stated that he did not know the position the delegation of the UK had taken in the previous meetings (UNGA, Third Committee, A/C.3/SR.799, ¶ 16 “He did not recall exactly why the Commission on Human Rights had rejected a similar recommendation, nor what stand his delegation had taken. But it certainly seemed to him now that it was essential to include a provision corresponding to that in article 27, paragraph 2, of the Universal Declaration of Human Rights in the Covenant. He congratulated the representative of Uruguay on his action and would vote in favour of the amendment”).

[51] The Israeli representative explained her support of the Uruguayan amendment that the Covenant should not be weaker than UDHR (UNGA, Third Committee, A/C.3/SR.798, ¶ 37).

[52] UNGA, Third Committee, A/C.3/SR.798, ¶ 53.

[53] A/C.3/SR.798, ¶ 56, p. 185.

[54] ECOSOC Document, E/CN.4/541 (Agenda Item 3, suggestions submitted by the Director-General of UNESCO, 18 April 1951).

[55] Donders, 2008, p. 3.

[56] UNGA, A/3764 (Report of the Third Committee, 5 December 1957), ¶ 75.

[57] UNGA, Third Committee, A/C.3/SR.795, ¶ 7.

[58] Ibid, ¶ 8.

[59] Ibid, ¶ 10. Supporter of the Czechoslovakian proposal came from Saudi Arabia and USSR (See, UNGA, Third Committee, A/C.3/SR.797, ¶¶ 4 and 6).

[60] UNGA, A/3764 (Report of the Third Committee, 5 December 1957), ¶ 78.

[61] UNGA, Third Committee, A/C.3/SR.796 ¶¶ 5 -7. Article 1 of the UNESCO Constitution declared that education, science and culture were instruments of peace but he considered the idea of the right to benefit from scientific progress was new and in the process of evolution.

[62] UNGA, Third Committee, A/C.3/SR.797 ¶ 3.

[63] UNGA, A/3764 (Report of the Third Committee, 5 December 1957), p. 25.

[64] Shaver, 2010, p. 128.

[65] Green, 2000, ¶¶ 3-4.

[66] Shaver & Sganga, 2009, p. 30.

[67] Yu, P. K. (2004). Introduction-Intellectual Property at a Crossroads: Why History Matters. Loy. LAL Rev., 38, 1, p. 17.

[68] Chapman, A. (2002). Core obligations related to the right to health. Core obligations: Building a framework for economic, social and cultural rights, 185-215, p. 314; Helfer & Austin, 2011, p. 179.

[69] Helfer & Austin, 2011, p. 179.

[70] UNGA, A/3764 (Report of the Third Committee, 5 December 1957), ¶ 76.

[71] UNGA, Third Committee, A/C.3/SR.150, p. 617.

[72] Morsink, 1999, p. 221.

[73] Shaver, 2009, p. 34.

[74] Gordon, W. J. (2010). Current patent laws cannot claim the backing of human rights. In W. Grosheide (Ed.), Intellectual Property and Human Rights: A Paradox, (pp. 155-171). Edward Elgar.

[75] UN Patent Report of 2015, A/70/279, ¶ 90.