General Comment No. 25 and the Right to Science and Culture

Now, we got to have the final interpretation guideline for so-called ‘neglected human rights’, or the right to science and culture. On April 7, 2020, the Committee on Economic, Social and Cultural Rights (CESCR) published the General Comment No. 25 on the right to science of Art. 15 of ICESCR. The General Comment No. 25 is the most timely guideline in the face of  COVID-19 crisis because the right to science aims to ensure everyone’s right to enjoy the benefit of health technologies in response to COVID-19.

The right to science and culture consists of three inseparable, inter-related rights: the right of author; the right to culture; and the right to science. The right of author refers to the right to protection for moral and material interests resulting from any literary, artistic or scientific work of which s/he is the author, to which CESCR presented, 15 years ago, an interpretation standard through the General Comment No. 17 (U.N. ESCOR, 35th Sess., U.N. Doc. E/C.12/GC/17 (12 January 2006)). Many commentators make a confusion, intentionally or not, this right with the existing intellectual property rights. However, the international human rights bodies pointed out many times that the existing IPRs are fundamentally distinguished from the author’s human right and both should not be confused. 

The right to culture refers to the right to participate in cultural life stipulated in Art. 15(1)(a) of ICESCR. The Committee issued the General Comment No. 21 – Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), U.N. ESCOR, 43rd Sess., U.N. Doc. E/C.12/GC/21 (21 December 2009).

The right to science refers to the right to enjoy the benefits resulting from scientific progress and its applications set forth in Art. 15(1)(b) of ICESCR. This right is the main subject of the General Comment No. 25 but the Comment broadens its scope to cover all of the other paragraphs of Art. 15 of CESCR, including the conservation, development and diffusion of science (Art. 15.2.), the freedom indispensable for scientific research (Art. 15.3) and international co-operation in the scientific field (Art. 15.4).

So far the most authoritative interpretation of the right to science is the Venice Statement (UNESCO, Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications (2009)). The General Comment No. 25 reaffirms the Venice Statement.

What has been unclear is the meaning of “its application”, and the General Comment No. 25 explains at ¶ 7 that:

Applications refer to the particular implementation of science to the specific concerns and needs of the population. Applied science also include the technology deriving from scientific knowledge, such as the medical applications, the industrial or agricultural applications, or the information and communication technologies

To emphasize the fact the right to science is not a passive right waiting for benefits of scientific progress to spill over but a positive right to participate scientific progress, the General Comment No. 25 coined the abbreviated term RPEBSPA which stands for ” the right to participate and to enjoy the benefits from scientific progress and its applications” ( ¶ 11). Thus, the right to science means the right to receive affordable medicine, which is a prerequisite to the full development of one’s personality (Morsink, 1999, p. 219). In this vein, the right to enjoy benefits of scientific progress and its applications is linked to distributive justice and requires affirmative actions.

Concerning the nature of RPEBSPA, the General Comment No. 25 recognizes the entitlement of the right contains the right to enjoy the benefits of scientific progress, and may impose upon the states positive obligations ( ¶ 15). The relationship between the right to science or RPEBSPA and IPRs, which was omitted in the previous General Comments, was elaborated in Part V of the General Comment No. 25.

Recognizing both the positive and negative impact of IPRs on the right to science, the General Comment No. 25 identified three elements having negatively impacts on the advancement of the right to science (¶ 60): (1) distortion in R&D funding; (2) restriction of scientific information (e.g., by data exclusivity and excessive price of scientific publication); and posing serious obstacles in accessing the benefits of scientific progress (¶ 61). Then, the General Comment No. 25 goes on to present measures that states have to take to avoid the negative effects.

First, to counter distortions of funding associated with IP, States should provide adequate financial support for research that is important for the enjoyment of ESCR, either by national effort or, if necessary, by resorting to international and technical cooperation. States could also resort to other incentives, such as the so called “market entry rewards”, that delink remuneration of successful research from future sales, stimulating in that way research by private actors in these otherwise neglected fields.

Second, States should make all efforts, in their national regulations and in international agreements on IP to guarantee the social dimensions of intellectual property, in accordance with international human rights obligations to which they have committed themselves”.[1] A balance must be reached between IP and the open access and sharing of scientific knowledge and its applications, especially those linked with the realization of other ESCRs, such as the right to health, right to education and right to food.

The Committee reiterates that “ultimately, intellectual property is a social product and has a social function” and consequently States Parties “have a duty to prevent unreasonably high costs for access to essential medicines, plant seeds or other means of food production, or for schoolbooks and learning materials, from undermining the rights of large segments of the population to health, food and education”.[2]

                   [1]  See Committee on Economic, Social and Cultural Rights, statement on human rights and intellectual property (E/C.12/2001/15), para. 18.

                   [2]  See Committee on Economic, Social and Cultural Rights, 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, para. 35.