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The Core Content of the REBSP. Audrey R. Chapman, Ph.D. University of Connecticut School of Medicine Experts Meeting: The Right to Enjoy the Benefits of Scientific Progress and Its Applications July 16-17 2009 Venice European Inter-University Centre for Human Rights and Democratisation

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the core content of the rebsp

The Core Content of the REBSP

Audrey R. Chapman, Ph.D.

University of Connecticut School of Medicine

Experts Meeting:

The Right to Enjoy the Benefits of Scientific Progress and Its Applications

July 16-17 2009


European Inter-University Centre for Human Rights and Democratisation


background to concept of core obligations
Background to Concept of Core Obligations
  • Limitations Article 2.1 in ICESCR
    • “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the present Covenant by all appropriate means, including the adoption of legislative measures.”
  • Implication: valid expectations and concomitant obligations of State parties are not uniform or universal but relative to level of development and availability of resources
background cont
Background cont
  • CESCR has emphasized importance of taking steps toward full realization but not specified the steps required in relationship particular rights
  • Difficulties
    • Assessing availability of resources, especially if international aid is also factored in
    • Monitoring
general comment no 3 minimum core content
General Comment No 3: Minimum Core Content
  • Para. 10 CESCR declared itself to be “of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party.”
  • “If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être.”
  • Cmt goes on to state that any assessment as to whether State has discharged its minimum core obligation must also take account of resource constraints applying within country concerned
general comment no 3 cont
General Comment No. 3 cont
  • But State party unable to fulfill must demonstrate every effort made to use resources at its disposal to fulfill these priority obligations.
  • Even where resources inadequate obligation to strive to ensure widest possible enjoyment of relevant right.
  • Provides only few specific examples – depriving a significant number individuals of essential foodstuffs, essential primary care, basic shelter and housing, or of most basic forms of education.
  • Cmt not offer methodology on how to determine minimum state obligations – since 1999 included in general comments conceptualizing specific rights
  • Ambiguity as to whether core obligations essence of a right, i.e. its most important provisions, floor below which right loses meaning, or minimum essential levels of a right incumbent on all State parties
  • Gen Comment 3 speaks of minimum essential levels incumbent on all States parties
    • Implication: all States parties should have the capabilities to fulfill
issues cont
Issues cont.
  • Experts on specific rights tend to advocate for broad interpretations of core obligations.
  • Core obligations identified in some of general comments very expansive and likely to be beyond institutional capabilities and resource levels of many, perhaps most, States parties
  • Written more as nature or essence of right than as core minimum obligations
  • GC 14 – right to health is an example
gc 14 core obligations
GC 14: Core Obligations
  • Ensure right of access to health facilities, goods, and services on non-discriminatory basis, especially for vulnerable or marginalized groups
  • Ensure for everyone access to minimum essential food which is sufficient and nutritious
  • Ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water
  • Provide essential drugs as defined by WHO
  • Ensure equitable distribution of all health facilities, goods, and services
  • Adopt and implement national public health strategy and plan of action addressing whole population and giving special attention vulnerable or marginalized groups
gc 14 obligations of comparable priority
GC 14: Obligations of Comparable Priority
  • Ensure reproductive, maternal (prenatal and postnatal) and child care
  • Provide immunization against community’s major infectious diseases
  • Take measures prevent, treat, and control epidemic and endemic diseases
  • Provide education and access to information re main health problems
  • Provide appropriate training for health personnel including education on health and HR
issues re determining core obligations rebsp
Issues re Determining Core Obligations REBSP
  • To be fair and realistic core obligations should be potentially achievable by virtually all states
  • Many of obligations related to REBSP likely be beyond capabilities of whole groups of states.
  • Majority of countries, specifically poor and many middle income states, lack essential capabilities, infrastructure, resources, and likely political will to implement States parties obligations relating to the right, even to do so progressively.
  • Limitations go beyond availability of resources and reflect variety of structural and capabilities issues, including lack of appropriate human and institutional infrastructure, that far more difficult resolve.
issues re core obligations cont
Issues re Core Obligations cont
  • Lack capacity to
    • Conduct scientific and technological research
    • Translate the findings into useful applications
    • Evaluate and regulate their harmful effects
    • Protect their populations from potentially hazardous dimensions technology
    • Determine needs and set priorities for importation or development of science & technology
    • Distribute benefits science & technology widely
  • Science is a global enterprise
issues re core obligations cont1
Issues re Core Obligations cont
  • 2001 UNDP composite technology achievement index that assessed ability create technology, to diffuse both old and new innovations, and a country’s human skill profiles divided countries into four categories:
    • Leaders (developed countries)
    • Potential leaders (developed countries)
    • Dynamic adopters (range middle income countries)
    • Marginalized (poor countries in Africa and Asia)
  • Status particular countries may have changed over time but divisions remain
  • Central issue therefore is whether the human rights obligations expected of countries in different categories should be the same
issues re core obligations cont2
Issues re Core Obligations cont.
  • 2003 report InterAcademy Council (collaboration national academies science of 18 countries) Investing a Better Future observes gap between “have” and “have not” nations in science and their capacity to apply scientific advances and new technologies growing
    • Science and technology lagging countries falling farther and farther behind industrialized
issues re core obligations rebsp cont
Issues re Core Obligations REBSP cont.
  • Question whether define core obligations within the framework of essential dimensions of the right knowing at least some of the obligations specified will be beyond capabilities majority countries
  • Alternative is to set more modest goals that have universal application
  • Third possibility to set core obligations differently for poor and middle income countries that lack scientific infrastructure than better developed countries – more realistic but also would be a departure from human rights practice in the general comments
approach taken here
Approach taken here
  • First take a minimalist approach - define minimum core obligations potentially within capabilities of all countries.
  • Then identify additional potential core obligations that would be applicable to countries with scientific infrastructures and greater capabilities.
minimum core obligations potentially of universal application respect
Minimum Core Obligations Potentially of Universal Application - Respect
  • To respect the freedoms indispensable for scientific inquiry and creative activity, including freedom of thought, to hold opinions without interference, and to seek, receive, and impart information and ideas of all kinds; (Art. 15 (3))
  • To not interfere with the freedom of scientists and other members of the academic community to undertake research, to report the results, and to collaborate with other scientists both within and across the country’s borders;
minimum core obligations respect
Minimum Core Obligations - respect
  • To take appropriate measures to prevent the use of science and technology by state organs in a manner that could limit or interfere with the enjoyment of the human rights and fundamental freedoms of the individual as enshrined in the Universal Declaration of Human Rights, the International Covenants on Human Rights, and other relevant international instruments. (Declaration on the Use of Scientific and Technological Progress, 1975)
minimum potentially universal core obligations protect
Minimum Potentially Universal Core Obligations - Protect
  • To take (effective) measures, including legislative measures, to prevent and preclude the utilization of science and technologies to the detriment of human rights and fundamental freedoms and the dignity of the human person by third parties (Declaration on the Use of Scientific and Technological Progress, 1975)
minimum universal core obligations cont fulfill
Minimum Universal Core Obligations cont. - Fulfill
  • To make an explicit commitment to the development of science and technology for human benefit;
  • To formulate policies and establish institutions to promote the development and diffusion of science and technology in a manner consistent with fundamental human rights principles;
minimum universal core obligations cont fulfill1
Minimum Universal Core Obligations cont. - fulfill
  • To promote (weaker than ensure) access to the benefits of science and of scientific progress on a nondiscriminatory basis with measures to compensate for the disadvantages of vulnerable and marginalized groups and to bring them up to mainstream standards.
  • To formulate and implement a national science strategy and plan of action with a timetable and goals to rectify existing inadequacies in the ability to acquire and disseminate the benefits of scientific progress; to adopt a monitoring strategy to evaluate the extent to which these milestones are being realized; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; the strategy and plan of action shall give particular attention to the status and needs of vulnerable and marginalized groups. (Gen Comment No. 14)
other core obligations relevant to middle income and developed countries
Other Core Obligations Relevant to Middle Income and Developed Countries
  • To set priorities for and to channel sufficient investment in a purposive development of science and technology that brings potential societal benefits, particularly to poor and disadvantaged groups;
  • To develop laws, institutions, and policies conducive to the monitoring and regulation of science and technology, including an adequate process of review to anticipate the potential harmful effects of science and technology and using that data to inform the public;
expanded core obligations for rebsp cont
Expanded Core Obligations for REBSP cont
  • To take measures to encourage and strengthen international cooperation in science to the benefit of all countries. (Art. 15 (4))
  • To provide opportunities for meaningful public engagement in decision-making about science and technology;
  • To institute a strong science program at all levels of the educational system, particularly in the state-sponsored schools, leading to development of the skills necessary to engage in scientific research and the translation of discoveries for human benefit;