Is there a Right to be Protected from the Adverse Effects of Scientific Progress and its Applications?

An entitlement to access the benefits of scientific progress and its applications, particularly technology, is almost certainly settled content of the right to science. It has traditionally been interpreted from Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights, but probably inheres in a broader interpretation of Article 15, particularly following General Comment No. 25 of the Committee on Economic, Social and Cultural Rights (the Committee) in 2020.

Yet, commentators seem convinced that the right to science also guarantees protection from the adverse effects of scientific progress and its applications, although it is not altogether clear why this is the case. Where does this interpretation of Article 15 come from?

It’s an important question that has received little doctrinal treatment and significant tensions in this interpretation have been overlooked and under-elaborated. For instance, if an entitlement to access the benefits of a technology exists at the same time as an entitlement to be protected from the adverse effects of that same technology, how is a conflict between those two entitlements to be resolved? We can envisage scientific progress that benefits some yet simultaneously harms others – inherent biases in algorithms, for instance; or technologies that have both benefits and adverse effects for all concerned, where some rashly preference short-term benefits over long-term harms but their choice has unavoidable effects for those that elect otherwise. Further, benefits may recede for some communities (or even global society as a whole) becoming outweighed by adverse effects, yet remain essential for others – fossil fuel needs in the developing world contrasted with their continuing impact on global climate offers a valuable lens for analysis of how nuanced such a balancing exercise would be, how complex and harrowing its ethical considerations, and how transboundary and extraterritorial considerations predominate. Finally, adverse effects may be obscured or minimised through deliberate misinformation and manipulation of scientific uncertainty to create doubt as to the need for restriction and regulation.

I suggest an entitlement to protection from adverse effects can be properly interpreted from Article 15 as a whole, but the scope of its application and the nature of the duties and obligations it creates are complex and require careful analysis if that interpretation is to be accepted and implemented.

The Provenance of Adverse Effects Protection

In the 2009 Guidelines issued by the Committee to assist States in their compliance reporting, paragraph 70 asks States parties to indicate:

a) the measures taken to ensure affordable access to the benefits of scientific progress and its applications for everyone, including disadvantaged and marginalized individuals and groups; and

b) the measures taken to prevent the use of scientific and technical progress for purposes which are contrary to the enjoyment of human dignity and human rights.

This broadly appears to correlate to Article 15(1)(b) and, alongside paragraphs 71 to 74, sets out the form of State reporting on measures adopted and the progress made in achieving observance of the right to science.

However, the formulation in paragraph 13(c) of the Venice Statement, an influential contribution to elaborating the content of the right of science, also in 2009, is “protection from abuse and adverse effects”. It is unclear if this formulation, adopted by the few commentaries that sparsely touch on this area, is coterminous with paragraph 70(b), which appears to be narrower. There may conceivably be ‘adverse effects’ that are not contrary to identifiable human rights, or even to whatever ‘human dignity’ envisages: where intergenerational equity or environmental harms are concerned, for example, ‘adverse effects’ might be preferable to the paragraph 70(b) formulation.

Most importantly, what each formulation actually entails remains underexplored. Few of the individual elements in either have been fully elaborated doctrinally. How do we define ‘use’ and by whom? Are ‘purposes’ restricted to intended or as-designed purposes, or something wider? What defines ‘adverse effects’; potential or actualised, to whom, for how long, what severity? These questions barely scratch the surface of the definitional problems.

Adverse Effects Protection and Treaty Interpretation

Above, I say ‘appears to correlate to Article 15(1)(b)’ because the Committee does not refer to its 2009 Guidelines in General Comment No. 25. This is significant because, as this article has suggested, a thorough doctrinal analysis of adverse effects protection reveals conceptual, interpretive, and implementation challenges which potentially render such an entitlement problematic.

Importantly, it is not at all clear from where the idea of ‘protection from adverse effects’ is derived. Does it come, e contrario, from an ordinary reading of Article 15(1)(b) – “the right to enjoy the benefits of scientific progress and its applications” or from a systematic and teleological interpretation that considers not only the rest of Article 15, but the entirety of both Covenants? Fully engaging with the Vienna Convention regime can lead to this interpretation, but is also open to counterarguments. Adverse effects protection might be interpreted as a limitation on scientific freedom instead (Article 15(3)) which would alter its application considerably.

General Comment No. 25 interprets “scientific progress” to include scientific knowledge which also changes the nature of adverse effects protection: conceptualised from the perspective of the ‘right to enjoy the benefits of scientific knowledge’, the entitlement must inhere also in benefitting from the purpose to which that knowledge is put. Inadequately considering scientific knowledge in policymaking might be a violation, irrespective of a requirement to demonstrate identifiable adverse effects of a given use (or abuse).

In fact, I suggest the interpretation inheres quite properly in all of the above. Unfortunately, General Comment No. 25 does not consider any of these matters directly. It does not mention its Guidelines, or the formulations set out in paragraph 70(b) and paragraph 13(c), and offers no direct guidance to States parties on how to implement obligations to protect rights holders from the adverse effects of scientific progress.

Moreover, there are concerns that the General Comment innovates too far and purports to give science itself a purpose, which it is argued was explicitly rejected by the drafters of both the UDHR and the Covenant. That purported purpose (“the development of science in the service of peace and human rights should be prioritized by States over other uses”) may bear on the legitimacy of adverse effects protection. There are powerful arguments to reject such concerns which a longer treatment could develop fully.

Doubtless there was a need to innovate in the General Comment, thanks to the paucity of State and Committee practice, and it must be viewed as intended to engender that practice, and to generate authoritative reference points for interpretive discourse, rather than the Committee’s final words on interpretation. This is particularly the case for adverse effects protection which existed conceptually long before the Venice Statement. The original 1991 Guidelines on State reporting followed a 1990 study commissioned by the United Nations Human Rights Commission (in Resolution 1986/9) on the relationship between Human Rights and Scientific and Technological Development. Put simply, the beneficial and detrimental impacts of science and technology on society have long been conceptualised as two sides of the same coin.

General Comment No. 25 and the Nucleus of a Valuable Idea

Whatever the General Comment’s weaknesses, its approach to adverse effects contains the nucleus of a valuable but underdeveloped idea. Although not explicit – it does not set out clear analysis of what ‘protection from adverse effects’ might entail in terms of Core Obligations, or in its discussion of General Obligations to Respect, Protect, and Fulfil, or as part of the Normative Content of the right; nor does it even use that terminology – the General Comment devotes an entire section to ‘Special Topics of Broad Application’. In paragraphs 53 to 57 (Participation, Transparency, and the Precautionary Principle) and paragraphs 72 to 76 (Risks and Promises of New Emerging Technologies), for instance, it sets out topics that together may represent some of the elements of adverse effects protection.

The idea the General Comment begins to develop is that adverse effects are best addressed through “a culture of active citizen engagement with science, particularly through a vigorous and informed democratic debate on the production and use of scientific knowledge, and a dialogue between the scientific community and society.” (paragraph 54, citing the Venice Statement, paras. 5(c) and (g)). Further:

“[p]articipation also includes the right to information and participation in controlling the risks involved in particular scientific processes and its applications. In this context, the precautionary principle plays an important role. … Technological and human rights impact assessments are tools that help to identify potential risks early in the process and the use of scientific applications.” (paragraph 56).

Adverse effects protection inheres in anticipation, prediction, discussion, and participation.

This approach mirrors and complements my doctoral research which seeks to elaborate, contextualise, and ameliorate the interpretive gaps, intrinsic conflicts, and exigent balancing exercises outlined above. If the right to science includes adverse effects protection, I argue, this may not inhere in restrictions on research and technology directly, but in an entitlement to contribute in an informed way to transparent public debate and to the policy-making that is derived from, and addressed to, scientific progress. Rather than requiring demonstration of particularised adverse effects, a ‘procedural’ conceptualisation of the entitlement envisages transparent and accountable review mechanisms; it asks if there has been adequate provision for discourse between all relevant and interested parties as to relevant potential consequences for existing and future rights holders; it asks whether that discourse has been properly contemplated by policymakers and whether measures taken to mitigate that risk or those harms are adequate.

This implicates relationships with other rights – in particular Articles 19 and 25 of the International Covenant on Civil and Political Rights; and other areas of international law – the precautionary principle, due diligence in the sense of transboundary harms, and intergenerational equity. It requires increased transparency of research, access to information, and perhaps most importantly, direct measures to reduce the potential for, and effectiveness of, scientific misinformation. It must function at the domestic level, but also at the international level, where the rich and fast-evolving analyses captured by global administrative law will be fundamental. International co-operation is specifically envisaged by Article 15(4).

Conclusion

A full analysis of adverse effects protection must deal with the historical context of international instruments that, although not concerned with the interpretation of the right to science directly, are nevertheless crucial in the context of adverse effects. It must fully reverse what I call the early ‘commodification’ of the right – conceptualising ‘scientific progress’ as inhering in a form of property right the ownership of which, and access to which, was the principal focus of early commentaries. While an understandable emphasis, concretising the right to entitle access to desperately needed vaccines, for example, and pushing back against intellectual property claims, normative conceptions of the right as concerning scientific knowledge, a global public good that was more than simply its applications, were marginalised.

Adverse effects protection cannot be understood purely in the sense of technologies, but in the scientific knowledge that leads to them. Benefitting from that knowledge, through identification of risks of potential harms, through discourse rights, and through policymaking that takes appropriate account of it, is what adverse effects protection is truly about.