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II. Obligations arising from human rights standards

2. Right to benefit from scientific progress and its applications

Everyone has the right to enjoy the benefits of scientific progress and its applications. This right applies equally in the context of drug use and dependence, as well as in development and criminal justice responses to the illicit drug trade.

In accordance with this right, States should:

i. Take legislative and other appropriate measures to ensure that scientific knowledge and technologies and their applications – including evidence-based, scientifically proven interventions to treat drug dependence, to prevent overdose, and to prevent, treat, and control HIV, hepatitis C, and other diseases – are physically available and financially accessible without discrimination.

ii. Ensure that scientific research, including that on controlled drugs, can be undertaken and communicated without censorship and free from political interference.

iii. Consider reviewing the 1961 and 1971 drug control conventions’ schedules of substances under international control in light of recent scientific evidence, and prioritise exploring the medical benefits of controlled substances in accordance with the World Health Organization’s scheduling recommendations.

Commentary:

The right of everyone to benefit from scientific progress and its applications is recognised in the Universal Declaration of Human Rights and guaranteed by the International Covenant on Economic, Social and Cultural Rights and regional instruments in the Americas, the Arab world, and Europe.[244] The Covenant also places obligations on States to promote the conservation, development, and diffusion of science;[245] respect the freedom necessary for scientific research;[246] and recognise the benefits to be derived from encouraging and developing international scientific cooperation.[247] The Special Rapporteur in the field of cultural rights has further noted that the normative content of the right to benefit from scientific progress includes access by everyone, without discrimination, to the benefits of science and its applications, including scientific knowledge; opportunities for all to contribute to the scientific enterprise; the related rights to participate in decision making and to information; and an enabling environment fostering the conservation, development, and diffusion of science and technology.[248]

The Committee on Economic, Social and Cultural Rights has recognised that the right to participate in and to enjoy the benefits of scientific progress is instrumental to realise the right to health and that the links between the two are ‘clear and diverse’.[249] The Committee has thus recommended that States ‘promote scientific research, through financial support or other incentives, to create new medical applications and make them accessible and affordable to everyone, especially the most vulnerable’, and in particular, 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’.[250]

In this regard, the Committee has recognised the special relevance of the right to benefit from scientific progress and its applications for drug law and policy. The Committee has noted that ‘scientific research is impaired for some substances under the international conventions on drug control, which classify these substances as harmful for health and with no scientific or medical value. However, some of these classifications were made with insufficient scientific support to substantiate those classifications, as credible evidence exists regarding the medical uses of a number of them, such as cannabis for the treatment of certain epilepsies’.[251]

The Committee has thus recommended that States ‘harmonize the fulfilment of their obligations under the international drug control regime with their obligations to respect, protect and fulfil the right to participate in and to enjoy the benefits of scientific progress and its applications, through regular revision of their policies in relation to controlled substances’.[252] The Committee has noted that that these restrictions limit the right to benefit from scientific progress and its applications and therefore should meet the requirements for limitations of the International Covenant on Economic, Social and Cultural Rights and that, further, given the potential health benefits of these controlled substances, such restrictions should be weighed in relation to States’ Covenant obligations under the right to health.[253]

Failure to recognise and respect the right to benefit from scientific progress can have adverse health and other effects on people who use or are dependent on drugs, among others. For example, in order to implement the right to health of such persons through their equal right to benefit from scientific progress and its applications, the Committee on Economic, Social and Cultural Rights has called for the implementation of World Health Organization recommendations to improve the availability, accessibility, and quality of harm reduction services (such as needle exchange programmes and opioid substitution treatment) and for the free distribution of hepatitis C treatment, including to children, women, and people in prison.[254] The Committee has also noted the importance of ensuring that ‘medicines and medical treatments including in the field of drug dependency, are evidence-based, and that the risks involved have been properly evaluated and communicated in a clear and transparent manner, so that patients can provide properly informed consent’.[255]

The Committee has emphasised that States have an obligation to strike an adequate balance between protecting the moral and material interests of authors and protecting other human rights under the Covenant, including balancing the private interests of authors with the public interest in enjoying broad access. States should therefore ensure that their legal and other regimes for the protection of authors’ moral and material interests constitute no impediment to States’ ability to comply with their core obligations with respect to other human rights, including the rights to health, to take part in cultural life, and to enjoy the benefits of scientific progress and its applications. The Committee has stressed that ‘intellectual property is a social product and has a social function’ and that States ‘thus have a duty to prevent unreasonably high costs for access to essential medicines, plant seeds or other means of food production … from undermining the rights of large segments of the population to health and food’. It has further advised that ‘States parties should prevent the use of scientific and technical progress for purposes contrary to human rights and dignity, including the rights to life, health and privacy, e.g. by excluding inventions from patentability whenever their commercialization would jeopardize the full realization of these rights’.[256]

The Special Rapporteur in the field of cultural rights has likewise noted that ‘the obligations of States under intellectual property treaties must not jeopardize the implementation of their obligations under human rights treaties’,[257] which, as the Committee on Economic, Social and Cultural Rights has explained, includes the right to access essential medicines. The Special Rapporteur has concluded that ‘[S]tates have a positive obligation to provide for a robust and flexible system of patent exclusions, exceptions and flexibilities based on domestic circumstances, including through the establishment of compulsory and government use licences when needed’.[258] Some domestic courts have applied the right to benefit from scientific progress as a ground for compelling State action to ensure access to affordable medicines.[259]

The UN General Assembly Special Session 2016 Outcome Document calls upon all relevant UN agencies to provide ‘advice and assistance to States that are reviewing and updating their drug policies … through, among others, the promotion of the exchange of information and best practices on scientific evidence-based policies’.[260]

  • 244. ^

    International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(1)(b); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 27; Charter of the Organization of American States (1948), art. 38; American Declaration on the Rights and Duties of Man (1948), art. 13; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988), art. 14; Arab Charter on Human Rights (2004), art. 42(1); see also Charter of Fundamental Rights of the European Union, 2012/C 326/02 (2012), art. 13; [European] Convention on Human Rights and Biomedicine, ETS No. 164 (1997), preamble, arts. 2, 28. The right to science is also protected in several national constitutions; see Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed: The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UN Doc. A/HRC/20/26 (2012), para. 13.

  • 245. ^

    International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(2).

  • 246. ^

    International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(3).

  • 247. ^

    International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI) (1966), art. 15(4).

  • 248. ^

    Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed: The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UN Doc. A/HRC/20/26 (2012), para. 25; see also Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications, July 2009, https://www.aaas.org/sites/default/files/VeniceStatement_July2009.pdf, para. 13.

  • 249. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.

  • 250. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.

  • 251. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.

  • 252. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 67.

  • 253. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 68.

  • 254. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Mauritius, UN Doc. E/C.12/MUS/CO/4 (2010), para. 27; Committee on Economic, Social and Cultural Rights, Concluding Observations: Estonia, UN Doc. E/C.12/EST/CO/2 (2011), para. 26.

  • 255. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science and Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/25 (2020), para. 71.

  • 256. ^

    Committee on Economic, Social and Cultural Rights, General Comment No. 17: 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, UN Doc. E/C.12/GC/17 (2006), para. 35.

  • 257. ^

    Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, UN Doc. A/70/279 (2015), para. 89.

  • 258. ^

    Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, UN Doc. A/70/279 (2015), para. 103.

  • 259. ^

    See, e.g., NA et al c. Ministerio de Sanidad y Asistencia Social, Case No. 14.625, Corte Supreme de Justicia (Venezuela), 14 August 1998; Cruz del Valle Bermudez y otros c. Ministerio de Sanidad y Asistencia Social, Case No. 15.789, Judgement No. 916, Corte Supreme de Justicia (Venezuela), 15 July 1999; López y otros c. Institute Venezolano de los Seguros Sociales (IVSS), Judgement No. 487, Corte Supreme de Justicia (Venezuela), 6 April 2001.

  • 260. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 5(y).

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