Part I - The Right to Science, Then

1 The Dawning of a Right Science and the Universal Declaration of Human Rights (1941–1948)

Mikel Mancisidor

1.1 Introduction

The United Nations (UN) Committee on Economic, Social and Cultural Rights has recently adopted General Comment No. 25 on Science and Economic, Social and Cultural Rights (E/C.12/GC/25), a process in which the author of the present chapter has been intimately involved for five years.

This General Comment, which has normative implications for 170 countries, is an interpretation of the obligations contained in the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, which came into effect in 1976. It is also an important step on a long journey that began at the dawn of the Universal Declaration of Human Rights and has not yet finished.

This chapter reviews the origins of that story. To do so, it charts the background from President Franklin D. Roosevelt’s famous Four Freedoms speech, delivered in January 1941, to the adoption of the Universal Declaration of Human Rights at the Palais Chaillot in Paris on December 10, 1948, with many steps in between and beyond.

A careful reading of the background and the historical context of the Universal Declaration, supplemented by a study of the travaux préparatoires, will reveal to us that many of the debates, dilemmas, and challenges that we face today were already known in an inchoate form and discussed by our predecessors. Absorbing the lessons of those debates and reflecting on their ideas is not only to pay due homage, but also to undertake an exercise of extraordinary relevance and practicality.

1.2 The Historical Context and Background

The Right to Science,¹ as we will refer to it in this chapter, was recognized in the 1948 Universal Declaration of Human Rights (“the Declaration”) as follows:

27 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Having read article 27, we may refer to the travaux préparatoires² of the Declaration to discern why its drafters chose those precise words and what they thereby intended to say and leave unsaid.³ At first sight, this may seem like a question with a short, straightforward answer. On reflection, however, it is clear that further inquiry is necessary to fully grasp the drafters’ intentions.

To fulfil this goal, we must go back in history to January 1941. Eleven months prior to the United States’ entry into World War II, President Roosevelt made reference, in his famous “Four Freedoms” speech, to the “enjoyment of the fruits of scientific progress” in a context which allows us to consider it a direct precedent of the Right to Science. The speech is widely recognized as one of the main intellectual precursors of the post-war international system and as one of the foundations of the Universal Declaration. Roosevelt’s reference here to science is not secondary or circumstantial. Science is given center stage as President Roosevelt places it amongst the six “basic things” of a “healthy and strong” democracy enabling the enjoyment of the Four Freedoms. These Freedoms, in turn, provide the foundations of human rights:

For there is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are: Equality of opportunity for youth and for others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few. The preservation of civil liberties for all. The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living.

These are the simple, the basic things that must never be lost sight of in the turmoil and unbelievable complexity of our modern world. The inner and abiding strength of our economic and political systems is dependent upon the degree to which they fulfil these expectations. …In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms.⁴

The key aspect science played in Roosevelt’s vision was confirmed in his famous letter to Vannevar Bush,⁵ the wartime head of US military research and development, in November 1944, in which Roosevelt imagined a better world after the war thanks to science and asked Bush for a specific plan to carry out this mission:

There is no reason why the lessons to be found (in times of war) cannot be profitably employed in times of peace. … What can be done … to make known to the world as soon as possible the contributions which have been made during our war effort to scientific knowledge … New frontiers of the mind are before us, and if they are pioneered with the same vision, boldness, and drive with which we have waged this war we can create a fuller and more fruitful employment and a fuller and more fruitful life.⁶

The President, however, died soon after and in the post-war period that followed two circumstances were to have serious influence on the debates regarding science. The first was the long-standing memory of the two atomic bombs dropped on Hiroshima and Nagasaki in August 1945, which placed science, its limits, its control, and the social responsibility of scientists at the forefront of many debates.⁷ The second was the new Cold War rivalry between the United States and the Soviet Union which, as we shall see, would have a profound impact on the issue of science and its role in the international arena.

Nevertheless, the role of science in the humanities was gaining traction, a concept that can clearly be seen in the evolution of the institution that we now know as the United Nations Educational, Scientific and Cultural Organization (UNESCO). The origins of UNESCO, as we know it, lie in a little-known debate which is however key to understanding the interplay between science and politics. UNESCO came into being on the initiative of the Conference of Allied Ministers of Education (CAME), following a proposal made by the United States to set up a United Nations Organisation for Educational and Cultural Reconstruction, and afterwards a United Nations Organisation for Education and Culture, UNECO. It was only later in a Conference in November 1945 that UNECO, entirely without any reference to science in its acronym, was revamped to create UNESCO. This conference, held in London and chaired by the British Minister for Education, Ms. Ellen Wilkinson, saw a group of scientists led by the biochemist Joseph Needham and the biologist Julian Huxley, both British, fight for the inclusion of science in the name and mandate of the new organization. Their commitment to the new organization would lead Needham to be installed as the Director of the Natural Sciences Section and Huxley to be inaugurated as the first Director General (in fact one of only two Director Generals in UNESCO’s history to be a scientist, along with Federico Mayor Zaragoza, from Spain).

Encouraged by these two scientists, at the plenary session of the London Conference, Minister Wilkinson defended the position with the following very significant words:

Although the Organisation’s original name does not mention science, the British delegation will present a proposal for the name to be Organisation for Education, Science and Culture. In these days, when we are all wondering, perhaps apprehensively, what the scientists will do to us next, it is important that they should be linked closely with the humanities and should feel that they have a responsibility to mankind. I do not believe that any scientists will have survived the world catastrophe, who will say that they are utterly uninterested in the social implications of their discoveries.⁸

The reason for briefly digressing into the creation history of UNESCO is to demonstrate the state of distrust (“what the scientists will do to us next”) which pervaded the debate on the development of science when fully disconnected from values and aims. The role of science and technology in Nazi war crimes, and in the atomic bombs mentioned above, was still very present in their thoughts.⁹ Bearing in mind that the Nuremberg Doctor’s Trial,¹⁰ with its 140 days of gruesome and horrendous evidence, was held during 1947, and that seven defendants found guilty were given the death penalty and hanged in June 1948, that is, right in the middle of the negotiation process for the Declaration, we can appreciate René Cassin’s observation that this trial “influenced the debate on how or whether to connect human rights and science in the Universal Declaration.”¹¹

Nevertheless, despite current affairs and developments, UNESCO’s Constitution puts science at the service of other objectives (peace and security) and does not treat it as a purpose in itself:¹²

The purpose of the Organization is to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.

In this context, the Universal Declaration of Human Rights started out as a succession of working drafts over one and a half years. The first draft was prepared by the Canadian jurist John Peters Humphrey, who had been appointed the first Director of the United Nations Division of Human Rights. This draft is a very complete list of the rights which had been recorded in other declarations and reference texts. It was then rearranged and converted into a more consistent draft by the French jurist René Cassin. That draft had to then pass the drafting Committee and the sessions of the Human Rights Commission, before being approved by the United Nations Economic and Social Council (ECOSOC) and finally, on December 10, 1948, by the General Assembly in a session at the Palais Chaillot in Paris, leading to the Universal Declaration of Human Rights as we know it today.

Humphrey’s first draft already included a Right to Science under the same article as a Right to Culture and to the Arts. According to René Cassin¹³ the article was included on request from cultural organizations, including UNESCO,¹⁴ which was represented at this time before the Commission on Human Rights by Jacques L. Havet. Already in this first version, we find that the choice of wording of the text is an important matter to consider.

In Humphrey’s draft, the right is formulated as the right “to share in the benefits of science.” This formulation appears to have been inspired by the Inter-American Juridical Committee for the American Declaration of the Rights and Duties of Man,¹⁵ as the Chilean delegation was keen to point out.¹⁶ This Declaration had been approved in Bogotá a few months before the Universal Declaration and it stated in its article XIII that “[e]very person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.”

1.3 Debate on the Purpose of Science in the Declaration

The end goal of science is and has long been a topic of perennial debate. As such, it should come as no surprise that this debate took on some importance during the negotiation of the Declaration in the political context of the Cold War. The debate started during the first rounds of drafting and discussion when the Soviet delegation, led by Alexei Pavlov, nephew of the well-known Russian scientist Ivan Pavlov, proposed a new text to the effect that this right should protect and promote certain objectives. The proposal stated that: “the development of science must serve the interest of progress and democracy and the cause of international peace and cooperation.”

The proposal was reasonable enough on its face given that, as the Soviet delegation argued, the preceding article in the Declaration on the Right to Education had been given a new second paragraph on the objectives of education. In its final formulation, article 26 states:

26. 1. Everyone has the right to education. … 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

If it had been considered appropriate under the Right to Education to refer to the objectives or aims of education (human development, human rights, understanding, tolerance, peace, and so on), the Soviet proposal of including the objectives of science to be protected and promoted by the Right to Science appeared logical on the same grounds. However, in the end, the three ideas contained in the proposal (progress, democracy, and peace and international cooperation) were voted on separately and all three were rejected. Some States considered that science, and therefore the Right to Science, should not be subject to any purpose, however noble, given that its aim could only be to seek the truth.¹⁷

The Ecuadorian delegate explained his vote during the debates on the Declaration by saying that “science should serve the interests of life rather than death, of peace rather than war.” The Soviet proposal seemed reasonable enough, certainly, except when considered under the perverse Cold War logic dominant at the time.¹⁸ The fact was that other delegations distrusted the concept of democracy being defended by the USSR and its satellites. Eleanor Roosevelt, for example, feared a right “applied to abstract ideas for which no uniform interpretation existed. It seemed dangerous to adopt a text which could be interpreted as a pretext for the enslavement of science. The US delegation would under no circumstances agree that science should be placed at the service of politics. Yet that might be the practical effect of the USSR amendment.”¹⁹ Similarly, the British delegation added that “unfortunately, the conception of democracy and of progress did not seem to be the same everywhere. The word ‘democracy’ could be interpreted in many ways … science should not be at the service of an ideology.”²⁰

The Soviet delegation warned about the danger of a “science subservient to militarism and where intellectual forces were concentrated on producing a terrible weapon”²¹ twelve years before Eisenhower denounced:

the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist … Akin to, and largely responsible for the sweeping changes in our industrial-military posture, has been the technological revolution during recent decades.

In this revolution, research has become central; it also becomes more formalized, complex, and costly … a government contract becomes virtually a substitute for intellectual curiosity … Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific technological elite.²²

A neutral observer might have considered the Soviet concern as being along the right lines, or even seen it as visionary, although, with the benefit of historical hindsight, the reluctance of the other countries might also appear justified, given that they were faced with Stalin’s militarized Soviet Union at the beginning of the Cold War.

As we now know, the final formulation, for good or ill, rightly or wrongly, avoided references to the purposes of the Right to Science, or of science itself, beyond enjoying the “benefits which derive from it.”

1.4 Primary Objects of the Right According to the Declaration

At one stage of the Declaration negotiation process the formulation of the right was modified from the initial version based “on the benefits that result from scientific discoveries” to the wider idea of the right to “share in scientific advancement.” This significant change was approved on a proposal from China, based, according to the delegate Peng Chun Chang, on the authority of Francis Bacon.^{23 24 25}

This change and the loss of the word “benefits” did not last long and it was soon restored.²⁶ The Soviet delegation had already voiced its support for the idea of “benefits”: “the benefits of science were not the property of a chosen few, but the heritage of mankind … that the task of science was to work for the advancement of peaceful aims and to make human life better.”²⁷ However, the word was recovered on submission from Cuba with the argument that “not everyone was sufficiently gifted to play a part in scientific advancement” and that what was needed was for the text to state that everyone has the right “to share in the benefits that result from scientific advancement.”²⁸ Chile supported the Cuban proposal emphasizing that, as the Inter-American Juridical Committee had proposed, the key concept was the idea of “benefits.”

To this both the Chinese and Saudi Arabian delegation added that even if one does not have the capacities to contribute to scientific knowledge, we all nevertheless possess the capacity for certain enjoyments of science beyond just its direct, material benefits.²⁹

In the end, however, Cassin agreed with the Cuban vision and declared that “even if all persons could not play an equal part in scientific progress, they should indisputably be able to participate in the benefits derived from it.”³⁰

This back-and-forth exchange of ripostes nonetheless ended with the concept of the benefits of science being restored by consensus and added to, rather than substituted into, the Chinese text, which is more important than it may seem.

This historical debate helps explain the prevalence of the misapprehension that the scope of this right is limited to participating in “the benefits of science” which means, among other things, the ability to “be able to receive affordable medicine.”³¹ One of this chapter’s intentions is to provide a more comprehensive and ambitious interpretation of this key phrase than the mere idea of “[being] able to receive.” The word “share” in the phrase “everyone has the right freely … to share in scientific advancement and its benefits,” may appear at first sight to be of a high level of generality, and as connoting less engagement or activity than the alternative phrases to “participate” or “take part.” However, given the background above the phrase must in my judgment be taken to indicate an idea of action or agency, of active participation in an enterprise or endeavor, and must therefore be considered in this regard to have the same meaning as “participate” or “take part.”

Against this statement one could argue that since article 27 opens with the expression “everyone has the right freely to participate in the cultural life of the community,” that had the authors intended to use this same idea of active participation also in science, then they would have used the same word; however, this was not the case as “share in” was chosen instead, possibly precisely to reduce this association with action. However, the French and Spanish versions of the Declaration, which are equally valid, clearly opt for the idea I propose by including the words “participer” and “participar,” which are without doubt identical synonyms of their French and Spanish counterparts, “prendre part” or “tomar parte,” which are used to open the article.

If we examine international law criteria for interpreting identical texts in two or more languages,³² we see that “the text is equally authoritative in each language,” that “[t]he terms of the treaty are presumed to have the same meaning in each authentic text” and that “when a comparison of the authentic texts discloses a difference of meaning … the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” I propose without doubt that we should opt for an interpretation of “to share in” that is synonymous with “to participate in” or “to take part in” through which we achieve the equivalence of meanings between language versions necessary to “reconcile the texts.”

Further support for this position may be derived from General Comment No. 21 on the Right to Participate in Cultural Life, and the work of the Committee for Economic, Social and Cultural Rights (CESCR), which have previously analyzed the meaning and scope of the term “to participate” or “to take part” in and indicated that “they have the same meaning” and include both “access” and “contribution.”³³ The same idea applies to interpreting the Right to Science.³⁴

Although this reflection delves deeply into semantics, this analysis is essential to framing our vision of a right which goes beyond “benefit from” and advocates broader concepts of “participation in;” a right which includes participation in scientific creation³⁵ (citizen science),³⁶ and participation in scientific policy,³⁷ among other things. The recent approval of the General Comment No. 25 by CESCR³⁸ provides enough guiding elements to revisit this question with new tools.

1.5 A Brief Consideration of the Name of the Right

Up to this point we have referred to this right as the Right to Science, which might appear to some as lacking in technical precision. Many authors outright reject this framing. It does however merit further consideration.

We could refer to this right in the terms of the Universal Declaration as the “right to share in scientific advancement and its benefits” (RSSAB) or in terms of the ICESCR as the “right to enjoy the benefits of scientific progress and its applications” (REBSP), but it is clear these are both unwieldy and of limited usefulness as formulae if we wish to develop this right, disseminate it, and hope for its uptake and use by the broader society. General Comment No. 25 chooses to use another, more complete, wording which might still suffer some practical problems in the everyday, and certainly oral, usage: “the right to participate in and to enjoy the benefits of Scientific Progress and its Applications (RPEBSPA).”

Some may find in its abbreviated formulation, the Right to Science, opportunities for humor. For example, science is not accessed as of right but through effort and intellectual energy, which is clearly true (since Euclid we have known that “there is no Royal Road to geometry”). Yet, putting cynicism aside, the fact remains that when we speak about the Right to Health,³⁹ technically what we are speaking about is the right to the “enjoyment of the highest attainable standard of physical and mental health,” and not about a right to be healthy by decree. The same applies to the Right to Science. A simple name does not simplify or caricature a right’s normative contents, but is instead intended to offer practical cognitive advantages facilitating familiarity with the concept and easing the cognitive burdens of its use. We are interested in a shorter, more manageable, and more easily popularized formulation than the RSSAB or the REBSP or RPEBSPA. Lea Shaver has suggested a very interesting name, the Right to Science and Culture, which includes the artistic, cultural, and scientific contents of article 27 of the Declaration. For Shaver, “[a]lthough ‘science’ and ‘culture’ are invoked separately in both UNESCO’s name and the Article 27 text, there is no clear dividing line between these two fields …. This integrated approach is captured by my emphasis on the unifying concept of the ‘Right to science and culture.’”⁴⁰

There are substantial grounds for this unified approach to science and culture, not the least of which can be discerned from the points this chapter has already made above and in chapters by several other distinguished commentators on the right to science contained within this volume. That said, for practical reasons, and to most effectively develop the contents of science and culture, it is arguably most appropriate to continue, at least for now, working in pursuit of an autonomous Right to Science within the field of cultural rights. Shaver’s proposal still appears to me to be an attractive option full of suggestive possibilities.

Another short-form name for the right, the “right to access to knowledge,” has been suggested, backed by the authority of B. Boutros-Ghali,⁴¹ although it could be said that this formulation only refers to some of the possible normative contents of the Right to Science.⁴² The Information Society Project at Yale Law School has opted for solid arguments based on the ICESCR for the same formulation of a ‘‘right of access to knowledge” or more briefly still, “the right to knowledge.”⁴³ Here, the more flexible and practical “Right to Science” is advanced as the most appropriate, encouraged by the fact that it has already been accepted by a considerable number of authors,⁴⁴ scientific and academic associations, social organizations, the first Special Rapporteur in the Field of Cultural Rights, Farida Shaheed,⁴⁵ UNESCO,⁴⁶ and some countries.⁴⁷

Some may say that what is gained in flexibility is lost in rigor when considered against the REBSP, but it could be said that the short formulation is at once more ambitious because it contains all the contents of a right to actively access science beyond merely passively participating in its benefits. It is this framework that is defended in this chapter. What we shorten in title we increase in contents.

The commitment to an autonomous and differentiated Right to Science must not prevent it from being read together and in harmony with other human rights and in particular with the cultural rights of which it forms part,⁴⁸ and with which it is “inherently interlinked”⁴⁹ as the Special Rapporteur on Cultural Rights rightly says, or as the Information Society Project argues in favor of the right of access to knowledge.

It seems that over time, the use of the expression “Right to Science” will become a familiar shorthand, making this type of nominalist explanation no longer necessary, and it will be used for ease of exposition in the same way we speak about the Right to Health, the Right to Work, or the Right to Housing, which are at least as problematic as the Right to Science when it comes to the gulf existing between a simplistic reading of their formulation and their real contents.

1.6 The Right to Science As a Cultural Right

The importance of science for the enjoyment of other human rights and for sustainable human development is thankfully beyond doubt. Thousands of pages have been written on science’s importance for the challenges facing our societies and our planet, and plenty more on science’s importance for our wellbeing and for the opportunities and possibilities currently in our hands.

Thanks to scientific and technological advancement we have managed, in global terms, to double life expectancy, vanquish much suffering and disease, and we are also able to produce sufficient food to feed the world (the fact that we do not have sufficient institutional, economic, political, or ethical resources to make the most of this capacity is altogether another matter). Bertrand Russell once said that “science can confer two kinds of benefits: it can diminish bad things, and it can increase good things.”⁵⁰ Nowadays, we have access to information and knowledge which was previously unimaginable, at a speed and price which surprises us every day. All of this provides us with the opportunity to be free, to choose, to learn, to investigate, … to develop ourselves as persons and as communities, because “the knowledge society has more possibilities for personal freedom than all previous social forms.”⁵¹

It is true that this development has brought with it new problems that were previously unknown: new diseases; novel risks and threats like the loss of biodiversity, climate change, contamination; how to apportion and manage control over the continually expanding mass of useful information; loss of privacy; the dilemmas of bioethics; and many others. It is not suggested that science alone can solve these challenges; it is certain, however, that without science they cannot be successfully and responsibly tackled. Science is not therefore ultimately responsible for these challenges, but it is an essential element in meeting them. The response to these challenges must be social, political, economic, ethical,⁵² and also scientific, because the response must be based on scientific knowledge on our side.⁵³

Science is directly related to various rights up to the point where they have common contents. Take, for example, its interconnections with the Right to Education: education is necessary for the performance of science, and science is essential to any proper education from primary school level and beyond. Consider the Right to Health: the right to enjoy the highest possible level of physical and mental health relies in large part for its fulfilment on the right to benefit from the advancement of scientific progress, and especially its applications. With respect to the Right to Food or the Right to Water and Sanitation, it is clear that science and technology must be allies for progress in the universalization of the enjoyment of those basic needs. As for Rights of Association, Information, and Expression, these are all essential requirements for the smooth and efficient workings of the scientific community. The UNESCO representative at the Commission on Human Rights, Jacques L. Havet, pronounced very clearly on this matter at the Seventh Session: “The right of everyone to enjoy his share of the benefits of science was to a great extent the determining factor for the exercise by mankind as a whole of many other rights.”⁵⁴

The relationship between gender equality (or the principle of nondiscrimination on the grounds of gender) and science is also important. Scientific and technological advancement favor equality. Advancements ranging from progress in sexual and reproductive health, to the facilities provided by technology in areas traditionally (and in many places still currently) identified with women, through to scientific evidence of the persistence of the wage gap and continued implicit biases against women in some professions, have been of great practical usefulness in the fight for access by women to other previously taboo, or even vetoed, social and labor areas. Equality is also one of the contents of the Right to science which makes it crucial given there is still considerable imbalance in access to education by women in general and above all to professional technical scientific work in particular. This is so even in countries which are considered advanced in this issue. Inequality also leads to a loss of talent and capacity for science itself, which, given the reflections above on the interconnections between science and several human rights, must necessarily compound to the greater loss of humanity.

Finally, the relationship between democracy and science is also important. Experience has shown that science flourishes more easily in settings with freedom and participation. In turn, science becomes a force for democracy by providing citizens with the knowledge needed to act responsibly in the political debate, and by providing better technological tools for participation.⁵⁵ The relationship between science and human development, the Sustainable Development Goals, and a great many other issues could be easily developed. Not much of value, though, would be added to the debate that has not been covered above. What should be highlighted is that intentional emphasis has been placed on the idea of an interrelationship or interdependence between science and other rights and interests. We must not frame a vision of science solely as an instrument for other more valuable objectives, but rather as an interaction between human assets.

This is because the need for a Right to Science is often justified by reference to science’s importance for the enjoyment of other rights and this is exactly the idea I want to challenge: evidently not because it is false, but because it is insufficient for the basis of science as a human right. If science’s role is purely instrumental, for the attainment of other rights, the right to science would in the best of cases be a derivative, instrumental or secondary right. I advance the argument that this right should go much further, and indeed has its own objectives and inherent value which justify it standing alone as a separate human right. In this sense, scientific knowledge makes us more human, it allows us to know ourselves and our environment better, to make better individual and collective decisions, and to enjoy life and its beauty more fully.

There is furthermore a logical, internal reason derived from the UDHR which should be stressed here: the Right to Science is contained within provisions dedicated to cultural rights, in the same category as the right to “participate in the cultural life” and the right to “enjoy the arts.” There is no argument that suggests participation in cultural life or the arts should be justified as human rights by reference to their service to other ulterior or higher purposes, and they are accepted as objectives in themselves. Nor is anyone asked to explain the use of poetry, dance, or music to defend their right to create and enjoy them. The same should be said of science: its relationship to creativity, aesthetic and intellectual enjoyment, and human curiosity and understanding, should suffice in order to justify it as a human right.⁵⁶ We might say that the right “to share in scientific advancement” is an objective in itself, additional to “shar[ing] in … its benefits,” where the latter of these expressions is concerned mainly with the useful effects of science on the enjoyment of other rights. More colloquially, we might say that people have a right to science for the same reason as they have a right to literature (read and write), because they are objectives in themselves, universally realizable assets, a human necessity; but that perhaps they have the right to benefit from science, in principle, because they have the right to health or to food. Had the intention been otherwise, the Right to Science would be more of an instrument of economic and social rights, and its logical position would be amongst these. It has, however, right from the beginning, been set amongst the cultural rights because, as stated by a well-known scientist and commentator, “science is culture in capital letters.”⁵⁷

Science is a basic human necessity and, as already stated, not only due to its effects on other rights but as a necessity in itself. Science makes us human, just like literature or music, or history or linguistic diversity, and this is why it is a necessity associated with the concept of dignity.

1.7 Final Considerations

This chapter examined the debates and dilemmas that led to the creation of a right that included elements both of participation in and the enjoyment of the benefits of science. It is a right that has profound political implications. It was always a means to achieve other goods and goals, but it was above all a cultural right; that is to say, a good in itself. As a book chapter it was finalized in the middle of the COVID-19 confinement. The current relevance of the right to science is therefore greater than ever.⁵⁸ It is a human right that adds key dimensions, some of them previously undervalued, to the debate around science and human rights, from access to knowledge to citizen participation, from transparency to quality, and from promoting the role of women and minorities in science to balancing intellectual property and facilitating universal access to its applications. It includes the need for the promotion of research, development & innovation, public funding and, in conclusion, it puts science at the service of citizens and the world, through international scientific cooperation. There are few challenges more pressing than to revisit the spirit of article 27 of the 1948 Universal Declaration of Human Rights, and to ensure its revival and enhance its influence in the contemporary era.

2 The Origins of the Right to Science The American Declaration on the Rights and Duties of Man

Cesare P. R. Romano

2.1 Introduction

If one were to pinpoint a day and place where the “right to science” was born, it would be December 31, 1945, in Rio de Janeiro, Brazil. On the last day of the year that saw the end of World War II, four members of the Inter-American Juridical Committee gathered to adopt the first draft of the future American Declaration on the Rights and Duties of Man (American Declaration).¹ In it, they described a new human right, never articulated before: the right to benefit from progress in science and technology, also known more succinctly as “the right to science”. Although reworded and re-elaborated, the right survived two drafts and the negotiating process to end up in Article XIII of the American Declaration. In turn, that provided the essential wording for Article 27.1 of the Universal Declaration of Human Rights (Universal Declaration),² which then led to Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR),³ and several other human rights treaties and declarations.⁴

This chapter tells the story of the drafting and adoption of the American Declaration, and in particular of its provisions on the right to science and the “rights of science (i.e. the human rights that are most crucial for the work of scientists and inventors, such as freedom of thought, academic freedom, intellectual property, and others).

The American Declaration is the first broad and detailed enumeration of human rights to be adopted by an intergovernmental organization. Although the Universal Declaration is hailed as the founding document of international human rights, it is often forgotten that it was preceded and inspired by the American Declaration.⁵ While the Universal and the American declarations were largely drafted in parallel, the drafting of the American Declaration was always a couple of steps ahead. Indeed, the Inter-American Judicial Committee adopted the first draft of the American Declaration at the end of December 1945, only six months after the San Francisco conference, which established the United Nations, had concluded (June 1945). The first draft was published in March 1946, before the UN Preparatory Committee tasked with drafting the Universal Declaration had even held its first meeting. The American Declaration was completed before the second round of drafting of the Universal Declaration, and was adopted on May 2, 1948, almost eight months before the Universal Declaration (December 10, 1948). There is no doubt that the American Declaration heavily influenced the drafting process and final wording of the universal one.⁶

The fact that the American Declaration is the source of the language used in the corresponding provisions of the Universal Declaration, and, partly, of the ICESCR, is already sufficient to warrant a chapter in this book. However, there is also an operative and autonomous justification for this exposé. Indeed, in the Western hemisphere there are some major states, such as the United States and Cuba, which have not ratified the American Convention or the ICESCR. Because of that, the Universal Declaration and the American Declaration are the only codified international human rights standards applicable to them. While the Universal Declaration does not have a specific mechanism to ensure compliance other than the generic Universal Periodic Review,⁷ the American Declaration can be invoked before a specific quasi-judicial body, the Inter-American Commission on Human Rights.⁸ Although, to the best of my knowledge, to date there has been no petition brought before the Inter-American Commission claiming a violation of the right to science or the rights of science the possibility exists.

2.2 The Drafting History of the American Declaration

From August 21, 1944 to October 7, 1944, as the Allied forces were inching closer to Berlin and Tokyo, the “Four Policemen” (the U.S., UK, USSR and China) met at the Dumbarton Oaks estate, in Washington D.C., to discuss the creation of future international organizations to ensure international peace and security, leading eventually to the creation of the United Nations. Despite being members of the Allied coalition, Latin American countries were not invited. That snub, and also because discussions at Dumbarton Oaks did not include various issues of their concern, including human rights,⁹ caused Latin American countries to move ahead on a parallel track to discuss the creation of similar institutions for the Western hemisphere, eventually leading to the creation of the Organization of American States (OAS).

Thus, from February 21 to March 8, 1945, twenty members of the Pan-American Union gathered near the park of Chapultepec, in Mexico City, to discuss the “Project of Organic Pact of the Inter-American System,” with the goal to reorganize inter-American cooperation and to coordinate with the soon-to-be United Nations.¹⁰ At the Chapultepec conference, the participating states decided that the Organic Pact would be accompanied by two declarations: one on the “rights and duties of states” and a second on the “rights and duties of man”.¹¹ The first was to be a declaration of rights and duties of states vis-à-vis each other, codifying principles of nonintervention, prohibition of aggression, peaceful settlement of disputes, and the like. The second, however, was to lay down duties states had vis-à-vis their citizens and other persons within their jurisdiction, that is to say human rights, as well as duties that those individuals owed to the states.¹² The drafting of the former was entrusted to the Governing Board of the Pan American Union (a body made of representatives of member states), while the Inter-American Juridical Committee (Comité Jurídico Interamericano – Comissão Jurídica Interamericana) was given the task to draft the latter.¹³

2.2.1 The Work of the Inter-American Juridical Committee

The Inter-American Juridical Committee was – and still is – a group of independent jurists, headquartered in Rio de Janeiro, Brazil.¹⁴ Its function is to develop and coordinate the work of the codification of international law, and in particular “American international law,” meaning the rules of international law specific to the Americas. However, it is obvious that drafting a declaration on the rights and duties of man was an exercise that required going beyond mere codification of international law. It was squarely a matter of progressive development. Although during the interwar and war years, a number of projects of international declarations of human rights and freedoms had been prepared by various organization and societies, many of which were in Latin America,¹⁵ at that time state practice was, at best, vague and scant or, in the case of the right to science, completely nonexistent.¹⁶

The Committee started working in earnest right after the closing of the Chapultepec conference. Within nine months, they had produced a first draft titled “Anteproyecto de declaracion del los derechos y deberes internacionales del hombre” (Preliminary Draft of a Declaration on the Rights and Duties of Men).¹⁷ A second draft, titled “Proyecto Definitivo” (Final Draft) took two more years, since state members of the Inter-American system had been given the opportunity to comment. It was adopted on December 8, 1947.¹⁸

At the time the America Declaration was drafted, the Committee was composed of seven members (as opposed to eleven nowadays) nominated by the governments of Argentina, Brazil, Chile, Cuba, Mexico, the United States, and Venezuela.¹⁹ The Chapultepec Conference added two more members (Colombia and Peru).²⁰ However, in total only six members signed the two drafts the Committee produced (and presumably participated in their preparation).²¹ Charles Fenwick (United States) and Francisco Campos (Brazil) signed both drafts, while Felix Nieto del Río (Chile) and Antonio Gómez Robledo (Mexico) signed the first draft, and José Joaquín Caicedo Castilla (Colombia) and Eduardo Arroyo Lameda (Venezuela) the second. They were all scholars and diplomats, each bringing their own unique perspective to the task.²² Curiously, many of them were not formally trained in law or had never practiced law.²³

A Brazilian, as a tribute to the country hosting it, traditionally chaired the Committee.²⁴ At the time of the drafting of the Declaration, the Brazilian member was Francisco Luís da Silva Campos, a jurist, attorney, legal scholar, and politician. A scion of families that dominated the economic, political, and social life of Brazil of the late XIX century, Campos was the author of Brazil’s Constitution of 1937, and of the criminal and criminal procedural codes of Brazil, which, in substance, are still in force in Brazil to this day.²⁵ That, and the fact that history remembers him for his authoritarian and anti-liberal views of the state and democracy, made him an unlikely author of a declaration of human rights.²⁶

Although he was a political scientist by training (Ph.D. in political science from Johns Hopkins University, in 1912) and never earned a law degree, Charles Ghequiere Fenwick was considered one of the distinguished international lawyers and scholars of his time.²⁷ He was professor of political science at Bryn Mawr College from 1918 to 1947 and President of the American Society of International Law (1953–1954).²⁸ After having worked on the draft of the American Declaration at the Inter-American Juridical Committee, he became director of the Department of International Law of the Pan American Union, and later of the Organization of American States.²⁹

Felix Nieto del Río studied law but never practiced or taught it. He had a career as a journalist and writer first, and then as a diplomat.³⁰ He entered public service as employee of the National Library and later of the Ministry of Foreign Affairs.³¹ He became a diplomat, representing Chile in several capitals in Europe and the Americas. He was Chile’s ambassador to Brazil (1936–1939) and to the U.S. (1947–1952),³² and, crucially, he represented Chile at the first meeting of the UN Human Rights Commission, the body that drafted the Universal Declaration of Human Rights, ensuring continuity between the two.

Like Nieto del Río, Antonio Gómez Robledo was also a diplomat by trade.³³ Yet, he was a philosopher and legal scholar of the first order, too.³⁴ Born from a wealthy family in Guadalajara, Mexico, he read law at the University of Guadalajara.³⁵ Before joining the Mexican diplomatic service, in 1936, he earned a doctorate in philosophy from the Universidad Nacional Autónoma de Mexico, and studied in Paris, The Hague, New York (Fordham University) and Rio.³⁶ After retiring from the diplomatic service, he went back to academia and scholarly writing, publishing on Plato and Socrates, on the origins of international law and its early writers, and various works on catholic issues.³⁷

In 1946, after the first draft had been adopted and before the second and final one was prepared, José Joaquín Caicedo Castilla and Eduardo Arroyo Lameda replaced Nieto del Río and Gómez Robledo in the Committee.

Arroyo Lameda was a poet and writer, with a respectable publishing and prizes record, member and director of the Venezuelan Academy of Language (Academia Venezoelana de la Lengua).³⁸ He studied literature first, and then obtained a doctorate in Political Science from the Central University of Venezuela.³⁹ The study of law, which he undertook subsequently, seemed to be an afterthought. Later he became professor of diplomatic history and international relations.⁴⁰

Of the six men who participated in the drafting of the American Declaration, José Joaquín Caicedo Castilla probably had the strongest international law credentials.⁴¹ He graduated in law and political science from the National University of Colombia.⁴² He was Judge ad hoc of the International Court of Justice in the Haya de la Torre case⁴³ and served both as elected member of both the parliament and the Senate of Colombia, as minister of the government (Work and Social Affairs first, and then Foreign Affairs), as Ambassador (to Italy, Costa Rica, Honduras, and Nicaragua).⁴⁴ He published copiously in international law, both public and private, and founded the Instituto Hispano-Luso-Americano de Derecho Internacional. He was also member of the Inter-American Juridical Committee from July 3, 1946 to his death, on December 15, 1979.⁴⁵

Of these six men, we do not know who was actually responsible for the provision on the right to science. We know that the essence of the right to science was written during the redaction of the first draft and remained largely unchanged in the final draft. We know who signed the first and second drafts. We know that Fenwick and Campos were the two members of the Committee who authored both the first and second, and that Campos was the Chairman of the Committee. However, we do not know much more than that. The hunt for the intellectual father(s) of the right to science is probably one of the most interesting puzzles for historians of international law.

We do know a little more about the documents that inspired the members of the Committee. Writing the first international declaration of human rights was a daunting intellectual and political task. Articulating key concepts and finding the best words was both a legal and a linguistic challenge, and the Committee had little in the way of wording from which to borrow. The Chapultepec Conference had given the Committee limited guidance. The only language that could remotely connect to the right to science is found in Resolution XI: “The goal of the state is the happiness of man within society. The interests of society must be harmonized with the rights of the individual. The American man does not conceive to live without justice. Nor does he conceive to live without freedom.”⁴⁶ Granted, the Committee did not work in a vacuum. It could draw from a rich tradition of human rights and rule of law nurtured in the West since the Enlightenment, and on specific Latin American tradition. They had at their disposal several drafts and projects on human rights that had been prepared since the 1920s by various organizations. Specifically, the Committee acknowledged having taken into consideration at least four main sources while drafting the Declaration:⁴⁷

1. (1) The Declaration of International Rights of Men (Déclaration des droits internationaux de l’homme) of the International Law Institute (Institut de Droit International) (October 12, 1929);

2. (2) American Law Institute Statement of Essential Human Rights (1942–1945);

3. (3) Preliminary Report of the Commission to Study the Organization of Peace (1940);

4. (4) Declaration of Philadelphia of the International Labor Committee (1944).

Yet, none of these contained anything about a right to benefit from progress in science and technology. The ILI Declaration of International Rights of Men was a short document of only six articles, providing only for a generic duty not to discriminate and few basic freedoms, but made no mention of the right to science or “rights of science,” such as freedom of speech and expression.⁴⁸ The American Law Institute Statement of Essential Human Rights included the right to education (Article 11), albeit without mentioning academic freedom, and several other economic, social, and cultural rights, but made no mention of the right to science either.⁴⁹ It addressed freedom of expression, opinion, and dissemination, dedicating an article each to Freedom of Opinion and to Freedom of Expression.⁵⁰ However, these articles focused on the press and media and no mention was made to the freedom to investigate. Neither the 1944 Declaration of Philadelphia of the International Labor Committee mentioned the right to science or the rights of science. All it did was “reaffirm the fundamental principles on which the Organization is based and, in particular, that: (b) freedom of expression and of association are essential to sustained progress.”⁵¹ Finally, the 1940 Preliminary Report of the Commission to Study the Organization of Peace contained a general statement on the positive and negative effects of science on international life and the need for international institutions to solve the problem. However, it did not contain a list of rights, and certainly nothing that could be borrowed by the drafters of the American Declaration.⁵²

Thus, it seems the members of the Committee drew mostly from their own experience and readings to draft the articles addressing the right to science and the rights of science. The question of whether and how a statement of worldwide rights and fundamental freedoms should refer to science and technology was new to global discourse. The fact that the members of the Committee were independent experts and not State representatives is noteworthy, as their personal character and idiosyncrasies probably had a heightened impact on the drafts. As we will see, the Bogotá conference adopted a final text that was considerably more succinct and more tightly worded.

As to the right to science in specific, the first draft (Anteproyecto) articulated it as follows:

Article XV: Right to Share in Benefits of Science.

Every person has the right to share in the benefits accruing from the discoveries and inventions of science, under conditions which permit a fair return to the industry and skill of those responsible for the discovery or invention.

The state has the duty to encourage the development of the arts and sciences, but it must see to it that the laws for the protection of trade-marks, patents and copy-rights are not used for the establishment of monopolies which might prevent all persons from sharing in the benefits of science. It is the duty of the state to protect the citizens against the use of scientific discoveries in a manner to create fear and unrest among the people.⁵³

The first draft set several of the key issues regarding the right to science that will determine its future shape and the discourse about it. First, it affirmed the “right to science,” that is to say, the “right to share in the benefits accruing from the discoveries and inventions of science.”⁵⁴ However, the draft did not discuss the “rights of science” other than declaring that: “The state has the duty to encourage the development of the arts and sciences.”⁵⁵ Arguably, that included the duty of the state not to arbitrarily interfere with the development of science and technology too, but it would be several years before the rights of science would be spelled out in Article 15.3 of the Covenant on Economic, Social and Cultural Rights.

The first draft also introduced the principle that there should be limits to science, and the more controversial idea that science should develop in a certain direction. The issue of whether science should have a direction and limits, still very hotly debated to this day, would have its first full discussion during the drafting of the Universal Declaration, but it surfaced here first. Actually, the draft seems to see science as a threat (“It is the duty of the state to protect the citizens against the use of scientific discoveries in a manner to create fear and unrest among the people”), but this needs to be put in its historical context.

In the Commentary to the first draft, the Committee noted:

The last sentence of the article, referring to discoveries which create fear and unrest among the people, is obviously directed against the recent discovery of the means of making atomic energy available for destructive purposes. Here the protection to be given by the state to its nationals will be contingent upon the cooperation of other states in taking similar action. In the presence of this newest discovery of science it may be said that the first and foremost international right of man is now no longer the right to his own personal existence or to his own personal liberty or other associated rights, but rather his right to the existence of the civilization of which he is part and without which life would be intolerable even if he himself personally survived destruction. The “freedom from fear” which the Atlantic Charter contemplated as one of the results of the peace to be established after the war takes on a larger meaning in the light of the newly-discovered means of carrying the devastation of war to its logical extreme.⁵⁶

The first draft was also the first international legal document to attempt to strike a balance between the right to benefit from science and the need to ensure those who develop science and technology have a fair return. “Every person has the right to share in the benefits accruing from the discoveries and inventions of science, under conditions which permit a fair return to the industry and skill of those responsible for the discovery or invention.”⁵⁷ It was the first salvo in the long battle between the right to benefit from progress in science and technology and intellectual property rights. In the Committee’s own words:

The principle upon which Article XV of the draft Declaration proceeds is that the democratic state is a cooperative commonwealth, in which the opportunities for discovery and invention are the result of many generations of progressive effort, and that each generation is the heir of the civilization which preceded it and as such is entitled to share collectively in the benefit which its men of greater genius are able to draw from the conditions placed at their disposal. At the same time the Article recognizes the necessity of rewarding the industry and skill of the discoverer or inventor and thus encouraging the patient study and research which may lead to new advances in the field of science.⁵⁸

Yet, mindful of having potentially opened a Pandora’s box, the Committee hastened to add that the need to ensure a fair return to those who advance science and technology must not come at the expense of the duty to ensure all persons could share in the benefits of science.⁵⁹ Again, from the Commentary:

Here, as in the case of the right to work, a balance must be sought between encouragement of individual initiative by the grant of patents and copyrights and the protection of the public against the abuse of the special privileges thus granted. The duty of the state to protect the individual against monopolies in the exploitation of natural resources of the state is recognized in the legislation of all American states; and it is equally the duty of the state to control the use of trade-marks and patents so as to prevent similar monopolies in the production or distribution of the articles thus protected against competition.⁶⁰

As to the right to freedom of expression and opinion, a right particularly important for scientists and inventors, the Preliminary Draft contained a very long and detailed Article (III). For sake of brevity, it will not be discussed here. The text can be found in Table 2.2. All that needs to be said here is that nothing suggests that the Committee considered the right to freedom of expression and opinion to be particularly relevant for scientific inquiry and research. The Commentary of the Preliminary Draft discusses the media at length, including the press, radio, and cinema, and limits to the freedom of expression and opinion and censorship, but it does not touch upon scientists and their special needs.⁶¹

The Committee transmitted the first draft, accompanied by a “long and very carefully written report, in which the subject of the rights of man was analyzed in general, the precedents in jurisprudence and the acts of international bodies set forth, and one by one, the proposed clauses were commented upon and justified,”⁶² to the States members of the Inter-American system for comment.⁶³ Once they received the comments back, they produced the second and final draft. Article XV changed little between the first and second draft. Table 2.1 highlights the changes. They were minimal, either because it was as good as it could be or, more likely, because states preferred focusing on more crucial rights and did not attach to this one particular importance. Thus, the core of the right to science, as well as most of the freedom of information and opinion, was set by December 1945.

Table 2.1 Comparison of the provisions on the right to science in the drafts of the Inter-American Juridical Committee and the final text of the American Declaration (differences between previous and subsequent versions are in italics)

Preliminary Draft by the Inter-American Juridical Committee (31 Dec. 1945)	Final Draft by the Inter-American Juridical Committee (8 Dec. 1947)	American Declaration of the Rights and Duties of Men (30 April 1948)
Article XV: Right to Share in Benefits of Science.	Article XV: Right to Share in Benefits of Science.	Article XIII: Right to the Benefits of Culture.
Every person has the right to share in the benefits accruing from the discoveries and inventions of science, under conditions which permit a fair return to the industry and skill of those responsible for the discovery or invention.	Every person has the right to share in the benefits accruing from the discoveries and inventions of science, under conditions which permit a fair return to the industry and skill of those responsible for the discovery or invention.	Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.
The state has the duty to encourage the development of the arts and sciences, but it must see to it that the laws for the protection of trade-marks, patents and copy-rights are not used for the establishment of monopolies which might prevent all persons from sharing in the benefits of science. It is the duty of the state to protect the citizens against the use of scientific discoveries in a manner to create fear and unrest among the people.	The state has the duty to encourage the development of the arts and sciences, but it must see to it that the laws for the protection of literary and artistic copyrights, patents, and industrial and commercial trademarks are not used for the establishment of monopolies. It is the duty of the state to protect the citizens against the use of scientific discoveries in a manner to create fear and unrest.	He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.

Table 2.2 Comparison of the provisions on the Freedom of Investigation, Opinion, Expression and Dissemination in the drafts of the Inter-American Juridical Committee and the final text of the American Declaration

Preliminary Draft by the Inter-American Juridical Committee (31 Dec. 1945)	Final Draft by the Inter-American Juridical Committee (8 Dec. 1947)	American Declaration of the Rights and Duties of Men (30 April 1948)
Article III: Right to Freedom of Speech and of Expression Every person has the right to freedom of speech and of expression. This right includes freedom to form and to hold opinions and to give expression to them, in private and in public, and to publish them in written or printed form. The right to freedom of speech and of expression extends to the use of whatever means of communication are available: freedom to use the postal service, the public utilities of telegraph, telephone and radio communication; freedom to use the graphic arts, the theater, the cinema and other agencies for the dissemination of ideas. The right to freedom of speech and of expression includes freedom of access to the sources of information, both domestic and foreign. The right to freedom of speech and of expression includes the special highly privileged right to freedom of the press. The only limitations which the state may impose upon this freedom are those prescribed by general laws looking to the protection of the public peace against slanderous or libellous defamation of others, and against indecent language or publications, and language or publications directly provocative of violence among the people. Censorship of the press is prohibited, whether by direct or indirect means, and all limitations imposed in the interest of public order shall only be applied subsequently to the publication of the material alleged to be of the offensive character described in the law. Censorship of the cinema may be in advance of publication, taking into account the particular form of publication and the necessity of protecting the public against matters offensive to accepted standards of conduct. The state may not retain a monopoly of radio broadcasting so as to deny to the individual the opportunity for the free expression of opinion through that instrumentality of communication.	Article III: Right to Freedom of Speech and of Expression Every person has the right to freedom of speech and of expression. The right to express ad to maintain opinions extends to the use of the postal services and the public utilities of radio communication and telephone; freedom to use the graphic arts, the theater, the cinema and other agencies for the communication and dissemination of ideas. The right to freedom of speech and of expression includes freedom of access to the sources of information, both domestic and foreign. The right to freedom of speech and of expression includes the special highly important right to freedom of the press. In the case of immoral or libelous publications, or such as incite to violence, only measures of a civil or penal character may be applied, in accordance with due process of law. Censorship of the cinema may be in advance of publication.	Article IV: Right to Freedom of Investigation, Opinion, Expression and Dissemination Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.

It is remarkable that the first draft gave the right to science its own dignity, separate and distinct from the “right to culture,” and that this survived to the second draft. However, at the same time, the Inter-American Juridical Committee nodded towards the subsequent, momentous development, when they stated that: “The state has the duty to encourage the development of the arts and sciences.”⁶⁴

2.2.2 The Ninth Conference of American States (Bogotá, Colombia, Spring 1948)

The second draft of the Inter-American Juridical Committee was considered at the next conference of the American States, the ninth. Twenty-one states, all the American Republics, as they were called, participated.⁶⁵ Most were represented at a high level. Eleven delegations were headed by their Minister of Foreign Affairs or the equivalent.⁶⁶ The task of the drafting the declaration was entrusted to the VI Committee (Juridical-Political Issues), and from it to a working group (Sub-Committee A) consisting of representatives of Argentina, Bolivia, Brazil, Colombia, Cuba, Mexico, Peru, the U.S., Uruguay, and Venezuela.⁶⁷ The working group met first on April 17, 1948. It started from the “fairly acceptable draft”⁶⁸ produced by the Inter-American Juridical Committee, but produced a new text, quite different from the one prepared by the Committee, taking into account the amendments and proposals presented by numerous delegations, and discussions had within the working group.⁶⁹ Besides the draft of the Inter-American Juridical Committee (the Final Draft), and the amendments and proposals presented by numerous delegations, the working group considered also the draft of the Universal Declaration of Human Rights circulated at the Human Rights Commission’s second session, in December 1947.⁷⁰ The text hammered out by the working group then went back to the VI Committee, where it was approved.⁷¹ It is said that the discussions on social, economic, and cultural rights, including the right to science, were particularly intense.⁷² Finally, on May 2, 1948, the Plenary unanimously approved the text sent by the VI Committee without discussion and as a nonbinding resolution of the Conference.

The U.S. delegation participated at all stages of the drafting of the Declaration (Working Group, VI Committee and Plenary). It obtained a modification of the article on the right to health, to ensure it would not contain any preference between public and private control of health and sanitation facilities, and it successfully opposed a proposal for including a statement on the right of resistance to oppression.⁷³ However, it unsuccessfully opposed the inclusion of a statement on the right to protection of authors and inventors in the article on the “right to culture.”⁷⁴ The U.S. representative (Jack B. Tate) argued that it was not an essential human right.⁷⁵ However, strongly supported by Cuba, the article was left unchanged.⁷⁶

In the end, the Conference produced a “lengthy document whose principal defect is considerable verbiage,” as the U.S. Ambassador to Colombia sneeringly noted.⁷⁷ It consists of a preamble and two chapters. The preamble sets forth general principles, chapter one contains rights (both civil and political and, crucially, economic, social, and cultural rights) and chapter two contains duties. To limit our discussion only to the provisions regarding the right to science, these are the relevant provisions in the final text of the American Declaration on the Rights and Duties of Man:

WHEREAS: The American peoples have acknowledged the dignity of the individual, and their national constitutions recognize that juridical and political institutions, which regulate life in human society, have as their principal aim the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness;

…

Preamble: … Since culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power; And, since moral conduct constitutes the noblest flowering of culture, it is the duty of every man always to hold it in high respect.

…

Right to freedom of investigation, opinion, expression and dissemination.

Article IV. Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.

…

Right to the benefits of culture.

Article XIII. Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.

He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.⁷⁸

Tables 2.1 and 2.2 compare the final text of the American Declaration with the drafts produced by the Inter-American Committee. The resulting Article XIII, on the right to science, and Article IV, on freedom of investigation, of opinion, and of the expression and dissemination of ideas, are considerably terser than the corresponding articles in the drafts of the Inter-American Commission of Jurists. That should be no surprise since the text adopted in Bogotá was the result of a diplomatic effort rather than an intellectual project, as the drafts of the Inter-American Commission of Jurists had been.

The differences between the draft declaration and the final one are many and significant. In the Inter-American Commission’s drafts, Article XV was entitled “Right to Share in Benefits of Science.” In the final text adopted in Bogotá, the right to science ends up in Article XIII, entitled “Right to the Benefits of Culture.” Thus, the right to science became part of the broader right to “take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress.”⁷⁹ It was a significant demotion of the right to science, which from then on would be lumped together with other cultural phenomena, like figurative arts, literature, sport, or cuisine. Article XIII treats science almost as an afterthought (“especially scientific discoveries”).⁸⁰ On the other hand, Article III of the Inter-American Commission’s drafts, entitled “Right to Freedom of Speech and of Expression,” was retitled to “Right to Freedom of Investigation, Opinion, Expression and Dissemination” (Article IV). The particular addition of the “freedom of investigation” is notable as it opened the door for the extension of the freedom of expression to scientists, qua scientist and not as mere citizens.

Second, the “right to share in the benefits accruing from the discoveries and inventions of science” of the drafts, became the “right to … participate in the benefits that result from intellectual progress, especially scientific discoveries” of the American Declaration. The Universal Declaration reverted to the language of the drafts, speaking of “right to … share in scientific advancement and its benefits.”⁸¹ The distinction is crucial. The travaux préparatoires of the Universal Declaration show a debate took place on whether the right should be understood as being only about enjoying passively the benefits or is also about taking part in the scientific enterprise in a broader sense.⁸² As Mikel Mancisidor has remarked, the word “share” in the phrase “the right to share in scientific advancement and its benefits” indicates an idea of action or agency.⁸³ According to him, the Draft and the Universal Declaration, but not the American Declaration, advocate “a view of ‘participation’ which includes science popularization, participation in scientific creation and in scientific policy, citizen science, gender equality, the freedoms of those doing science and some other aspects which are in addition to the right to ‘benefit from scientific applications’.”⁸⁴

As the drafts, the Declaration recognized the need to ensure fair return to those who advance science, but it did it in more succinct and subtly different terms: “[Every person] has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.” Compare this with lengthy provision in the first:

Every person has the right to share in the benefits accruing from the discoveries and inventions of science, under conditions which permit a fair return to the industry and skill of those responsible for the discovery or invention. The state has the duty to encourage the development of the arts and sciences, but it must see to it that the laws for the protection of trade-marks, patents and copy-rights are not used for the establishment of monopolies which might prevent all persons from sharing in the benefits of science.⁸⁵

Note that the American Declaration does not speak of “fair return” but rather of “protection of moral and material interests.”

As has been said, this particular aspect of the right to science was one of the few, if not the only, to be discussed in Bogotá. The U.S. delegation strongly opposed the inclusion of a right to “protection of moral and material interests” on the ground that it not consider it an essential human right, but lost to the Latin American bloc. Considering the contemporary debates between the Global North and the Global South, where the former advocates for strong intellectual property rights, while the latter argues that intellectual property protection robs them of the right to benefit from scientific progress, the debate in Bogotá over the inclusion of a right to “protection of moral and material interests” is surprising. What pushed Latin American countries to insist on the need to protect them?

According to Lea Shaver,

[t]he enduring controversy over the protection element reflects an underlying international disagreement about the underpinnings of copyright law. Within the common law tradition, the exclusive rights of authors to control publication of their works are considered solely in economic and utilitarian terms as providing incentives for creativity. Within the civil law tradition, the natural law concept of droit d’auteur recognizes additional, inalienable rights of authors grounded in the ethical conception of the creative product as an extension of the creator’s personality. From the civil law perspective, then, authors’ rights were grounded in the same basis as other human rights and should sensibly be included in the Declaration. From the common law perspective, a moral rights provision risked introducing a complex area of disagreement that more appropriately belonged to the realm of economic and trade law.⁸⁶

The debate continued in the context of the drafting of the Universal Declaration, as well as in that of the Covenant on Economic, Social and Political Rights. The United Kingdom, a country of the common law tradition, joined the argument on the side of the United States, while France, from the civil law tradition, sided with the Latin American states, sharing their view of the issue. Nevertheless, “protection of moral and material interests” remained a feature of the right to science and the rights of science in all subsequent articulations of the rights. That is because of the numeric superiority of civil law countries over common law countries, and because the USA, UK, and other developed countries eventually adopted strong intellectual property and copyrights protection in the 1980s.

Finally, although the Latin American bloc was successful in ensuring the final text of the American Declaration contained the duty to protect “moral and material interests” of scientists, inventors and authors, lamentably the duty of states to ensure that “laws for the protection of trade-marks, patents and copy-rights are not used for the establishment of monopolies which might prevent all persons from sharing in the benefits of science” was lost, never to resurface again. One can only wonder how, had that wording of the Draft made it to the American and the Universal Declarations, international and national intellectual protection regimes might have developed.

The “duty of the state to protect the citizens against the use of scientific discoveries in a manner to create fear and unrest among the people” was lost, too, but it came back again during the drafting of the Universal Declaration in the form of a lively debate between the East and the West on the purpose and limits of science.

2.3 The Aftermath of the American Declaration

The wording of the right to science proposed by the Inter-American Committee was fundamentally changed by the American States’ meeting in Bogotá, to the point of being almost unrecognizable. However, the wording proposed by the Committee came back into play during the drafting the Universal Declaration. John Humphrey, the Director of the United Nations Division of Human Rights, who prepared the first draft of the Universal Declaration, relied on the drafts prepared by the Committee. Chile suggested relying on the Committee’s drafts, too. However, in the end, the Third Committee of the General Assembly opted to essentially copy and paste Article XIII of the American Declaration into Article 27 of the Universal Declaration.

Although the current standard wording of the right to science departs from the one chosen by the members of the Inter-American Committee, there is no doubt that the right to science came to be first in Rio de Janeiro, on December 31, 1945. There is no sign of it before then and it went a long way after then. Since Rio is famous for its extravagant celebrations of New Year’s Eve, one can imagine the four members of the Committee to be in a rush to adopt the Preliminary Draft of a Declaration on the Rights and Duties of Men, with the new right to science in it, before joining the festivities. One might wonder whether they suspected how far the idea would have gone.

3 IP Rights and Human Rights What History Tells Us and Why It Matters

Aurora Plomer

3.1 Introduction

The right to access the benefits of science in Article 27 of the Universal Declaration of Human Rights (UDHR) had received little attention until the spectacular expansion of patents in the life sciences at the turn of the twentieth century. The international legal backdrop which secured this expansion was the adoption of the TRIPS Agreement in 1994 which imposed a legal obligation on all World Trade Organization (WTO) members to grant patents on inventions in all fields of science providing they met certain minimum requirements. The controversies which erupted over the appropriation of human genes by for-profit organizations led to a resurgence of interest in Article 27 UDHR and its sequel, Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Scientists and civil society struggled to understand how genes and cells could be classified as “inventions.” Many feared that patent holders would become the gatekeepers of science and that patents would delay and obstruct scientific research, ultimately compromising the right of everyone “to share in scientific advancement and its benefits” proclaimed in Article 27(1) UDHR and its counterpart in Article 15(1)(b) ICESCR.

Yet Article 27 UDHR does not set out an unqualified right of access to share in the benefits of science. The second paragraph of Article 27 requires protection of “the moral and material interests of authors and inventors resulting from any scientific, literary or artistic production of which he is the author.” The language of Article 27(2) is reminiscent of the language of the Berne Convention of 1928, the first international treaty on copyright, prompting confusion as to whether Article 27 UDHR was intended to proclaim that intellectual property rights are fundamental human rights. Against this background, some scholars have recently begun to question the relevance of Article 27 UDHR and Article 15 ICESCR to address the social and economic challenges raised by IP rights, partly on the grounds that human rights proclaimed therein reflect individualist, Western, and Eurocentric values. This chapter argues that this scholarship attaches undue weight to Western, classical liberal conceptions of human rights and overlooks the influence of the Latin American social justice vision of human rights in the Bogota Declaration of 1948, which greatly influenced the drafting of the UDHR’s inclusion of social and economic rights.

This chapter draws on the Travaux Preparatoires for the Bogota Declaration, only recently published in full, to show the influence of the Bogota Declaration on the drafting of the provision on moral and material interests of authors and inventors in Article 27(2) UDHR. The analysis is combined with a study of the origins and aims of protecting the “moral” rights of authors in the Berne Convention to draw out the similarities, differences and overlap. The first part of the chapter sets out the controversy which has erupted about the interface between IP rights and human rights and the human rights sceptics’ arguments. The second part retraces the origins and purpose of the “moral” rights of authors in the Berne Convention 1928, revealing how its contested and ambiguous meaning facilitated its partial transplant in Article 27(2) UDHR. The final part contrasts the provisions on protection of intellectual property rights in Berne, with the aims of the Bogota Declaration adopted by socialist South American countries whose delegates pressed for the inclusion of the moral and material interests of authors in Article 27(2). This novel, comparative study of the genesis and normative foundations of Article 27 UDHR charts an interpretive route towards recovering the Latin American ideals of universal human rights as foundations of social and economic justice which animated its drafting.

3.2 The Origins and Growth of International IP Rights

The starting point from which to gain an understanding of the nature of the rights protected in Article 27 UDHR and the interface between IP rights and human rights is the adoption of the Trade Related Agreement on Intellectual Property Rights (TRIPS) in 1994¹ and its enforcement by the World Trade Organization. Intellectual property rights are known as “negative” rights because they confer on holders the right to exclude everyone from using the protected matter without the holder’s consent for a fixed number of years. Until the adoption of TRIPS, the legal requirements for protection of IP rights, including patents, copyright, and trademarks were to be found primarily in national laws and were enforced by national courts. The first initiatives to create international legal standards took place in the second part of the nineteenth century with the rapid growth of industrialization in developed countries and the related international trade fairs. These factors exposed exhibitors to the risk that their innovative machines and artifacts could be copied by competitors with no means of redress.²

Two important international multilateral treaties were adopted: the Paris Convention on the Protection of Industrial Property (1884)³ and the Berne Convention on the Protection of Artistic and Literary Works (1886).⁴ The Paris Convention applies to “industrial property” in the broadest sense, including patents, trademarks, and utility models (Article 1). It was intended to enable inventors to enforce their IP rights abroad.⁵ This power was mainly secured by Article 2 which establishes the principle of national treatment, enabling nationals of any country to enjoy in all the contracting countries the same protection and same legal remedy against infringement of their rights. However, the Paris Convention did not harmonize legal requirements for the grant of patents. These, along with exclusions and exceptions, continued to be the preserve of States. Similarly, the principle of national treatment was replicated in the Berne Convention for the Protection of Literary and Artistic Works, adopted two years later in 1886. Article 2 provided that authors enjoy in all the contracting States the same rights of exclusivity as nationals over translations, adaptations, performances in public, broadcasts, communications to the public, and reproductions. Formal requirements and terms of protection remained the preserve of contracting States.

The Berne Convention was amended in Rome in 1928 with the addition of Article 6bis protecting the “moral rights” of authors. The turning point for international IP law came in 1994 with the adoption of the TRIPS Agreement which imposed on all contracting members of the WTO obligations regarding the nature, scope, and term of protection for intellectual property rights. Unlike previous treaties, the obligations in TRIPS “had teeth” with the creation of an international enforcement machinery through WTO panels.⁶ For the purposes of the discussion in this chapter, there are two critical points to note. As regards copyright, TRIPS incorporated the provisions in Berne, except for the moral rights of authors, underscoring the economic and commercial value of the legal rights of exclusivity conferred by international intellectual property law on authors (and their estate) for the duration of their lives and fifty years thereafter. As regards patents, TRIPS imposed on all contracting States an obligation to grant patent protection for a minimum of twenty years (Article 33) in “all fields of technology for inventions which are new, involve an inventive step and are capable of industrial application” (Article 27[1]). Patent holders enjoy the right “to exclude others from making, using, selling or importing patented product” (Article 28). As this brief history shows, the essence of international intellectual property rights thus lies in the grant to authors and inventors of legal rights to have and retain exclusive use and control of their works/inventions for a specified term (twenty years for patents, lifetime plus fifty years after death for copyright). One of the most profound impacts of TRIPS was to radically alter existing national patent laws. At the time, a large number of countries did not have intellectual property laws and the laws of many others, including developing countries like India, known as the “pharmacy of the world,” excluded patents on pharmaceuticals.⁷ The knock-on effects of TRIPS on developing countries were catastrophic.⁸ At the height of the AIDS crisis, the government of South Africa was sued by a consortium of thirty-nine pharmaceutical companies alleging that South Africa’s importation of antiretroviral generics was a violation of the country’s TRIPS obligations.⁹ The legal suit was dropped following a global outcry, mobilization of civil society movements across borders, and UN institutions reclaiming the primacy of human rights over trade rights.¹⁰

The adoption of TRIPS also coincided with the race to sequence the human genome. Article 27(1) TRIPS not only permits but makes it obligatory for States to grant patents “in all fields of technology.” Were WTO States under an obligation to grant patents on human genes? Who owned science?¹¹ The controversy over ownership of science prompted a revival of interest in the right science enunciated in Article 27 UDHR and Article 15 ICESCR, pioneered by Audrey Chapman at the AAAS.¹² Several reports on Article 15 ICESCR have since been produced by the UN (most recently by the then-UN Special Rapporteur in the field of cultural rights, Farida Shaheed).¹³

The unequivocal, strong recurrent theme of the UN reports is that the human rights of authors and inventors protected in Article 27 UDHR and Article 15 ICESCR are not identical to, and should not be confused with, intellectual property rights.¹⁴ In short, IP rights are bound by time and place. By contrast, human rights enunciate moral ideals based on the primacy and dignity of each human being. They are universal and hold irrespective of place and time. They articulate the spheres of civil, political, social, economic, and cultural protection which are required for the full realization and development of each human being’s personality. It is this ethos of human self-realization which animates the right to science in Article 27 UDHR and Article 15 ICESCR.¹⁵ Notwithstanding, legal scholars have recently argued that the nature of the rights protected in these articles is not only problematic but indicative of the limited relevance of human rights as counterweights to the global injustices created by the international expansion of IP rights. The next section sets out the arguments of the(se) sceptics before retracing the drafting history of Article 27 UDHR to show that they are based on a limited understanding of the aims of the drafters.

3.3 Conflation of IP Rights with Human Rights in the UDHR and ICESCR?

The main arguments questioning the relevance of human rights to IP rights are deployed in a recent article by Okediji.¹⁶ They are threefold. First, it is claimed that the addition of human rights ideals to IP regimes can actually strengthen IP rights in socially harmful ways. The second argument is that human rights-driven global challenges to IP, mainly in the health field, are not neutral but reflect the values of the Western and Eurocentric liberal regimes of developed countries. Lastly, it is argued that the limited effect of human rights on IP is due to a narrow vision of human rights which excludes social and economic rights.¹⁷ To be clear, Okediji does not claim that human rights cannot have a beneficial role to play. Instead, her argument is that they do not offer “a meaningful pathway” as a counterweight to IP rights in the absence of serious engagement with the full panoply of economic, social, and cultural group rights.¹⁸ This notwithstanding, according to Okediji, the human rights framework “has largely operated as a justification for the core architecture of the international IP system”¹⁹ because of the “unequivocal recognition of authorial interests found in Article 15 of the ICESCR and Article 27 of the UDHR.”²⁰ The rights of authors and inventors, she argues, have operated as “the formal hook” on which strong support for international IP rights have been hung by UN General Comments and reports, as well as by academic commentary,²¹ buttressed by utilitarian and liberal ideals of freedom and property as an expression of the human personality.²² As a result, Okediji argues, whilst General Comment 17 cautions not to conflate IP rights with human rights and claims that IP rights should be subordinated to human rights, the report’s recommendations are based on the foundational premise that rights of authors need to be balanced against other interests and may only be limited by States subject to strict legal requirements, reinforcing IP rights.²³ In this way, the “hard” guidance on the legal interpretation of the rights of authors and inventors in General Comment 17 reflects an instrumentalist vision of IP and liberal values of freedom and dignity in Western, Eurocentric, developed countries. Moreover, as rightly noted by Okediji, several writers conflate IP rights with human rights. The World Intellectual Property Organization (WIPO) and the UN Commission for Human Rights have also somewhat confusedly asserted that “intellectual property rights are enshrined as human rights in the UDHR.”²⁴ Okediji acknowledges that a more nuanced position is adopted by the UN former Special Rapporteur in the field of cultural rights in 2015, Farida Shaheed, who explicitly stated that protection of the moral and material interests of authors and inventors “cannot be used to defend patent laws that inadequately respect … scientific progress and its applications.”²⁵ However, in her view, the “hard” guidance in General Comment 17 is likely to prevail over the “soft” guidance in the UN Special Rapporteur’s reports.

Yet, on closer examination, the distance between the various UN reports is perhaps not as great as claimed. As mentioned by Okediji in a footnote, General Comment 17 and Shaheed’s report concur that “[i]n contrast to the perpetual moral interests of authors … the material interests of authors need not necessarily be protected forever, or even for an author’s entire life.”²⁶ Under both reports, human rights have primacy and, in the event of conflict, must prevail over time-limited legal rights of ownership and exclusivity. Furthermore, neither General Comment 17 nor Farida Shaheed’s reports provide justification for the view that Article 27 UDHR (or Article 15 ICESR) imply that intellectual property rights are the foundation on which authorial rights are premised or the presumption that human rights can only limit IP rights at the margins. It is true that Article 27(2) could be read as reflecting liberal, utilitarian, or Hegelian conceptions of property and personhood. It is also true, although not specifically discussed by Okediji, that the rights of authors and inventors over their intellectual creations could be read as reflecting Lockean, natural rights theories of property.²⁷ However, as will be argued below, to privilege the liberal, utilitarian or natural rights reading of authors rights one has to disconnect the text of Article 27(2) from the intention of the drafters as revealed in its drafting history and one has to read Article 27 in isolation from the full spectrum of interconnected civil, political, social and economic rights encompassed by the UDHR.

By contrast, as shown in the next section, the story of the genesis of Article 27(2) reveals that the insertion of the rights of authors and inventors in Article 27 UDHR was never intended to signal that authors and inventors have a fundamental human right to ownership and exclusivity over their works/inventions or a human right to patents and copyright.

3.4 Article 27 UDHR: The Influence of Berne and Bogota

There is no question that reference to the “moral” interests of authors and inventors in 27(2) UDHR is a renvoi to the “moral” rights of authors in the revisions of the Berne Convention adopted in Rome in 1928 which provided that:

Article 6 bis: (I) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

As mentioned above, the Berne Convention is an international treaty on copyright law, raising the question of whether the drafters of the UDHR were aware of the risk of conflating IP rights with human rights and if so, why the text was nevertheless adopted. The analysis of the drafting history of Article 27 shows that the drafters were aware that the concept of the moral rights of authors and inventors was to be found in international copyright law. Moreover it was precisely for that reason that many delegations, mostly from Western liberal countries, opposed the inclusion of authors rights. However, there was limited understanding of international IP law and some confusion over the legal concept of “moral rights,” a term whose constructive ambiguity facilitated the final acceptance of 27(2) UDHR. by the General Assembly.

3.4.1 The Origins and Aims of Article 27(1)

The origin of Article 27 is in the preliminary Draft Convention prepared by the Canadian lawyer John Humphrey, as Director of the UN Secretariat’s Division for Human Rights.²⁸ From the very beginning, and in contrast with the list of the classical, liberal list of “negative” rights of the Enlightenment, Humphrey’s text was intended to go well beyond the civil and political rights enunciated in the texts of the French Declaration of Human Rights or the US Bill of Rights and Constitution. We know from Humphrey’s biography, and from scholarship on the UDHR,²⁹ that Humphrey had drawn inspiration for the inclusion of social, economic, and cultural rights in the preliminary draft list from the text of the human rights bill submitted by the Inter-American Juridical Committee. The forty-eight rights enumerated in Humphrey’s draft³⁰ included the immediate predecessor of “the right to science” (Article 44, now Article 27 UDHR) which Humphrey had listed as follows:

Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in the benefits of science.³¹

Humphrey’s wording closely matches the first part of Article XV of the bill submitted by Chile on behalf of the Inter-American Juridical Committee which stated that “everyone has the right to share in the benefits accruing from the discoveries and inventions of science.”³²

The original text of Article 27 produced by Humphrey was thus an amalgam of the Inter-American Juridical Committee’s text submitted by Chile and some provisions in national constitutions calling for protection of the arts and sciences which should be freely accessible to all. Moreover, Humphrey’s “right to arts/science” was conceptually embedded in and interconnected with other social and economic rights, most notably rights to education and rights to leisure. The interdependence and indivisibility of civil, political, social, and economic rights was preserved in the final list of rights enumerated in the UDHR, along with the obligation of States to facilitate access to the benefits of the arts and sciences as a means of securing the social and economic rights which are indispensable for the free and full development of the human personality (in Articles 22, 26, and 29). In addition, the inter-dependence of the individual and society and the correlation of individual rights and duties is further reflected in Article 29(1) of the final UDHR text, which explicitly links individual rights to communal duties: “Everyone has duties to the community in which alone the free and full development of his personality is possible.” As indicated by one of the delegates, the term “alone” stresses “the essential fact that the individual could attain the full development of his personality only within the framework of society.”³³

In short, the origins of Article 27 and its conceptual and normative links to the rest of the Declaration clearly indicate that the original purpose of what was to become the first paragraph of Article 27 was to enjoin States to facilitate free access to the arts and sciences as a means to promote the full development of each individual human being.

In this light, the question which arises is why Humphrey’s original text was amended and qualified by the addition of a second paragraph whose wording and purpose appears prima facie at odds with the first paragraph of Article 27?

3.4.2 The Origins and Aims of Article 27(2)

The starting point for the second paragraph of Article 27 may be traced back to the full text submitted by Chile on behalf of the Inter-American Juridical Committee. The sections omitted by Humphrey can be seen retrospectively to show awareness of a possible tension between public rights to participate and share in the benefits of science and intellectual property rights. The full text of Article XV of the Inter-American Juridical Committee’s bill was as follows (with italics added to highlight the text omitted by Humphrey):

Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in the benefits of science under conditions which permit a fair return to the industry and skill of those responsible for the discovery of the invention …

The state has the duty to encourage the development of the arts and sciences, but it must see to it that the laws for the protection of trademarks, patents and copyrights are not used for the establishment of monopolies which might prevent all persons from sharing in the benefits of science. It is the duty of the state to protect the citizen against the use of of scientific discoveries in a manner to create fear and unrest among the people.³⁴

The omitted sentences arguably indicate that, whilst the Inter-American Juridical Committee accepted the legal obligation imposed on States to protect patents, trademarks, and copyright, the Committee thought that the overriding duty of the State was to protect the human right of everyone to participate and share in the benefits of science. The potential risks to public access to science posed by the monopolies created by IP rights are explicitly acknowledged. Moreover, the profits derived from ownership of IP are subject to a test of fairness, in line with the overarching values of the Draft Declaration of the International Rights and Duties of Man (1947) proposed by the Inter-American Juridical Committee which assumes the interdependence of the individual and society.³⁵ For instance, in addition to rights to work (XIV), social security (XVI), and education (XVII), Article VIII on the right to own property limits the right to attaining “the minimum standard of private ownership of property based upon the essential material needs of a decent life, looking to the maintenance of the dignity of the human person and the sanctity of home life.”³⁶ Article VII further envisaged that “[t]he state may determine by general laws the limitations which may be placed upon the ownership of property, looking to the maintenance of social justice and to the promotion of the common interest of the community.”³⁷

When compared to the text of the Berne Convention and the second paragraph of Article 27, it is clear that the text of the Draft Inter-American Bill on which Humphrey had based the original formulation of Article 27(1) on the right to science had a very different intent from Berne. It was largely at the insistence of the French delegation that “moral” rights of authors had been added to the revision of the Berne Convention in Rome in 1928. The “moral” rights of authors were further extended in the Brussels revision of Berne, in a meeting from June 5 to June 26, 1948 which overlapped with the third Session of the Human Rights Commission from May 24 until June 18, 1948. The next section sets out the ambiguities surrounding the concept of “moral” rights and its contested addition to the Berne Convention in 1928 as a backdrop to the origins of the second paragraph in Article 27.

3.4.2.1 The “Moral” Rights of Authors in Berne

As mentioned earlier, international intellectual property law had begun to emerge in the last quarter of the nineteenth century and accelerated in the last part of the twentieth century with the adoption of the TRIPS Agreement in 1995 and the enforcement machinery of the WTO panels. When the Berne Convention was originally adopted in 1886 there was no reference to the “moral” rights of authors in the text. Legal scholarship on the origins of the addition of “moral” rights of authors shows that the revisions of the Berne Convention in 1928 rested on confused and contested legal concepts whose inclusion were the result of complex factors and historical accidents.

The rights originally protected in Berne were economic rights, enabling the author/inventor to commercially exploit publication and reproduction of the work for the duration of the copyright term which was originally left to national laws. In 1928, Article 6bis added a new provision entitled “moral rights” which were said to reflect the personality of its creator, just as the economic rights reflect the author’s need “to keep body and soul together”.³⁸ The text of Article 6bis has remained virtually unchanged since 1928, although the revisions of 1948 made it mandatory for States to protect the “moral” rights for the duration of the life of the author and in 1967 this was further extended to a minimum of fifty years after the life of the author.³⁹ Article 6bis stipulated that:

(I) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

The rights therein protected are commonly referred to as rights of attribution and integrity. They require, inter alia, that the author’s name be mentioned in a publication and they entitle authors to object to mutilation or distortion of their works.

Whilst the justifications for “moral rights” are typically drawn from French and German philosophical theories, in practice, in nineteenth-century France, authors assigned their rights to publishers who were the real beneficiaries of the profits generated by publications.⁴⁰ In a seminal article on the origins of moral rights in Berne, the legal scholar Rigamonti shows that the doctrine of “moral rights” in the nineteenth century attempted to address two central issues.⁴¹ Could creditors force publication of a work in debt collection and bankruptcy cases? Secondly, could publishers publish the work without the author’s name or modify it without the author’s consent? There were no specific legislation or codes dealing with these questions in most European countries and, whilst rules had been developed by courts, systematizing and codifying the rules was challenging because national laws were based on Roman law which recognized only tangible forms of property or personality rights which were inalienable.⁴²

The solution adopted by Germany in 1906 was to merge these rules in the copyright statutes of 1901 and 1907, effectively creating a new legal category of property – intangible, intellectual property – which merged rights of attribution and integrity with economic rights. Although the merging of personality rights with economic rights was described, as “the chronic disease of copyright scholarship in Germany,” as argued by Rigamonti, the disease ultimately prevailed.⁴³ Meanwhile, common law countries had addressed the same issues through a patchwork of rules mostly derived from tort or contract without recourse to the ambiguous concept of “moral” rights in intellectual property. According to Rigamonti, theorization of “moral” IP rights in Europe gained momentum at the turn of the century, and this facilitated their inclusion in the Berne revision of 1928 together with the historical accident of Italy hosting the conference.⁴⁴

The legal history of the concept of moral rights in copyright law thus shows that, in substance, the concept was ambiguous and contested. Moral rights are supposedly universal, inalienable personality rights. As such, they are conceptually distinct from the time limited, proprietary, economic rights of authors and inventors to exclusive commercial exploitation of their work protected in international law. Unfortunately, these legal and conceptual complexities were lost on French and South American delegations leading the debates on the inclusion of Article 27(2) in the UDHR.

3.4.2.2 The Latin American Approach to IP Rights

Apart from Brazil, Latin American countries were not parties to the Berne Convention whose members at the time where mainly former European colonial powers.⁴⁵ Instead, Latin American countries had developed their own regional copyright treaty, the Inter-American Convention on the Rights of the Author in Literary, Scientific and Artistic Works, concluded in Washington on June 22, 1946. There was no mention of the ambiguous “moral rights” or its theoretical scaffold in that text. The legal lacunae concerning rights of attribution and integrity which had prompted the inclusion of moral rights of authors in Berne were addressed pragmatically as follows:

Article XI

The author of any copyrighted work, in disposing of his copyright therein by sale, assignment or otherwise, retains the right to retain the paternity of the work and to oppose any modification or use of it which is prejudicial to his reputation as an author, unless he has consented …⁴⁶

There was another important difference between the Inter-American Convention and Berne. By contrast to the mandatory term of protection of life of the authors introduced in Berne in 1948, the Inter-American Convention left the duration of copyright to the discretion of member states. Whilst there were significant variations, in general, protection lasted for twenty years (Mexico, Chile, and Peru) and therefore significantly less than Berne.⁴⁷ This, together with provisions enabling States to create exceptions and limitations on copyright, reflected the socialist vision of the Latin American republics to promote access to books and, more generally, to the arts and science. As argued by Cerda Silva

in highly simple terms, the European copyright system … provided automatic protection to authors for their lives plus at least fifty years, but not that much flexibility for meeting public interest needs. The Inter-American system, which was limited to countries of the Americas, provided international protection for a discretionary term to authors who had complied with formalities set forth by countries of origin.⁴⁸

As noted earlier, the Latin American vision that protection of authorial rights should be subject to a fairness test in order to promote social justice was reflected in the full text of the bill prepared by the Inter-Juridical Committee in 1945. The overriding importance of protection of social and economic rights as fundamental human rights was further affirmed in the American Declaration on the Rights and Duties of Man (Bogota Declaration) adopted in Bogota on May 2, 1948, six months before the UDHR in 1948. Unfortunately, by then the ambiguous language of Berne on the “moral” rights/interests of authors had also made its way into the text of Article XIII which provided that:

Article XIII.

Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.

He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.

The final text of paragraph 2 of Article 27 UDHR is almost identical to the text of Article XIII of the Bogota Declaration. If read in isolation from the rest of the Declaration the second paragraph of Article XIII’s reference to the “moral and material interests” of authors could be seen as a renvoi to the IP rights protected in Berne and, more generally, as an assertion that intellectual property rights are fundamental human rights.⁴⁹ It was precisely for this reason that many countries opposed the addition of paragraph 2 to Article 27 UDHR which, they feared, risked conflating IP rights with human rights.⁵⁰ Cassin, representing the French delegation, and the Latin American countries who supported the addition of the second paragraph, insisted that this was not the case. In order to understand their reasons, one has to go back to the full text of the Bogota Declaration and read Article XIII holistically in the light of the values enunciated in the Preamble and the full list of social and economic rights which were included.

3.4.2.3 The Meaning of “Moral and Material Interests” in the Bogota Declaration

The Bogota Declaration was based on a humanist vision of human rights grounded in social justice. If the “material” interests of authors are to be understood as the economic rights of authors to exploit their intellectual property, then as a species of property rights, these rights are subject to the limitations in Article XXIII on the right to property which stipulates that “[e]very person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.” As such, Article 27(2) UDHR (and its counterpart Article 15 1(c) in the ICESCR) would at most permit authors and inventors to receive a fair remuneration for their intellectual property.⁵¹

But there are also indications that the term “material” at the time was used in a different sense to refer to the physical needs and well-being of each human being. For instance, the 1944 Philadelphia Declaration of the International Labour Organization, one of the sources for the Bogota Declaration,⁵² provides in Article II that:

a)all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; [emphasis added].

The language of material wellbeing is echoed in the Preamble of the Bogota Declaration which states that the aim of the Declaration is to acknowledge the dignity of the individual and to facilitate the creation of conditions which: “permit him to achieve spiritual and material progress and attain happiness” [emphasis added]. Here, the word “material” is used to distinguish the physical from the spiritual/mental well-being and needs of each person. The word “material” is also used to distinguish physical from mental wellbeing in the Travaux Preparatoires of the Philadelphia Declaration, in the text of the right to education which states that “illiteracy prevents individuals from full participation in the political and economic life of the state and to avail themselves of the opportunities for material and cultural development” (author’s translation from the original Spanish, emphasis added).⁵³

The delegates’ views on protection of the “moral and material interests” of authors in Article XIII of the Bogota Declaration are consistent with this interpretation of “material” as denoting the physical needs and well-being of the human person as distinct from the individual’s mental/spiritual needs. As mentioned earlier, Article XIII provides that:

Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.

He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.

The Travaux Préparatoires on the Bogota Declaration and Article XIII, recently published in Spanish, show that the main rationale for the second paragraph of Article XIII of the Bogota Declaration was provided by Fernandez del Castillo, the delegate from Mexico. In answer to the delegate from the USA (Tate), who spoke against the inclusion of rights of authors on the grounds that the rights of authors were not fundamental human rights, Fernandez del Castillo said that intellectual creations were the product of the human genius.⁵⁴ They were the main distinctive attributes of human beings which are essential to his person even though they may not have been recognized as such in national constitutions for political reasons.⁵⁵ Perez Cisneros, the delegate from Cuba, said that he understood and agreed with the spirit of the Mexican point, but he thought that since the second paragraph of Article XIII referred to intellectual property rights, it did not belong to an Article on the right to science and culture.⁵⁶ He was also concerned that a special category of individuals were singled out. Fernandez del Castillo’s reply was that the words “paternity” and “property” in relation to intellectual creations were being used by analogy to denote the natural creative attributes of human beings. For this reason, the rights protected therein were universal and not confined to a special category, but extended to all creative human beings who made a fundamental contribution to society through the arts and sciences.⁵⁷ As such, protection of the creations of the mind was essential to the advancement of culture. Fernandez del Castillos’s arguments prevailed and Article XIII was ultimately approved with the addition of the second paragraph in the Bogota Declaration. The representative of the Mexican delegation at the UN in the discussions on the UDHR turned out to be one of the strongest supporters of Cassin’s proposal to add a second paragraph on protection of the rights of authors.

3.5 The Final Stages of the Draft of Article 27(2) in the UDHR

The proposal to add a paragraph on the “moral” interests/rights of authors and inventors was driven by Rene Cassin, on behalf of the French delegation. On May 21, 1948, at the Second Session of the Drafting Committee at Lake City,⁵⁸ Cassin proposed an amendment to what by then had become Article 30 stating that:

Authors of creative works and inventors shall retain, apart from financial rights, a moral right over their work or discovery, which shall remain extant after the financial rights have expired.⁵⁹

Cassin explained that the provision reflected a similar provision recently adopted in the Bogota Declaration. The French amendment was discussed and rejected by the Commission on Human Rights on June 11, 1948. The concerns raised by the critics mirror the arguments previously voiced by other delegates at Bogota. Mehta (India) and Wilson (UK) thought that it was inappropriate to single out a special category of persons in a universal declaration on human rights.⁶⁰ The representative from Uruguay disagreed. Uruguay had also supported the Mexican amendment in Bogota. He thought that without the amendment “intellectual workers” would be left without protection. The French amendment also received strong support from Larrain (Chile) who was gratified that it was based on the Bogota Declaration. The Chair (Roosevelt), speaking for the USA, opposed the French amendment on the grounds that it dealt with copyright which was the subject matter of international IP law.⁶¹ Cassin’s amendment was rejected by six votes to five, with five abstentions.

Thus, at the close of the 3rd Session of the Commission on Human Rights (held May 24 to June 18, 1948), the draft bill submitted by the Commission for consideration to the UN General Assembly included only the predecessor to the first paragraph of Article 27, then Article 25, stating that:

Article 25 Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement.

(E/800, p. 13).

Speaking in support of the draft Declaration to the plenary meeting held by the Economic and Social Council at its 7th Session on August 25, 1948, Cassin urged the Council to submit the draft Declaration for approval to the General Assembly notwithstanding the fact that it did not give sufficient prominence to certain rights, notably rights of asylum for stateless persons, limited right to equal pay; and that “[t]he Declaration gave no place to scientific and artistic pioneers, although those who contributed to the advance of civilization were entitled to have their interests protected.”⁶²

On September 24, 1948, the General Assembly referred the draft International Declaration of Human Rights to the Third Committee. The Third Committee considered Article 25 at its 150th to 152th Meetings from November 20 to November 22, 1948.⁶³ By then Cassin had gained the support of Mexico and Cuba which had submitted amendments to Article 25 calling for the insertion of an additional clause protecting the moral and material interests of authors and inventors.⁶⁴ The three delegations agreed to join their amendments ahead of the Third Committee’s meeting. The joint amendment proposed to add the following text to Article 25:

Everyone has, likewise, the right to the protection of his moral and material interests in any inventions or literary) scientific or artistic works of which he is the author.⁶⁵

Cassin’s persistence paid off as the three delegations were now able to convince a majority of the delegates of the Third Committee to accept the amendment.

Campos Ortiz (Mexico) explained that the Mexican amendment was based on the text on the protection of intellectual property proposed by Mexico in Bogota which had been unanimously adopted.⁶⁶ In Campus Ortiz’s view, only a small number of artists, scientists, writers, and independent researchers were salaried workers. Without recognition of their work, no social progress was possible. National and international legislation safeguarding the rights of authors’ and inventors’ patents was not always effective. Likewise, Cassin claimed that although royalties and patents might provide some reward for authors and inventors the aim of the amendment was to go further and protect the spiritual and moral interests of authors who are often not interested in profits but want recognition by posterity and for their work to be free from distortion. His amendment, he said, took account not only of the “material” aspect of the question but was also designed to protect the spiritual and moral interests of artists and inventors.⁶⁷

On their face, Cassin’s arguments were based on a double conflation or confusion of:

1. (1) the economic rights of exploitation protected by international IP law with the material/physical well-being of authors in Bogota and

2. (2) the “moral” rights of authors (in Berne) directed at legal protection of the integrity of creative works with the “spiritual” well-being of intellectuals in Bogota.

A similar conflation between the legal conceptions of intellectual property protection in Berne and the moral objective of encouraging and protecting intellectual creativity is evident in the contributions of the South American delegates who supported Cassin. Perez Cisneros (Cuba), who had expressed reservations on the counterpart addition to Article XIII in the Bogota Declaration, said that Cuba had submitted an amendment in the same spirit as Mexico, which Perez Cisneros praised for being the first to raise the question of protection of intellectual property rights in Bogota.⁶⁸ Protection of intellectual property was new and important and should be included in the UDHR.⁶⁹ The “material” conditions of “men of learning” and artists were limited and required equitable protection. Artistic and scientific works should be made accessible to the people directly in their original form, but for this to happen it was necessary that “the moral rights of the creative artist are protected.”⁷⁰ Zuloaga (Venezuela) supported the joint amendment of France, Cuba, and Mexico because the government “regarded as one of its most important duties the development of the cultural level of the masses in order to enjoy scientific, literary and artistic works” and the terms were identical to the American Declaration of the Rights of Man.⁷¹ Jimenez de Arechaga (Uruguay) noted with satisfaction that the French, Mexican, and Cuban amendment were based on a principle adopted by the Uruguay government in Bogota. Artistic property was covered by special laws in most countries and did not therefore fall into Article 15 which protected rights to property in general.⁷² The delegate from Belgium (Count Carton de Wiart) concurred. The right to property protected by Article 15 was not applicable because, he claimed, the right in question was “an intellectual right.”⁷³ Beaufort (Netherlands) agreed. Intellectual works were not adequately safeguarded by a general right to property as illustrated by Marie Curie’s works. They were more abstract and liable to infringement.⁷⁴

By contrast, Carrera Andrade (Ecuador) was concerned that, as amended, the article was one of the most confused and contradictory that the committee had had to examine but recalled that South American Republics had recently taken measures to protect artistic and literary ownership which were defined in a very flexible manner which did not restrict cultural development. The aim of the article was to make arts and culture freely accessible to all by granting access to museums and libraries and to further education. Rights of authors and inventors were a form of property right which would curtail humanity’s access to books and scientific works. He proposed that 25 should be deleted in its entirety.⁷⁵

Roosevelt (USA) was opposed because the proposed amendment “reproduced almost word for word the article in the Bogota Declaration” which she thought dealt with patents and copyright. The USA thought that patents and copyright were out of place in the Declaration and, as an aspect of the right to property, were covered in Article 15 UDHR.⁷⁶ Similarly, Corbet (UK) argued that Cassin had run together two very different concepts. On the one hand, proprietary rights of ownership which attached to an invention and on the other, rights of attribution and recognition due to the author of an invention. She thought it was unwise to have a provision which had already been dealt with by international conventions on copyright, in an Article on the right of an individual to participate in cultural life. Copyright was not a basic human right.⁷⁷ Likewise Carter (Canada) thought that copyright and patents did not belong in a declaration but in a covenant and, for that reason, rejected the joint amendment. Lunde (Norway) also voted against the second paragraph for the same reason. Watt (Australia) opposed the amendment on the grounds that the rights of artists and scientists were the concern of national and international conventions and should not appear together with fundamental rights of a more general nature.⁷⁸ It was not appropriate to include rights of intellectual workers alongside freedom of thought, religious freedom, and the right to work.⁷⁹ Santa Cruz (Chile) concurred, adding that protection of the rights of intellectual workers “conflicted to a certain extent with that of freedom of access to all literary, artistic or scientific output” and affected a special category of persons only.⁸⁰ Ecuador too thought it inappropriate to include in a declaration a right to which only a small minority of mankind was entitled.⁸¹The same was true of Kayaly (Syria) who voted against the second paragraph and Azkoul (Lebanon) who voted in favour of the first paragraph but considered it inappropriate to include rights applying to a minority and abstained.⁸²

The first and second paragraph as amended were put to separate votes. The first paragraph was adopted unanimously.⁸³ Eighteen countries voted in favour, the majority from Latin America. Thirteen countries voted against: Sweden, Syria, UK, USA, Yemen, Australia, Canada, Chile, Denmark, Ecuador, India, Norway, and Pakistan. Ten countries including the USSR and most soviet satellite countries abstained on the second paragraph: Saudi Arabia, Ukrainian Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Afghanistan, Byelorussian Soviet Socialist Republic, Czechoslovakia, Lebanon, New Zealand, and the Philippines.

The whole of Article 25 as amended, was put to a separate vote and adopted by thirty-six votes to none with four abstentions.⁸⁴ Santa Cruz, who had voted against the second paragraph, voted in favour of the article as a whole as he thought it was not sufficiently important to warrant rejection of the whole article. The same was true of Roosevelt (USA) who also voted against the second paragraph but in favour of article as a whole. New Zealand also voted in favour of the whole article having abstained on the second paragraph which was viewed as belonged to Article 15. . The overall text adopted by the overwhelming majority thus read:

1. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

The final text included Peru’s amendment to include the word “freely” in the first paragraph and the Chinese delegate’s amendment to add the words “and its benefits” after “share in scientific advancements” in acknowledgment that whilst not everyone has the ability to take part in the creation of artistic, literary, and scientific works everyone had the right to enjoy the benefits of science and the arts.⁸⁵ It was this core ideal of free, universal access to the arts and science which animated the inclusion of the original Article 25 on which delegates were unanimously agreed. It was also this core ideal of the universal right of every human being to access the benefits of human creativity which facilitated the adoption of the final text notwithstanding the confusions, tensions and contradictions introduced by the second paragraph.

3.6 Conclusion

The analysis of the historical record reveals the original rationale for the inclusion of of “moral” rights om in the Berne Convention revisions of 1928 and the very different purpose of its mirror wording in Article XIII of the Bogota Declaration which inspired the inclusion of Article 27 in the UDHR. Thanks to the recent publication of the Travaux Preparatoires of the Bogota Declaration it is now possible to understand how he constructive ambiguity of the terms “moral” and “material” resonated with the Latin American ideals of social justice who understood these terms to refer to the “spiritual/mental” and “material/physical” well-being of each human being to which fundamental rights are directed. The humanistic ideals of spiritual and physical human self-development, were thought by advocates of Article 27(2) to be sufficiently clear if Article 27(2) was read as an integral part of the full, interconnected spectrum of social and economic rights in the UDHR. An integrative, contextual reading would displace the risk of conflating time-bound, exclusionary proprietary IP rights with universal human rights centered on development of the human personality.

In retrospect, it seems that regional political alliances prevailed over clear analytical thinking and won the day in Bogota and in the final stages of the drafting of the UDHR in Paris. Nonetheless, in the midst of the conceptual fog introduced by Article 27(2) it is also true that those who insisted on its inclusion were not moved by an individualist, Western, liberal vision of human rights. On the contrary, their overarching vision of human rights, as reflected in Bogota, was founded on a vision of the interdependence of the individual and society and on the idea that fulfilment of human rights in democratic States has a cooperative basis which entails individual duties as well as individual rights. Their vision of human rights stood in contrast with the Western liberal classical conception of human rights of the Enlightenment, as negative rights, limited to civil and political liberties. The Bogota Declaration self-consciously sought to distance itself from that vision in its explicit embrace of social and economic rights and ideals of distribute justice. The same ideals found their way in the full spectrum of rights enunciated in the Universal Declaration of Human Rights and are captured in the first paragraph of Article 27. It is in the light of these ideals that Article 27(2) should ultimately be read and not as an affirmation that intellectual property is a fundamental human right.

4 “Fostering a Love of Truth” Conceptions of Science in UNESCO’s Early Years

Ivan Lind Christensen *

4.1 Introduction

The right to enjoy the benefits of scientific progress and its applications was first included (inter alia) in Article 27 of the Universal Declaration of Human Rights in 1948, and later in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966. The Right to Science thus has a long history in the UN family and in UNESCO in particular. Beneath the ideas about the right to participate in science and to access the body of knowledge produced via science, stands the concept of science itself. The UNESCO General Conference at its thirty-ninth session in 2017, adopted the Recommendation on Science and Scientific Researchers (which replaced the 1974 Recommendation on the Status of Scientific Researchers) and in doing so it stated, among other things, that:

1. (1) the word “science” signifies the enterprise whereby humankind, acting individually or in small or large groups, makes an organized attempt, by means of the objective study of observed phenomena and its validation through sharing of findings and data and through peer review, to discover and master the chain of causalities, relations, or interactions; brings together in a coordinated form subsystems of knowledge by means of systematic reflection and conceptualization; and thereby furnishes itself with the opportunity of using, to its own advantage, understanding of the processes and phenomena occurring in nature and society;

2. (2) the term “the sciences” signifies a complex of knowledge, fact, and hypothesis, in which the theoretical element is capable of being validated in the short or long term, and to that extent includes the sciences concerned with social facts and phenomena.¹

While these definitions may seem commonplace for many present-day readers, they are in fact the result of substantial debates and conceptual negotiations, which have been ongoing throughout the history of UNESCO. This chapter takes a closer look at what the concept of science meant in the early years and how it influenced the initiatives carried out by the Natural Science Section of UNESCO.

The S(cience) in UNESCO was added very late in the process of the organization’s founding. In the original plans for its creation, UNESCO was to be an organization for education and culture only. That it became UNESCO and not UNECO was due to several factors, but especially the persistent pressure exhorted by Joseph Needham (1900–1995), who was to become the first head of the Natural Science Sector in UNESCO, and the first Director-General Julian Huxley. Their visions of science strongly influenced the conceptualization and direction of science in UNESCO.² On a structural level, another current undoubtedly played a crucial role in getting the “S” in UNESCO, and that was the unset of the Nuclear Age. If science still retained any enlightenment innocence in the eyes of the global public before the end of the second world war, it was hard pressed by the invention and use of the nuclear bombs dropped over Hiroshima and Nagasaki in 1945. The harnessing and destructive use of atomic energy left the broader public with an attitude characterized by both hope and fear.³ These sentiments were well captured by the UK Minister of Education, Ellen Wilkinson, at the Conference for the establishment of UNESCO in 1945, as she said:

In these days, when we are all wondering, perhaps apprehensively, what the scientists will do to us next, it is important that they should be linked closely with the humanities and should feel that they have a responsibility to mankind for the result of their labours. I do not believe any scientists will have survived the world catastrophe, who will still say that they are utterly uninterested in the social implications of their discoveries.⁴

As I will return to later, this conflicted public opinion towards science after 1945 was seen as a real and important problem by UNESCO’s science section in the early years. In what follows, I focus first on the conceptualization of science in the formative years from 1945–1965 in UNESCO. I trace the different ideas of science as they were articulated within UNESCO to illustrate what the organization itself understood by the concept of science and its relationship to concepts of modernity, progress, and development. This will shed light on the significant role that UNESCO was to continuously play in international science cooperation from that point on. Taking up the legacy from the League of Nations, UNESCO became, and remains, a central place for science and science policy discussions. An exploration of how views on science developed within UNESCO may therefore offer useful background to the historical routes that the development and establishment of the Right to Science took.

4.2 Histories of Science in UNESCO (Historiography)

Throughout the last three decades, the history of the way in which UNESCO conceptualized science has received much needed attention. This is not least due to the persistent and admirable work of Patrick Petijean. Today Petijean stands as one of the central figures within the historiography of UNESCO and science, and was one of the central editors behind the celebratory anthology Sixty Years of Science at UNESCO 1945–2005.⁵ This anthology still stands as one of the central works on science in UNESCO. Bringing in both historians and former UNESCO science employees, the book gives a detailed and vivid account of the historical development of the science section in UNESCO. Despite its celebratory starting point, the anthology is not merely a narrative of triumph. It acknowledges the hardship, the failures, and the frustrations as well as the success and fruitful cooperations that were fostered within the UNESCO science section.

The historical role of UNESCO in international science cooperation has generally been highlighted, not least by Elzinga (1996), Krieger (2006) and to some extent Finnemore (1993). While interpretations of the effect of the Cold War divide the historical accounts of UNESCO’s role in the realm of international science cooperation, there is a general consensus that the natural science section did do important work by bringing together and funding different international science communities. The disagreements occur along the more traditional lines of antagonism between the realist and idealist approaches to international politics and the role of international organizations within the Cold war setting.⁶ Some argue that UNESCO and its science initiatives willingly or unwillingly became part of the “western” (that is, US-dictated) battle for the hearts and minds of people during the Cold War (Krieger 2006). Others, like Finnemore, ascribe more autonomy and (moral) power to UNESCO (Finnemore 1993), especially in relation to international norm setting and knowledge accumulation. Since this chapter deals with the conceptualization of science in UNESCO and less with the specific initiatives and their impact, I will not venture further into this discussion here.⁷ The literature on UNESCO’s conception of science is rather limited. There seems to be a general agreement that it was strongly influenced, during the period covered here, by what Sluga describes as an “Enlightenment-coddled trust in the universal power of knowledge and education.”⁸ And as Elzinga has argued, it functioned “within an overall framework of western bias.”⁹ We may however come even closer to understanding the concept by looking more closely at actual usages of the concept within UNESCO.

4.3 Approach

My approach will be that of conceptual history which rests on several important assumptions that should be stated upfront. The first assumption is that our understanding of the present is created in the continual interactions between our past experiences and our expectations of the future. Furthermore, it assumes that this fundamental relationship between past, present, and future manifests itself in the concepts through which we try to make sense of our world. If we are correct in assuming this, then the conceptual architecture of our source material lends itself as prism, giving insight into pasts, presents, and futures past. In other words, the concepts are made up of spaces of experience and horizons of expectation.¹⁰ Thus, through the analysis of concepts we gain an understanding of how historical agents understood their past, what they found relevant in their present, and how they imagined their future. The concepts function as both indicators of past ideas and as factors affecting contemporary events, pointing towards a horizon of expectation.

In this study, the conceptualization of science has been tracked from 1945 to 1965 in documents produced by and around the Natural Science Section in UNESCO.¹¹ In order to analyze and interpret the various concepts of science in these documents special attention has been paid to concurrent concepts and counter-concepts, which is to say concepts that, through their oppositional character, codefine the concept of science (such as the concepts of magic and religion). Through this conceptual mapping, the semantic field of the concept of science in UNESCO 1945–1965 emerges, which in a condensed and simplified form could be presented as in Figure 4.1 below:

Figure 4.1 Semantic field of the concept of science in UNESCO 1945–1965

This initial mapping of the semantic network of the concept of science in UNESCO forms a starting point for the following sections. These will elaborate on the different meanings attached to the concept and the ways in which it has shaped how science was understood within the organization, and how it has been communicated to the wider public through UNESCO’s Natural Science Section.

4.4 Science, Evolution, and World Unity

On the threshold of the nuclear age, public opinion towards science in general, and natural science in particular, was ambivalent. Fear of global destruction and hope of utopian futures were mingled together in unclear discourses of modernity and progress, in which science played a crucial but also ambiguous role. In the view of Julian Huxley (the first Director General of UNESCO) and Joseph Needham (the first head for the Natural Science Section) science, however, had a completely different status. For them, science was an ideologically neutral prerequisite of progress for the benefit of humankind.¹² This was manifested not least in Huxley’s idea of “scientific humanism,” which was constituted around a notion of (the) biological, material, and psychological evolution of humankind, leading to world unity:

the unifying of traditions in a single common pool of experience, awareness, and purpose is the necessary prerequisite for further major progress in human evolution. Accordingly, … unification in the things of the mind is not only … necessary but can pave the way for other types of unification. Thus in the past the great religions unified the thoughts and attitudes of large regions of the earth’s surface; and in recent times science, both directly through its ideas and indirectly through its applications in shrinking the globe, has been a powerful factor in directing men’s thoughts to the possibilities of, and the need for, full world unity.¹³

Huxley’s scientific humanism was in all relevant aspects a scientific evolutionism. As Elzinga has also noted, his conception of science and human evolution was ripe with ideas about progress and cultural stratification. UNESCO should seek to lift up the culturally “backward” countries and races, Huxley argued,¹⁴ and this should be done not least through the distribution of science and education. He saw in science the promise for social development and progress of different nations, rather than the fear of the consequences of scientific developments in relation to wars and destruction. On this last subject Huxley was ad idem with Needham. From the onset in 1945, the science section of UNESCO had a strong focus on the distribution of scientific knowledge from the Western to the Third World countries.

The third-world focus in UNESCO’s science efforts in the post-war years was due in large part to the personal commitment of Needham. Needham had a background, like Huxley, in the UK-based “Social Relations of Science Movement” (SRSM). Needham opposed the scientific Eurocentrism that he saw in Western intellectual circles. His focus was on the distribution of advanced scientific knowledge and applied sciences to third world countries. This ambition manifested itself in the establishment of the Field Science Cooperation Offices in Asia, Africa, and Latin America. These offices were to become important sites for later efforts to promote science policy implementation in the Third-World member states. Science was the key (along with basic, and particularly science-focused, education) to entering modernity and lifting the living standard of humankind. What was needed was the free flow of ideas (and intellectuals) on a global scale. Within this scientific ethos, the fear and reluctance among the broader public towards science could only be seen as irrational, if not childish. Pierre Auger, the next head of the Natural Science Section after Needham, put it starkly:

Again and again we have heard people criticize the advances of science, labelling their effects dangerous, destructive and baneful. … They want to turn back the clock, to return to the Gods they lament, but there is no longer any question of doing so, and no answer is called for; we are caught up in an automatic process, a natural process which we men are powerless to arrest.¹⁵

Belief in a scientific evolutionism was thus very strong and the ideas of an inevitable (scientific) process seem central to the understanding of science within UNESCO in the early years.

However, both Needham’s idea of a grand international science cooperation and Huxley’s vision of UNESCO as Mannheim’s “free floating intellectuals” were eventually stifled by the onset of the Cold War.¹⁶ As the Cold War accelerated, a tight web of secrecy was spun around so-called “sensitive information,” especially the nuclear programs, and the desire for an international “free flow of ideas” was partly subdued under the weight of national security interests. However, these factors – important as they were – did not stop ambitions to organize international science cooperation and to support scientific communities through such international cooperation. That said, the tense political situation may have still influenced how science was conceptualized and communicated by UNESCO. This could be seen in their efforts to highlight the “neutral,” objective nature of science, which was particularly emphasized through a specific way of understanding the scientific method. This brings us to the second theme in the semantic field of the conceptualization of science in UNESCO, that of scientific method and objectivity.

4.5 “One Cannot Trifle with Nature”: Science and Objectivity – Method and Worldview

Objectivity and science emerge as co-occurring concepts in this period, to the extent that we may be allowed to conclude that they were in fact seen as largely defining each other. Comtean positivism was still untouched by deconstruction, social constructivism, or linguistic turns, and objective truth was therefore also a relatively unproblematic and potent idea.¹⁷ In the preamble to UNESCO’s constitution, the member states thus verified that:

For these reasons, the States Parties to this Constitution, believing in full and equal opportunities for education for all, in the unrestricted pursuit of objective truth, and in the free exchange of ideas and knowledge, are agreed and determined to develop and to increase the means of communication between their peoples and to employ these means for the purposes of mutual understanding and a truer and more perfect knowledge of each other’s lives.¹⁸

In their conceptual architecture, tight lines linking the concepts of objectivity, science, and method were drawn. The scientific method was seen as the foundation of objective knowledge and as the driving force in the progress experienced by modern society and in the peace and solidarity of humankind. As in Auguste Comte’s understanding of proper science, the core of the scientific method had the experimental method as its ideal. Science, one of the UNESCO representatives stated: “requires verification by experiment – the experiment is the final arbiter. No quantity of words can be used successfully to camouflage a disproven idea or belief.”¹⁹ It was due to the scientific method that scientists had now “tamed the atom” and a strong belief prevailed among the scientific community in and around UNESCO that:

The accelerating pace of man’s progress in the natural sciences is to a great extent brought about by the power of the scientific method. A method that was developed over the centuries and followed by more and more men, beginning with Galileo in the 16th century … Always, the scientist and technician strives for objectivity and honesty – prejudice and falsification have been found to be disastrous. One cannot trifle with nature.²⁰

It is thus safe to say that the epistemological grounds beneath the concept of science were strongly influenced by a Comtean-inspired positivism and scientific rationalism. To Needham, Auger, and their staff, the Natural Science Section was taking up a proud heritage, not only from an epistemological point of view, but also from the point of view of international scientific cooperation. Here UNESCO (in its own narrative) came to represent the apex of a development begun by European intellectuals in the seventeenth century, manifested in the astronomers’ conferences in the early-nineteenth century, institutionalized in the League of Nations and now, in the mid-twentieth century, continued in an international “brotherhood” spearheaded by UNESCO. The prerequisite of this brotherhood was freedom, as Bart Bok mentioned, and here science and the newly established Universal Declaration of Human Rights joined forces: “As long as science is free, scientists are almost automatically joined in a world brotherhood and it is fervently hoped that the scientists of the world will realise that in the Universal Declaration of Human Rights lies the promise of a guarantee for their cherished freedoms.”²¹ Apart from being an evolutionary process, a method, and an international brotherhood, science was also conceived of as a worldview in a broader sense.²² The function of science was not limited to the actual inventions or methods produced and used. Its function extended into the realm of what is best captured by the German term bildung, meaning both creation and education. Science teaching was seen as the key to disseminate this scientific attitude to life:

Science, and Physics especially, is better fitted than other subjects to develop the ability to distinguish fact from opinion, and to form judgements and base conclusions on the known data. Prejudice, superstition and dogmatic assertion are the enemies of progress and vigorous development. The scientific spirit implies belief in a rational universe, and scientific studies should form the basis of an attitude to life.²³

Science was a way of understanding the world and forming opinions and judgments about different matters. Science was also the primary defense against the enemies of progress and development, and it had to be taught from an early stage in order to form the “right” worldview. The time had passed, or so it was argued in UNESCO circles, where young people could get along in life without a proper understanding of science.²⁴ In 1954, at the General Conference in Montevideo, resolutions were thus adopted in order to advance science teaching in general and “to stimulate the extension and improvement of science teaching.”²⁵ The values believed to be inherent to the scientific worldview went far beyond the classroom. It constituted a prerequisite for life in the modern world and could assist in producing useful citizens and wise parents.²⁶ Some even argued that the teaching of science could alter fundamental preferences and: “awaken [the] capacity to observe, describe, and evaluate (discovering, investigating, comparing, classifying) thus fostering a love of truth and intellectual honesty, pleasure in work well done and a liking of order.”²⁷ Science was presented as a way of seeing the world, and a way of distinguishing fact and reality from opinions and prejudgments. Superstitions and dogmatic assertions were therefore positioned as the enemy of science and progress. This brings us to the third theme in the semantic field of the concept of science in UNESCO, that of counter concepts – not what science is, but also what it is not.

4.6 Science and “the Enemies of Progress”

UNESCO’s conception of science found its antithesis in concepts such as dogma, tradition, authority, and pseudoscience. Regarding the latter, the pseudosciences, it was clear that the scientific community in and around UNESCO felt a need to distinguish their conception of science, “true science,” from other less methodologically sound practices. Huxley had already taken up the subject of “borderline fields” such as “parapsychology,” “Hindu yogi body control,” and “eugenics” in his 1947 publication.²⁸ Huxley argued that while science should remain open to the possibility of radical extensions of our knowledge from these borderline fields, UNESCO should disregard or even oppose that which is unscientific:

Such facts may be modified and extended, but not overthrown. Though not dogma, they may, perhaps, properly be described as scientific doctrine. Unesco must see that its activities and ideas are not opposed to this body of established scientific doctrine, just as it must encourage the use of the scientific method wherever it is applicable. Thus it cannot and must not tolerate the blocking of research or the hampering of its application by superstition or theological prejudice. It must disregard or, if necessary, oppose unscientific or anti-scientific movements, such as antivivisectionism, fundamentalism, belief in miracles, crude spiritualism, etc.²⁹

What was at stake was the drawing of borders around a broad, “scientific” epistemic community, and this was by no means an easy task. Once again, the scientific method lent itself as a possible demarcation line and became the primary weapon in the fight against pseudo-sciences. In order to oppose these practices effectively, Huxley argued “widespread popular education is required in the facts of science, the significance of the scientific method, and the possibilities of scientific application for increasing human welfare.”³⁰ Almost a decade later, Huxley’s views were echoed at the UNESCO conference on the Dissemination of Science in Madrid in 1955. At this point in time, it was particularly the growing popularity of numerology, astrology, hypnotism, and clairvoyance that troubled the scientific community. They lamented the “‘average man’s’ relative or total lack of culture” which made him an easy target for the pseudosciences.³¹ It was well known, they argued, that: “the pseudo-science recruits no followers among those who recognize the value of scientific experiment; and it is confidence in scientific experiment that we must inculcate in people today.”³² The concern was twofold. Firstly, pseudoscience and similar practices pretended to be somehow “scientific” and attempted to convince followers of the veracity of this claim. Secondly, there were those practices that did not claim to be scientific, yet still proclaimed dogmatic authority over their followers, such as religions. The question of religion was a difficult and contentious one. When Huxley would argue that science “is by its nature opposed to dogmatic orthodoxies and to the claims of authority” then a conflict with religion seemed imminent and inevitable. Auger, the second director of the Section of Natural Science, offered a somewhat more diplomatic position when he, in his writings in 1950, addressed the issue:

the religions which, in the course of time, have reached the highest pitch of refinement, have realized the absolute barrier of dogma. They have accordingly removed dogma to a different plane, where it runs no risk of coming into conflict with the discoveries of science. And with that plane, where it may not set foot, science is not concerned.³³

Religion was, according to Auger, simply to be relegated to “a different plane,” where the dogmas would not come into conflict with science. Auger (wisely) did not elaborate on whether the religions had willingly removed dogma, or to what “plane” they had been moved. However, he reaffirmed that it was in science that we could all work together with the same language, “since Science is the same in every land” and through this scientific common ground of communication, “a common attitude of mind, inspired by the common goal of the advancement of science, is maintained throughout this society.”³⁴

4.7 Concluding Remarks: Actions and Rights

Looking back at the intense efforts made within UNESCO to define and promote a particular definition of science in the early years, one can of course wonder why these efforts seemed to be of such crucial importance. Several things are, however, at stake when defining a key concept like science. As touched upon above, the definition of science helped to demarcate the borders of an epistemic community. These borders were established through highlighting what science was in terms of biological, material, and psychological evolution of humankind, objective knowledge seeking, and a scientific methodological approach. Just as important, these borders were established through highlighting what science was not, as such science was defined in opposition to dogma, tradition, religion, authority and pseudosciences.

Furthermore, the definition manifests a certain understanding of the past: where we came from and, in line with this, where we are going in the future. The definition thus creates specific horizons of action within which some paths of action seem rational and others are deemed illogical and contrary to human progress. The understanding of science in UNESCO, as outlined above, became the conceptual background for the impressive amount of actions carried through by UNESCO and its Natural Science Section. In line with the understanding of science as a prerequisite for development and progress, UNESCO, immediately after the war, set out to rebuild the science infrastructure in war-devastated regions. They sought to facilitate already existing science organizations, and international cooperation, both financially and organizationally, and published a great variety of science material. One such piece was the very popular “Suggestions for Science Teachers in the Devastated Countries” by J. P. Stephenson, which by the early 1960s had been expanded and translated into more than thirty languages. The book contained detailed instructions on how to conduct “good science teaching” despite a lack of proper materials, and instructions on how to build cheap apparatuses from everyday materials.

The strong focus on science teaching in UNESCO becomes more evident when we look at it in light of exactly what science meant to the organization, and how it was conceptualized and distinguished from other practices. In understanding science not only as a set of methods of inquiry, but as a worldview and an attitude to life, the science teaching classroom becomes the ideal place to form the mindset of the new generations from an early age. This was indeed an enculturation process, although it was not conceived as such by the scientist involved in the science teaching planning. The classroom could not only be used to install this scientific gaze in the pupils. It could also be used to correct what many scientists believed was the (misunderstood) image of the scientist in the broader public. As Boulind stated in the UNESCO House:

the teaching should be such as to prevent pupils from thinking of scientists in general and nuclear physicists in particular as Frankensteins, hell-bent on producing monstrous machines they cannot control. Instead they should realize that science and magic are poles apart, that scientists are ordinary human beings who are the servants of mankind, and not its masters.³⁵

In this manner, the teaching of science was also an arena well suited to combat what scientists saw as the unrealistic fears (and hopes) of the broader public in the nuclear age. In relation to this, we can also see that the Natural Science Section in UNESCO cooperated cross-departmentally many times, with both the Division of Dissemination of Science, the Department of Mass Communication and the Department of Education.³⁶

Another UNESCO science-initiative, the establishment of the Field Science Cooperation Offices in Asia, Africa, and Latin America, likewise takes on a deeper significance when we understand it in light of the fundamental definitions of science in the early years of UNESCO. These offices represented not only a means to distribute scientific knowledge from a Western center to the developing countries, but also an institutionalization of the world brotherhood to which scientists were imagined to belong, and an establishment of a common world language of science that is oriented towards world development.

From the definition of science as a vocation, a worldview, and an ideologically neutral knowledge that benefits all humankind, springs also the claim for rights for scientists. This came in the wake of the massive influx of state control, censorship, and secrecy that especially nuclear scientists were subjected to during World War II, and which only increased during the Cold War.³⁷ Huxley took up the subject in 1949 and posted the question in both Nature and the Bulletin of the Atomic Scientists:

How should men of science act in the face of the increasing concern of the State with science, and the subsequent increasing pressure of the State on science? Can they accept the existence of an official scientific policy? Can they accept the possibility that the majority of men of science shall be paid by the State and that the major cost of scientific work shall be borne on government funds? Can they accept official direction as to what subjects shall be investigated?³⁸

Huxley was lashing out at both the Soviet Union and the Western allies for their attempts to control their respective science communities. The answer to Huxley’s question (or one of them), came from Bart Bok, Chairman of the National (US) Research Council’s Committee on Science in UNESCO. Under the headline “Freedom of science and the Universal Declaration of Human Rights” Bok argued that scientists had been given a powerful weapon in their fight for basic rights in the Declaration, and he urged his fellow scientists to seize the opportunity given:

The Universal Declaration of Human Rights is issued at a time when the freedom of science is under attack from many sides. Scientists have reason to be grateful to the drafters of the Declaration, for we have been given an inspiring restatement of basic principles to guide us in the fight for the freedom of science.³⁹

Thus, looking at the conceptualization of science by UNESCO, and the different ideas of science as they were articulated within UNESCO, we see what the organization itself understood by the concept of science and its relations to the concepts of modernity, progress, and development. UNESCO defined its borders concretely with the firm commitment to the “S” in its name, which made it better able to defend those borders when it came to asserting scientific freedom in opposition to state control, censorship, and secrecy that scientists, particularly nuclear scientists, faced during the Cold War. It was that definition and UNESCO’s strong defense of science, that was put into practice when the onset of the Cold War posed its own challenges to the Mertonian norms of science and to the ideas of international science cooperation in general.

5 The Right to Science and the Evolution of Scientific Integrity

Roberto Andorno

5.1 Introduction

As Aristotle famously claimed in the opening line of his Metaphysics, “all human beings, by nature, desire to know.” In other words, the pursuit of knowledge is connatural to us. We cherish knowledge for its own sake, simply because we want to better understand the world in which we live, and ourselves, and not primarily for any practical utility or for the satisfaction of other human interests. We see knowledge as a good in itself, as an irreducible good, and one of the most important aspects of human flourishing. This is why the pursuit of knowledge deserves to be protected by legal norms and, in particular, by human rights norms.

The search for the “why” of things is one of the key features of the scientific enterprise. Indeed, science represents one of the highest expressions of human intellectual ability and contributes to a deeper and better understanding of both nature and ourselves. Besides its intrinsic, irreducible value, scientific research makes a crucial contribution to the well-being and progress of humankind by delivering new tools that help improve quality of life, and provide new diagnostic, preventive, and treatment measures for various diseases and conditions.

For these reasons, science should enjoy the greatest freedom to advance in the different fields in which it is carried out and to be promoted at all levels. This basic human interest is formally recognized by international law, which expressly protects the “freedom indispensable for scientific research and creative activity.”¹ Although the freedom to conduct scientific research was not explicitly included in the founding instrument of the human rights movement, the Universal Declaration of Human Rights, it is generally regarded as implicit in the freedom of thought, and in the freedom of opinion and expression, protected by Articles 18 and 19 of the Declaration, respectively.

At the European level, the 2000 European Charter of Fundamental Rights expressly recognizes that “[t]he arts and scientific research shall be free of constraint” (Article 13). The Explanations Relating to the Charter specify that the freedom enshrined in Article 13 “is deduced primarily from the right to freedom of thought and expression” and “is to be exercised having regard to Article 1 and may be subject to the limitations authorised by Article 10 of the ECHR.”² This explanation is of great relevance as it makes clear that freedom of scientific research, like most freedoms, is not absolute, but may be subject to some limitations in the interests of other individuals and society. There is no doubt that scientific research, like any other activity in society, cannot operate at the margins of the ethical and legal principles that are basic to any democratic society, such as respect for human dignity and human rights, and other important societal values. The first limitation mentioned by the Explanations relates to Article 1 of the Charter, which enshrines the principle of respect for human dignity. Scientific research, even if motivated by the best of intentions, cannot be conducted in ways that involve the violation of people’s dignity (for instance, medical research cannot be conducted without participants’ free and informed consent). The second category of limitations is included in Article 10 of the ECHR, which stipulates that freedom of expression may be subject to such limitations as prescribed by law and “are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

At this point, it should be emphasized that the right to science is a multifaceted notion, as it includes both the freedom to do science and the right to enjoy the benefits of science.³ This right is therefore addressed to both scientists, whose efforts to conduct scientific research should not be hindered by the State, and to the public in general, who should have access to the results of scientific developments. Strangely, in spite of its enormous importance, especially in modern technological societies, the right to science has long been overlooked, with the consequence that its legal development is still rudimentary, and the scholarly literature around its meaning, scope, and practical implications is still relatively sparse.⁴

This chapter focuses on the first of the two components of the right to science mentioned above: the freedom to conduct scientific research, and discusses the limitations to that freedom that result from the rules generally recognized for the responsible conduct of research. The claim is that activities done by scientists that seriously violate the ethical requirements for conducting scientific research do not deserve to be awarded the label of “scientific.” Practices involving, for instance, the fabrication or falsification of data and plagiarism contradict the very essence of science, as they encompass acts of deception intended to mislead the scientific community and society as a whole. Thus, these practices attack the very heart of scientific research, as they involve the manipulation of truth and thereby betray the purpose of science itself. This is especially clear if science is understood as “the quest for knowledge obtained through systematic study and thinking, observation and experimentation.”⁵

Awareness of the importance of adhering to ethical standards in the conduct of science has increased significantly over the past few decades. Scientific misconduct became the subject of public attention beginning in the 1980s, which led to public statements and guidelines by academic and funding agencies, as well as the adoption of procedures for dealing with allegations of misconduct in science. After introducing the concept of scientific integrity, this chapter briefly presents the history of this development.

5.2 What Is Scientific Integrity and Why Does Misconduct Occur?

The term “integrity” refers to the state of being whole and undivided, in the sense that the individual’s behavior is not marked by duplicity, but is consistent with ethical principles. Integrity is, therefore, exactly the opposite of deceptive behavior; in a word, it is synonymous with honesty. What does this term imply when it is associated to scientific research? It means that “integrity is expected because science is built upon a foundation of trust and honesty.”⁶ Indeed, for researchers integrity embodies above all “a commitment to intellectual honesty and personal responsibility for one’s actions and to a range of practices that characterize responsible research conduct.”⁷

Science, which is often characterized as the “search for truth,” is intrinsically incompatible with the manipulation of facts and data, and with the resort to falsehood and deception. The reputation of science in society is critically dependent upon adherence to the rules of good scientific practice, which have been developed by the scientific community itself. Therefore, it is unsurprising that, each time that a new case of scientific misconduct is reported, public trust in the work of scientists deteriorates. This also leads to broader skepticism in society about the scientific community’s willingness and ability to self-regulate in order to ensure compliance with ethical principles.

Although misconduct occurs in all areas of science, it is interesting to note that the great majority of cases that surface take place in the field of medicine and closely related sciences (biology, for example). This can be explained primarily by two factors: firstly, the huge social expectations and enormous financial benefits that accompany scientific developments that could contribute to the prevention and treatment of diseases; and, secondly, the difficulty in reproducing experiments in the life sciences, due in large part to the biological variability that exists between organisms.⁸ As Goodstein points out, “if two identical rats are treated with the same carcinogen, they are not expected to develop the same tumour in the same place at the same time.”⁹ These factors – the financial incentives coupled with the fact that actual fraud may be hard to even uncover let alone prove – make the manipulation of truth much more tempting in the life sciences than in other domains.

However, misconduct is not limited to the life sciences. Research activities in the social and human sciences are themselves not exempt from fraud, although how it manifests is slightly different. With the possible exceptions of sociology and psychology, social and human sciences generally use methods that are primarily not empirical, but rather analytical, critical, conceptual, hermeneutical, or normative. Dishonesty in these sciences often consists of the use of the ideas or words of others without proper acknowledgment (what is known as plagiarism), and in the violation of rules for authorship (for instance, the use of “honorary authorships”). Over the past decade in Europe, there have been a number of scandals concerning plagiarized doctoral dissertations in the legal field by high-level politicians. As a consequence, the topic of plagiarism in doctoral studies has received renewed attention from both the general public and the academic community, who have become more aware of the urgency in promoting scientific integrity also in the fields of social and human sciences.

The first and most obvious question that arises when discussing scientific misconduct is: Why does it happen? What strange attraction leads scientists to act in a way that so openly contradicts the goal of the scientific enterprise? The preliminary answer to this question is simple: scientific research, like any other human activity, is often exposed to temptations that call for dishonesty. After all, “scientists are not different from other people.”¹⁰ When they enter their office, laboratory, or research unit, scientists continue having the same negative passions and driving ambitions to which all human beings are vulnerable. They are tempted, like any other individual, to transgress the boundaries of ethical behavior in order to achieve their personal and professional goals more rapidly. This is to say that it is naïve to assume – as was traditionally thought until the 1970s – that scientists are necessarily honest and always comply with ethical standards simply because they have chosen to embark on the disinterested pursuit of knowledge.

In addition, it should be noted that in our increasingly globalized and competitive world, science is not just – or maybe it is no longer – a vocation, but primarily a career. Scientific research has become increasingly competitive, complex, and expensive, often demanding collaboration and leading to a diffusion of individual responsibility. Moreover, researchers are regularly under pressure from academic structures and funding agencies to be successful and produce quick results. They are expected to make original discoveries, publish as many articles as possible (“publish or perish”), obtain grants for research, receive awards, be appointed to scientific societies, and eventually become professors. Competition and the pressure to be successful at any price are sometimes too high and the temptation to pass over the rules of honesty is a great one.

David Goodstein, who has studied a number of cases of scientific misconduct, points out three underlying motives that are present in most cases: (1) scientists were under career pressure; (2) they believed they “knew” the answer to the problem they were considering, and that it was unnecessary to go to all the trouble of doing the work properly; (3) they were working in a field – such as life sciences – where experiments offer data that are not precisely reproducible, therefore, as the data manipulation is more difficult to detect, the temptation to cheat is greater.¹¹

Besides the above-mentioned factors of misconduct in science, there is another element that should also be taken into account when approaching this phenomenon: there is not always a clear line between the accepted and the not-accepted practices that define what is called the “scientific method.” According to most textbooks, scientists study existing information, formulate a hypothesis to explain certain facts, and then, through experimentation, try to test the hypothesis. The problem is that, as Bauer points out, the “scientific method” is, to some extent, a myth.¹² Scientific research rarely proceeds by the organized and systematic approach that is reflected in textbook presentations. The formulation itself of hypothesis is affected by the knowledge, opinions, biases, and resources of the scientist. Furthermore, hypotheses are subject to experimental testing by means of methods selected by scientists, who very often already have in mind a theory they want to prove. There is a more or less conscious self-deception in scientific research that paves the way for a deception of other colleagues and the public in general.¹³ David Goodstein describes this myth of the scientific method very well when he notes:

every scientific paper is written as if that particular investigation were a triumphant procession from one truth to another. All scientists who perform research, however, know that every scientific experiment is chaotic, like war. You never know what is going on; you cannot usually understand what the data mean. But in the end, you figure out what it was all about and then, with hindsight, you write it up describing it as one clear and certain step after the other. This is a kind of hypocrisy, but it is deeply embedded in the way we do science.¹⁴

The myth of entirely objective, impersonal, and disinterested scientific research leads the public to an unrealistic perception of science and scientists; it may also encourage scientists to be unrealistic about themselves and “to neglect the importance of cultivating consciously ethical behavior.”¹⁵ This is why, in order to avoid unrealistic expectations, it would be preferable to regard the “scientific method” as an ideal to strive for (even knowing that it is unattainable in its fullest form) and not as the description of an actual practice in scientific research.¹⁶

The preceding remarks do not amount, of course, to a denial of the fact that there are honest and dishonest, and acceptable and unacceptable, ways of doing science. However, the line between right and wrong in scientific research is not always crystal clear, and there can be many grey areas in between that deserve careful examination before assessing whether, in a particular case, the rules of the responsible conduct of research have been complied with or not.

5.3 A Historical Perspective on Scientific Misconduct

As a consequence of the scandals of scientific misconduct that have arisen in several countries in the past three or four decades, governments, funding agencies, scientific societies, and academic institutions began to recognize the need to do more to hold scientists accountable for their research practices. Since the mid-1980s in the USA, and since the end of the 1990s in Europe, governments and academic institutions have established specific bodies for dealing with allegations of scientific misconduct and developed guidelines and procedures to address these issues and to punish violations of codes of conduct.

Scientific misconduct became a public issue in the USA in the 1980s, when several cases of fabricated research by high-profile scientists were discovered in prestigious academic institutions. These were publicly prosecuted and widely reported by the news media. However, it would be a mistake to think that questionable research behavior is confined to recent times and that scientists from previous decades and centuries have always acted honestly. The Piltdown Man forgery of the early twentieth century is perhaps the most famous fraud in the history of anthropology. In 1912, Charles Dawson, an English lawyer and amateur anthropologist, claimed to have found pieces of a skull and parts of an apelike jaw in a gravel pit in Sussex, England, which he said was the “missing link” between humans and apes. This allegation was controversial from the outset, as many claimed that the skull was inconsistent with other hominid fossils. It was only forty years later, when Dawson had already died, that physical and chemical tests proved that the purported missing link in human evolution was a complete hoax. The upper part of the skull was from a modern human being, the jaw came from an orangutan, and the teeth were from a chimpanzee. The pieces of the skull had been treated with chemicals to make them appear to be fossils.¹⁷

Science journalists William Broad and Nicolas Wade have closely examined the work done by famous scientists from the past and have shown that they were not always as honest as one might believe.¹⁸ For instance, such scientists did not always obtain the experimental results they reported, or omitted data that were contrary to their hypothesis, or took ideas from others without proper acknowledgment: Isaac Newton, the founder of modern physics, “adjusted” his calculations on the velocity of sound and altered some data in order to make the predictive power of his theory seem much greater than it actually was; Charles Darwin took ideas on natural selection and evolution from another naturalist, Alfred Russell Wallace, without proper acknowledgment; Gregor Mendel, the founder of genetics, selected data from his experiments with peas so as to make them agree with his theory; Louis Pasteur, whose work led to the development of vaccines for anthrax and rabies, prepared his vaccine for anthrax using a chemical method developed by his competitor, Henri Toussaint, while publicly claiming that he had employed his own method; Robert Millikan, the American physicist who won the Nobel Prize in 1923 for determining the electric charge of the electron, extensively misrepresented his work in order to make his experimental results seem more convincing.

Although it is clear that scientific dishonesty has always existed, it was only in the 1980s that a number of high-profile cases of data fabrication and falsification by scientists in the USA started to be publicly prosecuted and covered by the media. Before that decade, public trust in science was very high. There was a naïve optimism that scientists always acted honestly and could perfectly self-regulate their own activities. But these high-profile cases increased public awareness of this problem, opening eyes to the sad news that science could also fall victim to the unethical behavior of some of its practitioners.

In 1981, then Representative Albert Gore, Jr., chaired a US Congress committee that looked at the question of fraud in science and held the first hearings on the emerging problem. In the following years, several cases of data fabrication and falsification were directly investigated by Congress, as it was evident that research institutions were inadequately responding to allegations of misconduct, or were trying to protect their own researchers. In 1985, the Congress passed the Health Research Extension Act, which mandates that any research institution receiving financial support from the National Institutes of Health (NIH) must have an established administrative process to review reports of scientific fraud.

In 1986, the so-called Baltimore case became public and attracted attention for a decade.¹⁹ The case had at its center Nobel Prize winner David Baltimore, immunologist and Professor of Biology at MIT. His name appeared on a paper published in the prestigious journal Cell and listed as first author Thereza Imanishi-Kari, a colleague at MIT. A junior scientist working in the same laboratory, Margaret O’Toole, became convinced that the paper contained fabricated data and reported her concern to several senior colleagues at the institution. As a consequence, an investigation was launched, first by MIT, then by an NIH panel and subsequently by the Office of Research Integrity (ORI). Even Congress and the Secret Service became involved in the investigation. In the end, in 1996, an appeals panel at the Department of Health and Human Services determined that there was not enough evidence to prove that Imanishi-Kari committed misconduct, but in the meantime the public was surprised to learn that the work done by serious scientists could be doubted, and that coauthors on scientific papers often have contributed very little to the actual work done.

In 1989, the Public Health Service (PHS) created the Office of Scientific Integrity (OSI), renamed in 1992 the Office of Research Integrity (ORI), as the government office charged with oversight of scientific integrity within biomedicine. The 1990s began with the articulation of definitions and rules about scientific misconduct, and institutions receiving federal funds had to have policies in place for pursuing allegations of misconduct. Political attention began to shift away from attaching blame to scientists and focused instead on improving the investigatory procedures for dealing with misconduct and on preventing it through the education of young scientists in the area.²⁰ The current situation in the US is that every institution and research center that receives federal funding has the primary responsibility for responding to allegations of scientific misconduct. The ORI conducts oversight reviews of all investigations. When the ORI receives a report of an institutional inquiry, it examines the institution’s report to determine whether the findings are defensible, well supported by the evidence, and acceptable as a final resolution of the allegations. Then, on the basis of the ORI’s recommendations, a final decision is made by the PHS, which may impose sanctions when research misconduct is found.

European concern about scientific misconduct only began in the 1990s in some countries, such as Germany and Denmark, and much later in others. In 1997, the German scientific community was shocked by a strong suspicion that a large number of papers published by two eminent cancer researchers, Friedhelm Hermann and Marion Brach, included fabricated data. Once this was confirmed by preliminary investigations, a scandal unfolded which marked a turning point in the history of scientific misconduct in Germany. In 2000, the German Research Foundation, Deutsche Forschungsgemeinschaft (DFG), created a task force to investigate the case, which found evidence of data manipulation in at least ninety-four papers coauthored by both researchers.²¹ The Hermann and Brach case prompted the two major German research agencies (the DFG and the Max Planck Society) to develop guidelines defining the rules for good scientific practice and establishing procedures for dealing with allegations of scientific misconduct.²²

In Denmark, scientific misconduct investigations began in 1992 with the establishment of the Danish Committees on Scientific Dishonesty (DCSD), which was a group of committees tasked with handling allegations of research misconduct based on complaints brought by individuals or institutions. This body was, and still is, the only centralized national authority in a European country for dealing with the violation of rules of good scientific practice. In 2017, the DCSD was replaced by the Danish Committee on Research Misconduct.²³ In the same year, the Danish Parliament passed the Research Misconduct Act, which distinguishes between scientific misconduct and questionable research practice. While the centralized committee continues to deal with allegations of scientific misconduct, cases of questionable research practice have to be handled internally at each research institution. Since 2014, a national Code of Conduct for Research Integrity defines the rules of good scientific practice. Although the Code is not legally binding in itself, researchers can adhere to it and research institutions can integrate the document into their own guidelines.

The former Danish Committees on Scientific Dishonesty became embroiled in controversy in 2003 after its decision concerning the book The Skeptical Environmentalist by political scientist Bjørn Lomborg. According to Lomborg, claims by environmentalists about global warming, overpopulation, and deforestation, and other related matters, have not been scientifically proven. The DCSD considered that the book was “objectively speaking, deemed to fall within the concept of scientific dishonesty” due to the author’s biased choice of data and arguments. However, the DCSD concluded that Lomborg could not be convicted of subjectively intentional misconduct or gross negligence.²⁴ This decision was heavily criticized by social scientists, who considered that Lomborg’s book ought not to be judged by the same criteria used to assess dishonesty in the natural and medical sciences. They pointed out that the selection of information and arguments to develop a theory is an integral part of many social sciences.²⁵

Since the end of the 1990s, a number of serious cases of scientific misconduct have taken place in various European countries. To take a few examples:

• Andrew Wakefield, a former physician at the Royal Free Hospital in London, published a paper in The Lancet in 1998, claiming a possible link between the measles, mumps, and rubella (MMR) vaccine and autism and other childhood diseases or conditions.²⁶ The British General Medical Council conducted an inquiry into the case and found Wakefield guilty of dishonesty in his research and banned him from practicing medicine. The British Medical Journal pointed out that “the MMR scare was based not on bad science but on a deliberate fraud” and that it was hard to find a parallel of a paper with such potential to damage public health in the history of medical science.²⁷ It is noteworthy that the 1998 paper was retracted only twelve years later by The Lancet. Wakefield’s study has been linked to a steep decline in vaccination rates in the United Kingdom and a corresponding rise in measles cases, resulting in serious illness and fatalities.²⁸

• Diederik Stapel is a Dutch social psychologist, former professor at Tilburg University in the Netherlands, and former Dean of the Social and Behavioural Sciences Faculty. In 2011, three of his junior researchers reported they suspected he had fabricated data for a large number of his papers. Stapel’s most recent work at that time included one article published in Science, where he claimed that a dirty or messy environment may lead to racist behavior in individuals.²⁹ A few days earlier, he received media attention for a study (not published in a scientific journal) claiming that eating meat made people selfish and less social. Both studies, based entirely on faked data, are just a small sample of the kind of “scientific research” Stapel had conducted for over a decade. Three investigative committees that studied the case concluded that at least fifty-five of Stapel’s publications included fabricated or manipulated data.³⁰ As a result of these findings, Tilburg University suspended him from his position as professor.

• Paolo Macchiarini, an Italian surgeon and former researcher at Karolinska Institute in Stockholm, was famous for transplanting synthetic tracheas coated with stem cells into more than a dozen patients. In 2014, following the death of two of the three patients operated on by Macchiarini at the Karolinska Institute, an investigation was opened. Two separate internal reports concluded that research results had been described in overly positive terms in Macchiarini’s papers, which incorrectly describe the postoperative status of the patients and the functionality of the implants. An external investigation conducted one year later concluded that “there were data in the papers that could not be found in the medical records.” The number of mismatches leads to the conclusion that there was “a systemic misrepresentation of the truth that lead the reader to have a completely false impression of the success of the technique.”³¹

• In 2011, Karl-Theodor zu Guttenberg was German Defense Minister and a star politician, when a newspaper reported that his doctoral thesis from the University of Bayreuth’s Faculty of Law included several passages that had been plagiarized, taken almost verbatim from various sources, mainly newspaper articles. The university began an investigation and concluded that Guttenberg had “grossly violated standard research practices and in so doing deliberately deceived.” Based on the “extensive violations” of doctoral regulations by the omission of the source citations, his doctoral degree was revoked and he was forced to step down as Defense Minister.³²

In an attempt to contribute to the prevention of such cases of misconduct and to promote the responsible conduct of research in Europe, a new European Code of Conduct for Research Integrity was developed in 2017 by the national academies of sciences and humanities through their umbrella organization, the All European Academies (ALLEA) federation, in close cooperation with the European Commission.³³ After specifying in its first section the principles that are relevant for guiding researchers in their work (reliability, honesty, respect for others, and accountability for the research), the Code goes on to describe, in its second section, good research practices in respect of various areas such as: research environment, training, supervision, and mentoring; research procedures; safeguards to prevent harm to public health and the environment; data management; collaborative working; publication and dissemination; and review process of publications. The Code’s third section defines the various practices that are regarded as violations of research integrity and recommends some principles for handling allegations of scientific misconduct.

At the global level, the UNESCO Recommendation on Science and Scientific Researchers, adopted in 2017, also demonstrates this renewed concern for the ethical aspects of scientific research. The Recommendation, which is a revised, updated, and extended version of the 1974 Recommendation on the Status of Scientific Researchers, is more explicit than its predecessor about the need to ensure that scientific research is conducted with full respect for human rights and human dignity (for instance, the rights of research subjects and the confidentiality of personal data). It also strengthens the importance of honesty in data use and data sharing as well as the need to promote open access publications and dialogue science-society. After recognizing in the Preamble “the value of science as a common good” and that “academic freedom lies at the very heart of the scientific process, and provides the strongest guarantee of accuracy and objectivity of scientific results,” the Recommendation stipulates that Member States, “in order to have sound science,” should establish “suitable means to address the ethics of science and the use of scientific knowledge and its applications” (Article 5 c). It also draws attention to the fact that effective scientific research requires researchers’ integrity and intellectual maturity, as well as respect for ethical principles (Article 12). For these reasons, educational initiatives should be designed “to incorporate or develop in each domain’s curricula and courses the ethical dimensions of science and of research” and “intellectual integrity, sensitivity to conflict of interest, respect for ethical principles pertaining to research” (Article 13).

Even more so than the UNESCO Recommendation, and in a more succinct manner, the 2010 Singapore Statement on Research Integrity can be regarded as a global guide to the responsible conduct of research. This document addresses all the major themes relating to research integrity, including data integrity, data sharing, record keeping, authorship, publication, peer review, conflict of interest, reporting misconduct, communicating with the public, complying with regulations, and social responsibilities. The Statement also includes four ethical principles: honesty in all aspects of research, accountability in the conduct of research, professional courtesy and fairness in working with others, and good stewardship of scientific resources.³⁴

5.4 Conclusion

Science is an enterprise producing reliable knowledge which is based on the assumption of honesty on the part of scientists.³⁵ Today, there is a widespread international agreement that, on the one hand, scientists should enjoy freedom to conduct their studies, but also that, on the other, such a freedom presupposes that research is conducted in a way that conforms to principles of respect for human rights and human dignity, and according to the procedures generally established for good scientific practice. In other words, scientific freedom to advance knowledge is tied to a responsibility to act honestly. The scientific community has, over time, developed commonly agreed standards in the production and sharing of knowledge. All forms of dishonest science violate that agreement and therefore violate a defining characteristic of science.³⁶ Today, in our increasingly technological, globalized, and science-driven societies, there is a need to find an adequate balance between the freedom of scientific research, and other rights, interests and values that are also crucial for society. Honesty in the conduct and communication of scientific results is undoubtedly one of those values.