The Human Right to Science qua Participatory Right

null, Samantha Besson

Abstract: In 1948, Art. 27(1) UDHR declared the right “to share in scientific advancement and its benefits”. Since 1966, the right has also been guaranteed by Art. 15(1)(b) ICESCR as the right “enjoy the benefits of scientific progress and its applications” (so-called REBSPA). Most of the time, that right goes by the name “right to science”. Interestingly, and by contrast, one only rarely refers to the “right to take part in cultural life” under Art. 15(1)(a) ICESCR, which is guaranteed as a first and separate right in the same provision, as the “right to culture”, arguably because culture itself cannot and should not be the object of a human right. Moreover, while the right to take part in cultural life is never referred to simply as the “RPCL” and actually covers a whole range of “cultural rights”, the REBSPA is not usually approached as an ensemble of “scientific rights” –even if it does include, among specific rights, the “scientific freedom” of scientists. Finally, by contrast to what is the case with the right to take part in cultural life, none of the two official guarantees of the REBSPA refer expressly to “participation” or “taking part” in science as the object of the right.

This equivocation on names, this article argues, reveals a deep disagreement about what science amounts to and about what could and should be the object and content of scientific rights. This is confirmed by the travaux préparatoires both of the UDHR and the ICESCR where the debates about the wording of the right reflected disagreements about the values of science, the ways in which scientific progress may or may not amount to social progress, and what it is in science that could and should be protected by human rights. The difficulty is actually enhanced by the fact that, since then, there has been very limited domestic practice of the right and, as a result, hardly any trace thereof in States’ periodic reports under the ICESCR monitoring system and the CESCR’s concluding observations or views. What we know of the right today stems from UNESCO’s 1974/2017 Recommendation, various Declarations and the 2009 Statement, from the 2012 UN Special Rapporteur on Cultural Rights’ report on REBSPA and, most recently, from the ICESCR’s 2020 General Comment on Science and Economic, Social and Cultural Rights. The latter interpretations of the right, despite their respective qualities and very different conclusions, have one thing in common, however: their lack of authority under international human rights law and their lack of

legitimate authority from a democratic perspective.

Drawing on analogies with cultural rights and considerations pertaining to the object and content of human rights pertaining to collective social goods in human rights theory, the present article proposes an interpretation of Art. 15(1)(b) ICESCR qua right to participate in scientific practice and enjoy its benefits. While the importance of equal participation has regularly been emphasized in recent interpretations of REBSPA, there has been remarkably little specification of the content of the corresponding duties and responsibilities, the identity of their right-holders and that of their duty- and responsibility-bearers, both domestically and internationally. The article’s argument is three-pronged. First, it argues that science is best approached as a “participatory good” and explains what this means, both from the perspective of the philosophy of science and that of other social and cultural rights guaranteed by the ICESCR. In a second step, the article spells out the participatory dimensions of the human right to participate in the scientific practice and enjoy its benefits, including the right’s related albeit specific “institutional” and “collective” dimensions. Finally, in a third section, the article explores three implications of the proposed participatory

interpretation of the right to participate in scientific practice and enjoy its benefits for its institutionalization, both domestically and internationally: for the democratic specification of the right’s objects and contents; for the public legal and institutional order of science and for its internal good government; and, finally, for the articulation of the relations between scientific rights and their conflict resolution.