Transcript The Core Content of the REBSP - American Association for

The Core Content of
the REBSP
Audrey R. Chapman, Ph.D.
University of Connecticut School of Medicine
Experts Meeting:
The Right to Enjoy the Benefits of Scientific Progress and Its Applications
July 16-17 2009
Venice
European Inter-University Centre for Human Rights and Democratisation
And UNESCO
Background to Concept of
Core Obligations
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Limitations Article 2.1 in ICESCR
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“to take steps, individually and through international
assistance and co-operation, especially economic and
technical, to the maximum of its available resources, with a
view to achieving progressively the full realisation of the
rights recognized in the present Covenant by all appropriate
means, including the adoption of legislative measures.”
Implication: valid expectations and concomitant
obligations of State parties are not uniform or
universal but relative to level of development and
availability of resources
Background cont
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CESCR has emphasized importance of
taking steps toward full realization but
not specified the steps required in
relationship particular rights
Difficulties
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Assessing availability of resources,
especially if international aid is also
factored in
Monitoring
General Comment No 3:
Minimum Core Content
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Para. 10 CESCR declared itself to be “of the view that
a minimum core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each
of the rights is incumbent upon every State party.”
“If the Covenant were to be read in such a way as
not to establish such a minimum core obligation, it
would be largely deprived of its raison d’être.”
Cmt goes on to state that any assessment as to
whether State has discharged its minimum core
obligation must also take account of resource
constraints applying within country concerned
General Comment No. 3 cont
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But State party unable to fulfill must demonstrate
every effort made to use resources at its disposal to
fulfill these priority obligations.
Even where resources inadequate obligation to strive
to ensure widest possible enjoyment of relevant
right.
Provides only few specific examples – depriving a
significant number individuals of essential foodstuffs,
essential primary care, basic shelter and housing, or
of most basic forms of education.
Issues
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Cmt not offer methodology on how to determine
minimum state obligations – since 1999 included in
general comments conceptualizing specific rights
Ambiguity as to whether core obligations essence of
a right, i.e. its most important provisions, floor below
which right loses meaning, or minimum essential
levels of a right incumbent on all State parties
Gen Comment 3 speaks of minimum essential levels
incumbent on all States parties
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Implication: all States parties should have the capabilities to
fulfill
Issues cont.
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Experts on specific rights tend to advocate for
broad interpretations of core obligations.
Core obligations identified in some of general
comments very expansive and likely to be
beyond institutional capabilities and resource
levels of many, perhaps most, States parties
Written more as nature or essence of right
than as core minimum obligations
GC 14 – right to health is an example
GC 14: Core Obligations
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Ensure right of access to health facilities, goods, and services on
non-discriminatory basis, especially for vulnerable or
marginalized groups
Ensure for everyone access to minimum essential food which is
sufficient and nutritious
Ensure access to basic shelter, housing and sanitation, and an
adequate supply of safe and potable water
Provide essential drugs as defined by WHO
Ensure equitable distribution of all health facilities, goods, and
services
Adopt and implement national public health strategy and plan of
action addressing whole population and giving special attention
vulnerable or marginalized groups
GC 14: Obligations of
Comparable Priority
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Ensure reproductive, maternal (prenatal and
postnatal) and child care
Provide immunization against community’s major
infectious diseases
Take measures prevent, treat, and control epidemic
and endemic diseases
Provide education and access to information re main
health problems
Provide appropriate training for health personnel
including education on health and HR
Issues re Determining Core
Obligations REBSP
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To be fair and realistic core obligations should be potentially achievable
by virtually all states
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Many of obligations related to REBSP likely be beyond capabilities of
whole groups of states.
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Majority of countries, specifically poor and many middle income states,
lack essential capabilities, infrastructure, resources, and likely political
will to implement States parties obligations relating to the right, even
to do so progressively.
Limitations go beyond availability of resources and reflect variety of
structural and capabilities issues, including lack of appropriate human
and institutional infrastructure, that far more difficult resolve.
Issues re Core Obligations
cont
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Lack capacity to
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Conduct scientific and technological research
Translate the findings into useful applications
Evaluate and regulate their harmful effects
Protect their populations from potentially
hazardous dimensions technology
Determine needs and set priorities for importation
or development of science & technology
Distribute benefits science & technology widely
Science is a global enterprise
Issues re Core Obligations
cont
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2001 UNDP composite technology achievement index
that assessed ability create technology, to diffuse
both old and new innovations, and a country’s human
skill profiles divided countries into four categories:
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Leaders (developed countries)
Potential leaders (developed countries)
Dynamic adopters (range middle income countries)
Marginalized (poor countries in Africa and Asia)
Status particular countries may have changed over
time but divisions remain
Central issue therefore is whether the human rights
obligations expected of countries in different
categories should be the same
Issues re Core Obligations
cont.
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2003 report InterAcademy Council
(collaboration national academies science of
18 countries) Investing a Better Future
observes gap between “have” and “have not”
nations in science and their capacity to apply
scientific advances and new technologies
growing
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Science and technology lagging countries falling
farther and farther behind industrialized
Issues re Core Obligations
REBSP cont.
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Question whether define core obligations within the
framework of essential dimensions of the right
knowing at least some of the obligations specified will
be beyond capabilities majority countries
Alternative is to set more modest goals that have
universal application
Third possibility to set core obligations differently for
poor and middle income countries that lack scientific
infrastructure than better developed countries – more
realistic but also would be a departure from human
rights practice in the general comments
Approach taken here
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First take a minimalist approach - define
minimum core obligations potentially
within capabilities of all countries.
Then identify additional potential core
obligations that would be applicable to
countries with scientific infrastructures
and greater capabilities.
Minimum Core Obligations Potentially of
Universal Application - Respect
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To respect the freedoms indispensable for scientific
inquiry and creative activity, including freedom of
thought, to hold opinions without interference, and to
seek, receive, and impart information and ideas of all
kinds; (Art. 15 (3))
To not interfere with the freedom of scientists and
other members of the academic community to
undertake research, to report the results, and to
collaborate with other scientists both within and
across the country’s borders;
Minimum Core Obligations respect
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To take appropriate measures to prevent the
use of science and technology by state
organs in a manner that could limit or
interfere with the enjoyment of the human
rights and fundamental freedoms of the
individual as enshrined in the Universal
Declaration of Human Rights, the
International Covenants on Human Rights,
and other relevant international instruments.
(Declaration on the Use of Scientific and
Technological Progress, 1975)
Minimum Potentially Universal
Core Obligations - Protect
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To take (effective) measures, including
legislative measures, to prevent and
preclude the utilization of science and
technologies to the detriment of human
rights and fundamental freedoms and
the dignity of the human person by
third parties (Declaration on the Use of
Scientific and Technological Progress,
1975)
Minimum Universal Core
Obligations cont. - Fulfill
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To make an explicit commitment to the
development of science and technology
for human benefit;
To formulate policies and establish
institutions to promote the development
and diffusion of science and technology
in a manner consistent with
fundamental human rights principles;
Minimum Universal Core
Obligations cont. - fulfill
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To promote (weaker than ensure) access to the benefits of
science and of scientific progress on a nondiscriminatory basis
with measures to compensate for the disadvantages of
vulnerable and marginalized groups and to bring them up to
mainstream standards.
To formulate and implement a national science strategy and
plan of action with a timetable and goals to rectify existing
inadequacies in the ability to acquire and disseminate the
benefits of scientific progress; to adopt a monitoring strategy to
evaluate the extent to which these milestones are being
realized; the strategy and plan of action shall be devised, and
periodically reviewed, on the basis of a participatory and
transparent process; the strategy and plan of action shall give
particular attention to the status and needs of vulnerable and
marginalized groups. (Gen Comment No. 14)
Other Core Obligations Relevant to Middle
Income and Developed Countries
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To set priorities for and to channel sufficient
investment in a purposive development of science
and technology that brings potential societal benefits,
particularly to poor and disadvantaged groups;
To develop laws, institutions, and policies conducive
to the monitoring and regulation of science and
technology, including an adequate process of review
to anticipate the potential harmful effects of science
and technology and using that data to inform the
public;
Expanded Core Obligations for
REBSP cont
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To take measures to encourage and strengthen
international cooperation in science to the benefit of
all countries. (Art. 15 (4))
To provide opportunities for meaningful public
engagement in decision-making about science and
technology;
To institute a strong science program at all levels of
the educational system, particularly in the statesponsored schools, leading to development of the
skills necessary to engage in scientific research and
the translation of discoveries for human benefit;