Look before you leap: states’ prevention and anticipation duties under the right to science

ABSTRACT

States have under the right to science an obligation to prevent or mitigate harm of scientific progress and its applications. This obligation is derived from the right to be protected against the harmful effects of scientific progress and its applications, a dimension of the right to science. However, preventing the harmful effects of scientific progress and its applications can sometimes conflict with other human rights or with scientific freedom, which is also part of the right to science. In such cases, limitations on one right might be required to protect another, whereby the different interests need to be properly balanced. While the duty to prevent harm is well established in international human rights law, it is yet obscure if the anticipation of potential harms to come is possible under the existing framework of international law. While not a legal concept, entry points for anticipation are already covered under the current international law and can be drawn together by a cross-fertilisation of the obligation to prevent, the precautionary principle and due diligence. The precautionary principle and due diligence can provide guidance on when and under what circumstances situations for anticipation are triggered and conducted. Both concepts involve a necessity and proportionality test, which is also inherent to limitations under international human rights law.

KEYWORDS:

• Right to science
• scientific freedom
• obligation to prevent
• precautionary principle
• due diligence
• limitations

1. Introduction

It has always been realised that ‘while scientific and technological developments provide ever-increasing opportunities to better the conditions of life of peoples and nations, in a number of instances they can give rise to social problems, as well as threaten the human rights and fundamental freedoms of the individual … ’¹ Examples of such developments are asbestos,² nuclear energy³ or genome editing.⁴ Some of these innovations and their benefits were welcomed at the outset, but in hindsight may have required some form of State intervention to prevent harm. The issues of the potential abusive use of science and the possible harmful effects of science and technology were present from the earliest international discussions on scientific and technological progress. They formed part of the negotiations on the inclusion of a right to science in the Universal Declaration of Human Rights (UDHR, 1948) as well as in the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) and it was the basis of the elaboration of the UN Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind (1975) cited above.⁵ The last instrument accordingly includes that States should prevent the use of scientific and technological developments that limit or interfere with the enjoyment of the human rights, and they should protect people against possible harmful effects of the misuse of science and technology.

At the time of the adoption of the ICESCR and the UN Declaration on the Use of Scientific and Technological Progress, no one could have imagined the speed with which scientific and technological developments would take place in the years to come. While scientific and technological developments have always been seemingly fast and often life-changing, the last decades have particularly shown an enormous acceleration and dynamism in science and technology, affecting everyone in everyday life. We have seen an incredible progress in, for instance, information and communication technology (internet, cell phones, computers, artificial intelligence), medical research (stem cell research, genome editing, development of vaccines and medicines), etc. Moreover, science is no longer an isolated field of work, left to scientists, researchers, and academics in laboratories and public universities. Not only are private institutions nowadays funding and hosting the bulk of research and technological advancements, but also ‘ordinary people’ take part in scientific and technological progress, not merely as users, but as active participants and contributors, for instance by gathering data or participating in experiments or tests.

The speed, width, and breadth of scientific and technological developments, in terms of topics and participants, have increased the benefits but also the potential risks of harmful use of science and technology – e.g. falling into the hands of the wrong people or being used for malicious purposes.⁶ Moreover, they have decreased the predictability of these risks.⁷ Bearing in mind the incredible complexity of the scientific enterprise, what remains of the obligations of States to prevent the use of scientific and technological developments that would limit the enjoyment of human rights, and to protect people from possible harmful effects of the misuse of science and technology? How can States reasonably or diligently anticipate the risks of harm? And what does the right to science in human rights instruments prescribe in this regard?

This paper analyses to what extent States have legal obligations under the right to science to prevent or mitigate harm resulting from the use and application of scientific progress.⁸ Under harm, we understand the unjustifiable infringement on human rights. This article does not presume that all harm can be avoided. It does, however, explore whether, and if so, what obligations States have to at least try to prevent or mitigate harm and how the idea of anticipation of possible harm fits into the framework of international law.

Central starting point in this article is the right to science as laid down in the UDHR and the ICESCR.⁹ We use the term ‘right to science’ for reasons of practicality and familiarity in dominant scholarship on this matter. However, it needs to be highlighted that the right to science should be viewed as an umbrella term for a cluster of rights.¹⁰ The right to science has, as explored elsewhere,¹¹ various dimensions, including scientific freedom, access to science and enjoyment of its benefits, but also the right to be protected against adverse effects of scientific progress and its applications. The obligation to prevent harm can arise under the right to science and it may therefore require a limitation of the right to science itself.¹² For this reason, this article examines the limitations of the right to science in human rights law by analysing how States should balance the right to be protected from the adverse effects of science with the protection and promotion of scientific freedom.

While the right to science serves as a crucial foundation for analysing the harm associated with scientific progress and its applications, this article delves beyond the right to science. It explores the broader idea of anticipation of potential harms to come and examines the obligations that States may have in preventing harm arising from scientific progress and its applications. According to the Oxford English Dictionary, anticipation is defined as ‘prior action that meets beforehand, provides for, or precludes the action of another.’¹³ It should be noted that anticipation is not a legal term and that it has not been referred to by UN treaty bodies. We understand anticipation therefore not as a legal concept or state obligation per se, but rather as an umbrella term that may trigger obligations due to a cross-fertilisation of tools, principles and standards from different fields of public international law. We build upon the right to science and its footing in international human rights law while making use of the precautionary principle as elaborated in environmental law and the standard of due diligence according to public international law. We explore to what extent these concepts provide further clarification or interpretation of the obligations of States to prevent harm or anticipate risks of harm deriving from scientific progress and its applications.

This article focuses on the rights and obligations of States according to international (human rights) law. There is much to discuss about the rights, obligations and responsibilities of scientists, researchers, and academics themselves. They are expected to behave ethically and responsibly throughout the process of developing, conducting, and disseminating their research and its results.¹⁴ The fact that this is not always the case has led to a continuous debate on scientific integrity and ethics of science, including the development of self-regulatory mechanisms, such as codes of conduct. This article does not address these regulatory frameworks by and of scientists, researchers, and academics within their own community, such as non-plagiarism or disclosure of conflict of interest. Instead, this article focuses on the legal obligations of States, which may include regulations pertaining the behaviour of the said group as well. Therefore, this article mainly concentrates on the risks posed by research, which can stem from its results, but also from its original design and purpose, as well as the involvement of research subjects.

The methodology used in this article is a doctrinal analysis. We follow a black-letter approach by focusing on the lex lata in the relevant sources in international instruments, using the different interpretation tools as laid down in the Vienna Convention on the Law of Treaties (VCLT), including the text of the provisions and the drafting process of the right to science provisions in the UDHR and the ICESCR.¹⁵ Additionally, we consider subsidiary means of interpretation of the right to science with a focus on the interpretations by international human rights monitoring bodies, most notably General Comment No. 25 on science and economic, social and cultural rights (hereafter General Comment No. 25) by the Committee on Economic, Social and Cultural Rights (hereafter CESCR).¹⁶

Below, we first explore the recognition by States in various international instruments of the possible risks of harm that science and its applications can cause. Thereby we ask the question of what kind of obligations States did envisage for themselves to alleviate and avoid risks and harms. Next, we analyse the pertinent dimensions of the right to science that give rise to State obligations to prevent harm from scientific progress and its applications. One such obligation may be that States need to take measures limiting the right to science in order to comply with other obligations under that same right or under other human rights. Moving beyond the realm of human rights law, we subsequently explore the concepts of due diligence and the precautionary principle, along with their value as risk management tools and their role in human rights impact assessment in the broader context of human rights protection. Based on the precautionary principle and due diligence, we explore how and under what circumstances States could anticipate possible harms of scientific progress and its applications. In the last section, we highlight the most important findings and provide some final remarks on anticipation, prevention and the unpredictability of scientific and technological progress.

2. The argument for state obligations to prevent: recognition that science and technology can cause harm

2.1. UN instruments on science

States at the UN level have always been attentive to the possible harm caused by or following from scientific and technological advancements and realised that ‘science can be put both at service but also to the detriment of society’.¹⁷ This recognition in some instances led to the inclusion of obligations for States in certain instruments to try and prevent the latter from happening. States thereby accepted their duty to promote, more than to ensure, that scientific results and applications are beneficial rather than detrimental to human beings and society. It should be noted that many of these international instruments – being declarations and not treaties – are not legally binding upon States. They reflect principles or political norms to be respected by States.

The potential abusive use of science and the possible harmful effects of science were an important incentive for the adoption of the UN Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind (1975). As mentioned above, this declaration builds on the premise that scientific and technological achievements can improve the conditions of peoples and nations, but that they can also threaten their human rights and fundamental freedoms.¹⁸ This instrument, therefore, includes in Article 2 that ‘[a]ll States shall take appropriate measures to prevent the use of scientific and technological developments, particularly by the State organs, to limit or interfere with the enjoyment of the human rights and fundamental freedoms of the individual … ’. The central aim of this provision is to protect human rights against the harmful effects or applications of science and technology. The State is obliged to regulate and control its own activities and efforts and those it supports, in relation to scientific and technological advancements. No attention was yet paid to the duty to protect against infringements by private actors. The Declaration has a classical horizontal character, for instance reflected in its focus on international cooperation to prevent harm. Article 1 asserts that ‘all States shall promote international co-operation to ensure that the results of scientific and technological developments are used in the interests of strengthening international peace and security, freedom and independence, and also for the purpose of the economic and social development of peoples and the realization of human rights … ’

After this Declaration, several instruments were adopted on specific scientific developments where States felt the need to join forces and regulate in order to prevent harm.¹⁹ Two international instruments worth mentioning here are the Universal Declaration on the Human Genome and Human Rights, adopted by the UNESCO General Conference in 1997 and endorsed by the UN General Assembly in 1998, and the International Declaration on Human Genetic Data, adopted by the General Conference of UNESCO in October 2003. The Declaration on the Human Genome focuses on the potential abuse of science and research in relation to the human genome, but it shifts the responsibility onto researchers and scientists. It includes, for instance, that researchers have special responsibilities in carrying out their research, including meticulousness, caution, intellectual honesty and integrity.²⁰ It also includes that persons have the right to be informed about research on their genome and that such research should in principle not be carried out without a person’s consent. If such consent is not possible, research should be conducted only for the person’s health benefit or the health benefit of others.²¹ Furthermore, the applications of research, including genetics and medicine, shall seek to improve the health of individuals and humankind.²²

Furthermore, the Declaration on Human Genetic Data is based on the awareness that ‘ … the collection, processing, use and storage of human genetic data have potential risks for the exercise and observance of human rights and fundamental freedoms and respect for human dignity.’²³ Interestingly, it prioritises the interests and welfare of the individual over the rights and interests of society and research.²⁴

2.2. UNESCO recommendation on science and scientific researchers

The UNESCO Recommendation on Science and Scientific Researchers, adopted by the General Conference of UNESCO in 2017, also recognises the benefits but also harms of science and its applications. It states that

scientific discoveries and related technological developments and applications open up vast prospects for progress made possible in particular by the optimum utilization of science and scientific methods for the benefit of humankind and for the preservation of peace … but may, at the same time, entail certain dangers which constitute a threat, especially in cases where the results of scientific research are used against humankind’s vital interests … to the detriment of human rights or fundamental freedoms or the dignity of a human person … ²⁵

The Recommendation, therefore, outlines that States should develop adequate policies designed to avoid possible dangers while realising and exploiting the positive prospects inherent in discoveries, technological developments and applications.²⁶ States should thus support scientific research that ‘could improve the understanding of factors involved in the survival and well-being of humankind’.²⁷ The impact of science on future generations is one of the aspects to be taken into account here.²⁸

According to the Recommendation, States have obligations, albeit quite soft, to promote responsible science within their own jurisdiction. For instance, States should encourage scientific researchers ‘ … to think of their work in terms of service both to their fellow nationals and to their fellow human beings in general.’²⁹ It is further included that ‘Member States should encourage conditions that can deliver high-quality science in a responsible manner … .’ States should also ‘ … establish mechanisms and take all appropriate measures aimed to ensure the fullest exercise, respect, protection and promotion of the rights and responsibilities of scientific researchers … ’.³⁰

Apart from trying to prevent the misuse of science, the Recommendation includes the right of researchers to step out of projects. In the list of recommended rights and responsibilities of researchers it is included that ‘ … in those instances where the development of science and technology undermine human welfare, dignity and human rights or is ‘dual use’, they have the right to withdraw from those projects if their conscience so dictates and the right and responsibility to express themselves freely on and to report these concerns’.³¹ Furthermore, researchers should integrate ‘ … controls to minimize harm to each living subject of research and to the environment, and consultations with communities where the conduct of research may affect community members’.³²

The recognition of the duty of States (and the responsibility of researchers and scientists) to prevent harm does however not solve the question of how a State can or should know whether a certain application or result is or might become risky or harmful. Many scientific and technological developments are uncertain or may have unknown (side-)effects or results. It is also not clear what States should concretely do in these cases and to what extent they have legal obligations in this regard. It seems the minimum States accepted to do was to promote that scientific and technological advancement should be directed to benefit humankind, peoples, communities and individuals. The aim of scientific progress has been discussed extensively by States, also in relation to the right to science.³³

3. The right to science as a human right

When the right to science was discussed, halfway through the 1940s,³⁴ to be possibly included in the Universal Declaration of Human Rights, one of the main discussion points was the dilemma of allowing scientific freedom and promoting progress, while at the same time limiting the possible harmful effects or results of scientific and technological advancements. This comes as no surprise after the Second World War had shown the destructive nature of bombs and weapons, as well as the dangers and human rights violations related to scientific experimentation on people.

The drafting history of the UDHR, as well as that of the ICESCR, shows large awareness among the negotiators regarding the possible dangers of science and technology. The fact that the drafters chose the phrasing of ‘the right to enjoy the benefits of scientific progress and its applications’ (emphasis added) suggests that harmful or dangerous science and research were not to be protected. Another suggestion for prevention along with the protection of people from harmful and dangerous activities was to further explicate the purpose of science. The USSR, supported among others by the Eastern European States and China, found that such qualification of science was necessary and proposed to add that ‘ … the development of science must serve the interests of progress and democracy, and the cause of international peace and co-operation.’ Most delegates, however, saw this as an unwanted excuse for State interference in scientific freedom and therefore rejected it.³⁵

The fact that no explicit aim was added to the final provision in the UDHR nor later in the ICESCR does not mean that States did not take the possible dangers of scientific advancement seriously. States seemingly made a distinction between the development of science itself, which should not be constrained, and the results and outcomes of science and technology, which should be directed towards human interests, such as peace, democracy, and international cooperation. As noted by Porsdam Mann: ‘ … the drafters were sympathetic to, if not unanimously in favour of, the idea that applications of scientific progress should be directed at peaceful and democratic ends. Yet the notion that the direction of science itself – as distinct from its applications and results – should serve any kind of ends was met with fierce critique.’³⁶ Indeed several subsequent instruments (also addressed above), such as the 1975 Declaration and the 2017 UNESCO Recommendation do include that the results of scientific and technological developments should be used in the interests of strengthening international peace and security.³⁷

In short, the right to science does not as such include a specific aim that would direct its way and restrict freedom. Such reference was found to lead to excessive State control.³⁸ However, such reference was included in Article 13 ICESCR on the right to education, outlining the general purposes that education should serve. Article 13(1) states that ‘ … education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms’ and that ‘ … education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.’ It could be argued that scientific progress should broadly serve the same aims, but this was not explicitly included in the treaty. General Comment No. 25 seems to point at this, by including that ‘the development of science in the service of peace and human rights should be prioritized by States over other uses.’³⁹ This phrasing refers to both the development of science as well as its uses.⁴⁰

A closer look at the black letter law and interpretation of the rights protected under the right to science reveals several interesting dimensions. States have to guarantee the right to benefit from scientific progress and its applications (REBSPA, Article 15 (1)(b) ICESCR). Yet, an e contrario interpretation of the same provision brings out the right to be protected against harmful activities emanating from science.⁴¹ Therefore, the right to enjoy the benefits coexists with the right to be protected from harmful activities. Then again, these rights, in particular the latter might have implications for the right to scientific freedom. The fact that these rights coexist but also possibly stand in conflict with each other is not unusual. Rather, such a conflict of rights is inherent to human rights law. Human rights are universal, indivisible, interdependent, and interrelated. Consequently, the different rights and interests of individuals, communities, and society always have to be balanced.⁴²

In short, the rights guaranteed under the right to science impose various obligations upon States to respect, protect and fulfil these rights, including obligations to prevent harm. Yet, such prevention may require limiting certain dimensions of the right to science.

3.1. Limitations of the right to science

States are allowed to limit human rights in order to protect the rights of others and/or the interests of society. The CESCR recognises in its General Comment No. 25 that ‘some limitations on the right to participate in and to enjoy the benefits of scientific progress and its applications might be necessary, as science and its applications can, in certain contexts, affect economic, social and cultural rights.’⁴³

If States are supposed to prevent such ‘affecting’ and take measures to avoid harm or infringements of human rights, does this mean that they are actually in some instances obliged to limit the right to science, in particular the right to benefit from scientific progress and its applications or scientific freedom?

As discussed above, the three relevant rights protected under the right to science do co-exist but may also stand in conflict with each other. This conflict of rights imposes an obligation to limit one right in order to pertain another right. Apart from not explicitly defining the aim of science, the provisions on the right to science do not contain a limitations clause.⁴⁴ This implies that the right to science is regulated by the general limitation clause as laid down in Article 4 ICESCR. According to this provision, States parties may subject the rights in the ICESCR only to such limitations that are ‘ … determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. The meaning of Article 4 and the criteria for limitations have been analysed extensively elsewhere,⁴⁵ which is why we only present the main findings here.

Limitations should first be determined by law, which implies that a national governance system is involved in the drafting and execution of the limitation measures. The term ‘law’ is interpreted broadly by the international supervisory bodies to include not only statutes but also unwritten law.⁴⁶ The CESCR has endorsed this broad understanding in several General Comments.⁴⁷ Laws must furthermore not be arbitrary, unreasonable or discriminatory and be accessible and foreseeable.⁴⁸

Limitations may not be in contradiction with the nature of the rights in the Covenant, otherwise, the provisions would no longer have any value and substance.⁴⁹ This links to the concepts of ‘core content’ and ‘core obligations’ of human rights. According to the CESCR, limitations may not affect the minimum core of the rights since this would go against their ‘nature’.⁵⁰

Relevant to answering the question of to what extent States have an obligation to limit the right to science is the criterion that the limitation measures should serve a legitimate aim. The concept of ‘the general welfare in a democratic society’ is rather broad and vague. Research of the drafting process of Article 4 ICESCR shows that the inclusion of only ‘general welfare’ as a legitimate aim to limit the enjoyment of the rights was deliberate. Other possible legitimate aims, such as national security, public order, morals or respect for the rights and freedoms of others were left out of Article 4 ICESCR because they were not considered to be relevant to economic and social rights. Reasons for public morals or public order were not conceived as legitimate reasons to limit basic needs such as the right to food or health. The travaux préparatoires therefore seem to suggest that the words ‘general welfare’ should be interpreted restrictively, not including these dimensions.⁵¹

The UDHR as well as other human rights treaties, in particular the International Covenant on Civil and Political Rights (ICCPR), encompass more specific limitations clauses including additional legitimate aims. One of the rights closely related to the right to science and in particular scientific freedom is the right to freedom of expression and information, which may therefore serve as a good example. Article 19(3) ICCPR outlines that: ‘The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.’ This sentence could also resonate with the right to science, aiming in particular at the behaviour of scientists and researchers.

Article 19(3) ICCPR continues with: ‘It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.’ The legitimate aim of protecting national security, public order and health reflect the balance that needs to be struck between the interest of the person or group enjoying the right and the general or public interest. Respect for the rights of others as a legitimate aim reflects the balancing of different persons and groups enjoying rights. Such rights and freedoms of others do not have to be recognised in the same legal instrument.⁵²

Protecting national security, public order and/or public health could be very relevant aims to limit the right to science, in particular scientific freedom or the applications of science and technology. One can think of the ethical dilemmas related to genetic research or the risks to security and public order involved in scientific and technological advancement in relation to biological and nuclear weapons. Respect for the rights and freedoms of others may also be relevant, for instance, to protect data and the privacy of persons in relation to scientific research or experiments. These aims could be accepted as justification for limitations.

This issue also came up during the drafting of the phrase included in Article 15(3) ICESCR, which includes that States should respect the ‘freedom indispensable for scientific research’. While some States were critical to including the notion of ‘indispensable’ since this would imply that only the freedom strictly necessary for research would be protected, others argued that this notion was necessary in order to allow States to impose limitations required by national security, public order and morality.⁵³

Broadening the legitimate aims for limitations could also underpin going beyond merely justifying limitations and trigger an obligation to limit human rights, in particular the right to science. It could be argued that if States know, or ought to have known,⁵⁴ of activities that may cause danger or harm to national security, public order and public health, or may cause violations of the human rights of others, they should act to prevent or mitigate these activities. The CESCR in its General Comment No. 17 already hints at such an obligation: ‘States parties should prevent the use of scientific and technical progress for purposes contrary to human rights and dignity, including the rights to life, health and privacy (…).’⁵⁵ In General Comment No. 25 the CESCR adds that a ‘[h]uman rights impact assessments might be necessary to protect persons against risky applications.’⁵⁶

If States take limitation measures, they are furthermore bound by the other criteria linked to limitations, namely that the measures taken are necessary and proportionate. Both are also a requirement under the precautionary principle and due diligence. The term ‘necessary’ implies that the limitation measures respond to a pressing social need. This may lead to positive obligations, such as the special protection of certain groups, for instance, children, the elderly, minorities or persons with disabilities. They may be vulnerable to abuse as research subjects or are not independent decision-makers.⁵⁷ Children, for instance, may be vulnerable to misuse of information and data, such as for the purpose of human trafficking or the illicit harvest and transfer of organs.⁵⁸

Apart from being necessary, the measures should be proportionate to the legitimate aim and the least restrictive ones needed to achieve that aim.⁵⁹ Proportionality of the measures also implies that the core content of the right cannot be limited.⁶⁰ Especially important is the weighing and balancing of interests between the rights protected under the right to science: the right to benefit from scientific progress and its applications, the right to be protected from risks of harm of scientific progress and its applications, and, last but certainly not least, scientific freedom.

The above has shown that various legitimate aims, such as the protection of national security, public order, and public health, as well as ensuring respect for and protection of the rights and freedoms of others, are very relevant to (possible) limitations of the right to science. They do not only form criteria to justify States’ measures to limit the right to science,⁶¹ but they may also trigger a positive State obligation to do so in order to protect against harmful effects or applications of scientific and technological progress, especially in relation to disadvantaged groups. One could also argue that a new legitimate aim would be appropriate in this regard, namely the protection of the environment, which could be seen as a specification of public health but is now also recognised as a human right.⁶² In fact, public international law, in particular environmental law, has developed several relevant notions, including the no-harm principle, precautionary principle, and due diligence, which could further elaborate States’ obligations.

4. Anticipation: the nexus between prevention, precaution and due diligence

The previous section has shown that the prevention of harm resulting from scientific progress and its applications is recognised by States in international instruments. Moreover, the right to science includes the right to be protected from adverse effects, which imposes an obligation on States to prevent such harms and may require the limitation of human rights such as scientific freedom. Moving beyond the right to science and the human rights framework, this paper will now explore other norms in international law that reflect the idea of prevention and anticipation of potential harms. Below the standard of due diligence from international law and the precautionary principle from environmental law will be analysed as entry points for anticipation, creating State obligations to prevent harm.

4.1. Due diligence

The concept of due diligence was originally developed in public international law as a State-to-State obligation to take appropriate steps to prevent harm, in particular stemming from actions by private actors.⁶³ The ICJ first referred to due diligence in the Corfu Channel judgement in 1949 as a ‘corollary (…) duty’ of sovereignty.⁶⁴ The aim of due diligence in the context of human rights law is ‘to minimise risks to human rights no matter the source of the risks, but without disproportionately limiting individual freedom or State sovereignty’.⁶⁵ Thus, the concept of due diligence should not be viewed as a free-standing obligation but rather a qualifier of behaviour that goes hand in hand with a duty of care, its underlying idea being risk management. Therefore, due diligence comes into play in situations where a risk needs to be controlled or contained to protect another actor or public interest.⁶⁶ Although due diligence is a legal concept,⁶⁷ the question of what is ‘due’ is not merely a matter of legal reasoning, but also a value judgement which goes beyond positive, black-letter law and requires reflections of ethics and politics.⁶⁸

Generally, due diligence possesses elements that are uncontested in public international law. Firstly, it is not required that harm is completely prevented, but that the State acts to the best of its abilities to prevent and minimise the harm. Secondly, the measures adopted under due diligence need to be proportionate to the risk and assessed by the predictability, severity and a State’s level of control. However, these are abstract formulations which provide only limited insights for the application to specific fields of law such as human rights. Moreover, the normative quality of due diligence remains unclear,⁶⁹ as well as the identification of the sources of due diligence, since it is rarely used in treaty provisions. However, the legal nature, as well as the sources of due diligence, will not be further explored in this contribution.⁷⁰

In the context of international human rights law, due diligence describes ‘the standard of conduct necessary to comply with the duty to protect.’⁷¹ The duty to protect obliges the State to adopt measures to prevent interference of a right, no matter its source, i.e. including private actors,⁷² and therefore also covers conduct that is not directly attributable to the State.⁷³ The Human Rights Committee in its General Comment No. 31 (2004) notes that States have positive obligations to protect individuals against violations of their rights, not only by its own agents but also by acts committed by private persons or entities. States parties violate the treaty of they do not ‘ … take appropriate measures or … exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’.⁷⁴ Due diligence represents a standard of conduct (and not of result), originating from the standard of reasonableness and therefore requires a weighing of the affected individual and community interests. The standard of conduct must be assessed with the aid of the following three factors: a foreseeable risk; a legally protected interest; and countervailing interests, i.e. competing human rights. The assessment of these three factors is not separate, but part of a reasonableness or proportionality test.⁷⁵

The advantage of due diligence in the context of international human rights protection is that it has the potential to address structural and systemic issues. The underlying idea of due diligence is to prevent violations of human rights, including by private actors. Therefore, it requires that States implement measures at the institutional level, e.g. the adoption of legislation and/or administrative measures; to design procedures to mitigate the possible negative impact on human rights, e.g. to establish specific training programmes; and to ensure transparency and participation by informing and educating the general public about risk management tools.⁷⁶ The subsequent steps in the due diligence implementation can be taken within the framework of a human rights impact assessment.⁷⁷

General Comment No. 25 addresses due diligence in view of the right to science in two instances. First, the CESCR mentions due diligence in the context of risks and promises of new emerging technologies and outlines that ‘ … States parties should establish a legal framework that imposes on non-State actors a duty of human rights due diligence, especially in the case of big technology companies … ’.⁷⁸ Second, the CESCR outlines due diligence in view of the extraterritorial obligations of States regarding the regulation and monitoring of multinational companies.⁷⁹ The topic of extraterritoriality as well as business and human rights goes beyond the scope of this contribution and will not be addressed further.

4.2. Precautionary principle

The precautionary principle ­ – as a decision rule – may answer the question as to when and in what situations the anticipation of possible harm scientific progress and its applications arises. As mentioned earlier, anticipation is defined as ‘prior action that meets beforehand, provides for, or precludes the action of another.’⁸⁰ Thus, anticipation contains an element of uncertainty, which is inherent to the precautionary principle.⁸¹

The precautionary principle evolved out of environmental considerations to anticipate situations where harmful activities may have detrimental and irreversible effects on human health or the environment.⁸² When it became apparent that the environment could not cure itself after decades of environmental degradation, governments began to allocate the costs of environmental damage to the polluters.⁸³ However, this economic rule of post-damage cost-allocation had to be accompanied by a preventive mechanism for it to be effective. True to the motto ‘prevention is better than the cure’ and under the premise that risks can be accurately scientifically assessed, the ‘preventive principle’ marked the second stage of governmental action against environmental degradation. In other words, the preventive principle serves as a pre-damage mechanism when the risks are scientifically assessable and quantifiable. Yet, it quickly became clear that certain risks cannot be scientifically determined with absolute certainty. For these situations, an anticipatory model had to be developed. Therefore, in cases where a considerable amount of scientific uncertainty remains, the precautionary principle comes into play. The precautionary principle aims to ‘anticipate risks suggested by possibility, contingency, and plausibility’⁸⁴ to shield humans and the environment from unpredictable consequences of human action.⁸⁵

In the last decades, the precautionary principle has become an acknowledged strategy to cope with scientific uncertainties. Originally applied to environmental policies, the precautionary principle found its way into various international declarations, treaties, jurisprudence and State practices in diverse areas, such as sustainable development, environmental protection, public health, food safety, trade, and financial regulation.⁸⁶ Yet, no universal and uniform interpretation of the precautionary principle exists, and its legal status remains unclear.⁸⁷

Given the increased reference to the precautionary principle in public international law, regional law including EU law, and domestic law, and its effect on scientific progress and its applications, UNESCO aimed in 2005 at establishing a working definition of the precautionary principle. Together with the World Commission on Ethics of Scientific Knowledge and Technology (COMEST), UNESCO published its working definition of the precautionary principle so that the Member States could apply the principle for ethical assessments regarding science and technology.⁸⁸ In the years to follow, UNESCO’s working definition seemed to have fallen into oblivion, as it was not mentioned in the 2017 UNESCO Recommendation on Science and Scientific Researchers.

In 2020, the CESCR picked up the thread and largely adopted UNESCO’s and COMEST’s definition of the precautionary principle in its General Comment No. 25.⁸⁹ It is noteworthy that the definition of the precautionary principle by the CESCR does not include the notion of morality. In the context of the right to science, the CESCR addresses the precautionary principle as follows:

The application of the precautionary principle is sometimes controversial, particularly in relation to scientific research itself, as limitations on the freedom of scientific research are compatible with the Covenant only in the circumstances set out in article 4. On the contrary, this principle is more broadly applied for the use and application of scientific outcomes. The precautionary principle should not hinder and prevent scientific progress, which is beneficial for humanity. Nonetheless, it should be able to address available risks for human health and the environment, inter alia. Thus, in controversial cases, participation and transparency become crucial because the risks and potential of some technical advances or some scientific research should be made public in order to enable society, through informed, transparent and participatory public deliberation, to decide whether or not the risks are acceptable.⁹⁰

The application of the precautionary principle should be necessary and proportionate. The proportionality should be according to the ‘seriousness of the potential harm, with consideration of their positive and negative consequences, and with an assessment of the moral implications of both action and inaction.’⁹¹

Furthermore, the application of the precautionary principle is not unproblematic in practice, as ‘[b]y leaving behind the realm of rational certainty, precaution necessarily gives rise to controversy and its practical application to conflict.’⁹² As can be seen from the statement by the CESCR on the precautionary principle,⁹³ the application of the principle remains unclear. Invoking the precautionary principle can have consequences for various sectors such as science, policy and governance, industry and trade as well as social and cultural implications.⁹⁴ Therefore, it is not surprising that the invocation of the precautionary principle was often accompanied by political considerations, for instance when it came to research on assisted reproduction or on human embryos.⁹⁵ Nevertheless, decisions based on the precautionary principle cannot be taken in a vacuum. This might have been the reason why the term ‘morally unacceptable’ harm was not included in the CESCR’s definitions of the precautionary principle. Even if scientific uncertainty is the premise, decisions made under the precautionary principle do not happen in an abeyance but are, on the contrary, accompanied by decision-support tools to assess the risks in different ways (inter alia risk governance and cost–benefit analyses).⁹⁶ However, while these procedures are familiar amongst scientists, researchers, and academics, they might not be to the general public. Therefore, it is important to strengthen the science-policy interface, participation and transparency, as outlined in General Comment No. 25.

Moreover, it may be claimed that the precautionary principle stifles innovation, i.e. scientific freedom, in cases where the adoption of measures to anticipate risks might in hindsight prove unnecessary and thereby create false positives.⁹⁷ However, three points can be raised to counter this claim. Firstly, the precautionary principle may also boost innovation, e.g. as a stimulant for cleaner technologies for cars to reduce carbon dioxide emissions. Secondly, in the context of international human rights law proper, it is not the precautionary principle per se that stifles innovation. State-driven regulation on innovation and therefore scientific freedom can only be allowed within the limits of human rights law and therefore the conditions set out in Article 4 ICESCR for limitations as discussed above. Putting the precautionary principle within this context, it can support decision-makers to anticipate risks, such as the detrimental effects of asbestos on health,⁹⁸ that have in retrospect turned out to be false negatives and would have needed much earlier State intervention.⁹⁹ And thirdly, it needs to be reiterated that the precautionary principle – and more so as a tool within the framework of the limitations in human rights law – is not about prohibiting all possible risks of innovations. On this note, the CESCR outlines in General Comment No. 25 that ‘[t]echnological and human rights impact assessments are tools that help to identify potential risks early in the process and the use of scientific applications.’¹⁰⁰

Finally, the precautionary principle should be viewed as a rational decision rule, that is not based on zero risks, but on a lower, more acceptable risk. As a rational decision rule not based on anxiety or emotion, it takes into account the best use of science in order to make a wiser decision on a case-by-case basis.¹⁰¹

The above has shown that States should anticipate risks with the concepts of due diligence and the precautionary principle. What both concepts have in common is a proportionality assessment prior to the decision of which measures should be adopted. It is therefore not surprising that international courts and tribunals have suggested that both concepts are in fact interrelated and may be combined.

4.3. The interplay between prevention, precaution and due diligence

The idea of combining due diligence with the precautionary principle is not new¹⁰² and can be traced back to the 1999 Southern Bluefin Tuna case,¹⁰³ the 2010 Pulp Mills case,¹⁰⁴ and the 2011 Seabed Mining Advisory Opinion.¹⁰⁵ In the Southern Bluefin Tuna case, the International Tribunal for the Law of the Sea (ITLOS) indirectly connected due diligence with the precautionary principle. Despite the lack of scientific certainty, the tribunal was convinced that measures should be taken to prevent further degradation of the southern bluefin tuna.¹⁰⁶ In the Pulp Mills case, the International Court of Justice (ICJ) indicated that due diligence stems from the preventive principle, which is now accepted as part of customary international law. Although the court did not directly address the precautionary principle, Judge Trindade in a separate opinion addressed the application of the precautionary principle in light of due diligence, since ‘the epistemology of the precautionary principle is geared to the duty of care, of due diligence’.¹⁰⁷ Lastly, with the Seabed Mining Advisory Opinion, the ITLOS took a step further and stated that ‘it is appropriate to point out that the precautionary approach is also an integral part of the general obligation of due diligence’.¹⁰⁸

In short, due diligence and the precautionary principle are in fact interrelated concepts to manage risks. As outlined earlier, the preventive principle applies to situations where enough scientific evidence is available to assess risks. However, there might be cases where the risks cannot be determined with complete scientific certainty. This is the point where the precautionary principle steps in. The precautionary principle is about anticipating, or in other words, channelling risks in advance where insufficient scientific evidence exists. To comprehend the application of the precautionary principle and the balanced consideration of diverse interests, due diligence is essential. As stated above, due diligence is a qualifier of behaviour. Because of the lack of sufficient scientific evidence, the precautionary principle boils down to the obligation of States to act diligently, since it is not possible to adopt evidence-based decisions with absolute scientific certainty. In turn, if a State ‘ … would not meet its obligation of due diligence if it disregarded those risks … [such] disregard would amount to a failure to comply with the precautionary approach.’.¹⁰⁹ The concept of due diligence and the precautionary principle are thus mutually reinforcing. The precautionary principle serves as a trigger and helps to clarify and enrich the broad and unspecific concept of due diligence, both materially and procedurally, while due diligence may facilitate the application of the precautionary approach in resolving disputes.¹¹⁰

To sum it all up, States have indeed an obligation under the right to science to prevent harm and the anticipation of possible future harms may imply that the elements of prevention, precaution, and due diligence are effectively combined. The action to be taken should be necessary and proportionate to the seriousness of the risks of harm, i.e., the magnitude and reversibility of the harm as well as the likelihood for it to happen. In the context of the right to science proper, the measures taken should, however, not have disproportionate negative impacts on the benefits of scientific progress and its applications or on scientific freedom. Such a balancing of interests, i.e. the necessity and proportionality, is also inherent to the framework of limitations in international human rights law.

5. Look before you leap, but who can gaze into a crystal ball and predict the future?

In this article, we have analysed and elaborated that the protection and promotion of the right to science imply positive State obligations to prevent harm related to scientific progress and its applications, possibly including the obligation to take measures that may limit scientific freedom. Further, prevention, in combination with precaution and due diligence, reflects the idea of anticipation of possible harms to come. The mechanism to manage risks is rooted in the concept of due diligence. The precautionary principle is a risk assessment tool for situations where there is not sufficient scientific evidence and can indicate under what circumstances state action is required. What both concepts have in common is a necessity and proportionality test, which is also inherent to limitations under human rights law. In summary, limitations of human rights, the precautionary principle, and due diligence all aim at anticipating or preventing harm and are therefore deeply interrelated.

Furthermore, prevention and anticipatory measures underly a duty of conduct and most likely not of result. The main reason for this lies in the fact that it is difficult, if not impossible, to foresee all possible risks and potentially harmful results of science and its applications. The State can try to regulate via a general framework, but it cannot, and should not, unjustifiably infringe on the right to benefit from scientific progress and its applications or on scientific freedom by categorically controlling all scientific endeavours and activities, especially not in some form of censorship. Scientific freedom and the right to benefit from scientific progress and its applications are important human rights that are crucial for any scientific progress to be made.

A closer look at the obligations of the State vis-à-vis the general welfare of society versus the role of scientists, researchers and academics, puts the application of limitations, due diligence, and the precautionary principle in perspective. While the State can be under an obligation to undertake necessary and proportionate limitations on science and technology because their results or applications are deemed not to be safe or effective, it is up to those wishing to go forward in unchartered scientific terrain to demonstrate why the adoption of the precautionary principle would be unnecessary and disproportionate. In conclusion, it can be said that the State as well as those wishing to make use of science and technology inhibit different roles in the burden of proof. States need to justify that limitations to restrict scientific freedom are necessary and proportionate to anticipate the harmful effects of science to the best of their abilities. However, those seeking to use science and technology need to demonstrate that the possible harmful effects are within the justifiable boundaries of limitations, due diligence, and the precautionary principle. In other words, the burden of proof is shared between the regulator and the proponent, which becomes relevant especially on the national level in governance and on the level of litigation.¹¹¹

Moreover, there is the reality that States often are not in charge of the scientific and technological progress being made, which rather lies in the hands of private investors and institutions. As states may not have direct influence over the direction and the impact of this progress, this may – particularly in the case of risky or harmful activities – pose a practical challenge. This does, however, not mean that the right to science cannot be limited. Quite the contrary, States have the right, and as argued above, sometimes also the obligation, to limit scientific freedom or the right to benefit from scientific progress and its applications, whereby it has to fulfil the criteria for limitations, such as necessity, proportionality, and the preservation of the core content of the right to science. As previously stated, this goes in hand with the precautionary principle and due diligence.

The elaboration of State obligations in relation to the prevention of harm is not only challenged by the unpredictability of the whole scientific enterprise and the fact that private actors are often more powerful than the State itself. It is also hampered by the speed and complexity of science and its applications. Developments and discoveries go very fast. But more importantly, science and its applications are the fields of experts, and initiated and led by people with very specific expertise and knowledge.¹¹² In order to be able to appreciate all relevant aspects and dimensions of a certain research project and to predict what could be the outcome of this research and what might happen with its results, one needs to have an enormous amount of specialised knowledge and expertise. Moreover, many research projects run worldwide, involving sometimes dozens of researchers and multiple amounts of publications. The speed and complexity of science and its applications make it extremely difficult for lawmakers and policymakers to assess and anticipate their possible risks and benefits. And it makes it equally difficult for national and international monitoring bodies to evaluate States’ implementation of and compliance with human rights standards, including the right to science. Finally, we recognise that implementing measures to prevent and anticipate can in practice be challenging. Yet, utilising the framework of human rights limitations in conjunction with the precautionary principle and due diligence can be a promising pathway to support the adoption of prevention and anticipation measures.

Acknowledgement

This paper was written for the Brocher Expert Workshop on the Human Right to Science held in Geneva in December 2022. We would like to express our gratitude to the Brocher Foundation and the Geneva Science and Diplomacy Anticipator (GESDA) for hosting the expert workshop, which provided a stimulating environment for the development of this paper. We are also indebted to the participants of the workshop, whose feedback and insights have significantly enriched this work. All errors are our own.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Yvonne Donders

Yvonne Donders is Professor of International Human Rights at the Faculty of Law of the University of Amsterdam and member of the UN Human Rights Committee.

Monika Plozza

Monika Plozza is a PhD candidate and research associate at the University of Lucerne and was a visiting fellow at the Amsterdam Centre for International Law, where she conducted research for her doctoral thesis with the working title ‘From Rights to Obligations – Operationalising the Human Right to Science’.

Notes

1 UN General Assembly, ‘Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind’, Pub. L. No. (A/RES/30/3384), Resolution 3384 (XXX) (1975), Preamble.

2 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’ (Paris: UNESCO, March 2005), 10 f.

3 Miaomiao Yin and Keyuan Zou, ‘The Implementation of the Precautionary Principle in Nuclear Safety Regulation: Challenges and Prospects’, Sustainability 13, no. 24 (2021): 14033, https://doi.org/10.3390/su132414033.

4 Rumiana Yotova, ‘Regulating Genome Editing under International Human Rights Law’, The International and Comparative Law Quarterly 69, no. 3 (2020): 653–84, https://doi.org/10.1017/S0020589320000184.

5 See also UN Educational, Scientific and Cultural Organisation (UNESCO), ‘Universal Declaration on the Human Genome and Human Rights’, Pub. L. No. SHS/BIO/PI/2017/1, Universal Declaration on the Human Genome and Human Rights (1997); Yvonne Donders, ‘The Right to Enjoy the Benefits of Scientific Progress: In Search of State Obligations in Relation to Health’, Medicine, Health Care and Philosophy 14, no. 4 (1 November 2011): 371, https://doi.org/10.1007/s11019-011-9327-y.

6 The UNESCO Recommendation on the Right to Science and Scientific Researchers (2017) explains this as the development of science and technology that undermines human welfare, dignity and human rights or is ‘dual use’ (para. 16(a)iii). The WHO uses the term dual-use research of concern (DURC), which describes as: ‘research that is intended to provide a clear benefit, but which could easily be misapplied to do harm. It usually refers to work in the life sciences, but the principles are also applicable to other fields including engineering and information technology. It encompasses everything from information to specific products that have the potential to create negative consequences for health and safety, agriculture, the environment or national security.’ See https://www.who.int/news-room/questions-and-answers/item/what-is-dual-use-research-of-concern (accessed 3 January 2023).

7 United Nations Conference on Trade and Development (UNCTAD). “The Impact of Rapid Technological Change on Sustainable Development.” UN, March 18, 2020. https://doi.org/10.18356/e7663910-en.

8 While this article primarily focuses on the prevention and anticipation of the risks of harm, it should be pointed out that there are also instances where the benefits of scientific progress and its applications can be anticipated. In fact, the anticipation of the risks of harm and benefits of scientific progress and its applications are very much part of the same coin. Hence, both sides are highly relevant in the weighing and balancing of interests in the context of proportionality and limitations. However, an in-depth analysis on the anticipation of the benefits of scientific progress and its applications would go beyond the scope of this contribution.

9 Yotova, ‘Regulating Genome Editing under International Human Rights Law’, 657. Some authors argue that international (human rights) law is the most appropriate legal order to regulate scientific and technological progress, since it has developed tools to balance the interests of individuals and society, as well as those of future generations.

10 See on the cluster of rights Andrea Boggio, ‘The Right to Participate In and Enjoy the Benefits of Scientific Progress and Its Applications: A Conceptual Map’, New York International Law Review 34, no. 2 (2021).

11 Samantha Besson, ‘Science without Borders and the Boundaries of Human Rights : Who Owes the Human Right to Science ?’, European Journal of Human Rights 2015, no. 4 (2015): 462–85; Boggio, ‘The Right to Participate In and Enjoy the Benefits of Scientific Progress and Its Applications’; Donders, ‘The Right to Enjoy the Benefits of Scientific Progress’; Yvonne Donders, ‘Balancing Interests: Limitations to the Right to Enjoy the Benefits of Scientific Progress and Its Applications / Une Balance Des Intérêts – Les Restrictions Au Droit de Bénéficier Du Progrès Scientifique et de Ses Applications’, European Journal of Human Rights 2015, no. 4 (2015): 486–503; William A Schabas, ‘Looking Back: How the Founders Considered Science and Progress in Their Relation to Human Rights’, European Journal of Human Rights 2015, no. 4 (2015): 504–18; Lea Shaver, ‘The Right to Science: Ensuring That Everyone Benefits from Scientific and Technological Progress’, European Journal of Human Rights 2015, no. 4 (2015): 411–30; Andrew Mazibrada, ‘Is There a Right to Be Protected from the Adverse Effects of Scientific Progress and Its Applications?’, EJIL: Talk! (blog), 29 November 2022, https://www.ejiltalk.org/is-there-a-right-to-be-protected-from-the-adverse-effects-of-scientific-progress-and-its-applications/ (accessed January 3, 2022); Mazibrada, Andrew, Monika Plozza, and Sebastian Porsdam Mann. “Innovating in Uncharted Terrain: On Interpretation and Normative Legitimacy in the CESCR’s General Comment No. 25 on the Right to Science.” The International Journal of Human Rights (Forthcoming), 2023; Monika Plozza, ‘Awakening from “Sleeping Beauty’s” Slumber’, Völkerrechtsblog, 29 March 2021, https://doi.org/10.17176/20210329-194838-0; Monika Plozza, ‘Evidenzbasierte Politik ist ein Menschenrecht’, Verfassungsblog: On Matters Constitutional, 23 November 2021, https://doi.org/10.17176/20211124-064919-0; Helle Porsdam and Sebastian Porsdam Mann, eds., The Right to Science: Then and Now (Cambridge: Cambridge University Press, 2022), https://doi.org/10.1017/9781108776301; Sebastian Porsdam Mann, ‘The Right to Science or to Wissenschaft? A Chronology and Five Lessons from the Travaux Préparatoires’, SSRN Scholarly Paper (Rochester, NY, 21 November 2022), https://papers.ssrn.com/abstract=4282820 (accessed January 3, 2022); Sebastian Porsdam Mann, Helle Porsdam, and Yvonne Donders, ‘“Sleeping Beauty”: The Right to Science as a Global Ethical Discourse’, Human Rights Quarterly 42, no. 2 (2020): 332–56, https://doi.org/10.1353/hrq.2020.0020; Helle Porsdam, Science as a Cultural Human Right (University of Pennsylvania Press, 2022).

12 Mazibrada, ‘Is There a Right to Be Protected from the Adverse Effects of Scientific Progress and Its Applications?’

13 Oxford English Dictionary, s.v. anticipation, https://www.oed.com/view/Entry/8557?redirectedFrom=anticipation& (accessed 3 January 2023).

14 Simon Godecharle et al., ‘Scientists Still Behaving Badly? A Survey Within Industry and Universities’, Science and Engineering Ethics 24, no. 6 (2018): 1697–717, https://doi.org/10.1007/s11948-017-9957-4; Brian C. Martinson, Melissa S. Anderson, and Raymond de Vries, ‘Scientists Behaving Badly’, Nature 435, no. 7043 (June 2005): 737–38, https://doi.org/10.1038/435737a.

15 United Nations (UN), ‘Vienna Convention on the Law of Treaties (VCLT)’, Pub. L. No. A/CONF.129/1986/WP.2, 1155 Treaty Series 311 (1969).

16 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’ (UN Committee on Economic, Social and Cultural Rights (CESCR), 30 April 2020), https://digitallibrary.un.org/record/3899847?ln=en; International Law Commission (ILC), ‘Draft Conclusions on Subsequent Agreement and Subsequent Practice in Relation to the Interpretation of Treaties, with Commentaries, Adopted by ILC at Its 70th Session’, Yearbook of the International Law Commission 2018, Volume II (United Nations, 2018), para. Conclusion 13(3), https://digitallibrary.un.org/record/1643630; Andrew Mazibrada, Monika Plozza, and Sebastian Porsdam Mann, ‘Innovating in Uncharted Terrain: On Interpretation and Normative Legitimacy in the CESCR’s General Comment No. 25 on the Right to Science’, The International Journal of Human Rights (Forthcoming), 2023, 9 f. For the normative legitimacy and practical value of the General Comment No. 25 on Science in the context of the VCLT.

17 Cristian Timmermann, ‘Sharing in or Benefiting from Scientific Advancement?’, Science and Engineering Ethics 20, no. 1 (March 2014): 117, https://doi.org/10.1007/s11948-013-9438-3.

18 UN General Assembly, Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, Preamble.

19 It is interesting that these instruments mostly concern health issues, and for instance not communication technology or the development of weapons. The reason for this might lie in the lack of consensus among States on these issues and how to regulate them appropriately.

20 UN Educational, Scientific and Cultural Organisation (UNESCO), Universal Declaration on the Human Genome and Human Rights, Article 13.

21 UN Educational, Scientific and Cultural Organisation (UNESCO), Article 5.

22 UN Educational, Scientific and Cultural Organisation (UNESCO), Article 12.

23 UN Educational, Scientific and Cultural Organisation (UNESCO), ‘International Declaration on Human Genetic Data’, Pub. L. No. SHS/BIO/PI/2017/1 (2003), Preamble.

24 UN Educational, Scientific and Cultural Organisation (UNESCO), Preamble.

25 UN General Assembly, Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, Preamble.

26 UN General Assembly, Preamble.

27 UN Educational, Scientific and Cultural Organization (UNESCO), ‘Recommendation on Science and Scientific Researchers’ (UN Committee on Economic, Social and Cultural Rights (CESCR), 13 November 2017), Article 19, https://unesdoc.unesco.org/ark:/48223/pf0000263618 (accessed 3 January 2023).

28 UN General Assembly Resolution A/76/L.75, adopted 26 July 2022, preamble. The rights of future generations are an important aspect of the recently adopted GA resolution on the right to a clean, healthy and sustainable environment as a human right.

29 UN Educational, Scientific and Cultural Organization (UNESCO), ‘Recommendation on Science and Scientific Researchers’, Article 15.

30 UN Educational, Scientific and Cultural Organization (UNESCO), Article 16.

31 UN Educational, Scientific and Cultural Organization (UNESCO), Article 16(a)iii.

32 UN Educational, Scientific and Cultural Organization (UNESCO), Article 16(a)vii.

33 The Recommendation on Science and Scientific Researchers makes one short reference to the right to science in Article 21: ‘So as to ensure the human right to share in scientific advancement and its benefits, Member States should establish and facilitate mechanisms for collaborative open science and facilitate sharing of scientific knowledge while ensuring other rights are respected.’ This does not add further substance to the right to science in human rights instruments.

34 Extensive research on this was done by Porsdam Mann, ‘The Right to Science or to Wissenschaft?’

35 Porsdam Mann, 12.

36 Tara Smith, ‘Scientific Purpose and Human Rights: Evaluating General Comment No 25 in Light of Major Discussions in the Travaux Préparatoires of the Universal Declaration of Human Rights and International Covenant on Economic, Social, and Cultural Rights’, Nordic Journal of Human Rights 38, no. 3 (29 March 2021): 221–36, https://doi.org/10.1080/18918131.2021.1882757; Porsdam Mann, ‘The Right to Science or to Wissenschaft?’ Tara Smith, in her paper, argues that there is a tension in the 1975 Declaration, the 2017 Recommendation, and the 2020 General Comment laying out goals or purposes for science, and the explicit rejection of the same by the drafters. According to Porsdam Mann, however, this tension disappears when the distinction between science itself, on the one hand, and its results and applications on the other are kept in mind, at least for the 1975 Declaration and the 2017 Recommendation. The General Comment, however, is ambiguous on this point.

37 UN Educational, Scientific and Cultural Organization (UNESCO), ‘Recommendation on Science and Scientific Researchers’, Preamble; UN General Assembly, Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, para. 1.

38 Drafting History of Article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights, 2000, paras 34 and 42, https://lup.lub.lu.se/record/a6d251cc-8835-4f9b-a44c-d5d2a23b9c42; William A. Schabas, ‘Study of the Right to Enjoy the Benefits of Scientific and Technological Progress and Its Applications’, in Human Rights in Education, Science and Culture: Legal Developments and Challenges, ed. Yvonne Donders and Vladimir Volodin (Aldershot: Ashgate, 2007), 281.

39 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’ (UN Committee on Economic, Social and Cultural Rights (CESCR), 30 April 2020), para. 6, https://undocs.org/E/C.12/GC/25 (accessed 3 January 2023).

40 Rumiana Yotova and Bartha M. Knoppers, ‘The Right to Benefit from Science and Its Implications for Genomic Data Sharing’, European Journal of International Law 31, no. 2 (21 September 2020): 673, https://doi.org/10.1093/ejil/chaa028.

41 Yotova and Knoppers, 673.

42 UN General Assembly, ‘Vienna Declaration and Programme of Action’, Pub. L. No. A/CONF.157/23 (1993), https://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx (accessed 3 January 2023).

43 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 21.

44 The UNESCO Recommendation includes specific State obligations in relation to the possible limitation of scientific publications. In Article 38 it is stated that in cases where States impose restrictions on the rights of scientific researchers to publish or communicate results, they should ensure that such restrictions are minimised and be consistent with public interest and that mechanisms for appeal are in place.

45 Donders, ‘Balancing Interests’.

46 UN Human Rights Committee (HRC), ‘CCPR General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation’, 8 April 1988, paras 3, 4 and 8; Sunday Times v. The United Kingdom, No. 6538/74 (European Court of Human Rights (ECtHR) 26 April 1979).

47 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 7: The Right to Adequate Housing (Art.11.1): Forced Evictions’ (UN Committee on Economic, Social and Cultural Rights (CESCR), 20 May 1997), https://digitallibrary.un.org/record/240198?ln=en; UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 26: Land and Economic, Social and Cultural Rights’ (UN Committee on Economic, Social and Cultural Rights (CESCR), 24 January 2023), https://digitallibrary.un.org/record/4002337?ln=en; UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 21: Right of Everyone to Take Part in Cultural Life (Art. 15, Para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights)’ (UN Committee on Economic, Social and Cultural Rights (CESCR), 21 December 2009), https://digitallibrary.un.org/record/679354?ln=en.

48 UN Commission on Human Rights, ‘Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’, Items 8 and 14 of the provisional agenda, Forty-Third Session, 8 January 1987, principles no. 48-50, https://digitallibrary.un.org/record/124945?ln=en (accessed 3 January 2023); These were derived from the UN Commission on Human Rights, ‘Syracuse Principles on the Limitation and Derogation of Provisions in the ICCPR’, 28 September 1984, paras 15–18, https://digitallibrary.un.org/record/497167?ln=en (accessed 3 January 2023).

49 UN Commission on Human Rights, ‘Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’, 122–35, principles no. 52, 56.

50 Amrei Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’, Human Rights Law Review 9, no. 4 (1 January 2009): 579, https://doi.org/10.1093/hrlr/ngp027; UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 21.

51 Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’, Human Rights Quarterly 9, no. 2 (1987): 201 f.

52 UN Commission on Human Rights, ‘Syracuse Principles on the Limitation and Derogation of Provisions in the ICCPR’, para. 35. The Syracuse Principles were adopted by a group of international law experts and meant to elaborate and come to uniformity in the interpretation of the conditions and grounds for permissible limitations and derogations. See also Farida Shaheed, ‘Report of the Special Rapporteur in the Field of Cultural Rights – The Right to Enjoy the Benefits of Scientific Progress and Its Applications’, Agenda Item 3, Twentieth Session (United Nations General Assembly, Human Rights Council, 14 May 2012), 13 f., https://doi.org/10.1163/2210-7975_HRD-9970-2016149.

53 Tara Smith, ‘Understanding the Nature and Scope of the Right to Science through the Travaux Préparatoires of the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights’, The International Journal of Human Rights 24, no. 8 (13 September 2020): 1167, https://doi.org/10.1080/13642987.2020.1715947.

54 The European Court of Human Rights has established caselaw on Article 2 (right to life) about preven-tive obligations in case of risks that States know or ought to have known: Opuz v. Turkey, No. 33401/02 (European Court of Human Rights (ECtHR) 9 June 2009); Kurt v. Austria, No. 62903/15 (European Court of Human Rights (ECtHR) 4 July 2019); Mastromatteo v. Italy, No. 37703/97 (European Court of Human Rights (ECtHR) 24 October 2002); Paul and Audrey Edwards v. the United Kingdom, No. 46477/99 (European Court of Human Rights (ECtHR) 14 March 2002).

55 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He or She Is the Author (Article 15, Paragraph 1 (c), of the Covenant)’ (UN Committee on Economic, Social and Cultural Rights (CESCR), 12 January 2006), para. 35, https://digitallibrary.un.org/record/566430?ln=en.

56 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 22.

57 UN Committee on Economic, Social and Cultural Rights (CESCR), para. 22; Shaheed, ‘Report of the Special Rapporteur in the Field of Cultural Rights – The Right to Enjoy the Benefits of Scientific Progress and Its Applications’, 14; AAAS Science and Human Rights Coalition, Margaret Weigers Vitullo, and Jessica Wyndham, ‘Defining the Right to Enjoy the Benefits of Scientific Progress and Its Applications: American Scientists’ Perspectives’ (American Association for the Advancement of Science, October 2013), 10, https://doi.org/10.1126/srhrl.aaa0028; Brian Gran, Margaret Waltz, and Holly Renzhofer, ‘A Child’s Right to Enjoy Benefits of Scientific Progress and Its Applications’, International Journal of Children’s Rights 21, no. 2 (April 2013): 323, https://doi.org/10.1163/15718182-02102002.

58 Gran, Waltz, and Renzhofer, ‘A Child’s Right to Enjoy Benefits of Scientific Progress and Its Applications’, 337 f.

59 UN Commission on Human Rights, ‘Syracuse Principles on the Limitation and Derogation of Provisions in the ICCPR’, para. 10 f.; UN Human Rights Committee (HRC), ‘CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion)’, 30 July 1993, para. 8, https://digitallibrary.un.org/record/182777?ln=en (accessed 3 January 2023); UN Human Rights Committee (HRC), ‘CCPR General Comment No. 27: Article 12 (Freedom of Movement)’, 2 November 1999, para. 14, https://digitallibrary.un.org/record/366604?ln=en (accessed 3 January 2023); UN Human Rights Committee (HRC), ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, 26 May 2004, para. 6, https://digitallibrary.un.org/record/533996?ln=en (accessed 3 January 2023).

60 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 21; Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’, 784.

61 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25’, para. 22 includes that ‘any limitation on the content of scientific research implies a strict burden of justifica-tion by States, in order to avoid infringing freedom of research.’

62 UN General Assembly, ‘Resolution A/RES/76/300, The human right to a clean, healthy and sustainable environment’, 26 July 2022, https://digitallibrary.un.org/record/3982508?ln=en (accessed 3 January 2023).

63 For an overview see Giulio Bartolini, ‘The Historical Roots of the Due Diligence Standard’, in Due Diligence in the International Legal Order, ed. Heike Krieger, Anne Peters, and Leonhard Kreuzer (Oxford University Press, 2020), 23–41, https://doi.org/10.1093/oso/9780198869900.003.0002; Samantha Besson, ‘La Due Diligence En Droit International (Volume 409)’, Collected Courses of the Hague Academy of International Law, 1 March 2019, 180 ff, http://referenceworks.brillonline.com/entries/the-hague-academy-collected-courses/*A9789004445055_02 (accessed 3 January 2023), see also Samantha Besson, Due Diligence in International Law (Leiden: Brill, 2023).

64 ICJ, Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment of 9 April 1949, ICJ Reports 1949, 4, p. 22.

65 Björnstjern Baade, ‘Due Diligence and the Duty to Protect Human Rights’, in Due Diligence in the International Legal Order, ed. Heike Krieger, Anne Peters, and Leonhard Kreuzer (Oxford University Press, 2020), 107, https://doi.org/10.1093/oso/9780198869900.003.0006; see also Besson, ‘La Due Diligence En Droit International (Volume 409)’, para. 458 ff.

66 Besson, ‘La Due Diligence En Droit International (Volume 409)’, 211 f.

67 Besson, para. 252. According to Besson, due diligence is to be viewed as a matter of legal reasoning par excellence, and hence of human rights reasoning in the context of human rights.

68 Heike Krieger, Anne Peters, and Leonhard Kreuzer, eds., Due Diligence in the International Legal Order (Oxford: Oxford University Press, 2020), 2 f., https://doi.org/10.1093/oso/9780198869900.001.0001.

69 Besson, ‘La Due Diligence En Droit International (Volume 409)’, 209 ff; Krieger, Peters, and Kreuzer, Due Diligence in the International Legal Order, 5 ff.

70 For a more in-depth analysis see Besson, ‘La Due Diligence En Droit International (Volume 409)’; Krieger, Peters, and Kreuzer, Due Diligence in the International Legal Order.

71 Baade, ‘Due Diligence and the Duty to Protect Human Rights’, 92; Besson, ‘La Due Diligence En Droit International (Volume 409)’, 342 ff.

72 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’ (UN, 10 August 2017), https://digitallibrary.un.org/record/1304491 (accessed 3 January 2023); United Nations (UN), ‘Guiding Principles on Business and Human Rights’, 2011, https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf (accessed 3 January 2023).

73 Baade, ‘Due Diligence and the Duty to Protect Human Rights’, 92 ff.

74 UN Human Rights Committee (HRC). “General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant.” Eightieth session, May 26, 2004, para 8, https://digitallibrary.un.org/record/533996?ln=en (accessed 27 May 2023).

75 Baade, ‘Due Diligence and the Duty to Protect Human Rights’, 97ff.

76 Baade, 104 ff.

77 See for example United Nations (UN), ‘Guiding Principles on Business and Human Rights’, 20.

78 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 75.

79 UN Committee on Economic, Social and Cultural Rights (CESCR), para. 84.

80 Oxford English Dictionary, s.v. anticipation, https://www.oed.com/view/Entry/8557?redirectedFrom=anticipation& (accessed 3 January 2023).

81 Audrey R. Chapman, ‘Towards an Understanding of the Right to Enjoy the Benefits of Scientific Progress and Its Applications’, Journal of Human Rights 8, no. 1 (31 March 2009): 22, https://doi.org/10.1080/14754830802701200.

82 Jonathan Wiener, ‘Precaution and Climate Change’, in The Oxford Handbook of International Climate Change Law, ed. Kevin R. Gray, Richard Tarasofsky, and Cinnamon P. Carlarne (Oxford University Press, 2016), https://doi.org/10.1093/law/9780199684601.003.0008.

83 Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules(Oxford, England: Oxford University Press, 2020), 31 ff. See for more information about the ‘Polluter Pays Principle’.

84 Sadeleer, 135.

85 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 7.

86 A complete presentation of the history of the precautionary principle and its legal bases would exceed the scope of this article. For an overview see Wiener, ‘Precaution and Climate Change’.

87 Wiener; Jeff Surtees, ‘Important Concepts in Environmental Law – The “Precautionary Principle”’, Law Now 43, no. 3 (2019): 54; Ling Chen, ‘Realizing the Precautionary Principle in Due Diligence’, Dalhousie Journal of Legal Studies 25 (2016): 1–24; Sadeleer, Environmental Principles; Didier Bourguignon, ‘The Precautionary Principle: Definitions, Applications and Governance (in-Depth Analysis)’ (LU: European Parliament, 2016), https://data.europa.eu/doi/10.2861/821468 (accessed 3 January 2023); Terje Aven, ‘On the Precautionary Principle, in the Context of Different Perspectives on Risk’, Risk Management 8, no. 3 (2006): 192–205; Yin and Zou, ‘The Implementation of the Precautionary Principle in Nuclear Safety Regulation’; World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’; Yan Huang, ‘Refining the Precautionary Principle in Public International Law’, US-China Law Review 17, no. 3 (2020), https://doi.org/10.17265/1548-6605/2020.03.001; E. Fisher, ‘Is the Precautionary Principle Justiciable?’, Journal of Environmental Law 13, no. 3 (1 March 2001): 315–34, https://doi.org/10.1093/jel/13.3.315; Caroline E. Foster, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press, 2011), https://doi.org/10.1017/CBO9780511973680; P. F. Ricci and J. Zhang, ‘Benefits and Limitations of the Precautionary Principle’, in Encyclopedia of Environmental Health, ed. J. O. Nriagu (Burlington: Elsevier, 2011), 276–85, https://doi.org/10.1016/B978-0-444-52272-6.00230-0; C. Gollier and N. Treich, ‘Option Value and Precaution’, in Encyclopedia of Energy, Natural Resource, and Environmental Economics, ed. Jason F. Shogren (Waltham: Elsevier, 2013), 332–38, https://doi.org/10.1016/B978-0-12-375067-9.00159-5; Sven Ove Hansson, ‘Risk and Safety in Technology’, in Philosophy of Technology and Engineering Sciences, ed. Anthonie Meijers, Handbook of the Philosophy of Science (Amsterdam: North-Holland, 2009), 1069–102, https://doi.org/10.1016/B978-0-444-51667-1.50043-4; J. Hanson, ‘Precautionary Principle: Current Understandings in Law and Society’, in Encyclopedia of the Anthropocene, ed. Dominick A. Dellasala and Michael I. Goldstein (Oxford: Elsevier, 2018), 361–66, https://doi.org/10.1016/B978-0-12-809665-9.10451-3; P. F. Ricci and H. Sheng, ‘Benefits and Limitations of the Precautionary Principle’, in Reference Module in Earth Systems and Environmental Sciences (Elsevier, 2013), https://doi.org/10.1016/B978-0-12-409548-9.01935-7; O. Renn, ‘Precaution and Ecological Risk’, in Reference Module in Earth Systems and Environmental Sciences (Elsevier, 2015), https://doi.org/10.1016/B978-0-12-409548-9.09558-0; N. Veflen Olsen and Y Motarjemi, ‘Food Safety Assurance Systems: Food Safety and Ethics’, in Encyclopedia of Food Safety, ed. Yasmine Motarjemi (Waltham: Academic Press, 2014), 340–44, https://doi.org/10.1016/B978-0-12-378612-8.00437-6; Robert L. Zimdahl, ‘Biotechnology’, in Agriculture’s Ethical Horizon, ed. Robert L. Zimdahl (Burlington: Academic Press, 2006), 137–77, https://doi.org/10.1016/B978-012370511-2/50010-7; D. Krewski, M. C. Turner, and M. G. Tyshenko, ‘Risk Management in Environmental Health Decision’, in Encyclopedia of Environmental Health, ed. J. O. Nriagu (Burlington: Elsevier, 2011), 868–77, https://doi.org/10.1016/B978-0-444-52272-6.00621-8. Some authors consider the Precautionary Principle to become a general principle of law according to Article 38(c) ICJ-Statute or even an emerging rule of customary international law. However, this is issue will not be addressed further as it goes beyond the scope of this publication.

88 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 14.

89 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 56 f.

90 UN Committee on Economic, Social and Cultural Rights (CESCR), para. 57.

91 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 14; Bourguignon, ‘The Precautionary Principle’. See for the application in the EU system.

92 Sadeleer, Environmental Principles, 135.

93 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 56 f.

94 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 35 ff.; Anna-Maria Hubert, ‘The Human Right to Science and Its Relationship to International Environmental Law’, European Journal of International Law 31, no. 2 (21 September 2020): 625–56, https://doi.org/10.1093/ejil/chaa038; Jacqueline Peel, ‘The “Rights” Way to Democratize the Science – Policy Interface in International Environmental Law? A Reply to Anna-Maria Hubert’, European Journal of International Law 31, no. 2 (21 September 2020): 657–64, https://doi.org/10.1093/ejil/chaa042.

95 For an overview see Andrea Boggio, Cesare P. R. Romano, and Jessica Almqvist, eds., Human Germline Genome Modification and the Right to Science: A Comparative Study of National Laws and Policies (Cambridge: Cambridge University Press, 2020), https://doi.org/10.1017/9781108759083.

96 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 25; Bourguignon, ‘The Precautionary Principle’, 19.

97 Søren Holm and John Harris, ‘Precautionary Principle Stifles Discovery’, Nature 400, no. 6743 (July 1999): 398–8, https://doi.org/10.1038/22626.

98 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 10 f.

99 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 15; Bourguignon, ‘The Precautionary Principle’, 22; Baldoli and Radaelli, ‘Evidence-Based Policy and the Precautionary Principle: Friends or Foes?’. Baldoli and Radaelli argue that it is precautionary to not put any limitations on scientific freedom, but instead establish a stronger dialogue between scientists and society by a new social contract.

100 UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 25: Science and Economic, Social and Cultural Rights (Article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights)’, para. 56.

101 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 16.

102 For a general overview see Ling Chen, ‘Realizing the Precautionary Principle in Due Diligence Realizing the Precautionary Principle in Due Diligence’, Dalhousie Journal of Legal Studies 25, no. 1 (1 January 2016), https://digitalcommons.schulichlaw.dal.ca/djls/vol25/iss1/1 (accessed 3 January 2023).

103 International Tribunal for the Law of the Sea (ITLOS), Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), List of cases Nos 3 and 4 (International Tribunal for the Law of the Sea (ITLOS) 16 August 1999).

104 International Court of Justice (ICJ), Case Concerning Pulp Mills on the River Urugay (Argentina v. Uruguay) (International Court of Justice (ICJ) 2010).

105 International Tribunal for the Law of the Sea (ITLOS), Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion (International Tribunal for the Law of the Sea (ITLOS) 1 February 2011).

106 International Tribunal for the Law of the Sea (ITLOS), Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), List of cases Nos 3 and 4, ITLOS Reports 1999, para. 77 ff.

107 Pulp Mills on the River Uruguay (Argentina v Uruguay), Separate Opinion of Judge Cançado Trindade (International Court of Justice (ICJ) 2010).

108 International Tribunal for the Law of the Sea (ITLOS), Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, Advisory Opinion, ITLOS Reports 2011, para. 131.

109 International Tribunal for the Law of the Sea (ITLOS), ITLOS Reports 2011, para. 131.

110 Krieger, Peters, and Kreuzer, Due Diligence in the International Legal Order, 3.

111 World Commission on the Ethics of Scientific Knowledge and Technology (COMEST) and UN Educational, Scientific and Cultural Organization (UNESCO), ‘The Precautionary Principle’, 24; Foster, Science and the Precautionary Principle in International Courts and Tribunals; Bourguignon, ‘The Precautionary Principle’, 8;13; Baldoli and Radaelli, ‘Evidence-Based Policy and the Precautionary Principle: Friends or Foes?’, 213; Fisher, ‘Is the Precautionary Principle Justiciable?’ See for an analysis on the judicial experience with the principle in Anglo-Commonwealth jurisdictions.

112 A good example is genome editing, see Rumiana Yotova, Regulating genome editing under international human rights law, ICLQ vol 69, July 2020 pp. 653-84. See also Anna-Maria Hubert, The Human Right to Science and Its Relationship to International Environmental Law, EJIL (2020), Vol. 31 No. 2, p. 631.