Human Rights and Technology—A Conflictual Relationship? Assessing Private Research and the Right to Adequate Food

Abstract

Human rights provisions addressing technology have been much ignored. The connections between technology and human rights have, however, received renewed interest recently. Patent disputes, stagnation in publicly funded research, and the role of technology in meeting the Millennium Development Goals are three areas of substantial interest. After an analysis of the two main provisions on technology of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 11.2(a) and Article 15.1(b), the relationship between technology and environment is analyzed. As also evidenced in two other treaties, the Convention on Biological Diversity and the International Treaty on Plant Genetic Resources for Food and Agriculture, there is no assumption of any conflict between technology and the environment. International cooperation for the realization of the right to food is widely acknowledged, and such cooperation also includes technological efforts to produce more high-yielding varieties. The article proves that there is a basis in human rights treaties, especially in the ICESCR, for serving as a guidance in the formulation and implementation of technology policies. The wording of the relevant paragraphs are, however, not of such a kind as to set out clear and unambiguous obligations.

Hans Morten Haugen is Associate Professor, Diakonhjemmet University College, Oslo. He was awarded a PhD Degree in Law at the University of Oslo in 2006 with the dissertation “The Right to Food and the TRIPS Agreement: With a Particular Emphasis on Developing Countries' Measures for Food Production and Distribution” (pubished by Martinus Nijhoff Publishers 2007, as Raoul Wallenberg Institute Human Rights Library Vol. 30). The work was undertaken while being a member of the International Project on the Right to Food in Development (IPRFD) at the Norwegian Centre for Human Rights. His recent articles include “The Right to Food, the Right to Benefit from Science and the TRIPS Agreement,” in W. Barth Eide & U. Kracht (eds.), Adequate Food as a Human Right (2005) (Intersentia: Antwerpen), pp. 425–455, and four articles in Journal of World Intellectual Property, the most recent being “Patent Rights and Human Rights: Exploring Their Relationships,” JWIP, 10(2), pp. 97–124

Notes

1. The relevant paragraphs of Article 1.2 of the FAO Constitution read: “The Organization shall promote and, where appropriate, shall recommend national and international action with respect to (a) scientific, technological, social, and economic research relating to nutrition, food and agriculture …. (c) the conservation of natural resources and the adoption of improved methods of agricultural production. (d) the improvement of the processing, marketing, and distribution of food and agricultural products.”

2. There are two paragraphs that have references to “scientific” and “science,” namely paragraph (a) on research and paragraph (b) on education and the “spread of public knowledge of nutritional and agricultural science.”

3. These are areas 3), 4), 5), 6), and 9), and all also have an international dimension. The other areas relate—to a greater or lesser extent—to other parts of Article 11, as well as Article 15 of the Covenant: 1) relates—under certain strict conditions—to Article 15.1(c); 2) and 10) relate to international cooperation, as recognized in Article 11.2; 7) relates to developing or reforming agrarian systems of Article 11.2(a); 8) relates to development and utilization of natural resources of Article 11.2(a).

4. The full wording of Article 11.2(a) ICESCR reads: “The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.”

5. A general comment is a nonbinding document adopted by the respective treaty monitoring body, on their own initiative. To the extent that such general comments are actually referred to in resolutions, plans of action, or national legislation, their status will increase accordingly. General comments elaborating on specific provisions of human rights treaties are usually held to be the most autoritative interpretation of such provisions.

6. Article 2.1 ICESCR reads: “Each State Party to the present Covenant undertakes to take steps individually and through international co-operation especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

7. For recent studies on international agricultural research, see the International Assessment of Agricultural Science and Technology for Development (IAASTD) 2007. The IASSTD will “evaluate the relevance, quality and effectiveness of agricultural knowledge, science, and technology (AKST); and effectiveness of public and private sector policies as well as institutional arrangements in relation to AKST.” Retrived from http://www.agassessment.org, accessed February 13, 2007.

8. Article 15.1(c) of the ICESCR reads: “The States Parties to the present Covenant recognize the right of everyone: […] (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

9. Marks (2003; 296–297) argues that Article 15.1(c) (human rights of authors)) and 15.3 (acedemic freedom) are “supporting rights” for Article 15.1(a) (right to take part in cultural life) and Article 15.1(b) (right to enjoy scientific benefits and its applications).

10. Article 15.2 ICESCR reads: “The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.”

11. WT/MIN(01)//DEC//W/2, 14 November 2001.

12. The most relevant articles in the CBD are: Article 12(b) (extracts) “Promote and encourage research which contributes to the conservation and sustainable use of biological diversity.” Article 16.1 (extracts) “access to and transfer of technology [including biotechnology] among Contracting Parties are essential elements for the attainment of the objectives of this Convention.” Article 18.1 (extracts): “promote international technical and scientific cooperation” Article 18.4 (extracts): “develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies” Article 19.1 (extracts): “Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities”.

13. The most relevant articles in the ITPGRFA are: Article 5.1(e) (extracts): “… promote the development and transfer of appropriate technologies […] with a view to improving the sustainable use of plant genetic resources for food and agriculture.” Article 6.2(b) (extracts): “… strengthening research which enhances and conserves biological diversity.” Article 6.2(c) (extracts): “… promoting, as appropriate plant breeding efforts, which with the participation of farmers, particularly in developing countries, strengthen the capacity to develop new varieties.” Article 6.2(g): “reviewing, and as appropriate adjusting breeding strategies and regulations variety release and seed distribution.”

14. Article 12.2 (b) ICESCR reads: “The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: […] (b) The improvement of all aspects of environmental and industrial hygiene.”

15. The full wording of Article 1.2 ICESCR is “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”

16. The principles of intertemporal law say that treaty interpretation shall be done in light of the conditions prevailing at the time of the adoption of the treaty. Application of the provisions of the treaty can take into account relevant rules of international law that have emerged subsequent to the adoption of the treaty (International Law Commission 1964: 8). This is in accordance with the “good faith” principle, acknowledged in Article 31.1 of the Vienna Convention on the Law of Treaties.