ICESCR Article 15, General Comment 17 and the Right to Development

1. The Covenant

The International Covenant on Economic, Social and Cultural Rights was adopted on 16 December 1966 and came into force on 3 January 1976. India acceded in 1979. It is supervised by the Committee on Economic, Social and Cultural Rights (CESCR), set up by ECOSOC in 1985, which reviews state reports and issues General Comments. The Optional Protocol (2008) allows individual complaints; India is not a party.

• Article 2(1): each state undertakes to take steps, to the maximum of its available resources, to achieve progressively the full realisation of the rights. The CESCR reads this with “minimum core obligations” that apply at once.
• Article 11: an adequate standard of living including food, and the fundamental right to be free from hunger; Article 11(2)(a) calls for improving methods of food production by making full use of technical and scientific knowledge.
• Article 12: the highest attainable standard of physical and mental health, including the prevention, treatment and control of epidemic diseases (12(2)(c)) and medical service for all (12(2)(d)). General Comment 14 (2000) lists access to essential drugs among the core obligations.
• Article 15(1): the states parties “recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (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.”
• Article 15(2)–(4): steps for the conservation, development and diffusion of science and culture; respect for the freedom indispensable for scientific research and creative activity; and international cooperation in science and culture.

2. The UN reaction to TRIPS

1. Sub-Commission on the Promotion and Protection of Human Rights, Resolution 2000/7: noted that “actual or potential conflicts” exist between the implementation of TRIPS and the realisation of economic, social and cultural rights, especially as to technology transfer, the right to food, biopiracy and access to medicines, and reminded states of the primacy of human rights obligations over economic policies and agreements.
2. The High Commissioner’s report (2001) on the impact of TRIPS on human rights called for a human rights approach to its implementation.
3. The CESCR’s Statement on Human Rights and Intellectual Property (2001): IP regimes must be consistent with the Covenant and must balance private interests with the public’s interest in access to knowledge.
4. The Special Rapporteur on the right to health (Anand Grover’s 2009 report) urged developing countries to use the TRIPS flexibilities fully and to avoid TRIPS-plus commitments.

3. General Comment 17 (2005)

General Comment No. 17 on Article 15(1)(c), adopted in November 2005, is the most important text in this unit. Its main points:

• Human rights and IP rights are different. Human rights are fundamental, inalienable and universal and belong to individuals (and sometimes groups). IP rights are generally temporary, can be revoked, licensed or assigned, and mostly protect business and corporate interests and investments. The scope of protection under Article 15(1)(c) “does not necessarily coincide” with what national IP law or international agreements call IP.
• Who is protected. Only the “author”, a natural person or a group such as an indigenous community. Corporations and other legal entities are not beneficiaries of Article 15(1)(c); their rights are protected, if at all, under other law.
• Moral interests: to be recognised as the author and to object to distortion or mutilation that would prejudice the author’s honour or reputation.
• Material interests: protection that enables an adequate standard of living for the author. This need not extend over the author’s whole lifespan and can be met by one-time payments or by vesting an exclusive right for a limited time.
• Balance. Protection under 15(1)(c) must be balanced with the other rights in the Covenant, especially 15(1)(a) and (b), food, health and education. States should prevent unreasonably high costs for access to essential medicines, plant seeds or other means of food production, and schoolbooks and learning materials. IP is described as “a social product” with “a social function”.
• Indigenous peoples: states should protect their productions, including traditional knowledge, with prior informed consent and equitable benefit sharing.
• Core obligations include protecting authors against unjustified interference and ensuring that the protection does not obstruct the core of the rights to food, health and education.

Related comments. General Comment 21 (2009) deals with the right to take part in cultural life. General Comment 25 (2020) on science (Article 15(1)(b), (2), (3) and (4)) treats access to the benefits of science as a right of everyone, supports open science, and says that IP must not be allowed to prevent access to the benefits of scientific progress, especially to essential medicines; it was drafted on the eve of the COVID-19 pandemic and has been cited in the vaccine debate.

4. Conflict or coexistence?

Laurence Helfer described two approaches:

Paul Torremans (prescribed) argues that the author’s right is a genuine human right and that the human rights framework can both justify and limit IP: protection should go no further than its human rights rationale requires. Peter Drahos and John Braithwaite (Information Feudalism) take the critical side: TRIPS was written for a few industries and transfers knowledge from the public into private hands. The examiner rewards an answer that sees General Comment 17 as a middle path: it accepts a human right of authors but cuts it loose from the corporate IP regime, so that the human rights framework becomes a measure of IP law and not a justification for it.

5. The Declaration on the Right to Development, 1986

Adopted by General Assembly Resolution 41/128 on 4 December 1986 (the United States voted against).

• Article 1(1): the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights can be fully realised.
• Article 2: the human person is the central subject of development; states have the right and duty to formulate development policies.
• Articles 3 and 4: states have the primary responsibility for conditions favourable to development, and a duty to cooperate internationally; sustained action is needed for more rapid development of developing countries.
• Article 8: equality of opportunity in access to basic resources, education, health services, food, housing, employment and fair distribution of income.

The Vienna Declaration (1993) affirmed the right as universal and inalienable, and Rio Principle 3 gave it an environmental condition: it must be fulfilled so as to meet the developmental and environmental needs of present and future generations. A draft convention on the right to development has been under negotiation in the Human Rights Council since 2020.

The IP link. Developing countries use the right to development to argue for technology transfer (TRIPS Articles 7 and 66.2), for policy space to calibrate IP, and against TRIPS-plus demands. The WIPO Development Agenda (2007) is its IP-specific form. Developed states reply that the right has no clear duty-bearer and cannot override treaty obligations.

How this is examined

Likely long questions: “Critically examine the relationship between IP and human rights with reference to Article 15 of the ICESCR and General Comment 17,” “IP rights are not human rights. Discuss,” or “Explain the Declaration on the Right to Development and its relevance to IPR.” Short notes: General Comment 17; Resolution 2000/7; the right to science; minimum core obligations. Structure: text of Article 15, the 2000–2001 reaction, General Comment 17 point by point, the two theories, your view.