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
Journal Européen des Droits de l'Homme
Faculty of Law (FdR)
Amsterdam Center for International Law (ACIL)
The right to enjoy the benefits of scientific progress and its applications (REBSP) is still, despite increased attention
from United Nations (UN) human rights bodies and academics, very much unknown. Several studies and reports have been elaborated
on the normative content and State obligations of this right, but one of the legal aspects that has not yet been fully explored
is possible limitations. The REBSP is, just as most other human rights in international law, not absolute. States may, under
certain circumstances, limit this right. This article analyses the legal framework of limitations of the REBSP, based on the
different regimes in international human rights law. The possibility of and criteria for limitations are laid down in treaty
provisions, so-called limitation clauses. Relevant to limitations clauses is the more general doctrine of State obligations,
which in the case of the REBSP is characterized by the regime of progressive realization of this right and the prohibition
of retrogressive measures. Another legal regime that is very relevant to the limitation of the right to enjoy the benefits
of scientific progress is that of intellectual property (IP). While author’s rights and IP rights in general are possible
means to limit the right to enjoy the benefits of science, a detailed discussion of the intellectual property regime, which
is mostly developed outside the international human rights law framework, falls outside the scope of this contribution and
is dealt with by other authors in this journal. This article focuses on the general legal human rights framework of limitations
of the right to enjoy the benefits of scientific progress, including the criteria to take such measures.
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