- 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
- Volume | Issue number
- 2015 | 4
- Pages (from-to)
- Document type
- 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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