Human Rights Duties

Human rights duties are jurisdiction-based duties held by specific entities, mainly States or other bodies exercising jurisdiction, such as the EU. Such entities exercising jurisdiction have the duty to respect, protect, and fulfil human rights of the individuals within their jurisdiction. The argument relies upon a definition of jurisdiction as a normative trigger with respect to human rights. Besson writes that jurisdiction ‘conditions the applicability of those rights and duties on political and legal circumstances where a certain relationship exists between right-holders and states parties’.Footnote ⁵⁴ There are thus three constitutive elements of jurisdiction: (1) power by a public authority shall be effective and exercised, (2) this power shall be exercised at all times, and (3) this power shall be normative (it shall give reasons for actions).Footnote ⁵⁵ Accordingly and independently of which conception of jurisdiction is assumed, human rights duties can only exist between right-holders (individuals) and duty-bearers (public authority) who are in a relationship of jurisdiction. This explains why jurisdiction so defined is not primarily personal or territorial but can be exercised beyond the State’s territory.Footnote ⁵⁶ Nevertheless, territory can be used as a shorthand to assess whether the conditions of jurisdiction are fulfilled.

Responsibilities for Human Rights

By contrast, human rights responsibilities do not rely upon the fulfilment of jurisdiction and might fall on different duty-bearers, which are more difficult to determine as the responsibility is to be shared with the ‘international community’. As Besson holds, potential bearers of responsibilities for human rights include actors such as States, international organisations, private companies, and individuals.Footnote ⁵⁷

Firstly, responsibilities for human rights are not directed at a specific right-holder and do not correlate with a right. Secondly, responsibilities for human rights do not have the same content as human rights duties. Responsibilities do not bear directly upon the protected interest, but indirectly upon the capacity of duty-bearers to fulfil their duties and protect the interests in question. This means that responsibility-bearers should support States in developing and fulfilling their capacity to fulfil their human rights duties. As Besson puts it, these responsibilities are as follows: ‘(1) hold accountable (monitor and ensure compliance), (2) assist or aid (promote and train, mostly through cooperation), and (3) intervene (as an ultima ratio only)’.Footnote ⁵⁸ Their content appears less specifically determined than the human rights duties of States.

Thirdly, these responsibilities correlate with human rights duties and apply alongside each other. For Besson, ‘responsibilities for human rights help prevent human rights violations by human rights duty-bearers or remedy those violations when human rights duty-bearers are unable or unwilling to fulfil their duties’.Footnote ⁵⁹ Examples of these responsibilities for human rights include the UN’s ‘responsibility to protect’,Footnote ⁶⁰ corporate responsibilities to protect human rights but also supporting responsibilities foreseen by Article 2(1) of ICESCR (international assistance and cooperation).

Allocation of Duties and Responsibilities

Based on this first distinction, the question of how to allocate human rights duties and responsibilities for human rights is crucial.

With respect to human rights duties (i.e., within a jurisdiction), the allocation to specific duty-bearers focuses on States and institutions of jurisdictions (like the EU) as the primary duty-bearers.Footnote ⁶¹ This focus on public institutions is explained through the combination of the value of equality (as intrinsically linked to the idea of human rights) and the requirement to design democratic processes as a way to enact equality.Footnote ⁶² As Besson writes, ‘institutions are able to re-allocate human rights duties and mediate the resources and burdens among individuals, but they are also able to protect the equality of all in doing so and to ensure the overall legitimacy of the process’.Footnote ⁶³ Different grounds can be drawn upon as part of these processes to allocate duties (such as harm, causality, special ties, benefit, or capacity). The quality of the democratic processes to be put in place is key to ensuring the legitimacy of the allocation. Furthermore, practical arguments could also be mentioned, highlighting the capacity of the State to be duty-bearers with respect to the burden or costs involved (and its capacity to distribute this burden upon individuals’ shoulders).Footnote ⁶⁴

The allocation of responsibilities for human rights (no jurisdictional relations required) proves even more complex as their content and allocation are usually indeterminate. Many moral grounds are relevant in identifying responsibility-bearers and evaluating a specific allocation, both preventively and remedially (e.g., causality, harm, capacity to contribute, or special ties). There is no clearly established international institutional process to clarify these moral grounds and allocate duties to potential responsibility-bearers inclusively or feasibly. As an alternative strategy, every potential responsibility-bearer (e.g., a State, international organisation, company, civil society, individual, and so forth) must evaluate whose responsibility it is to act in a specific way in a specific situation. However, a potential action is not taken with the assurance that others will do their fair share.Footnote ⁶⁵ This challenge is identified by the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights.Footnote ⁶⁶ Principle 30 thereof reads as follows: ‘States should coordinate with each other, including in the allocation of responsibilities, in order to cooperate effectively in the universal fulfilment of economic, social and cultural rights.’Footnote ⁶⁷ To do justice to this cooperation requirement, States tend to have recourse to existing international fora. This explains why international organisations (but also international civil society organisations) function as institutional aggregation and negotiation mechanisms to identify and enact the responsibilities of potential actors (such as States, companies, and individuals).Footnote ⁶⁸ Some authors have identified the risk of a protection gap here.Footnote ⁶⁹

The Case of Private Companies

This subsection briefly addresses the specific case of private companies. Considering the important literature on this issue, this subsection proceeds with the main goal of clarifying the implications of the general distinction between duties and responsibilities for human rights.Footnote ⁷⁰ This clarification explains, on the one hand, why private companies cannot be bearers of human rights duties and, on the other hand, what type of responsibilities for human rights these private companies could have. In conclusion, I argue that this clarification aligns with the UN Guiding Principles on Business and Human Rights.Footnote ⁷¹

Firstly, as explained earlier, private companies cannot be bearers of human rights duties because they do not exercise jurisdiction nor do they retain a commitment to equality operationalised through political processes determining the parameters of allocation and the corresponding required actions. However, the State bears direct and indirect duties for private companiesFootnote ⁷² by enacting legislation (e.g., private and penal law regulating liability), ensuring enforcement, and providing a justice system able to deal with disputes.

Secondly, private companies can have responsibilities for human rights. Companies must support States and jurisdictional entities for them to be able to respect their human rights duties. Indeed, what and how much companies should do raises the difficult question mentioned earlier on the missing allocation mechanisms. In this chapter (responsibility with respect to the right to health) and in Chapter 5 (for instance in the context of Article 66(2) of TRIPS where ‘enterprises’ are mentioned), I shall briefly discuss specific examples of the potential design of this allocation mechanism.

In brief, these two main implications seem fully compatible with the UN Guiding Principles on Business and Human Rights. To recall, these principles consist of a legally non-binding document that reflects existing State obligations in international law in relation to business activities and the consensus on corresponding responsibilities of business. They are based upon three pillars: (1) the States’ obligations to respect, protect, and fulfil human rights, (2) the role of business enterprises as specialised organs of society performing specialised functions, required to comply with all applicable laws and to respect human rights, and (3) the need for rights and obligations to be matched to appropriate and effective remedies when breached.Footnote ⁷³

The first pillar reflects the human rights duties that States bear. A question debated in the literature concerns the responsibility of the State to hold private companies acting in a different jurisdiction accountable, including the additional difficulty of accounting for a complex business entity organisation (e.g., a business entity acting in State A and under the control of a company with its headquarters in State B). The question of the human rights duties assumed by State B in such a situation has emerged as controversial.Footnote ⁷⁴ If it could be shown that State B has ‘control’ over the business entity acting in State A, State B could be argued to be under a human rights duty to stop the prejudice.Footnote ⁷⁵

According to the implications of the general framework adopted here, this line of argumentation must be met with scepticism. The condition of ‘control’ seems to pertain to a condition for due diligence to apply, but not to a jurisprudential condition of control for human rights duties in the first place.Footnote ⁷⁶ Two understandings of control are conflated. In brief, according to the framework adopted here, State A has human rights duties if and only if State A exercises jurisdiction where the prejudice caused by the business entity occurs. Indeed, State B also has duties with respect to its own jurisdiction (including general duties related to the company headquarters controlling the business entity) and responsibilities for human rights (e.g., on the one hand, introducing a prescription of ‘due diligence’ obligations by companies under domestic law and, on the other, supporting State A if necessary).Footnote ⁷⁷ As Besson puts it, ‘reducing jurisdiction to a mere capacity to harm risks diluting the relational specificity of human rights and of their correlative duties, and eventually undermining international human rights law’s capacity to protect’.Footnote ⁷⁸ Jurisdiction-based relations generate human rights duties. Their extent might indeed be discussed, but they remain jurisdiction-based duties.

The second pillar relates to the responsibility of private companies to respect human rights. Principle 11 of the UN Guiding Principles on Business and Human Rights states that ‘business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’ Significantly, the UN Guiding Principles refers not to duties of companies, but to responsibility, which requires companies to identify, prevent, mitigate, or account for how they address their adverse human rights impacts.Footnote ⁷⁹ Principle 19 calls on companies to fully integrate the findings of these human rights impacts into their functioning. Overall, this second pillar on the responsibility of companies is aligned with the framework adopted here.Footnote ⁸⁰

In brief, Table 4.1 summarises the implications of the duties/responsibilities for a human rights framework for private companies.

Table 4.1Duties and responsibilities for human rights

Table 4.1 Long description

The table features two primary column headers titled Human rights duties and Responsibilities for human rights. The text rows flow downward systematically based on the institutional actor categories:

States:

Human rights duties: General legal rules on companies responsibility Example, Penal law, liability regulations, etcetera. I P regulations able to balance different interests. Example, domestic patent law able to realise T R I P S flexibilities. Research and innovation policy.

Responsibilities for human rights: Provide due diligence requirement for companies in domestic regulations.

Provide incentives for companies to achieve societally desirable goals. Example, fiscal incentives.

Support other States in their capacity to respect their human rights duties. Example, development aid and technical assistance.

Private companies:

Human rights duties: By definition empty.

Responsibilities for human rights: Respect human rights open parenthesis baseline approach of the second pillar U N Guiding Principles on Business and Human Rights close parenthesis. Example, establishment of a human right policy, documentation of impact, accountability mechanism, avoidance of political pressures against the use of the guaranteed T R I P S flexibilities open parenthesis in general do no harm responsibility close parenthesis.

Achievement of societally desirable goals (in light of the relevant human rights). Example, differential pricing, free licences, relaxation of I P R s, coordination with other stakeholders, waiver of I P R s in specific markets, R and D donation for non-exclusively market-driven contributions (in general responsibility to do as much good as possible).

The Right to Health

Firstly, each individual should have the capability to enjoy the highest attainable standard of physical and mental health as based upon Article 12 of ICESCR,Footnote ⁹⁵ interpreted by the General Comment 14 and the scholarship on the interface between the right to health and the TRIPS.Footnote ⁹⁶ This is linked to the first capability listed by Nussbaum: the capacity of a human being to live a life of normal length, in effect, not to die prematurely.

The right to health is not limited to a right to healthcare.Footnote ⁹⁷ The wording of Article 12(2) of ICESCR makes clear that further determinants are relevant for the State obligations (such as nutritiously safe food and potable drinking water, basic sanitation, and adequate housing and living conditions).Footnote ⁹⁸

Providing appropriate healthcare is interpreted around four key parameters: availability, accessibility, acceptability, and quality (AAAQ).Footnote ⁹⁹ The questions of availability and economic accessibility (affordability) are especially important for the interface with patents.Footnote ¹⁰⁰

The scholarship on the interface between the right to health and patents has attempted to empirically measure the detrimental impact of IPRs on affordability,Footnote ¹⁰¹ revealing that patent regulations tend to increase prices for patented drugs and make access to them more difficult.Footnote ¹⁰² However, the price premium attached to the patent seems to be different according to the country of sale (less important premiums in low-income countries).Footnote ¹⁰³ Furthermore, the impact of patents is part of a debate on pricing and enforcement strategies adopted by private companies.Footnote ¹⁰⁴ In the end, patents are not exclusively responsible for missing affordability. Contextual constraints – such as the domestic health system – also play an important role.

This debate is embedded within the aforementioned discussion on the instrumental justification of IPRs.Footnote ¹⁰⁵ The main point of dispute might not just be the empirical findings addressed here (i.e., impact on prices), but also the justification of patent through mid-and long-term incentivisation for R&D investments. Formulated in this way, the debate seems rather about the potential consequences of cutting out this source of benefits for private companies, thus bringing the debate into a longer time frame (impact on access now versus mid- to long-term effects on R&D).

In the meantime, it allows us to more specifically identify and address two distinct challenges: (1) the patent-driven impact of prices on affordabilityFootnote ¹⁰⁶ and (2) the incentivisation of further R&D. In the context of neglected diseases (i.e., diseases affecting mainly poor populations with very little to no purchasing power), the two challenges appear clearly distinct. It is highly questionable that patents bring positive incentives for R&D on neglected diseases.Footnote ¹⁰⁷ Whether a utilitarian justification for IPRs holds in general is a different issue. Notwithstanding this broader debate, this specific point is interesting for clarifying that the access challenge (especially its availability and affordability) and the incentivisation challenge should be addressed differently, depending on the context.

This discussion is crucial with respect to the accessibility of essential drugs,Footnote ¹⁰⁸ a concept used by the WHO to identify the most critical drugs needed across the globe. Providing essential drugs is a core obligation for State parties, as noted by the General Comment 14.Footnote ¹⁰⁹ The WHO Model Lists of Essential Medicines (EML) presents a list of essential components of a basic healthcare system, listing the most efficacious, safe, and cost-effective medicines for priority conditions.Footnote ¹¹⁰ Priority conditions are selected based on current and estimated future public health relevance and the potential for safe and cost-effective treatment.

Especially interesting for our threshold-based reflection is the normative question as to the definition of ‘essential’. This list represents a threshold in terms of basic and urgent medicine to which everyone on the planet should have access. The definition of what is ‘essential’ relies upon normative considerations of health and what a human person should be able to do.Footnote ¹¹¹ This is, for instance, reflected in the hierarchy of diseases that need to be cured in priority, a hierarchy involving a normative assumption as to which needs are most important.Footnote ¹¹²

Notwithstanding this normative priority-setting challenge, there is a question related to the inclusion of a specific drug in the list.Footnote ¹¹³ As per the WHO, the criterion of ‘cost-effectiveness’ is relevant to admitting a specific drug to the list. Insofar as patents impact the price of drugs, they are relevant for determining which drugs are included in the list. This point generally raises the question of the power struggles at play in the determination of the EML and the processes put in place to tame these struggles.Footnote ¹¹⁴ Overall, this normative dimension recalls that many diseases (and the corresponding drugs) are not judged to be sufficiently important and/or cost-effective to be included in the list.

However, the problem goes even deeper than availability of existing essential drugs. It also reflects the absence of incentives for drugs targeted at low-income consumers. Many drugs addressing diseases of Types II and III (i.e., diseases that impact mainly inhabitants of developing countries with low purchasing power) are not developed in the first place.Footnote ¹¹⁵ As will be shown further based on the right to science, a State has a duty to invest in resources to facilitate domestic scientific research about these diseases, develop medical treatments (including drugs), and manufacture them for its own population. Other States, private companies, and further actors having the capacity to help have human rights responsibilities to support weaker States. The General Comment makes numerous references to these responsibilities under the heading of ‘International Responsibilities’.Footnote ¹¹⁶ It writes that ‘[s]tate parties should therefore provide an environment which facilitates the discharge of these responsibilities’.Footnote ¹¹⁷ The Committee extends these responsibilities to non-State actors.

A special case involves drugs required to address a pandemic or endemic danger. The Committee has identified an obligation of comparable priority to the core obligations to ‘take measures to prevent, treat and control epidemic and endemic diseases’.Footnote ¹¹⁸ This obligation also mandates the use of drugs that are not necessarily limited to those listed on the WHO’s EML. The COVID-19 pandemic has provided a perfect example of this constellation.Footnote ¹¹⁹ At the start of the pandemic, populations needed access to the vaccine in order to prevent the spread of the virus, although this vaccine was not yet on the EML. In the latest version of the EML (23rd edition, 2023), the WHO ‘recommends that effective and safe therapeutics for prevention and treatment of COVID-19 should be considered as essential medicines in the context of the public health emergency’.Footnote ¹²⁰ Clearly, the debates have also demonstrated that IPRs were not the only issue, but also, for instance, the capacity to manufacture vaccines in developing economies or the responsibility of developed economies to provide others with vaccines through the COVAX-scheme.Footnote ¹²¹ The Committee had urged States to accept a temporary TRIPS waiver (and to vote accordingly in the WTO).Footnote ¹²²

Overall, the right to health is a crucial interpretative resource for the threshold-based understanding of the TRIPS’ foundations. As part of Article 7 of TRIPS, ‘welfare’ and ‘mutual advantages’ should be understood as entailing strong priority entitlements with respect to essential drugs. Beyond the current state of the EML list, each State, but also all States together, has the duty to define which medical treatments (including drugs) are essential with respect to what is due to all human beings. Non-discrimination is a crucial element of this distributive duty.

The Right to Food

Secondly, each individual should have the capability to live, understood most fundamentally as fulfilling the basic needs required to survive biologically.Footnote ¹²³ It is mainly about the capability to get subsistence (as part of the right to food), but also the other basic elements mentioned by Article 11 of ICESCR.Footnote ¹²⁴ This first dimension gathers important components of the first three capabilities as listed by Nussbaum (life, bodily health, and bodily integrity).

According to General Comment 12, two concepts are particularly important for qualifying the right to food: adequacy and sustainability. As prescribed by Article 11(1) of ICESCR, food should be ‘adequate’, a concept determined by several social, economic, cultural, climatic, and ecological conditions that help determine whether or not particular foods or diets can be considered appropriate.Footnote ¹²⁵ ‘Sustainability’ is linked to the notion of food security understood as a guarantee that food remains accessible for both present and future generations. A combination of long-term availability and accessibility plays an important role here.Footnote ¹²⁶ As for the right to health, accessibility has different dimensions and the General Comment specifies its economic and physical dimensions.Footnote ¹²⁷ Economic accessibility implies that costs associated with food should be at a level that does not threaten the satisfaction of other basic needs. Physical accessibility implies that food must be accessible to everyone, especially for people with special needs, but also those in disaster situations. Specific mention is made of indigenous populations.

With respect to the interface of the right to food and the TRIPS, an important debate has focused on patents used to protect seeds and has been framed as a situation of war (i.e., the ‘seed wars’).Footnote ¹²⁸ The interface between IPRs and plants and seeds can be problematic in at least four ways which all are, directly or indirectly, relevant to the determination of the threshold.Footnote ¹²⁹

Firstly, IPRs have the effect of ‘locking in’ farmers who develop commercial dependence with patent-owners when it comes to reusing and developing their seeds to fit their specific environment.Footnote ¹³⁰ On this question, States can make a choice among the possibilities offered by Article 27(3) of TRIPS. They can enact a sui generis protection system or adopt a patent regime.Footnote ¹³¹ As Correa explains, the determination of this patent regime for plant varieties needs to address several contested points.Footnote ¹³² First, States need to determine the scope of patentability of plants in the first place: all plants and/or their components as distinguished from plant varieties, and essentially biological processes (Article 27(3)b of TRIPS).Footnote ¹³³ Regarding this issue, States can decide to adopt a broad scope of patentability. As per Correa and co-authors, plants are excluded from patentability in 40 per cent of the 126 countries in the Global South for which legal information was available in 2018.Footnote ¹³⁴ Second, States must choose what scope to give to the exclusive rights granted, and what exceptions to foresee (such as privileges for farmers, research, and breeding exceptions). In this context, the issue of farmers’ rights is especially important. The normative core of these rights is the right to freely save, use, exchange, and sell farm-saved seeds.Footnote ¹³⁵ Their work, often the result of informal and incremental exchanges, deserves protection.Footnote ¹³⁶ We will come back to this issue in the context of the protection of traditional knowledge.Footnote ¹³⁷

Secondly, engineered seeds (that are potentially patented) can lead to the planting of homogenised varieties which, in turn, can have two consequences. The first affects food security as homogenised planting is more likely to expose crops to pests, diseases, or changes in environmental conditions.Footnote ¹³⁸ The second consequence relates to the broader issue of biodiversity. Systematic use of arguably the ‘best’ commercial seeds can occur at the cost of diversity of plant genetic resources. Ensuring food security for present and future generations requires the protection of biodiversity. This connects with previous reflection on the definition of ‘welfare’ in Article 7 of TRIPS as entailing an environmental dimension.

Thirdly, IPRs can influence R&D patterns in agriculture by reorienting research towards the more commercially attractive seed varieties.Footnote ¹³⁹ By analogy to drugs needed for neglected diseases, these incentives can undermine the R&D needed to ensure food security of impoverished populations.Footnote ¹⁴⁰

Finally, the existence of IPRs raises important questions as to the conditions of their birth. Problematic cases include those in which farmers and communities have not consented to the use and protection of their knowledge (especially in the context of traditional knowledge) and do not adequately share the benefits of these IPRs.Footnote ¹⁴¹ In this context, the adoption of the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK Treaty) in 2024 is hoped to facilitate a mutual reinforcement approach between IPRs as protected by the TRIPS and the Convention on Biodiversity (CBD).Footnote ¹⁴² The Treaty establishes a mandatory patent disclosure requirement (Article 3). It should be implemented in a mutually supportive manner with other relevant international agreements (Article 7). It also underlines the possibility to establish a large database listing proprietary claims on genetic resources, thereby facilitating the task of patent officers to identify any doubtful applications (Article 6).Footnote ¹⁴³

Overall, these four different issues grasp elements of the food-related normative threshold we are trying to define. They all refer to what should be due to individuals. More broadly, these issues can be looked at as part of the framing of ‘seed war’ and be connected to our anti-domination reading.Footnote ¹⁴⁴ This framing started as a conflict between two opposite views, echoing the conflict approach identified by Helfer: a common heritage approach and a private property approach. The common heritage approach was founded upon the conviction that plant genetic resources belonged to humankind as a whole and should not be subjected to any proprietary claim.Footnote ¹⁴⁵ The private property approach started from the assumption that States should control the genetic resources they have on their territory and regulate proprietary claims made by private companies.

As Saab notes, this original struggle has shifted towards a conflict between different conceptions of IPRs, their justifications, and their limits.Footnote ¹⁴⁶ The issue is no longer whether there should be IPRs on plant resources, but rather who controls these IPRs and which conditions and exceptions apply to them. The requirement to counterbalance companies’ IPRs with stronger farmer rights and benefit-sharing mechanisms is the new locus of this struggle.

In a republican fashion, these collective questions recall that, as already addressed by Eide’s report on the right to food in 1987, the key issue is not merely the quantity and quality of food produced but whether individuals and societies have an adequate ‘command’ over food.Footnote ¹⁴⁷ This question is linked to the functioning of agricultural systems and their capacity to guarantee food security.Footnote ¹⁴⁸ In this sense, the objective is not only to increase the quantity of food produced but also to support ‘modes of production that raise the incomes and the resilience of the poorest farmers and (…) not jeopardize food security in the future’.Footnote ¹⁴⁹

The Right to Education

Thirdly, each person should enjoy the right to avail of basic education, with the focus put on Article 13 of ICESCR and how the Committee interprets it through its General Comment 13.Footnote ¹⁵⁰ This general capability is the fourth mentioned by Nussbaum (senses, imagination, and thought). This capability arguably runs along a continuum from the basic capacity to think and reason (as cognitive actions) to the capacity of an individual to participate in a free society (Article 13(1) of ICESCR). In our framing, this capability is crucial to resisting domination and enjoying genuine freedom. For the specification of the threshold of what is due to individuals as a matter of ‘welfare’, the main issue is access to educational resources, mainly textbooks. This question mainly relates to copyright and not patents as with health and food.

The availability and affordability of textbooks are key issues for the recognition of the right to education.Footnote ¹⁵¹ Here, availability refers to the existence of a suitable textbook for a specific context. The issue of language adapted to a specific context – and the requirement to provide translation – is one of the difficulties faced when securing access to textbooks.Footnote ¹⁵² If the textbook exists, its price is a key parameter in determining who has access to it, with many factors determining the price of a textbook such as direct costs of production like paper and ink, royalties for the author and publisher, and distribution costs.Footnote ¹⁵³

Copyright proves relevant for the availability of such educational resources in the first place because of translation issues or missing authorisation from the publisher. As Okediji explains it, ‘the reproduction and translation rights thus operate in tandem as barriers to access in developing countries’.Footnote ¹⁵⁴ With respect to the interface between access to textbooks and the TRIPS, a bottom line in the debate seems to be the following: copyright contributes to cost and severely complicates reprography.Footnote ¹⁵⁵ This bottom line is part of a broader debate on the socially differentiated effects of copyright.Footnote ¹⁵⁶

This debate is centred on developing countries’ educational systems having the right to obtain bulk access, that is, access to multiple copies of a copyrighted work at affordable prices. As prescribed by Article 9 of TRIPS, Member States shall comply with Articles 1 to 21 of the Berne Convention and its Appendix, which entails provisions for compulsory licensing for educational use (Article II(5) and Article IV(4)).Footnote ¹⁵⁷ Cumulative conditions include: a waiting period both from the date of publication before issuing a license for translation and before issuing a reproduction license, the establishment of a competent authority in the country of development to issue these licenses, and a strict limitation on teaching and scholarship and research purposes in connection with systematic instructional activities. Additionally, the granting of compulsory licences is linked to the price of the copyrighted work. If this work is available at a price ‘reasonably related to that normally charged in the country for comparable works’, the licences shall be terminated.Footnote ¹⁵⁸

Overall, the objective of securing bulk access to educational content thanks to the Berne Appendix has been unsuccessful. As commentators have noted, the complexity of the provisions entailed by the Appendix has prevented developing countries from using them.Footnote ¹⁵⁹ In addition to criticism on the design and content of the Appendix, the integration of the Berne Convention into the TRIPS’ set of minimal requirements has added a layer of control in the form of the three-step test of Article 13 of TRIPS.Footnote ¹⁶⁰

This criticism has extended beyond inefficiency. Following, for instance, Shaver, the Appendix can be taken as an example of the traditional focus on production of the copyright-as-incentives approach.Footnote ¹⁶¹ But these production-centred incentives cannot solve distributional concerns linked to access (e.g., affordability).

Even more fundamentally, a liberal model of copyright (which links the protection of intellectual creation with broadly liberal values such as free speech for the sake of creating a more robust marketplace of ideas) might represent a threat for distinct types of social communities, particularly those in which the process of creativity and the societal reward system functions very differently, such as in certain indigenous communities.Footnote ¹⁶² As Okediji writes, ‘the “hyper-harmonization” of copyright law, at the rate observed in the TRIPS Agreement and since, facilitates an ongoing and persistent erosion of systems of organization and social governance that stand at odds with copyright’s utilitarian emphasis’.Footnote ¹⁶³ Accordingly, the specific situation of indigenous communities and their right to self-determination becomes even more significant.Footnote ¹⁶⁴

As for the other rights discussed earlier, there is still overall an important domestic margin when it comes to crafting and revising domestic IP regulations to secure access to educational resources.Footnote ¹⁶⁵ In this context, the existence of a compromise in the form of an Appendix to the Berne Convention is better than nothing and should be used to progressively realise the right to education. In addition to renewed negotiations on this Appendix, this domestic margin is the best tool available for compensating the model of ‘thick’ minimum standards for author’s rights and ‘thin’ limitations and exceptions enshrined in the Berne Convention.Footnote ¹⁶⁶

The Right to Science: Access to the Benefits of Science

This subsection focuses on the human right to science of Article 15(1)b of ICESCR. In addition to the three traditional loci of the IP and human rights interface (health, food, and education), the right to science is conceptualised in this work as a structuring concept. In this first part on the right to science, the focus is put on the modality access and what we could learn from the definition of the threshold. The structural-procedural dimensions of the right to science will be the focus of the next subsection.

This subsection firstly offers a contextualisation of Article 15 of ICESCR, an overview of the interpretation of the right to science, a presentation of the main points of tensions between IP and the right to science, and a discussion of the right to science from the perspective of specifying the threshold and what is due to individuals below it. This last subsection addresses the normative question of what is due to an individual in terms of access to the benefits of sciences.

The Right to Science as Capacity

The right to science concerns the capability to engage in scientific practices as a public good. Members of society have a collective interest in acquiring and consolidating knowledge together but this requires specific capacities,Footnote ²⁵¹ including an infrastructural dimensionFootnote ²⁵² that can be unpacked in four clusters.

The first cluster is fundamental and directly linked to the public good dimension of science. It is thus about the cooperation and organisation required for science to exist as a public good. The second cluster entails elements related to the infrastructure necessary for scientific research, including physical assets such as universities or laboratories, but also non-physical assets ranging from basic education to the promotion of scientific curricula on a non-discriminatory basis (e.g., for under-represented communities). A potential way to increase scientific education is to reinforce ‘doing-science’ (citizen science):Footnote ²⁵³ ‘States parties should not only refrain from preventing citizen participation in scientific activities, but should actively facilitate it.’Footnote ²⁵⁴ The third cluster entails the materials and funding required to make scientific research possible while the fourth details a specific category of ‘material’ necessary for scientific research: knowledge, information, and data.Footnote ²⁵⁵

Domination might be exercised upon each of these four steps, putting into question the capacity to do science. Domination-preventing measures can be found at different levels. With respect to the first cluster, a significant domination threat comes from the privatisation of science. The institutional-legal regime put in place to guarantee science as a public good has the objective to prevent, say, private companies from arbitrarily interfering at every necessary stage of scientific work. ‘Private companies’ refers here to different types of firms involved, such as knowledge-intensive companies (e.g., pharmaceutical companies) but also academic journal/publishers or infrastructure producers (such as ICT companies).Footnote ²⁵⁶ Private companies can do science, but the general institutional-legal regime adopted should guarantee its fundamental orientation as a public good.

With respect to the second cluster, research exceptions foreseen in many national patent laws can be taken as an illustration of the type of justification that a right to science-based interpretation of the TRIPS could deliver. The main idea is to allow third parties to use patented inventions for the sake of further research and/or experiments.Footnote ²⁵⁷ With a similar justification (allowing scientific research despite protected content), Correa argues in favour of an open science policy (including securing broad access to scientific publications).Footnote ²⁵⁸ Kunz also provides an argument in favour of open access, inter alia as a means to facilitate the international cooperation required by Article 15(4) of ICESCR.Footnote ²⁵⁹

The Right to Science as Competence to Determine a Science Framework

In addition to the capacity to do science, the competence necessary in choosing which types of scientific projects to conduct is also crucial from the perspective of non-domination. The focus shifts from both the capacity to do science and the allocation of the benefits of science to the determination of priority research and, more generally, to the configuration of the institutional-legal regime of science as a public good.Footnote ²⁶⁰ This dimension is captured by the concept of determining a science framework.

The competence to determine this science framework has a deep participatory dimension. Members of a political community (e.g., a State) have the right to decide how they want their community to organise the public good of science and, internationally, how they want to cooperate with others.

Let us illustrate the argument with the specific point of determining research priorities as addressed by the General Comment in one of the core obligations. In line with the purpose of science as linked to the realisation of human rights, the General Comment mandates a contextual prioritisation of specific research topics in light of their relevance for the realisation of human rights, such as the right to food.Footnote ²⁶¹ In creating a process of co-decision to answer this priority question, the capacity of everyone to take part and reach consensus is key to judging the processual quality.Footnote ²⁶² As Special Rapporteur Shaheed argues in her Report on the Right to Science, marginalised populations shall also be empowered to participate in this process.Footnote ²⁶³

Two republican lessons can be drawn from this participatory dimension. Firstly, it is not satisfactory to assume that any type of research is beneficial for the enactment of human rights.Footnote ²⁶⁴ De Schutter is right to argue that we should interpret the ‘right to benefit from scientific progress and its applications in light of what we want to achieve’.Footnote ²⁶⁵ The criterion for a decent life could be drawn upon in determining the relevant policy priorities to set for future research.Footnote ²⁶⁶

Secondly, it would be problematic if the State or private companies were to decide for the population which priorities to set. By giving the capacity to determine scientific priorities and to decide upon the distribution of benefits to individuals, a participatory approach minimises the risk of arbitrary interferences by public or private actors.Footnote ²⁶⁷ The participative approach promoted by the Committee can be interpreted as an anti-domination mechanism.Footnote ²⁶⁸ As de Schutter claims, ‘[s]cientific progress for the poorest cannot be conceived without the poorest, whose needs are sometimes misunderstood, even by the scientists pursuing their research with the best intentions’.Footnote ²⁶⁹

These two elements regarding the determination of priorities can be illustrated with the Science, Technology and Innovation Strategy for Africa 2024 (STISA) elaborated by the African Union (AU).Footnote ²⁷⁰ As a basis for the identification of its priority areas, the AU writes that their vision is to transform Africa into a knowledge-based and innovation-led society. This vision is based on the general priorities identified for the continent in the AU Vision,Footnote ²⁷¹ including the following: eradication of hunger and achieving food security, prevention and control of diseases, communication (physical and intellectual mobility), protection of space, living together/building society, and wealth creation. The first two bear upon the right to food and the right to health. The corresponding research and/or innovation areas identified are the following: agriculture/agronomy in terms of cultivation technique, seeds, soil, and climate; industrial chains in terms of conservation and/or transformation and distribution infrastructure and techniques; better understanding of endemic diseases (e.g., HIV/AIDS, malaria, etc.); maternal and child health; and traditional medicine.Footnote ²⁷² With respect to the process chosen (both for the identification of priority research and for the implementation of the strategy), the document describes a participatory approach including different types of stakeholders.

This participatory understanding of the right to science as competence should indeed extend beyond the determination of priorities. As the General Comment puts forth in defining one of the core obligations, States shall ‘adopt and implement a participatory national strategy or action plan for the realization of this right that includes a strategy for the conservation, the development and the diffusion of science’.Footnote ²⁷³ In brief, members of the political community should be able to collectively decide on the general conditions in which science is conducted.Footnote ²⁷⁴ As Boggio highlights, the ‘public must be consulted and heard and, in the best case, become a co-producer of science policy’.Footnote ²⁷⁵ In republican terms, this involvement of the public represents an anti-domination mechanism making sure, or at least increasing the chances, that critical opinions and voices of under-represented groups are better heard.Footnote ²⁷⁶ It forces the public authority to take a broader view on the opinions and voices considered relevant in taking research policy decisions.

As the General Comment recalls, this call for a participative approach to science requires, in turn, a capacity-building dimension akin to the elements discussed in the previous section. In order for the population to critically assess proposals and decide together on how to organise scientific activities in a specific State, people need to be empowered in terms of competencies.

Allocation of Duties and Responsibilities

Every State has jurisdiction-based duties and responsibilities for the right to science that need to be globally coordinated through allocation mechanisms. Expressed according to the republican-sufficientarian framing of this book, the key objective is to secure a non-dominating allocation process. This means paying justice to the equality of all States as defined later based on their right to self-determination, but also to the equality of human rights bearers.Footnote ²⁷⁷ Such an allocation process might take inspiration from existing burden-sharing mechanism (e.g., the Tokyo Protocol’s mechanism in the context of climate change burden-sharing)Footnote ²⁷⁸ or multipartite organisation (e.g., the ILO and international labour law).Footnote ²⁷⁹ This challenge is reinforced by the relevance of private actors in the production and use of scientific knowledge.Footnote ²⁸⁰ States need to consider the role of private actors as part of their human rights duties while private companies themselves have responsibilities for human rights.Footnote ²⁸¹

According to Besson, the capacity to deliver technological assistance or support could be used as the main meta-criterion to organise the allocation mechanism.Footnote ²⁸² This appears aligned with the general responsibility outlined in Article 2(1) of ICESCR (‘(…) through international assistance and co-operation, especially economic and technical, to the maximum of its available resources (…)’). Affluent States and companies (defined according to their technological capacities) have stronger responsibilities to engage in the establishment of the allocation processes (process) and to deliver the most benefits for developing economies (i.e., concrete resources supporting the capacity to do science). As General Comment 25 argues, international cooperation should aim at minimising international disparities in science and technology.Footnote ²⁸³ The Venice Statement proposes that international cooperation should be directed towards countries that encounter difficulties in developing science and technology policies and science education.Footnote ²⁸⁴

Responsibilities of the States go beyond a better distribution of already accessible scientific benefits and also include the responsibility to address structural deficiencies in the capacity of low-income States to produce scientific benefits. This type of responsibility is especially relevant in two constellations. On the one hand, a State has a direct responsibility in the negotiation of its trade policy such as, for instance, its bilateral trade Agreements. In that case, it has the responsibility to assist and support other States in fulfilling their human rights duties.Footnote ²⁸⁵ On the other hand, a State must design its domestic law in a way that takes into account the responsibility of private companies.Footnote ²⁸⁶

But beyond bilateral aid, the responsibility of States also amounts to what Besson calls ‘multilateral coordination and institution-building’.Footnote ²⁸⁷ An example could be the promotion of an international collaborative model of research.Footnote ²⁸⁸ This example is directly connected to the issue of access to knowledge and data. Shaver underlines that this is particularly important regarding the ability of scientists, students, and researchers in general to participate in the scientific process, particularly in developing countries.Footnote ²⁸⁹ Echoing our previous argument on the right to education, she emphasises that open access should be extended to primary and secondary textbooks as their shortage has a critical effect on education.

In addition to the responsibilities of States, private companies also have their own set of responsibilities for human rights. Private companies producing knowledge directly relevant for the realisation of human rights such as the right to health, food, or education, arguably have the responsibility to ensure that States have the capacity to fulfil their human rights duties. This includes making relevant IP-protected inventions available at low or no cost (pricing policy), funding of research activities and capacity-building programmes in developing economies, participating in public-private partnerships, or transferring technologies.Footnote ²⁹⁰ In a republican-sufficientarian perspective, all these elements should be guided by two main desiderata: (1) helping States raise every individual to the threshold defined as the capability to lead a decent life and (2) addressing structural deficiencies in accessing and producing scientific knowledge relevant to the realisation of human rights.

IPRs’ Need for Justification

Interpreting the TRIPS’ foundations based on the right to science allows highlighting from a different perspective the philosophical reflections on the justification of IPRs.Footnote ²⁹⁴ Recall our previous conclusion: the protection of specific creations of the mind (e.g., patents as temporary monopolies granted to an inventor) must be justified, while the absence of IPRs need not be justified. IP protection is justified only if it contributes to the societal goals prescribed, for instance, by Article 7 of TRIPS. It means that where IP is not justified, access to benefits and applications should, per default, be guaranteed.Footnote ²⁹⁵

This previous conclusion is reinforced and put into the broader framework of the right to science. Individuals shall have access to the benefits of science (the access modality), but they shall also have the capacity and competence to engage in doing science and co-deciding on policy strategies. From the perspective of the State, the crafting and interpretation of a domestic IP regime (and the corresponding interpretation of the TRIPS) shall be compatible with these duties. The State hence has a duty to design and interpret its IP regime in a way that, per default, secures access to benefits and applications of science and, more broadly, empowers individuals to participate in scientific practices. Exceptions to this default access – in effect, the granting of IP rights – should be carefully delimited and justified according to societal objectives.

As Porsdam Mann, Donders, and Porsdam put it, ‘the default is that everyone should be able to benefit from scientific advances, and only if certain, well described conditions are met, may this presumption in favor of individual access rights be limited’.Footnote ²⁹⁶ The right to science not only identifies a tension between access (e.g., to benefits of science) and protection (IPRs), but also reinforces a default position in favour of access and preconditions to exercise one’s participative right to science.

It is important to take stock to clarify the implications of this framework. It might seem more revolutionary than it really is. On the one hand, as explained, it is another way to look at the justification of IP. The main lesson was that IP is by no means natural or ‘already there’ without any justification, rather, it needs to be justified. In terms of framing, the change is fundamental: IP is the exception while access is the default. The right to science reinforces that line of argumentation by recalling two elements. Firstly, there is no justification for IP without the specification of societal goals that function as guiding parameters. Secondly, these societal goals of IP (the conditionalities of Article 7 of TRIPS) must be interpreted based on human rights duties.Footnote ²⁹⁷ The crafting and interpretation of these parameters are the locus of a harmonious approach in which human rights inform the interpretation of the IP regime.

On the other hand, this default is not an absolute but is an assumption. IPRs can be justified if they realise the societal goals set by the legal regime. As explained earlier, the human right to science calls for a participatory approach to address the interface between IP and human rights. It means concretely that participation must be secured for the sake of defining the societal parameters of the IP regime (domestically and, by extension, those of Articles 7 and 8 of TRIPS) and interpreting them.

IPRs as Human Rights

One might challenge this default position by referring to the idea that IPRs are themselves human rights. One could point to the human rights duty of States to protect the moral and material interests of authors (as prescribed by Article 15(1)c of ICESR).Footnote ²⁹⁸ States would hence face a tension between Article 15(1)b and c of ICESCR. Letter b protects the enjoyment of the benefits of scientific progress and its applications, while letter c protects the right to benefit from the protection of the moral and material interests of intellectual production.Footnote ²⁹⁹ It is important to distinguish between two distinct constellations: a human rights-relevant part of a copyright regime and a general, per default position for the overall IP regime.Footnote ³⁰⁰

The first constellation focuses on the human right duty to ensure protection of the intellectual creation of an author.Footnote ³⁰¹ According to General Comment 17, the kind of author and creator protection foreseen by Article 15(1)c of ICESCR is limited to natural persons, focused on the personal link between an individual and their work. It furthermore protects only the material interests required for securing an adequate standard of living, etc.Footnote ³⁰²

This first constellation implies, from the perspective of the State, an obligation to fulfil two distinct human rights duties (Article 15(1)b and c of ICESCR).Footnote ³⁰³ In facing this situation, the General Comment 17 calls on States to ‘strike an adequate balance’ between all the rights of the ICESCR, especially the different parts of Article 15(1) of ICESCR.Footnote ³⁰⁴ Shaheed writes that the two dimensions of Article 15(1) of ICESCR are ‘human rights principles designed to work in tandem, and striking an appropriate balance between the two goals is essential’.Footnote ³⁰⁵ As prescribed by the participatory reading of the right to science, this balance should be achieved by means of broad consultation and as a product of a satisfactory legislative process (e.g., with sufficient opportunity to publicly engage with its content).

More important for the present argument is the second constellation which captures the majority of IP norms. For all these norms, the normative structure of the argument is the default assumption argumentation proposed: IPRs need to be justified. The structure is not about striking a balance among human rights but rather justifying a temporary monopoly on the basis of prescribed societal parameters (such as those entailed by Articles 7 and 8 of TRIPS).

The Importance of Competencies

The right to science is not only about having access to scientific benefits, but also about doing science and making decisions about science, thereby requiring specific competencies (like critical thinking). These competencies require basic education and further forms of literacy and to nurture them further in return.

The relational account of freedom defended in this work helps in explaining why school-level education is indeed crucial (allowing people to learn basic skills such as reading, writing, counting, and the like), but not sufficient. For instance, Shaver deals with the requirement to provide informational literacy. She compares this literacy to the capacity to read and write in the information age and defines it as the ‘ability to be a sophisticated consumer and producer of knowledge’.Footnote ³⁰⁶ If this literacy appears necessary for the capacity of a person to be free, it should henceforth be considered part of the threshold.Footnote ³⁰⁷

Secondly, the relational account focuses on the concrete capacity of individuals to take advantage of available information. An important narrative in IP presents individuals as being able to draw upon commonly accessible knowledge and develop their own intellectual creations. This view is linked to the general IP justification discussed previously: patents represent temporary monopoly rights granted in exchange with information for the broader public. As mentioned by Sunder, this narrative should not obscure the required competencies to take advantage of commonly accessible knowledge. There is a risk of romanticising the commons.Footnote ³⁰⁸ It is not because a body of information/knowledge is accessible (in the sense of being availableFootnote ³⁰⁹) that individuals have the competence, the technical means and/or the opportunity to make something out of it.Footnote ³¹⁰ A range of parameters should be secured in order to transform this availability into something that everyone can use. Education and literacy are parts of these parameters. The requirement to prevent structural discrimination and strive towards equality of opportunities is another parameter that is common in ESC rights.

Science and Culture in Dialogue

These two relational arguments bring the debate back to the ambition to secure freedom for citizens as part of a political community. This ambition offers a rejoinder to the previous distinction assumed between science and culture. It indeed also connects to freedom of speech and, more broadly, to informational freedoms. To recall, these freedoms were considered out of the scope of this work. It is nevertheless important to note that this would be the place where they could be integrated into the argument.

The hypothesis is that there is double relation between culture and the threshold. Culture is a precondition for the possibility of relational freedom and, at the same time, culture is also the product of (free) choices made by individuals and political communities.Footnote ³¹¹

Firstly, the capacity to be free requires cultural resources. According to Kymlicka’s influential account, culture as a set of shared practices and discourses represents a precondition for individuals to be able to lead an autonomous life.Footnote ³¹² If freedom implies the capacity to make choices among various options, then societal culture is important not only because it provides its members with a range of options, but also because it transforms this bare material into meaningful options. It also depicts a whole range of life options for us, options which are considered more or less desirable.Footnote ³¹³ In that very large sense, for an individual to grow, it is crucial for them to be able to take part in cultural activities.Footnote ³¹⁴ This is part of the threshold of what is required for a decent life.

This dimension is especially important in the context of collective self-determination for communities that are structurally at risk of suffering from domination. As will be addressed later, indigenous communities, for instance, have a strong claim to protect their cultural resources (i.e., artefacts, traditions, and practices) as specific ways to look at and apprehend the world. What should be protected is not only the output of cultural practices as defined by externally imposed categories, but the very cultural fabric of a community.

Culture not only makes freedom possible in the first place but also serves as a set of resources that could be used for the sake of further creation. Individuals should hence be able to use and create new cultural resources both as a way to pursue and reinvent their own cultural practices, and as a means of entering into relationships with other individuals and communities.

In that context, individuals should be empowered to protect their own creation. Not least, this is an important precondition to make revenues possible from these cultural creations. As Sunder puts it, cultural production is ‘both an end and a means of development’.Footnote ³¹⁵ Revenues made possible through marketing cultural creations also contribute to reinforcing the capacity to be free. As she writes, ‘[i]n the Knowledge Age, wealth lies not simply in access to other people’s knowledge (although this is certainly important), but also in the ability to produce new knowledge and to benefit from this creation, culturally, and economically’.Footnote ³¹⁶

This point recalls the importance of thinking beyond the sufficientarian threshold and focusing on the capacities and competencies of individuals claiming to be free. Essential benefits are crucial (as part of the threshold), but non-essential benefits are also crucial as part of the set of resources that individuals can use to construct themselves as autonomous subjects, but also as material which they can use to experiment and create. Linked to culture (as indeed Article 15(1) of ICESCR does), the right to science can be used to reinforce the link between free individuals and meaningful access to publicly available knowledge.Footnote ³¹⁷ As Shaver argues, a system of rights, privileges, and immunities in cultural works ‘should respect and promote the ability of ordinary people to access, enjoy, perform, reinvent, and share cultural works—despite disadvantages such as poverty, language, or lack of the human and social capital needed to navigate complex legal rules’.Footnote ³¹⁸

In the end, concepts of welfare, mutuality, and balance understood in a republican sense call for true capacities and competencies to take advantage of the benefits and applications, but more generally of common knowledge. As Oke proposes, this needs to be mirrored by a different conception of innovation as being more systemic (taking into account the context of innovation and actors in a holistic way).Footnote ³¹⁹ More generally, it also connects this framing of the TRIPS with competition/antitrust policy which also aims to create real competition opportunities (as opposed to mainly theoretical opportunities). The TRIPS should hence be understood as an international IP Agreement with strong ambitions to empower. This must resonate with the trade-related dimension of the TRIPS. The WTO is about global trade competition and its rules and, if understood in a republican manner, is also about securing conditions of competition in which the States can compete on fair terms.

Self-Determination as a Principle and as a Human Right

Self-determination, recognised as a human right and principle of international law, informs States’ authority to design IP regimes suited to their specific circumstances and political choices. As both a human right and one of the key principles of the UN Charter,Footnote ³²⁷ the principle of self-determination is found in Article 1(2) of the UN Charter as well as recognised in the common Article 1 of the two UN Covenants.Footnote ³²⁸ In its latest Chagos Opinion, the ICJ confirmed that the right to self-determination is a ‘fundamental human right’Footnote ³²⁹ and that ‘respect for the principle of equal rights and self-determination of peoples is one of the purposes of the United Nations’.Footnote ³³⁰

In Western Sahara, the ICJ formulated the ‘principle’ of self-determination as the ‘need to pay regard to the free and genuine expression of the will of the people concerned’.Footnote ³³¹ This essence of self-determination is the requirement to adhere to a procedure that sets a standard for decisions affecting the destiny of a people.Footnote ³³² This finding represents a common theme across ICJ-developed case law. In the Chagos Opinion, the Court writes that self-determination might be achieved through different options, but that it ‘must be the expression of the free and genuine will of the people concerned’.Footnote ³³³ This procedural quality is claimed to be the normative core of the principle of self-determination.Footnote ³³⁴ In addition to this principle, the ICJ has recognised the specificity of certain circumstances and their implications for self-determination,Footnote ³³⁵ thereby identifying specific rights to self-determination in the form of customary rules.

In brief, interpreting self-determination always constitutes an attempt to reconcile different normative demands. On the one hand, the ICJ perceives of self-determination as a general principle of the international legal order to be a foundational structuring norm.Footnote ³³⁶ It offers a normative rationale for the existence of States and their claims to sovereignty.Footnote ³³⁷ On the other hand, the ICJ has used self-determination as a norm with strong aspirational components. This was highlighted in the decolonisation cases, but also in the effects that the norm exercises on the development of specific parts of international law such as in reference to indigenous people.Footnote ³³⁸ The more aspirational function can be framed by reference to the conceptual body of human rights law. Analytically, this function shifts the focus from the State-level to the claims held by a group of individuals to protect their capacity to decide autonomously upon specific issues like their economic, social, and cultural developments.Footnote ³³⁹ In the context of intra-State mechanisms of autonomy, Burri and Thürer speak of a ‘new constitutional dimension’ of self-determination.Footnote ³⁴⁰

Republican Self-Determination for the IP Interface

Crafting an IP regime inevitably requires arbitrage between competing demands. The right to self-determination should here work in tandem with the right to science. The right to science includes the ability to participate in doing science, but also to decide upon science (to collectively determine a scientific framework). Both concur in justifying the rights of individuals to decide upon the interface between IP and the right to science. As Gross Ruse-Khan puts it, ‘[h]ere, the State essentially mediates between different constituencies and groups in a society – rather than acting in a vertical (top- down) relation to its citizens’.Footnote ³⁴¹

Of course, there are limits to this claim, such as the international obligations accepted by this same State (also as emanations of its right to self-determination) and general procedural obligations, such as non-discrimination or good faith. In the formulation of the Max Planck Declaration on Patent Protection (with the title ‘Regulatory Sovereignty under TRIPS’), ‘sovereign states should retain the discretion to adopt a patent system that best suits their technological capabilities as well as their social, cultural and economic needs and priorities, with the proviso that the exercise of such discretion must remain within the boundaries of international law’.Footnote ³⁴² Expressed in republican terms, the State should retain its competence to make policy choices as a reflection of its population’s choices.

A republican understanding of the underlying principle of self-determination is especially significant in that it allows us to highlight a specific category of risks for States. States might be threatened in their capacity to choose for themselves because of the arbitrary interferences of other actors such as States, international organisations, or private companies. This danger is especially important for weak States that may not be able to resist attempts of arbitrary interference. This issue is indeed crucial for the TRIPS-plus bilateral trade policy (trying to limit States’ self-determination by limiting TRIPS’ flexibilities), but also in the context of an investor-State arbitration on IP questions.Footnote ³⁴³ In that context, self-determination represents a normative goal to be achieved in the future. In making IP-related decisions, the State has the goal to ensure its capacity to remain self-determined in the future.

To conclude this preliminary argument on the link between the TRIPS’ interpretation and self-determination, let us provide two illustrations. Chapter 5 examines concrete proposals. Firstly, Austin has argued that the Panel in US – 110(5) Copyright has adopted an approach that is quite deferential to the US competence to make national choices.Footnote ³⁴⁴ As part of the three-step test in the context of copyright (Article 13 of TRIPS), the Panel interprets ‘certain’ to mean ‘clearly defined’.Footnote ³⁴⁵ This choice is interpreted as being deferential to States that have developed a rich approach to exceptions to copyright (such as the ‘fair use’ doctrine in US law). In a similar way, the Panel interpreted the ‘special case’ condition without exercising detailed normative scrutiny.Footnote ³⁴⁶ It considered the nation’s ‘own history and national priorities’ to assess the special character, without going into an examination of the domestic policy justifications.Footnote ³⁴⁷

Secondly, in the China-Intellectual Property Rights dispute, the Panel took a deferential approach to China’s policy choices.Footnote ³⁴⁸ In its finding, the Panel confirmed the right of China to exercise censorship (as foreseen by Article 17 of Berne Convention). Moreover, it confirmed the discretion enjoyed by China in choosing and implementing measures meant to prevent copyright privacy. The Panel recalled the importance of Article 1(1) of TRIPS and Article 41(5) of TRIPS as autonomy-protecting provisions.Footnote ³⁴⁹ In contrast to the US case dealing with an advanced economy, China’s specific political and economic situation has played a role in the Panel’s qualification.Footnote ³⁵⁰ In Austin’s summary, ‘[i]t is the inevitability of differences in the circumstances of different nations – social, economic, political, even climatic differences – that suggests that deference to domestic law choices as to how to shape intellectual property laws should itself be regarded as a key value that ought to inform the construction of international intellectual property jurisprudence’.Footnote ³⁵¹

Self-Determination for Indigenous Communities

Indigenous communities encounter distinct challenges in broader legal and social contexts. Although their right to self-determination might not amount to a right to secede, it can justify important intra-State mechanisms of autonomy or prerogatives of co-decision.Footnote ³⁵⁵ This interpretation can be supported by decisions made by the UN-GA, most importantly the Declaration on the Rights of Indigenous Peoples (UNDRIP).Footnote ³⁵⁶ This Declaration may be seen as a landmark in the discussion on self-determination, not least because of the relevance of the GA Declarations in the crystallisation of interpretation patterns and the emergence of new customary rules.Footnote ³⁵⁷

Indeed, the definition of ‘indigenous community’ has proven difficult to formulate.Footnote ³⁵⁸ Anaya considers the following set of negative experiences to be relevant: experience of subjugation, marginalisation, dispossession, exclusion, and/or discrimination.Footnote ³⁵⁹ In 2016, Special Rapporteur Victoria Tauli-Corpuz formulated a more comprehensive definition by focusing on generally accepted characteristics which include: self-identification as an indigenous people; the existence of and desire to maintain a special relationship with ancestral territories; distinct social, economic, or political systems from mainstream society, which may be reflected in language, culture, beliefs, and customary law; and a historically non-dominant position within society.Footnote ³⁶⁰

The characteristics mentioned here and in similar definitions explain why we should distinguish between a minority’s protection regime (in general) and a specific regime for indigenous communities. These communities are often minorities, but their need for protection does not primarily spring from this element but rather on the other constituting features of being an indigenous community (e.g., a special relationship with ancestral territories).Footnote ³⁶¹

This explains why self-determination could be so important for indigenous communities rather than potential secession. The focus is instead on mechanisms meant to secure autonomy with respect to economic, social, and cultural development; control over resources and land; and non-discrimination mechanisms for all issues in relation to the State(s) they are part of. This includes prerogatives for dealing with one’s natural resources, an issue of extreme importance for indigenous people.Footnote ³⁶²

Before addressing the different IP-relevant elements mentioned in Article 31 of UNDRIP, it is worth underlining that other international conventions also protect the general claim to indigenous self-determination. Article 27 of ICCPR describes in the negative (‘shall not be denied the right’) many prerogatives that indigenous communities claim. The CCPR General Comment 23 further explains that this right is meant to recognise that ‘culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples’.Footnote ³⁶³ Furthermore, the International Convention on the Elimination of All Forms of Racial Discrimination can also be used as a basis to protect indigenous communities. The Committee on the Elimination of Racial Discrimination has dedicated General Recommendation 23 to the issue of indigenous people and has especially called upon State parties to ‘recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources (…)’.Footnote ³⁶⁴

Article 31 of UNDRIP is especially important for IP issues in the context of indigenous communities. The article reads as follows:

As Frankel writes in analysing this article, ‘self-determination is a motivating and normative underpinning for the protection of traditional knowledge’.Footnote ³⁶⁵ In this context, it is especially important that the Preamble of the newly adopted GRATK Treaty explicitly mentions the UNDRIP. I draw upon Puig’s account in analysing the three different objects of protection that indigenous communities can claim:Footnote ³⁶⁶ traditional knowledge (TK), genetic resources (GR), and intangible cultural heritage/folklore. TK and GR are often addressed together.

Protection of Traditional Knowledge (TK) and Genetic Resources (GR)

The WIPO defines TK as ‘knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity’.Footnote ³⁶⁷

The chosen wording is important and has given rise to controversies.Footnote ³⁶⁸ To start with, ‘traditional’ is defined in reference to the processes of creation, preservation, and dissemination that are found in the cultural practices of specific communities.Footnote ³⁶⁹ As per a WIPO report, it ‘is a vital, dynamic part of the contemporary lives of many communities today’.Footnote ³⁷⁰ Panizzon and Cottier argue that it differs from formalised, scientific, and industrialised R&D processes.Footnote ³⁷¹ The word ‘traditional’ has nevertheless been criticised for its association with colonial-era imagery. Some scholars prefer to use the term ‘indigenous knowledge’, thereby excluding TK, which is not indigenous.Footnote ³⁷² As explained earlier, this discussion should be linked with the right to science and a broad definition of the concept of ‘science’. The notion of scientific practices should be broad enough to capture non-fully formalised knowledge systems, such as knowledge creation and preservation systems practised by indigenous communities.Footnote ³⁷³

The IP protection of TK has proven difficult to achieve because it has been considered part of the public domain.Footnote ³⁷⁴ As it appears, TK does not fit the modern conditions prescribed to warrant IP protection. The challenge is particularly strong for patents, for instance, on medicinal knowledge incrementally developed within a community over a long period of time. This virtual absence of protection has given rise to two general approaches.Footnote ³⁷⁵ The first is said to be ‘defensive’ in trying to prevent third parties from using TK without fulfilling conditions to which TK holders have agreed (such as consent and benefit-sharing mechanisms, as mentioned earlier in the context of the right to food). The second approach is a ‘positive’ protection that aims to give control over the economic use (and potential value) of TK to the TK holders. For both strategies, the challenge is to identify the best type of IPR for the protection in question. Sui generis regimes of protection have been discussed by WIPO and the literature.Footnote ³⁷⁶ In addition to these two approaches, scholars have also noted that this discussion should be further developed regarding the revision of Western concepts of IP protection (like the arguably not so clear demarcation line between the public domain and IP-protected inventions).Footnote ³⁷⁷

In facing this challenging situation, Okediji has proposed adopting a tiered approach able to do justice to various degrees of publicness (‘secret traditional knowledge’, ‘sacred traditional knowledge’, ‘closely held traditional knowledge’, and ‘widely diffused traditional knowledge’).Footnote ³⁷⁸ To illustrate the shift away from a single solution for all TK, take the first category, ‘sacred traditional knowledge’. This category needs to be protected robustly, drawing upon mechanisms linked with trade secret protection.Footnote ³⁷⁹ In contrast, ‘closely held traditional knowledge’ needs to draw upon protection akin to moral author rights and economic protection rights. ‘Widely diffused traditional knowledge’ could be addressed using attribution rights. For the present argument, the point is to underline the wide spectrum of protection mechanisms for valuable assets created by a community that wants to defend and promote its cultural and spiritual identity. The reflection needs to start from the community and its claim to self-determination, and not from existing legal categories which have been developed for a completely different reality.

Similar challenges appear for the protection of GR, which refers broadly to any genetic material which can be of value and is mainly relevant with respect to plant, animal, or microbial material.Footnote ³⁸⁰ GR can be of important value in the context of agricultural resources (e.g., seeds, as discussed earlier), but also for medicinal uses. This specific domain has seen commercial actors take control of products developed based on GR by indigenous communities. Some of these products have been protected by modern IPRs (fulfilling the conditions prescribed for a patent) which, in turn, have been used against the communities at the source of the creation.Footnote ³⁸¹ As for TK, the challenge is to develop an effective and just protection regime.

Overall, as Taubman argues, the issue should be approached as a rebalancing of the protection regime between the gatekeepers, the custodians of TK and GR, and all those who want to use these materials.Footnote ³⁸² In 2024, efforts towards this rebalancing have led to the adoption of the WIPO GRATK Treaty. This Treaty calls States to require a mandatory disclosure by the applicant. The rationale is that this disclosure shall prevent granting patent protection to inventions based on TK associated with GR which are not novel (Article 3(2)). As Alves writes, this Treaty has ‘the potential to steer the development of the intellectual property framework in ways more considerate of the interests and needs of Indigenous peoples and local communities, and more respectful of their rights, promoting transparency, ethical progress, and some level of inclusiveness’.Footnote ³⁸³

The third object of protection includes intangible cultural heritage and folklore. According to WIPO, folklore includes music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, and many other artistic or cultural expressions.Footnote ³⁸⁴ The cultural expressions of indigenous communities are currently not adequately protected by IPRs. As Bracha and Syed put it, the objective is to ‘ensure that individuals have meaningful agency vis-à-vis the dense fog of symbolic material suffusing their environment to enable effective participation in the semiotic shaping of one’s own subjectivity’.Footnote ³⁸⁵ This echoes the importance of cultural resources for freedom, both for individual and for self-determined political communities.

In this context, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) is relevant.Footnote ³⁸⁶ Its Preamble recognises ‘the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion’. The Convention mandates State parties to enact a set of policies to protect indigenous cultural heritage. However, the Convention specifies that nothing under its terms shall be interpreted as ‘modifying rights and obligations of the Parties under any other treaties to which they are parties’ (Article 20(2)).

IPRs as Solutions?

A critical note is in order. As Okediji argues, this discussion on how best to protect TK, and more broadly the creations of indigenous communities, is in tension with a strong human rights approach.Footnote ³⁸⁷ In other words, this highlights the putative inconsistency of applying a human rights approach in criticising IPRs held by pharmaceutical companies while defending them for indigenous communities. Indeed, the default access position argued for in the precedent subsection must here also be respected.

There are two ways to mitigate the inconsistency claim. Firstly, as explained, the default access position does not imply the impossibility of a justified IPR. The tiered approach outlined earlier exactly fits this perspective: a specific category of IPRs (or rights with similar effects) is justified only to the extent that it serves the protection of a specific interest of the indigenous community (i.e., societal parameters). Secondly, a human rights approach should not exclusively focus on the access modality (i.e., access to a good X). It must also integrate a procedural dimension, such as with the right to science and the right to self-determination. A political community has the right to decide how a normative trade-off concerning IP must be addressed. These communities also have the right to choose protection mechanisms for their intellectual creations and to decide upon the interface between these protection mechanisms and their specific conditions of life.

Overall, these three objects of IP protection (TK, GR, and intangible cultural heritage/folklore) illustrate the difficulties of applying modern IPR to the context of indigenous communities. The incremental innovation processes, the long-term protection required, the combination of economic, cultural, and sacred values, but also fundamentally different conceptions of property and ownership, all are features of the complex relations that indigenous communities and IP specialists must learn to foster.Footnote ³⁸⁸ Expressed positively, as for instance by Taubman, the claims formulated by indigenous communities represent a learning opportunity for the IP community: ‘Difficult and contentious as it has been at times, the traditional knowledge debate may ultimately be seen as a tonic for the policy domain of IP, helping to open up a more informed, more inclusive, more broadly based discourse on the role, the principles, and the legitimacy of the IP system.’Footnote ³⁸⁹

This call for inclusion can, indeed, be interpreted in a republican fashion. The objective is to make sure that international IP law-making and, most importantly, domestic law-making are designed in a way that tracks the relevant interests of indigenous communities and integrates them into the IP regime. In a moral-political sense, they should also be used to combine existing sui generis protection mechanisms (or newly conceived ones) which aim at guaranteeing specific competencies related to control, attributability, and economic revenues, instantiated through mechanisms such as prior information, consent, and benefit-sharing mechanisms.Footnote ³⁹⁰