Submission of Professor Joshua D. Sarnoff on the 'Call for Submission, Special Rapporteur on Toxics and Human Rights; Upcoming Thematic Report on the Right to Benefit from Scientific Progress and its Applications'

Abstract

This submission focuses on the Article 15(1) International Covenant on Economic, Social and Cultural Rights (“ICESCR”) “recognition of the right of everyone … (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its application; [and] (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.” It expands the focus of the Report by noting the many ways that the public may be deprived of such rights and progress by intellectual property rights, in regard to: the current COVID-19 pandemic (and likely future pandemics absent significant change to our worldwide health systems and to our continued reliance on market mechanisms to provide for the rights to life and health); climate change (regardless of whether or not one view greenhouse gases – “GHGs” – as “hazardous substances” and regulates them as such under laws like the U.S. Clean Air Act); and other critical social concerns. The submission notes as follows:(1) the need to address in the context of COVID-19 and likely future pandemics nationalist controls over information and scientific health-related products, and the need to alter reliance on market mechanisms and intellectual property rights, so as to assure that all publics – particularly those in developing countries – can benefit from the rights to enjoy the benefits of scientific progress and its applications so as to effectuate the rights to life and to health;(2) the similar need to address intellectual property rights in regard to climate change mitigation and adaptation (including carbon dioxide removal and solar radiation management technologies);(3) the need to address rights to genetic sequencing information and data ownership so as to better effectuate rights to life and health, and more broadly the need to mandate open science and open data to effectuate rights to life, health and (particularly) education, as well as to foster scientific progress;(4) the need to assure access to medicines and to address other health care and pricing concerns of reliance on intellectual property rights and private markets, including resurrecting efforts to adopt an international research and development (“R&D”) treaty; and(5) the need to better assure benefits sharing with scientists and to address the structure of scientists’ compensation and non-competition restrictions so as to better incentivize innovation and to better effectuate the right to the moral and material interests of the scientists on whom we rely for needed technological developments.