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Human Rights as an Ethical Basis for Science
PETER G KIRCHSCHLAEGER[*]
Human rights protect the essential elements and areas of human existence which enable every human being to survive and to live with human dignity. The Universal Declaration of Human Rights of 1948 states in Article 1: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’[1]
Science belongs to these essential elements and areas of human existence. Several specific human rights contribute to the protection of scientific discourse and research. At the same time science can contribute to the realisation of human rights through the invention of, for example, new medical treatment for a disease, by enhancing political opinion-building and decision-making processes with boundary-crossing communication technologies, or by creating innovative approaches to overcome challenges identified as human rights violations. Furthermore, science can act as an enabler of sustainable development. Finally, science can be complicit in or the subject of human rights violations as well.
The following article will discuss the relation between human rights and science and introduce human rights as an ethical basis for science with two specific key aspects: human rights protecting free scientific enquiry universally and human rights serving as a fundamental ethical point of reference for scientific practice.
After giving a short overview on the genesis of human rights, science will be identified as an area of human existence which needs the protection of human rights. This protection of science by human rights will then be discussed in its complexity and multidimensionality including the moral dimension of human rights. The moral dimension of human rights allows understanding scientists not only as right-holders but also as duty-bearers: scientific inquiry does not only enjoy human rights protection, but scientists possess corresponding responsibilities, eg respecting human rights, contributing to the realisation of human rights and setting priorities according to human rights. In the discussion of scientists as right-holders and duty-bearers of human rights, it will be shown that human rights — as a minimal standard which protects essential elements and areas of human existence which a human being needs in order to survive and in order to live as a human being — can provide an ethical point of reference for science. This ethical point of reference is based on a universal consensus and possesses credibility and the advantage of practice-orientation and concreteness thanks to the legal, political and historical dimension of human rights. This ethical point of reference defines fundamental principles, priorities and values. It is limited to this fundamental level and does not address more specific and practical questions of scientific inquiry in more detail because human rights guarantee a minimal standard for a human life. At the same time, human rights as an ethical point of reference for science can provide criteria for a critical examination on a fundamental level of ethical theories and models dealing with more specific and practical questions of scientific inquiry.
The idea and concept that every human being should be treated as a human being in the sense that every human being should not be seen as a means for another end, but as an end itself, can be found in several traditions, cultures, religions, worldviews, and scientific discourses long before the Enlightenment. In saying that, it must be stressed that of course in the Enlightenment the idea and concept of human rights experienced an agglomeration. Not only do more philosophical studies lay out the core nucleus of human rights and not limit themselves to the question of where the term ‘human rights’ is used for the first time, they also attain another dimension of enquiry which involves examining the invention of the concept of human rights. This invention of the concept of human rights builds on the first stage of the development of human rights.[2] The second stage consists of the legal implementation of human rights on a national level in the ‘Declaration of Independence of 1776’[3] and the ‘Declaration des droits de l’homme et du citoyen de 1789’.[4] The limits of this second stage must be considered in retrospect in order to avoid falling into nostalgic idealisation of the difficult struggle leading to the Universal Declaration of Human Rights and the binding human rights system that followed. The Declaration of Independence and the Declaration des droits de l’homme et du citoyen had an exclusive understanding of rights-holders: white men with a certain socio-economic background that were citizens of particular nation-states. Another stage had to be achieved as the international community found consensus in the Universal Declaration of Human Rights and created a binding human rights system in the following years: the third stage of the implementation of human rights on a universal level. While the Enlightenment as a whole had put an end to religious absolutism, the third stage limits the era of political absolutism. These liberating processes leading to the progress of human rights and to the beginning of a new intellectual ethos was enabled by ideas and concepts from different sources, by political struggle but also by scientific discourse identifying the denial of human rights in general or the denial of human rights of a specific group of human beings as nonsense and arbitrary.
While scientific discourse and research contribute to this progress of human rights, it is obvious that at the same time there is need for protection of some essential elements and areas of human existence in order to even be able to conduct the necessary discussions and studies, and to publish them. Science can be the victim of infringements of its freedom, of attempts to block innovative and creative approaches, and of oppression of ideas, concepts and discoveries. Reasons for these transgressions can be putative ‘absolute truths’ or the enforcement of old and existing power-structures. The danger still exists that members of the scientific community cannot conduct their research freely. Therefore they need protection. The only question is whether the protection of science should be pursued by means of human rights — the most fundamental and highest form of legal protection existing. Basically what such protection would mean is that science would be considered an essential element or area of a human existence, much like, for example, the right to life or the right to food. This question should be answered in the affirmative and science should indeed be considered an essential element or area of human existence because — based on the Universal Declaration of Human Rights — several specific rights are relevant. For example: the right to freedom (art 2); the right to freedom of thought, conscience and religion (art 18); the right to freedom of opinion and expression (art 19); the right to freedom of peaceful assembly and association (art 20); the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits (art 27(1)) and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (art 27(2)).
Currently, members of the scientific community human rights’ are being violated or they are running the risk of becoming victims of human rights violations directly connected with their research. Therefore, it is still necessary to continue initiatives or to take measures that promote human rights in science in order to secure respect for the human rights of researchers in their work, spread information on human rights violations concerning scientists, and build awareness regarding the significance and function of human rights for scientists.
Regarding the implementation of human rights for scientists and in general for all human beings, states now have a primary responsibility to respect and implement these rights. Human rights are ‘rights’[5]: a ‘right’ is defined as a normative position of a natural or fictive person in her or his relation to another person. A ‘right’ opens a person’s opportunities to act, it limits the sphere of action of a person, it builds a reason to act and embraces corresponding duties and gives a normative position a certain weight. ‘Rights’ are part of a system of norms. This system of norms can be legal or moral and therefore ‘rights’ can be legal and moral as well. The differences between ‘legal rights’ and ‘moral rights’ are that the former are defined more precisely with regard to their subject and the corresponding duties, they have a higher grade of formalisation and they recognise the corresponding means of control and implementation. The latter possess a wider horizon, as their sphere of validity (corresponding to the sphere of validity of their system of norms) is universal.
Every human being is a holder of human rights. Therefore, human rights are ‘subjective rights’. Human rights are those rights that belong to every human being, regardless of skin colour, nationality, political convictions or religious beliefs, social standing, gender or age.
Human rights as legal rights are subjective rights of individuals in a legal system such that they can be implemented within the legal system. Human rights are ‘legal entitlements of individuals against the state or state-like entities guaranteed by international law for the purpose of protecting fundamental needs of the human person and his/her dignity in times of peace and war’.[6]
Besides this legal dimension, human rights possess a political dimension, a historical dimension and a moral dimension. Human rights are rights with a certain complexity.
The political dimension of human rights[7] firstly acknowledges that political deliberation, political struggle, political opinion- and consensus-building-processes, and political decisions lead to the entitlement of human beings with human rights. Secondly, it recognises that human rights are an element in public political discourse which cannot lead to legal consequences but can have political significance. Human rights are used as a political argument. Thirdly, the political dimension of human rights includes human rights as a political aim to guarantee every human being the enjoyment of human rights, and as a political duty to take the adequate political measures and decisions to further the implementation of human rights. Fourthly, it takes seriously the fact that human rights can also be politically instrumentalised and abused for other political ends even if these ends are in violation of human rights. Fifthly, the political dimension of human rights considers the protection of political participation of every human being as one specific task of human rights. Sixthly, human rights serve as a frame of reference for political discourse and decisions.
One aspect of the political dimension of human rights is thus the political process leading from the idea and concept of human rights to the establishment of human rights. This process took place over an extensive period in human history. This historic development is the first aspect of the historical dimension of human rights. Usually experiences of injustices trigger a common feeling that humanity should stop these injustices, get rid of them, and avoid them in the future. For example, the Universal Declaration of Human Rights can be understood as a reaction to the violation of essential elements and areas of human existence and the attempt of denial of human dignity during the Holocaust. Johannes Morkins argues: ‘Most of the articles and rights in the Declaration were adopted as direct and immediate reactions to the horrors of the Holocaust’.[8] Based on a dynamic understanding of human rights, open for further development if necessary, the historic dimension of human rights includes injustices and reactions to injustices leading to the claim for human rights. At this point, two clarifications are of importance: Firstly, human rights lose neither their universality nor their relevance to the present or the future due to their historical contingency. ‘The human rights abuses on the minds of the 1948 drafters occurred during the Holocaust, while today we can point not only to the Nazi atrocities, but to atrocities in Bosnia, Cambodia, Rwanda, Darfur and in other contexts’.[9] Secondly, the historical location and explanation of the genesis of human rights understand historic injustices in their exemplary character without any potential for a moral justification of human rights. The analysis of the historical development of human rights brings an added value to the human rights discourse as it reveals arguments and processes from a historical perspective which opens valuable systematic insights. While discussing the historic dimension of human rights, the question of the ‘how’ regarding the genesis of human rights is addressed, however the question of the ‘why’ every human being is entitled to human rights remains open.
The reflection of this open question is one aspect of the moral dimension of human rights. Why is the discussion of the justification of human rights so important? Human rights did not ‘fall from heaven’. They are not the ‘absolute truth’. Human rights need to be justified to every human being as every human being is not only a right-holder but also needs to respect the human rights of others. Robert Alexy recognises that the existence of human rights depends exclusively on the possibility of their justification. Human rights need to be justified to everyone concerned with human rights.[10] The reasons why every human being is a human rights-holder have to be discussed.
The necessity of a reflection of the justification of human rights is also provoked by the different forms of relativism which human rights are facing today. According to Georg Lohmann, there are three ways in which human rights’ essential claim to universality are doubted: (1) a cultural-relativistic way; (2) a specific cultural-relativistic way which sees in the particular and partial emphasis of the individual freedom-rights a contradiction of the claim of universality of human rights;[11] and (3) a critical relativism based on scepticism related to the small potential of realisation of human rights and differences within this potential between the three categories of human rights. These cultural-relativistic criticisms of human rights and related theoretical approaches and reactions as well as alternatives to those approaches must be discussed accurately in order to establish a human rights culture.
In the moral dimension of human rights, human rights are universal, egalitarian, individual, and categorical, and they make legitimate demands with corresponding positive and negative duties.[12] They are ‘weak rights’ because they are not enforceable and just possess an appellative character, and the consequences of their violations are moral sanctions (like public shame) but not legal sanctions. Human rights in their legal dimension depend in their justification on the moral dimension of human rights because their legal justification is mostly limited to the boundaries of a national legal system which can be compensated by the moral dimension of human rights. Vice versa, human rights in their legal dimension cannot justify human rights in their moral dimension due to the limited validity of the former. Human rights in their moral dimension have to find their justification in the moral dimension. Therefore, at the end of the day, the justification of human rights can be realised legitimately only in the moral dimension. They depend on a moral justification. The moral dimension of human rights is very important because human rights can only be claimed without any limits when there is a justification of human rights independent from legal or political decisions by state actors. This justification must be a moral justification because it must convince everyone in the same way, that is to say, that it needs to be a universal moral justification which legitimates the concept that all men and women are equal and have the same rights.
Furthermore, the moral dimension of human rights leads to an awareness of the constant challenge of a legal and a political reality which neither realises nor respects human rights completely, and of the relation of this constant challenge to the moral obligation and responsibility of oneself to enhance the implementation of the human rights of every individual in one’s sphere of influence. The theory leads to practice; Juergen Habermas[13] and others link the reason why a human being is a holder of human rights to a national legal system in which human rights become part of the fundamental rights of the constitution through a democratic process. In the framework of internal logic of a legal system, legal subjects acknowledge each other as holders of these rights. At first sight, legitimating human rights through a process to which every human being has a right seems to be convincing. But this approach is undermining the universality of human rights because human rights can then only exist within a particular legal system of a particular society. Human beings who are not citizens of this particular legal society remain without human rights. I agree with Georg Lohmann[14] who has pointed out that human rights gain weight and power when they become part of a particular legal system, for example, of a national legal system through a democratic process, as they are then enforceable by law more directly and democratically legitimated.
At the same time, human rights run the risk of reduction of their universality through particularisation as parts of a national legal system. As mentioned above while discussing the idea and the concept of human rights, justification models within the moral dimension can include this essential aspect of human rights; that every human being — even living in a place on the planet where she or he does not benefit from a legal system respecting human rights — has human rights.
On a practical level, the process of establishing a global institutionalisation of the implementation and protection of human rights — in parallel to the integration of human rights within national legal systems — is necessary.
The moral dimension of human rights is critical for human rights practice, because human rights theory in general — corresponding to human rights practice — is a necessary foundation for human rights practice:
Human rights are a theory-based social construct. Human rights practice is commonly understood as actions through which we advocate for the protection of human rights ... Social action and behaviour which actually do respect human rights, through which we promote their protection, protest against their violation, and organise action or establish institutions that realise and protect human rights, remain guided by theoretical considerations. Indeed, the theory must not become an end in itself; there is something like a prohibition of self-gratification for human rights theory. However, a practice that renounces theoretical considerations will, like otherwise also, become blind and runs the risk of getting lost or doing something wrong.[15]
Finally, the necessity of understanding human rights in their moral dimension and not only in their legal, political and historical dimension can be illustrated through five situations where human rights could not be claimed at all, or at least not integrally if their moral dimension were not considered:
• Even if someone lives in a state in which human rights cannot be claimed legally, every human being is a holder of human rights independent of the official point of view of the state. In such situations it is even more important that human rights are considered to be pre-state-rights. ‘“Vor” bezeichnet nicht die Genesis (Entstehung) dieser Rechte, sondern ihren Geltungsgrund; sie werden nicht vom Staat gewährt’:[16] If human rights were not understood with a moral dimension including its pre-state origin, human rights could not be claimed at all or at least not integrally.
• Even if theoretical and practical obstacles are in the way of their implementation, or there is a lack of political will concerning human rights, it is important that every human being is still a holder of human rights which is possible based on their moral dimension.
• Even if majority-decisions try to reduce the rights of a minority, human rights in their moral dimension stand up for the minority and protect the members of the minority together with all human beings in their essential elements and areas of human existence.
• Even if certain currents in traditions, cultures, religions and world-views try to interpret human rights in a way which leads to the denial or to the restriction of a right or of some rights (eg, gender equality, the relation between individual and collective rights, etc), the fact that every human being is a holder of human rights means — based on the above-mentioned principle of indivisibility — that they posses the entire catalogue of human rights to the same extent without any difference.
• Even if human rights regulate horizontal (between individuals) and vertical (between the individual and the state) relations, every human being is the holder of human rights in their moral dimension, which ensures that human rights can be applied in both cases.
Therefore, the inclusion of the moral dimension of human rights in the understanding of human rights is necessary for the realisation of human rights.
Based on the ideas that have been elaborated so far — that science is protected by human rights by guaranteeing scientists specific protection in their professional performance to ensure academic freedom, and that human rights possess four dimensions, including the moral dimension with its concrete impact on the realisation of human rights — one could state that a scientist is a right-holder.
At the same time, as noted above, human rights not only protect the individual but limit the individual as well, as the individual shares these rights with all human beings. Limits to one’s own human rights are first — in the case of a specific human right — the other human rights following the principle of indivisibility. All human rights must go hand in hand. This means that the entire catalogue of human rights needs to be respected. Therefore, every human right must be implemented optimally and in a way that accords with all other human rights being implemented optimally at the same time. Secondly, limits to one’s own human rights are the human rights of other individuals. For example, one’s own right to freedom goes only so far as it can go hand in hand with the right to freedom of all other human beings.
Both limits lead also to corresponding duties for a rights-holder which is the reason why every right-holder is a duty-bearer as well. These duties can be negative (not doing something in order to contribute to the realisation of human rights) or positive (doing something in order to contribute to the realisation of human rights).
Based upon this conceptual foundation, science and members of the scientific community can contribute to the realisation of human rights, but unfortunately they can also be complicit in or commit human rights violations.
Science can contribute to the realisation of human rights, eg when science enhances sustainable development. Jain understands the concept of development as ‘human development’.[17] This can only be true if technical progress and economical development respect human rights. As a consequence, technical progress and economical development cannot be an ‘end per se’ but must serve mankind. Both technical progress and economic development must function within the framework of human rights to be able to further the realisation of human rights. To further the realisation of human rights even more effectively, human rights must belong to the goals of scientific progress.[18] Meadows et al, have taken a similar position within their report to the Club of Rome:
If there is cause for deep concern, there is also cause for hope. Deliberately limiting growth would be difficult, but not impossible. The way to proceed is clear, and the necessary steps, although they are new ones for human society, are well within human capabilities. Man possesses, for a small moment in his history, the most powerful combination of knowledge, tools, and resources the world has ever known. He has all that is physically necessary to create a totally new form of human society – one that would be built to last for generations. The two missing ingredients are a realistic, long-term goal that can guide mankind to the equilibrium society and the human will to achieve that goal. Without such a goal and a commitment to it, short-term concerns will generate the exponential growth that drives the world system toward the limits of the earth and ultimate collapse. With that goal and that commitment, mankind would be ready now to begin a controlled, orderly transition from growth to global equilibrium.[19]
Science can also be complicit in or commit human rights violations, eg when it does not respect human dignity and violates human rights in the conduct of research, or its work enable parties in armed conflicts to commit horrible acts of violence and genocide.
Science must — as must every other societal actor — move within the legal boundaries which are based on human rights. The scientific community is aware of its legal obligations and legal compliance standards. Besides these legal obligations, science strives for the respect of ethical principles in its research, eg honesty, objectivity, independence, impartiality, fairness, and responsibility for future generations. For this ethical level of science, the contribution of human rights as an ethical point of reference is essential and necessary. Why? First, there is a moral obligation based on the fact that members of the scientific community are not only right-holders but also duty-bearers of human rights as mentioned above.
Secondly, human rights and the human rights principles of freedom, equality and justice protect a minimal standard that enables survival and living with human dignity for every human being. They are not maximal claims. Instead they have a clear focus which can enhance a clear setting of priorities based on the minimal standards which must be respected first. Therefore, human rights as an ethical point of reference can help in the process of agenda-setting in research not only in setting the right priorities but also in defining adequately the sphere of responsibility.
Thirdly, human rights as an ethical point of reference for science possesses the advantage that it is inherently linked with its legal dimension of human rights which serves as a foundation for legal compliance standards. This aspect should not be misunderstood as a neglect of the difference between legal compliance and ethics. It is at the same time an emphasis of the differentiation between legal compliance and ethics and of the inherent link between the moral dimension of human rights as an ethical point of reference for science and the legal dimension of human rights as the foundation of legal standards of compliance.
Compared with the principles of research, human rights embrace both the moral and legal dimensions: human rights are legally defined, have a legal framework and are executable. Institutions like the UN Human Rights Council in Geneva, the Office of the UN High Commissioner for Human Rights in Geneva, the Regional Human Rights Protection Mechanisms in Africa, in the Americas, in Europe, and first steps in that direction in Asia are elements of the realisation of the idea of human rights and can enhance the culture of human rights. They show that human rights are real, not an illusion. Human rights are a legal reality in all parts of the world. Obviously the implementation of human rights is at the same time facing challenges everywhere. Human rights legal mechanisms, instruments and human rights institutions give the idea of the protection of human dignity embodied in human rights a face. The approach to this legal dimension starts on a local level which allows it to begin within the context of the addressees, enabling them to approach human rights from their real-life experience and from their understanding of justice, freedom and equity — always considering the universal dimension of human rights.
This direct link to the legal and political dimension of human rights shows that human rights as an ethical point of reference possess a high degree of practice-orientation and applicability.
Fourthly, a globalised scientific community faces several traditions, cultures, religions, world-views and value-systems. This heterogeneity is protected by human rights. At the same time, it gives this heterogeneity clear limits which need to be respected: Human rights protect the essential elements and areas of human existence within traditions, cultures, religions, world-views and value-systems as well. Therefore, human rights as an ethical point of reference can support science when it is acting in favour of human rights but meeting tradition-, culture-, religion-, world-view- and value-system-based challenges.[20]
Fifthly — and directly based on the fourth point — human rights build a universal consensus which gives this ethical point of reference for science more weight. This is because this ethical point of reference does not build upon a particular tradition, culture, religion, world-view or value-system. This becomes obvious when looking at the discussion of the drafting process of the Universal Declaration of Human Rights in 1948. As Maritain reports: ‘Yes, we agree about the rights but on condition that no one asks us why’.[21]
Sixthly, human rights as an ethical point of reference liberate scientists from the suspicion of arbitrariness in their ethical self-assessment, as human rights are a widely respected ethical standard.
Human rights as an ethical point of reference for science focuses on the definition of fundamental principles, priorities and values of science. The ethical point of reference ‘human rights’ belongs to this fundamental level. It sets out the ground rules, defines the area and identifies limits but does not go beyond that, eg in addressing more specific and practical questions of scientific inquiry due to its nature as a minimal standard for a human life. Because of this nature, the ethical point of reference ‘human rights’ calls for additional ethical elements which go beyond this minimal standard. Therefore human rights as an ethical point of reference for science is not the only ethical point of reference, but is the most fundamental one. It must be complemented by other ethical approaches.[22] In this way, human rights as an ethical point of reference for science can serve as fundamental criteria for a critical examination of ethical theories, models, and guidelines[23] dealing with more specific and practical questions of scientific inquiry.[24]
However, doubt can arise as to whether human rights as an ethical point of reference for science really can really contribute to current debates, eg on the propriety of using animals in scientific research or on the issue of determining how scientific advances are commercialised and who benefits from them. I would argue that human rights as an ethical point of reference for science can provide guidance for addressing these kinds of questions on a fundamental level. The following discussion will illustrate this problem using these two concrete examples: the use of animals in scientific research and the commercialisation of scientific advances.
Animals and the non-human ecological environment in general, relates to human rights as a part of the ecological environment is directly and immediately relevant to the survival and the quality of human life. Despite the human power of innovation, human beings are nonetheless dependent on biophysical conditions and ecological laws. The new ecological paradigm developed by W Catton and R Dunlap, which understands human beings no longer as an exception to nature (exemptionalism) but as being dependent on biophysical conditions and ecological laws except for their undoubted capability for innovation, leads to awareness that changes in the environment are relevant to human rights, as they bring with them changes in the human rights situation as well. The essential elements and areas of human existence protected by human rights in order to guarantee every human being survival and a life with human dignity indicates a very close relationship between human rights and the environment. Many of human rights are essentially environmental. For example, the right to life (Article 3 of the Universal Declaration) depends on an environment that allows for the possibility of human rights. Environmental factors can lead to the death of human beings or shorten their lives decisively. Destruction of the environment can lead to violations of human rights.[25] Therefore, human rights protection and protection of animal rights and protection of the environment in general are linked to a certain extent; namely when the environment concerned is of immediate and direct importance to human life. When the protection of human rights requires protection of the environment, and the protection of the environment constitutes the protection of human rights, a close reciprocal relationship between human rights and the environment is the consequence.
However, considering the environment in this way only can lead to an understanding that is anthropocentric. This limitation can be problematic and controversial as this anthropocentric understanding of the term ‘environment’ limits the importance of the environment to that which is of relevance to human life. Undoubtedly not the entire ecological and physical environment is directly relevant to human life; however, it proves very complex to draw a line between the part that is and that which is not relevant. This difficulty is largely because different aspects of the environment are not isolated. As the web of life is so interconnected it is not possible to define the importance or ‘irrelevance’ of a single aspect. The entire system of the environment and ecology may depend on that seemingly ‘irrelevant’ aspect.[26]
Furthermore, even if it were possible to draw such a line, to do so denies the environment any intrinsic value. Distinguishing between aspects of the environment that are relevant and those which are not supports an understanding that sees the environment in a serving role for the benefit of human life, that is to say, as ‘means’ to the ‘end’ of human life, not as an ‘end per se’. For example, an animal in danger of extinction would be judged only with regard to its relevance for human life and not with regard to its own intrinsic worth or its place within the environment.[27] This limited understanding of the environment ends in the random exploitation of the environment and its licentious oppression under short-term economic goals and the necessities of mankind.[28] Therefore, based on this assessment, an absolute line between the parts of the environment which are relevant and those which are irrelevant to human life should be avoided because the nature of the environment does not seem to allow it. The acceptance of a minimal and moderate role for the human perspective concerning prioritisation of environmental protection, rather than a full assessment of the environment, could serve as an alternative. In addition, reinforcement and support of victims of environmental degradation and destruction, and the empowerment of environmental activists in their struggle could come from human rights.
Regarding animal rights more specifically, Bernd Ladwig[29] has shown that animals are of moral relevance to human beings because of their vulnerability. This gives human beings the power to influence the life and the existence of animals. Animals are therefore objects of decisions and acts of human beings. They are morally relevant as they are not morally indifferent for human beings due to their vulnerability which plays a role in the moral attempt of human beings to achieve a good life and to do the right thing. Animals are also morally relevant from the perspective of human beings even if one considers them not morally capable. The moral dimension of human rights assumes that human beings are morally capable without understanding it as a ‘conditio sine qua non’ on which a justification of human rights could be based. This moral capability of human beings is inherent in the moral dimension of human rights because the moral dimension of human rights argues that human beings are not only right-holders but also duty bearers. In a moral dimension the latter means that they are able to perform moral duties and to bear moral responsibilities.
Besides being morally relevant for human beings, animals possess a moral relevance as well. The moral relevance of animals means that they are objects of decisions and acts of moral character made by morally capable subjects and that they are depending on the quality of these decisions and acts of moral character which are under the influence of the morally capable subjects.
In conclusion it should be noted that the preceding discussion serves here only as an example to show how human rights can contribute as an ethical point of reference for science to current debates. For example, I would argue that human rights as an ethical point of reference for science defines clear boundaries regarding the propriety of using animals in scientific research by introducing the contribution to the realisation of human rights as a criterion for the use of animals in scientific research as a primary and fundamental element of an ethical assessment. Of course this fundamental element would need further elaboration based on the specific cases, but nevertheless it gives a fundamental orientation.
The commercialisation of scientific advances and the recipients of their profits are closely linked with the issue of intellectual property. Property is highly significant from a human rights perspective:
The historical development of the idea of human rights is closely connected to the right to private (individual or common) property ... The right to private property is understood as a direct consequence of the human person’s need and ability to provide for his or her subsistence and entertainment through manifold activities. ... The body itself is the first property of the human person. The respect for a person’s property is thus related to the respect of the integrity of the body and the human person as a free and active being. Every human person has to be considered proprietor of his or her body, its labor and its projects. The denial of private property rights as human rights opens the door to slavery and grave forms of exploitation.[30]
Based on this positive assessment of property in general from a human rights perspective, intellectual property is protected by human rights as well, specifically by Article 27(2) of the Universal Declaration of Human Rights: ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ At the same time, Article 27(1) of the Universal Declaration of Human Rights states: ‘everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.’ Both aspects of intellectual property rights are recognised as belonging to the essential elements and areas of human existence which are protected by human rights. Instead of creating a conflict between the two aspects of intellectual property rights protected by human rights, their complimentary character, in line with the principle of the indivisibility of human rights, which was introduced above, needs to be respected. Moreover, all the other specific human rights can serve as additional criteria in order to guarantee that the implementation of both aspects of intellectual property rights are complementary thereby contributing to the optimal realisation of all human rights. The other aspect of intellectual property rights and all other human rights represent a limit because human rights must — as mentioned above — go hand in hand. Formulated positively,
the supportive function of IPRs in the broader framework of industrial, commercial, and cultural development could be further analysed. If such a role of IP can be established, the extent to which limitations are imposed on IPRs may be determined differently than if such a supportive role cannot be demonstrated. Such an assessment could examine some areas in respect of which the IP system has given rise to particular concerns, for example, public health and the rights of indigenous peoples.[31]
For example, if the human right to health[32] in the so-called ‘developing world’ is violated because of a limitation on the rights of individuals to the benefits of scientific and medical advances due to intellectual property rights (eg of pharmaceutical multinational corporations[33]), then the protection afforded by intellectual property rights concerning the material interests derived from scientific production needs to be revised and limited to a certain extent. This revision and limitation must go only so far as it is allowing an optimal realisation of both rights — the right to medical care and the right to intellectual property — in respect with all human rights. This concrete example of ethical discourse on scientific research also shows that human rights as an ethical point of reference can contribute on a fundamental level to the current debate of specific issues by giving a basis and orientation for more detailed discussion from case to case.
[*] PD Dr Peter G Kirchschlaeger, Lecturer, Co-Director, Centre of Human Rights Education (ZMRB), University of Teacher Education Lucerne (PH Lucerne).
[1] GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) (‘Universal Declaration of Human Rights’).
[2] Norberto Bobbio, Das Zeitalter der Menschenrechte, Ist Toleranz durchsetzbar? (Klaus Wagenbach, 1998).
[3] See National Archives of the United States of America, Declaration of Independence (1776) <http://www.archives.gov/exhibits/charters/declaration_transcript.html> .
[4] See LegiFrance (service public de la diffusion du droit par l’internet), Declaration des droits de l’homme et du citoyen de 1789 (1789) <http://www.legifrance.gouv.fr/Droit-francais/Constitution/Declaration-des-Droits-de-l-Homme-et-du-Citoyen-de-1789> .
[5] See Peter Koller, ‘Die Begründung von Rechten’ in Peter Koller et al (eds), Theoretische Grundlagen der Rechtspolitik, Ungarisch-Österreichisches Symposium der internationalen Vereinigung für Rechts- und Sozialphilosophie (Archiv für Rechts- und Sozialphilosophie, 1990) 74, 84.
[6] Walter Kaelin et al, The Face of Human Rights (Lars Mueller Publishers, 2004) 17.
[7] See Peter G Kirchschlaeger, ‘Menschenrechte und Politik’ in Hamid Reza Yousefi (ed), Geschichten - Erscheinungsformen - Neuere Entwicklungen (Springer, 2013) 255, 260.
[8] Johannes Morsink, ‘The Universal Declaration and the Conscience of Humanity’ in Rainer Huhle (ed), Human Rights and History: A Challenge for Education (Stiftung EVZ, 2010) 27.
[9] Ibid 36.
[10] Robert Alexy, ‘Die Institutionalisierung der Menschenrechte im demokratischen Verfassungsstaat’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte (Suhrkamp, 1998) 244, 264.
[11] Ibid, 50.
[12] See Peter G Kirchschlaeger, ‘Brauchen Menschenrechte eine (moralische) Begründung?’ in Peter G Kirchschlaeger (ed) Menschenrechte und Kinder, Internationales Menschenrechtsforum Luzern (IHRF) (Staempfli, 2007), vol 4, 55, 63.
[13] Juergen Habermas, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Suhrkamp, 2nd ed, 1994).
[14] See Georg Lohmann, ‘Menschenrechte und “globales Recht”’ in Stefan Gosepath and Jean-Christophe Merle (eds) Weltrepublik, Globalisierung und Demokratie (C H Beck, 2002) 52, 62.
[15] Georg Lohmann, ‘Menschenrechte in Theorie und Praxis’ in Peter G Kirchschlaeger et al (eds), Menschenrechte und Terrorismus, Internationales Menschenrechtsforum Luzern (IHRF) (Staempfli, 2004) vol 1, 307.
[16] Hans-Jörg Sandkuehler, ‘Art. Menschenrechte’ in Hans-Jörg Sandkuehler (ed), Enzyklopädie Philosophie (Meiner, 2010) 1539.
[17] Devaki Jain, ’Human Rights and Development’ in Peter G Kirchschlaeger et al (eds), Menschenrechte und Wirtschaft, Internationales Menschenrechtsforum Luzern (IHRF) (Staempfli, 2005) vol 2, 304.
[18] See about technical progress, its ends, its foundational values and its societal importance, using the examples of stem cell research and research on human beings, Peter G Kirchschlaeger et al (eds), Stammzellenforschung, Science & Society (Seismo 2003) vol 1; Peter G Kirchschlaeger et al (eds), Forschung am Menschen, Science & Society (Seismo, 2003) vol 2.
[19] D H Meadows, D L Meadows, J Randers, and W W Behrens III, The Limits to Growth (Universe Books, 1972).
[20] See Peter G Kirchschlaeger, Wie koennen Menschenrechte begruendet werden? Ein für religioese und saekulare Menschenrechtskonzeptionen anschlussfaehiger Ansatz (LIT, 2013) 162, 184.
[21] Jacques Maritain, ‘Introduction’ in UNESCO, Human Rights: Comments and Interpretations, UN Doc UNESCO/PHS/3 (rev.) (25 July 1948) 1, 9.
[22] See eg, Markus Zimmermann-Acklin, ‘When not all services can be offered to all patients’: ‘Ethische Überlegungen zur Finanzierung medizinischer Maßnahmen bei Patienten am Lebensende’, in Gunnar Duttge and Markus Zimmermann-Acklin (eds), Gerecht sorgen – Verständigungsprozesse über den Einsatz knapper Ressourcen bei Patienten am Lebensende (Universitätsverlag Göttingen, 2013) 177, 200.
[23] See eg, Council for International Organizations of Medical Sciences, International Ethical Guidelines for Biomedical Research Involving Human Subjects (2002) <http://www.cioms.ch/publications/layout_guide2002.pdf> Council for
International Organizations of Medical Sciences, International Ethical Guidelines for Epidemiological Studies (2009) <www.ufrgs.br/bioetica/cioms2008.pdf>.
[24] See eg World Health Organization, Casebook on Ethical Issues in International Health Research (2009)
<http://www.who.int/rpc/publications/ethics_casebook/en/index.html> .
[25] See Laura Ziemer, Environmental Harm as a Human Right: Forging New Links (2007) Tibet Environmental Watch <http://www.tew.org/background/env.rights.html> .
[26] Ibid.
[27] See Patricia W Birnie, and Alan E Boyle, International Law and the Environment (Oxford University Press, 1992).
[28] See Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103, 138.
[29] See Bernd Ladwig, ‘Das Recht auf Leben – nicht nur für Personen‘ (2007) 55 Deutsche Zeitschrift für Philosophie 17, 39.
[30] Francis Cheneval, ‘Property Rights as Human Rights’, in Hernando de Soto and Francis Cheneval (eds) Realizing Property Rights (Rueffer & Rub, 2006) 11.
[31] Philippe Baechtold, ‘Public Policy Objectives and Intellectual Property Rights: The Examples of Public Health and Indigenous Peoples’ in Hernando de Soto and Francis Cheneval (eds) Realizing Property Rights (Rueffer & Rub, 2006) 271.
[32] See Michael Grodin et al (eds), Health and Human Rights in a Changing World (Routledge, 2013); Sofia Gruskin et al (eds), Perspectives on Health and Human Rights (Routledge, 2005); Paul Hunt and Gillian MacNaughton, A Human Rights-Based Approach to Health Indicators, in Mashood Baderin and Robert McCorquodale (eds), Economic, Social, and Cultural Rights in Action (Oxford University Press, 2007); Véronique Zesiger and Philippe Chastonay, Santé et droits humains: Situations concrètes et outils de protection (Editions Médecine et Hygiène, 2007); Stephan P Lehner and Hermann Denz, Health in Bogota: Health as a Human Right (Digiprint Editores, 2005).
[33] See Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines as part of the Report to the General Assembly of the UN Special Rapporteur on the right to the highest attainable standard of health (UN document: A/63/263, dated 11 August 2008).
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