—Luísa Netto, Postdoc Visiting Fellow, Leiden University and Assistant Professor, Catholic University of Minas Gerais
The right to enjoy the benefits of scientific progress and its applications or merely the right to science is positivized as a human right in various international law instruments, such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The bindingness of this right in domestic legal orders can be grounded either directly on these international instruments with their distinct normative force or on domestic clauses which establish the reception of international norms. Besides, there are constitutions which explicitly enshrine relevant aspects of this broad right.
Since the first formulation of the right to science, there has been considerable development in identifying the right holders, the duty bearers, and the content of the right in terms of substance and scope. Nonetheless, it is possible to assert that one of the many difficulties in the advancement of this right is a deficit in the definition of states duties.
The outbreak of the COVID-19 pandemic claims the effectiveness of the right to science, in defiance of the undeniable difficulties to enforce international and domestic norms on human rights, especially in a global context of growing populism and economic crisis. In addition to the possible domestic legal means to tackle the pandemic, addressing it from a human rights framework provides a complementary legal foundation, either to protect individual rights, or to promote public health. At the crossroads of law and politics, the right to science enables to approach what is legally required from states and governments. Furthermore, the principle of due diligence strengthens states obligations related to the coronavirus crisis.
Without disregarding the many aspects of the right to science which are triggered by the pandemic and without oversimplifying the question, this post focusses on the idea that the right to science sets some legal parameters to legitimate political decisions, requiring policies based on prevailing scientific evidence.
Pandemics throughout history have demanded broad public action to face their consequences, which go far beyond public health. Even though pandemics spread not only disease, being able to cause far reaching economic, institutional and social crises, pandemics primarily relate to infectiousness, contagiouness, severity, immunity, prevention and treatment. Leaving aside the possible disagreements within the medical and biological communities on their exact delimitation, pandemics are, per definition, a scientific concept, and they present a multitude of challenges which defy, at first, scientific approach. Only science (besides the Darwinian natural selection) can fight the virus that lay in the origin of the present pandemic and provide ground to other collective decisions to deal with its broader consequences.
Bearing these considerations in mind, it would seem common sense to affirm that, in 2021, scientific knowledge and expertise ought to offer guidance for construing public strategies to fight the pandemic. Yet, a legal argument is highly welcome as, amidst global deeply diverse responses to the COVID-19 pandemic, various negationist responses can be found, such as North-american ex-president’s and Brazilian actual president’s.
Departing from the UDHR, article 27, and the ICESCR, article 15, which explicitly establish the right to science, it is possible to take an initial approach to its normative content. It encompasses many aspects, namely the right of individuals to enjoy the benefits of scientific and technological advancement and the right of scientists to freely conduct science and to have the results of their work protected.
In the present circumstances, the first specific legal aspect of the right to science that springs to light is the obligation of states and governments to actively protect life and health according to science, to take timely measures to address the pandemic based on scientific evidence, to avoid the spread of the disease and to adequately treat affected persons. Furthermore, states ought to foster independent scientific research and international collaboration aiming to develop, produce and apply vaccines as well as to sketch strategies for preventing and fighting future pandemics. These obligations should be seen in a wider context, encompassing other fundamental rights and equal treatment.
The active aspects of the right to science should not obscure that it also entails the prohibition to states and governments to act or refrain from acting in discordance with the prevailing scientific knowledge and evidence.
This initial presentation of the normative content of the right to science enables to legally anchor states’ specific duties such as taking measures to impose social distancing and the use of masks, as well as to implement public vaccination campaigns. It also permits to rationally frame discussions and the exercise of political discretion regarding controversial policies, e.g., the extension of the lockdown, curfews, obligatory vaccination. From another perspective, this legal approach makes it possible to scrutinize public behaviours which clearly deviate from scientific advice, likewise the lack of action to offer vaccines or treatment, public misuse of information, official denial of facts. The guiding parameter should be what is known, acceptable and required according to prevailing scientific evidence in a certain moment.
The matter must be approached with caution. It is not the case to advocate an epistocracy or a technocracy, neither to allow experts to take the place of democratic elected officials. After all, science is subject to bias, falsification, politicization and error and requires constant development, often not being able to offer incontestable answers to complicated societal challenges. Moreover, the newness of COVID-19 leads to constant debatable issues. On top of this, there are serious economic impacts of the pandemic and different national contexts which may ask for diverse strategies. Absolute objective scientific advice for political action is not achievable or even desirable.
Nonetheless, departing from the right to science as a human right, there are legal grounds to demand that the decisions taken by democratically legitimated authorities rely on scientific prevailing evidence, are public, transparent, and subject to control by political institutions. It is vital that the political institutional debate continues as a foundational integral element of democracy, and that the measures needed are taken and tailored to fit constitutional requirements. Besides the democratic arena, with the guarantee of free press and freedom of expression, legal accountability could also be triggered either to control public decisions clearly taken against prevailing scientific evidence or the lack of implementation of essential measures.
Science cannot and should not replace political leadership or democratic legitimacy. On the crossroads of law and politics, the right to science offers legal foundation to parametrize political decisions required to face the present pandemic. On the one hand, there should be room for political choice within what is, at the moment, scientifically defensible. On the other hand, there should be no room for simply ignoring or denying the prevailing scientific knowledge and evidence.
Suggested citation: Luísa Netto, The Right to Science and the Pandemic: at the Crossroads of Law and Politics, Int’l J. Const. L. Blog, Feb. 4, 2021, at: http://www.iconnectblog.com/2021/02/the-right-to-science-and-the-pandemic-at-the-crossroads-of-law-and-politics/