A Duty to Protect from Science? Interactions in International Law between Research Security and the Right to Science

Abstract

Among the various human rights protected by international law, perhaps one of the least understood is the right to science, a fundamentally under-explored international legal obligation. At the same time, nation-states are increasingly engaging in thefts of intellectual property, scientific discoveries and high-value data and so have enacted regimes to enhance “research security” to protect against those threats. But does this result in a clash between a human right to science and the sovereignty of States? Or can the two rights be properly reconciled using appropriate, proportionate and reasonable mechanisms of law?

Keywords: research security, right to science, international law, nation States, legal obligations.

Part l: Introduction

In 2016, a Chinese national named Robert Mo was sentenced to three years imprisonment in the United States (US) following his arrest by the FBI for ‘participating in a long-term conspiracy to steal trade secrets from DuPont Pioneer and Monsanto’.[1] According to the indictment, Mo was charged with stealing hybridised corn seeds from those US companies’ fields in Iowa, before sneaking them back to the offices of his employer, Dabeinong Technology Group, concealed inside popcorn bags in his luggage.[2] The theft, and Mo’s subsequent conviction, was characterised as a grand conspiracy to steal trade secrets,[3] against a broader context of China’s historical efforts to obtain military technology by means quasi-legal and illegal.[4]

What made Mo’s case so interesting was that his was the first case involving the theft of non-military technologies by Chinese nationals under the parameters of “research security”. Following Mo’s conviction, two more Chinese nationals were indicted in 2020 for stealing information relating to COVID-19 vaccine research from biotechnology firms in the US.[5] In late 2023, a meeting of the Five Eyes intelligence alliance (the US, UK, Canada, Australia and New Zealand) issued a joint statement that “the Chinese government is engaged in the most sustained scaled and sophisticated theft of intellectual property and expertise in human history”, and committed themselves and their agencies to combatting it.[6]

Yet domestic restrictions in the name of research security may seem somewhat incongruous with the obligation enshrined in international human rights law (IHRL) to defend and protect the right to science and its benefits for the whole of humanity. Derived from both the Universal Declaration of Human Rights (UDHR)[7]and the International Covenant on Economic, Social and Cultural Rights (ICESCR),[8] there has been a recent resurgence of scholarly interest in examining and defining the boundaries of the right, its normative contents, and the rights it seeks to protect.

I argue that under IHRL, States that enact research security programs will need to be mindful that such programs respect State obligations under the right to science: firstly, an anticipatory positive obligation to ameliorate the adverse impacts on scientific advancement and progress, counterbalanced against a secondary negative obligation to ensure access to the “sharing” of scientific advancement and its benefits by refraining from overregulation. In particular, I argue that the anticipatory obligation requires States to exercise “due diligence” and “take precautions” to reduce harm to the lowest practicable level by identifying and managing risks (and by extension, maximising benefits for individuals).

Further, I argue that States can legitimately protect their domestic research apparatus whilst remaining compliant with broader obligations to the rights to science by adopting sovereign policies founded in economic protectionism. Global trade law has long honoured the notion that States can protect domestic producers (and converso harming foreign producers) of goods or services to create unfair advantage.[9] In the same way that patents can infringe the right to have unfettered access to the latest fruits of science (ostensibly to protect the rights of innovators and inventors), it is imperative that States take steps to protect their sensitive research from foreign parties who might have interests which are harmful or non-beneficial.

Thus, in those States that have affected “research security” laws and policies (and despite the lack of a perfectly expressed duty), an anticipatory duty obliges States to ensure those research security measures comport with international norms. The obligation also requires States to ensure their research security mechanisms are not applied arbitrarily, unfairly, or in a discriminatory manner (which would infringe the right under IHRL to access to the benefits of science and its applications). Instances such as the US’ ill-fated “China Initiative” – where numerous Chinese academics were subject to unnecessary and arbitrary surveillance and malicious prosecutions[10] – offend this principle by imputing individuals with illegal motivations based on ethnicity or heritage.

This paper therefore has three purposes. Firstly, it contributes to the broader scholarship surrounding the right to science and the obligations of protection which arise under that right, a field of study which has been largely neglected by international law scholars until recently.[11] Secondly, it juxtaposes the definable concept of research security to the international right to science, with a view to identifying how research security may achieve the obligations imposed under the right to science, and points to areas of conflict between international obligations and domestic legal protections. Thirdly and lastly, this paper will express and defend a position that despite external appearances, the imposition of domestic legal safeguards in the name of research security is consistent not only with the duties which flow from the right to science under IHRL, but also in accordance with notions of economic protectionism.

Part ll: Articulating the Right to Science

In 1948, the United Nations published one of the cornerstones of IHRL in the form of the UDHR.[12] Contained with the numerous human rights recognisable to many international law scholars was a curious article which described the universal right to ‘freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’.[13] The so-called “right to science” under the UDHR was followed by the declaration of the ICESCR in 1966, which contained a normative declaration of ‘the right of everyone…to enjoy the benefits of scientific progress and its applications’.[14]

Yet the right to science was for some decades largely ignored by many international scholars, with Schabas observing the right “has been barely addressed in the academic literature” and occupied the “vanishing point of economic, social and cultural rights”.[15] He later described the right to science as the ‘sleeping beauty’ of human rights for having been “put to sleep” for nearly six decades.[16] McGoldrick was equally pithy, saying the right to science was ‘the failed Cinderella of the human rights lexicon – pretty to picture but they don’t quite make it to the ball’.[17] However, the right to science has undergone something of a contemporary renaissance – a surge in scholarship.[18] Alongside an increase in academic attention, UNESCO held three expert meetings from 2007 to 2009 which culminated in the release of the Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications.[19] The actual implementation of the right under Article 15(1)(b) was then the subject of a report by Farida Shaheed (the Special Rapporteur on Cultural Rights) in 2012,[20] and a “position statement” in the form of General Comment No. 25 of the Committee on Economic, Social and Cultural Rights in 2020.[21]

Collectively, this burst of international attention has done much to define and contextualise the right to science, yet the precise boundaries of what the right to science entitles or protects is not settled. What does the right to science do? What right does it confer on the peoples of the world, and what does it oblige member States to uphold or protect? The travaux préparatoires to the UDHR disclosed fundamental arguments between the High Contracting Parties about whether the provision was intended to confer a human right to the conduct of science, or mere entitlement to the benefits of its practice, i.e., the “fruits” of scientific research.[22] Even despite those disagreements – between the largely socialist French and South American parties on one hand and the UK and their former colonies on the other – the nature of the right in the UDHR was intended to be claimed by individuals as a protection of “the personal, creative abilities, and capacities of individual human being”.[23] However, by the time the right was enshrined in the ICESCR, some have argued that the transition from explicit right to ephemeral construct was all but completed,[24] with the text of the provision changing from ‘shar[ing] in scientific advancement and its benefits’ under the UDHR, art 27(1) to a bald right to merely ‘enjoy the benefits of scientific progress’ under the ICESCR, art 15(1)(b). But to treat the ICESCR as “reading down” the rights conferred by the UDHR would be a mistake.

Firstly, that would ignore the context in which the right to science in the ICESCR is sited. Articles 15(2) and 15(3) confer obligations on States to take such steps “necessary for the conservation, the development and the diffusion of science…” and “to respect the freedom indispensable for scientific research and creative activity”. Article 15(4) further provides that these obligations are imposed in recognition of “the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields” (noting that this is not an obligation in and of itself). Thus, the ICESCR is in fact an expansion, not a derogation, of the right contained in the UDHR.[25] The Optional Protocol to the ICESCR, which entered into force on 5 May 2013, further promotes the individualistic nature of the human right which is protected by permitting individuals to make complaints under a similar model to the UN Human Rights Committee.[26]

Secondly, the position of States – at least as far as consensual position statements have been issued from the UN – demonstrates an ongoing practice of supporting the wide interpretations of the right to science. The ICESCR itself, in arts 2(1) and 23, further elucidate that States will require international cooperation to achieve the lofty ambitions enumerated in its text. In 1975 the UN General Assembly adopted a Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind,[27] which reinforced those same precepts. That Declaration not only imposed obligations on States to “promote international cooperation” and “take appropriate measures to prevent the use of scientific and technological developments…to limit or interfere with the enjoyment of the human rights and fundamental freedoms of the individual”, but also to “cooperate in the establishment, strengthening and development of the scientific and technological capacity of developing countries…”. Fast-forward 45 years to 2020, when General Comment No. 25 again made the point clear that Article 15(4) of the ICESCR imposed an obligation on developed States to “contribute to the development of science and technology in developing countries [and] adopting measures to achieve this purpose”.[28] Yotova and Knoppers have further demonstrated that State practice – as far as reports filed with the UN are concerned – recognises that the right de minimis involves access to scientific knowledge and information, and the right to benefit from scientific applications.[29]

Thirdly, a narrow interpretation of the right would run counter to the views expressed in the travaux préparatoires to both the UDHR and ICESCR. Although the States were at loggerheads about the textual content of the UDHR, there is evidence that “states had become comfortable with the idea of a stand-alone human right to science, and they were keen to endorse it as being a fundamental human right”.[30] Some scholars criticise the textual choices in the ICESCR as being a mere shadow of the broader right in the UDHR (reflecting social paranoia and general despair toward cultural rights following the development of atomic weapons and the move from confrontation to détente in the Cold War).[31] Yet there is substantial evidence that the ICESCR was intended as an expansion of the right to science in State practice. Arts 15(1)(b), 15(2) and 15(3) created “an obvious implication that, while being necessary for the realisation of other rights, the right to science is distinct from other rights and as such possesses an autonomous and distinct character”.[32]

Fourthly, the right to science has largely always been recognised as an “umbrella” right, which protected several fundamental and foundational pillars necessary for both individuals and broader society to enjoy the benefits of scientific and technological advancement. These are usually described as rights to share in scientific progress and achievement, the promotion of conservation and diffusion of science, protection of the freedom indispensable for scientific research, and enhancement of international cooperation.[33]

Conversely, science can have a dark side. Research into nuclear fission for powerplants can also be used to build devastating weapons. Experiments creating vaccines or antibiotics can be repurposed to invent diseases for use in biological warfare. A laser can be used in astronomy or physics experiments, or to burn a hole through a tank. History is replete with examples of ordinary or civilian technologies being repurposed for use by military forces.[34]

If one accepts that the purpose of IHRL is the promotion of peace, human dignity, non-discrimination, and the protection of participation and transparency in decision-making,[35] then IHRL cannot be served by States who clothe every use of science in Article 15(1)(b) (including uses that disadvantage or denigrate citizens, threaten their autonomy or legal rights, or put them at risk of harm or death). Consistent with that view, scholars have held that whatever content the right to science may contain to enhance citizens’ rights to science and the benefits of science, it imposes equal obligations on States to protect “against harmful activities emanating from science”.[36] As was clear in the history of both the UDHR and the ICESCR ‘…drafters were sympathetic to, if not unanimously in favour of, the idea that applications of scientific progress should be directed at peaceful and democratic ends. Yet the notion that the direction of science itself… should serve any kind of ends was met with fierce critique’.[37] The Venice Statement equally expressed a strong position that the normative content of the right to science included “protection from abuse and adverse effects of science and its applications”.[38]

Part III: Conceptualising the Right to be Protected from the Adverse Effects of Scientific Progress and its Applications

How then is this protective obligation to be interpreted? If one returns to one of the original documents from which the UDHR drew its final content, art XV of the “Draft Declaration of the International Rights and Duties of Man”[39] (drafted by the Inter-American Juridical Committee) would have imposed an obligation on States to “protect the citizen against the use of scientific discoveries in a manner to create fear and unrest among the people”. Fear over the proliferation of nuclear weapons, and the devastation wrought by them, likely loomed large in the minds of its drafters.

Though it might seem surprising or even unsettling that this obligation was not ultimately recognised in the UDHR (or the ICESCR), the absence of protection for any “adverse” uses of science – as opposed to the protections which attached to the “benefits” of science – appears to have been an intended outcome.[40] The recognition of the right under art 15(1)(b) of the ICESCR was buttressed by the broader freedom of art 15(3) , such that “the increase and diffusion of knowledge depend entirely upon freedom to search, experiment, criticise, proclaim. Without these freedoms there can be no science”.[41]

The fact that no explicit aim was added to the final provision in the UDHR nor later in the ICESCR does not mean that States did not take the possible dangers of scientific advancement seriously. States seemingly made a distinction between the development of science itself, which should not be constrained, and the results and outcomes of science and technology, which ought to be directed towards human interests, such as peace, democracy, and international cooperation.

Later international expression likewise demonstrated the concerns held by States about the race of technological development. The Declaration in 1975 recognised that States needed to “take appropriate measures” to prevent the use of technology to limit or interfere with human rights, to “refrain from any acts involving the use of scientific and technological achievements for the purposes of violating the sovereignty and territorial integrity of other States, interfering in their internal affairs, waging aggressive wars, supressing national liberation movements or pursuing a policy of racial discrimination”, and “take the necessary measures…to ensure that the utilization of scientific and technological achievements promotes the fullest realization of human rights and fundamental freedoms…”[42] Whilst States can incur legal responsibility under IHRL for breach of an applicable obligation (where that conduct is attributable to the State[43]), such breaches do not immediately incur liability in the same way as domestic tort regimes would recognise.[44]

Further declarations at the turn of the century – and the height of a genetic engineering boom – were made to ensure genomic data was not abused, misused, or collected without full, informed consent.[45] The Venice Statement reiterated a normative requirement to protect against malicious and negligent uses of science, and General Comment No. 25 similarly acknowledged the duality of the right, in which they recognise that rights to science under both the UDHR and ICESCR may be limited “as science and its applications can, in certain contexts, affect economic, social and cultural rights”.[46] Such limitations must be enacted by law and abide by the Limburg and Syracuse Principles, in that such limitations must not be arbitrary, unreasonable, non-discriminatory, but must be accessible and foreseeable.[47]

Limitations allowed by IHRL

A limitation imposed by law that is not arbitrary, and infringes the right to science by the barest degree necessary to achieve the avoidance of harm to a States’ citizens, is also consistent with the drafting history of art 15(3) of the ICESCR, where States held the word “indispensable” was fundamental to allow States to “impose limitations required by national security, public order and morality”.[48] Further, where States are aware (or should have been aware) of threats to the life or limb of their citizens – such as in this case, by reckless or malicious pursuit of science and technology – such States incur an anticipatory duty to protect their citizens under various other IHRL instruments.[49]

International law is often reluctant to recognise anticipatory duties, noting that international treaties and instruments evolve ‘in response to major social and political changes rather than in anticipation of them’.[50]Where duties are imposed ex ante there may an unacceptable infringement on State autonomy and sovereignty, or impermissible vagueness as to the threshold or trigger at which the duty may apply. That said, it is possible that anticipatory duties are an appropriate form of regulation for “future” risks – which can be difficult to conceptualise or quantify[51] – because the anticipatory duties can establish satisfactory baseline norms for States, even for behaviours which may not be technologically or economically feasible at the time they are made.[52] Certain anticipatory duties that have been imposed on States, including the duties of “prevention”, “precaution” and “due diligence” (with their origin in international environmental law[53]), have found recent resurgence in the interpretation of IHRL.[54]

However, both the UDHR and the ICESCR recognise an anticipatory duty in relation to the right to science. The Committee’s General Comment No. 25 requires that “scientific advancement” in the UDHR and “scientific progress” in the ICESCR involve “the capacity of science to contribute to the well-being of persons and humankind”.[55] Converso, adverse effects of scientific advancement or progress are excised from protection on the ground that “the entitlement must inhere also in benefitting from the purpose to which that knowledge is put” (emphasis added).[56]

Donders and Plozza summed up the requisite balance when they said:

States have indeed an obligation under the right to science to prevent harm and the anticipation of possible future harms may imply that the elements of prevention, precaution, and due diligence are effectively combined. The action to be taken should be necessary and proportionate to the seriousness of the risks of harm, i.e., the magnitude and reversibility of the harm as well as the likelihood for it to happen. In the context of the right to science proper, the measures taken should, however, not have disproportionate negative impacts on the benefits of scientific progress and its applications or on scientific freedom.[57]

Thus, States carry both an anticipatory duty to protect their citizens not only from abuses and misuses of scientific progress and technological advancement, as well as the duty to refrain from overregulating (and indeed actively promoting) access to transparent, diffusive, well-resourced scientific research.[58] States must discharge an anticipatory duty through the combination of due diligence (the process of examining information for “known” risks, which can then be appropriately managed or eliminated) and precaution (the process of inferring possible “unknown” risks from incomplete or inaccurate information), in a manner that nevertheless balances the obligation on the State to protect its citizens’ right to scientific progress and its benefits (the residual duty).

Limitations allowed by economic protectionism

That said, the State retains sovereign power to determine what is in its citizens’ national interest but also (and more importantly for this argument) what is not. The imposition of barriers to the universal right of “access” to science are permissible where the barrier is necessary to preserve or promote rights founded in either IHRL or economic principles.[59] This type of economic balance is not unknown to international law, where emerging or disruptive technologies have been empirically identified as a specific driver of protectionist policy.[60] Just as is apparent in the former, in the latter there is a balance to be struck: measures which prioritise the protection of scientific rights of sovereign citizens of the enacting State do so by restricting or preventing access to the science for those foreign to the enacting State. As Torponin et al. describe, “what is referred to as protectionism by some politicians can be considered as an essential tool for the protection of domestic interests by others”.[61]

In that vein, patents and copyrights are a State-sponsored tool which act to artificially limit access internationally to technologies, so States can defend domestic inventors and innovators. The predominant test for State practice of protectionism in response to technology is whether “[a] rational substantive relationship exist[s] between the risk assessment [of that technology] and the measure adopted” in order to protect it.[62]Further, more than puffery is required to ground such protections in normative State practice. Kogan describes the difference as between an expression of “cultural values” rather than engaging in mere “garden-variety trade protectionism”.[63]

Shaver’s counterargument – strongly supported by others – is that access to science should be the predominant right articulated in IHRL, and that the protection of innovation “should be given an interpretation that is compatible with the original and primary emphasis on access”.[64] Whilst access to science is a lofty goal, it can run counter to the primary allegiance owed by States to their constituents and the protection of their rights, not the rights of foreign nationals.[65] That duty is paramount and may extend even to injuring the interests of foreign nationals if doing so is supported by the interests of the State’s citizens. As Shaver herself recognises, the adoption of international norms by States is “complex and inescapably political”.[66] That position is supported by the text of Article 4 of the ICESCR, which stipulates that “…the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”. Developing countries are also afforded the explicit ability under Article 2(3) to “determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”. It may also not be in a State’s interests to allow access to technology for reasons of its own security. Consider for example the development of nuclear technology after World War 2. Originally developed by the United States, there is no reasonable construction of international law which obligated the US to share that technology with the Soviet Union (even if Soviet citizens would have benefitted from access to a benign purpose like nuclear power) or any other State, where the sharing or access to that science runs counter to US interests.

Thus, there are three reasons why research security programs can be reconciled with the IHRL rights of access on the one hand and principles of economic protectionism on the other. Firstly at the level of international law, national security exceptions (such as are found in article 21 of the General Agreement on Trade and Tariffs) are a “golden thread” in international trade and investment law that protects the sovereign rights of States to protect their national interests and those of their constituents.[67] The protectionist nature of exceptions on so-called “public policy grounds” – such as national security – has been long supported by international tribunals, which have deemed that treaty obligations may be displaced where such exceptions are triggered.[68] Secondly at a more pragmatic level, there is a substantial difference in legal power between the regimes of protection for intellectual property rights and human rights.[69] This is properly reflected in the truism that States are also the only entities in market-based economies which possess the resources and longevity to continually spur innovation and novelty.[70] Thirdly, research security programs can also be viewed as a form of sanctions or countermeasures, routine tools of international statecraft designed to compel or coerce a foreign State into complying with international norms.[71] For example, Canada’s creation of the “Named Organisation List” – a catalogue of entities which are banned from collaborating with Canadian universities which receive Federal funding – was made in the context of an ongoing inquiry into foreign interference and intelligence investigations into Chinese infiltration of research entities.[72]

How then does the research security paradigm fit within the broader considerations of the anticipatory duty and residual duty under the right to science?

Part IV: Research Security and Protecting from Adverse Effects

For countries that are unwilling or unable to meet the heavy investment needed to foster a robust university research market, there is another option. Why conduct your own research when you can just steal it from your neighbour? States do not have a moral obligation to comply with international law.[73] Governments of all States have thus taken advantage of vulnerabilities of universities to intelligence tradecraft, from blackmail and harassment to recruitment, hacking and espionage.[74] Intelligence agents posing as academics can more easily penetrate institutions under the guise of “collaboration”.[75] Hackers have exploited the often-lax cybersecurity of universities to make off with sensitive data.[76] Foreign companies have been caught providing “secret grants” to universities, entirely without the knowledge of security agencies.[77] Attempted counterespionage investigations have been dogged by allegations of racial profiling and suggestions of a “chilling effect” on international university relations.[78]

Many countries already use domestic law to enforce intellectual property rights,[79] as well as outlawing the theft of proprietary research, either as a function of their corporate regulatory frameworks or because of anti-espionage statutes.[80] Alongside those domestic regulations – and core to the focus of this paper – these states are also increasingly deploying measures surrounding “research security”. Defined broadly, research security can be viewed as ‘the ability to identify possible risks to your work through unwanted access, interference, or theft and the measures that minimize these risks and protect the inputs, processes, and products that are part of scientific research and discovery’.[81] Such regimes have been enacted with varying degrees of success and contention in Australia,[82] Canada,[83] the United Kingdom,[84] the United States[85] and the European Union.[86]

I argue that research security should be seen as a distinct form of action by States in meeting and engaging with their duties imposed by IHRL. Firstly, States seek to discharge their anticipatory duty by engaging in both due diligence and precautionary acts – such as by screening potential researchers as inputs to the research process, or limiting or controlling their publications as outputs – to prevent (or at least minimise) the harm to their citizens posed by the adverse effects of science.[87] Secondly, States then take action to qualify the residual rights to science – but only where reasonable, necessary and appropriate – by imposing restraints contained in law to achieve de minimis interferences and address the harm seeking to be avoided.

The anticipatory duty

The nature of the anticipatory duty involves both the States’ conduct of due diligence investigations and the exercise of the precautionary principle – that is, to “anticipate risks suggested by possibility, contingency, and plausibility”.[88] The standard of due diligence required is the standard to “to minimise risks to human rights no matter the source of the risks, but without disproportionately limiting individual freedom or State sovereignty”.[89] Beyond that standard, a State also incurs (under the anticipatory duty) an obligation to comply with the precautionary principle to predict potential risks based on “possibility, contingency and plausibility”, largely in response to human activity.[90]

The anticipatory duty further extends the need for both due diligence and precautions to protecting against the interference of third parties on or in the human rights of a State’s citizens, not only against prima facieviolations of those rights[91] but also from “undue external influences”.[92] The exercise of the anticipatory duty may therefore involve limitations upon not only the right to science in both the UDHR and ICESCR, but any other human rights that tangentially or consequentially must yield to a restriction intended to give force to the anticipatory duty. In order to prevent unnecessary interferences, any restrictions so emplaced must abide by the previously identified Limberg and Syracuse principles, which find a place in the requirements of the ICESCR, art 4: limitations “must be determined by law; second, they must promote ‘the general welfare in a democratic society’; and third, any restriction must be compatible with the nature of the right restricted”.[94]

For many States, export control laws are an excellent example of the crucial role played by the law in applying restrictions which discharge the due diligence and precautionary aspects of the anticipatory duty. Export control laws[95] usually restrict (on pain of criminal penalties) the sharing of certain information and technologies with foreign parties where that information or technology has a defined, potential or even possible military or dual-use application. Activities which ordinarily would be illegal may be rendered legal by obtaining a licence prior to sharing, publishing or announcing results of research. Such impositions notably interfere with the “right” both to science simpliciter but also the benefits of scientific and technological progress; however, they are couched in terms which invoke the lawfulness, necessity, proportionality and reasonableness of the restrictions to contain the human right. That said, in practice the impositions of these laws have been mired in controversy: for example, consider the experience of medical researchers in the US and the Netherlands, whose work involving viruses has attracted the attention (and lawsuits) of governmental regulators.[96]

In addition to discharging their own due diligence obligations, States will also – both as part of the anticipatory duty but also under other IHRL instruments[97] – need to establish legal frameworks imposing due diligence obligations on non-State parties. The nature of these obligations will also infringe on the right to science, again in ways that are deemed to be reasonable and necessary for ordre public or national security. As a contemporary example, recently States have imposed domestic legal obligations on entities to conduct supply chain risk assessment, to ensure that such entities do not knowingly promote or facilitate breaches of other fundamental human rights, such as slavery or sex trafficking.[98]

Beyond these laws, there is a vast minefield of research security practices which do not necessarily fall within the bounds of what could be deemed “acceptable” limitations of the right to science, either because they are not on a legal footing or because the imposition of restrictions may be considered too broad. At one end of the spectrum, many States – Australia,[99] Canada,[100] the United Kingdom,[101] the United States[102] and the European Union[102] – enact voluntary “guidelines” as part of their research security enterprise designed to encourage compliance without emplacing legislative limits on the conduct of research. Such regimes are generally viewed as acceptable as they do not impose restrictions, they simply provide examples of best practice – actual compliance by a university or research institution is entirely voluntary. Other mechanisms may involve due diligence or precautionary regimes which appear prima facie unconnected with the practice of research (such as visa or immigration restrictions) but are nonetheless motivated by a desire to protect research in the national interest.[103] These too may not unlawfully infringe the right to science, as they are connected with the State’s sovereign power to exclude non-citizens from its territories.[104] They may also be legitimate expressions of the State’s power to protect the rights of its own constituents, including by harming the economic interests of foreign nationals (either necessarily or by implication).

Perhaps the riskiest controls under the anticipatory duty in research security are those involving the exercise of funding limitations on research institutions. Such controls – typified by the Canadian Policy on Sensitive Technology Research and Affiliations of Concern[105] – withholds funding from organisations that do not comply with State policy on research security, which can prohibit cooperation with named foreign entities posing a security risk. Whilst the imposition of such limitations may arguably promote “general welfare in a democratic society” and “be compatible with the nature of the right restricted”,[106] they do not have force of law. Perhaps it is only the relative incongruousness to date of the human right to science that has prevented such regimes from attack under IHRL relief mechanisms.

The residual duty

Once the State has enacted control mechanisms which seek to discharge its anticipatory duty (by engaging in due diligence and precaution around research being conducted by its scientists), there is the residual of the duty of the State to protect its citizens’ right to scientific progress and its benefits arising under art 15(1)(b), as well as the freedom to “do” science inherent in art 15(3). In discharging the needs of the residual duty, it is vitally important for States to recognise that while scientific opinions enjoy the same substantive protections as the freedom of opinion and expression, such protections may nonetheless be limited under IHRL by “respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals”.[107]

It is also important to recognise that the State’s obligation under the residual duty is to its own citizens and constituents, not those of the broader international community.[108] Whilst both articles 15(1)(b) and 15(3) employ language of “recognising” and “respecting” the right to science, this makes them in my view subordinate to the overarching language of the ICESCR – in particular, Articles 1(1), 2(3) and 4. For example, the Preamble invokes the UDHR to say that “the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights” (emphasis added). The obligation is on States to create and foster such conditions for their citizens and constituents to be able to fully participate in science, not to facilitate access for non-citizens. It would offend the principles of sovereignty and self-determination for State A to owe duties to the foreign nationals of State B to provide access to the fruits of science of State A.

Thus, the residual duty remains important for the State for three reasons. Firstly, because the anticipatory duty involves stepping “out of the bounds of reality” and contemplating risks that may be in the abstract or coloured by political considerations.[109] In those cases, the residual duty incumbent upon States is to manage the imposition of legal restrictions to the “right to science” in a manner that causes the least degree of interference to address the necessary policy harm. Secondly, the precautionary principle does not eliminate all risk, it merely seeks to lower risk to an acceptable level – in essence, to “make a wiser decision on a case-by-case basis”.[110] Thirdly, because exceptions such as national security can provide for the displacement of treaty obligations (especially in the context of economic protections[111]), the residual duty provides a touchstone of reasonableness on the imposition of controls. In the absence of the residual duty, a State could simply ban all access to a given piece of science to any foreign national, and the act of doing so would not be prima facie unlawful. Instead, a State may impose a limited scope of controls before deciding to accept or tolerate a given risk or to impose additional restrictions – all actions which are consistent with IHRL and international trade and commercial law.

There are numerous examples in research security of mechanisms which seem to help States discharge this residual duty. For example, the National Science Advisory Board for Biosecurity (NSABB) in the US works with journal editors to resolve concerns about publications which may carry biosecurity or proliferation risks. The exercise of their powers is largely voluntary, but they can request amendments to in-proof drafts and also seek retractions of material already published on national security grounds.[112] This particular approach is a limitation on both the right to science under art 15(1)(b) but also the freedom recognised in art 15(3) – yet is a scheme that appears grudgingly accepted by most researchers after more than 20 years of operation. In the same vein, Israel’s Regulation of Research into Biological Disease Agents Law (2008) requires that institutions conducting biohazardous research receive approvals from a centralised council, who may by fiat impose obligations on the researchers.[113] Japan’s Foreign Exchange and Foreign Trade Act applies restrictions and bans on foreign investments which target the research sectors of both private enterprise and the university sector, which may have the effect of preventing certain research programs from going ahead, but are broadly deemed warranted for the security they provide such sectors from espionage and intellectual property theft.[114] All of these measures are not only broadly consistent with the national security limitations in IHRL and commercial law, but also the needs for economic protectionism flowing from State obligations to their citizens and constituents.

Part V: Conclusion

This paper has examined the international right to science as it appears in the text of the UDHR and ICESCR. Whilst the scope of rights that it protects and the protection it confers on society is still very much a topic of international scholarly debate, the infringement of that right must (like any other infringements on human rights) be carefully considered. The emergence of the research security phenomenon – governments and intelligence agencies imposing closer scrutiny on the teaching and research of our universities – has the very real potential to be an unnecessary or even unlawful infringement of a basic human right, laid down in the cornerstones of IHRL.

At the same time, research security is not an arbitrary impost on researchers and academics. It is a very nuanced and complex regulatory response to a growing threat to the ordre public, and for that reason warrants closer examination by scholars to conceptualise its boundaries and edges. If one accepts (as this paper presents) that the obligation imposed on States by the right to science is one that both requires protecting of the collaborative and supportive environment for such research, whilst also shielding citizens against the adverse effects of science and technology, then research security is directed towards an appropriate and reasonable policy harm that in my view warrants some interference in the basic right.

That said, further work in the space is clearly needed. Research security itself is a fundamentally under-theorised and understudied field. The disruption caused by ever more advanced technologies – artificial intelligence, synthetic biology, autonomous weapons – will continue to challenge what we accept are the appropriate uses of science, and where we may draw appropriate “red lines” around the regulation of such science. What research should be allowed, and where? What would be considered “beyond the pale”? Who may collaborate, and from which countries? And in whose hands should sit the power to make those decisions? All relevant questions which liberal democracies may have to face sooner rather than later.

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