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EAP 1
Human Rights as Ethical Basis for Science
PETER G KIRCHSCHLAEGER*
Introduction
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

*
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, 3
!"
sess, 183
!"
plen mtg, UN Doc A/810 (10
December 1948) (Universal Declaration of Human Rights).
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 2
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.
1 Ideas and Theories Become Reality
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
lhomme 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 lhomme 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

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 linternet), Declaration
des droits de lhomme 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>.
Human Rights as Ethical Basis for Science
EAP 3
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.
2 Science Itself Needs Human Rights Protection
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.
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 4
3 The Different Dimensions of Human Rights
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 persons 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.

5
See Peter Koller, Die Begrndung von Rechten in Peter Koller et al (eds),
Theoretische Grundlagen der Rechtspolitik, Ungarisch-sterreichisches Symposium
der internationalen Vereinigung fr Rechts- und Sozialphilosophie (Archiv fr
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.
Human Rights as Ethical Basis for Science
EAP 5
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

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.
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 6
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

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)
Begrndung? in Peter G Kirchschlaeger (ed) Menschenrechte und Kinder,
Internationales Menschenrechtsforum Luzern (IHRF) (Staempfli, 2007), vol 4, 55,
63.
Human Rights as Ethical Basis for Science
EAP 7
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 ones 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

13
Juergen Habermas, Faktizitt und Geltung: Beitrge zur Diskurstheorie des Rechts und
des demokratischen Rechtsstaats (Suhrkamp, 2
#"
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.
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 8
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 gewhrt:
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

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-Jrg Sandkuehler, Art. Menschenrechte in Hans-Jrg Sandkuehler (ed),
Enzyklopdie Philosophie (Meiner, 2010) 1539.
Human Rights as Ethical Basis for Science
EAP 9
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.
4 Scientists as Right-Holders and Duty-Bearers
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 ones 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 ones own human rights are the human rights
of other individuals. For example, ones 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
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 10
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.
5 Human Rights as an Ethical Point of Reference for Science
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

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).
Human Rights as Ethical Basis for Science
EAP 11
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.
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 12
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


20
See Kirchschlaeger, above n 4.
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 berlegungen zur Finanzierung medizinischer Manahmen bei
Patienten am Lebensende, in Gunnar Duttge and Markus Zimmermann-Acklin (eds),
Gerecht sorgen Verstndigungsprozesse ber den Einsatz knapper Ressourcen bei
Patienten am Lebensende (Universittsverlag Gttingen, 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
Human Rights as Ethical Basis for Science
EAP 13
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

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>.
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 14
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

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 fr Personen (2007) 55
Deutsche Zeitschrift fr Philosophie 17, 39.
Human Rights as Ethical Basis for Science
EAP 15
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 persons 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 persons 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

30
Francis Cheneval, Property Rights as Human Rights, in Hernando de Soto and
Francis Cheneval (eds) Realizing Property Rights (Rueffer & Rub, 2006) 11.
Journal of Law, Information and Science Vol 22(2) 2012-2013
EAP 16
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.

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);
Vronique Zesiger and Philippe Chastonay, Sant et droits humains: Situations
concrtes et outils de protection (Editions Mdecine et Hygine, 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).