nline, forthcoming in the Yale Journal of International Law this winter. The article examines the relationship between the emerging “access to knowledge” or “A2K” movement and the human rights movement. (For a discussion of the A2K movement and its intellectual origins, see Amy Kapczynski’s article, The Access to Knowledge Mobilization and the New Politics of Intellectual Property.)The two movements have collaborated in important ways, including in advocating for increased state authority to make available essential medicines in public health emergencies. In the context of Internet regulation, however, they have tended to emphasize very different issues. The A2K movement has focused on the way in which intellectual property rights limit the ability of individuals to take part in cultural life. (See, for example, the Draft Treaty on Access to Knowledge.) Human rights advocates, in contrast, have emphasized state censorship. (See, for example, Human Rights Watch’s report on censorship in China.) In part, this reflects the way in which each discourse arose – one as a response to undue limits placed on national authorities’ ability to protect human welfare, the other from a need to impose limits on how states treat their citizens. These historical contingencies have led the movements to conceptualize the nature of the problem, and therefore the solution, in very different ways.
On a practical level, this indicates that future collaborative efforts should be directed to areas of commonality – namely, situations in which the state is unable to protect the human rights of those within its jurisdiction, either because of lack of resources or commitment or as a result of the state’s international obligations. For example, areas of possible collaboration might include access to healthcare information, access to educational materials, access to legal materials, or Internet censorship that limits the ability of individuals to participate in culture. Work that is currently being done to develop standards that can be used to measure progress on access to knowledge will also help provide a basis for collaboration between A2K and human rights advocates. In terms of institutional design, however, the challenge is in developing regulatory models that both limit how states treat their citizens and protect necessary state authority. I argue that binding but imprecise norms –often seen in the context of environmental regulation – can provide a means for achieving both of these objectives.
Binding but imprecise norms are only a first step toward negotiating what I think is a deeper ambivalence on the international level regarding the relationship between states and international institutions. Although some institutions resolve this problem through doctrines such as the margin of appreciation, what is needed is a much more rigorous theory for how much deference international institutions should assume with respect to domestic authorities and in which situations. This issue presents itself most starkly in the context of intellectual property and investment law, where states are called on to balance multiple sets of international obligations. (For example, there are several steps states might need to take to protect both the right to participate in cultural life and the moral and material interests of authors.) In our decentralized international system of multiple overlapping authorities, such conflicts must necessarily be resolved by individual states. Future collaborative efforts between the human rights and A2K movements may provide opportunities to articulate principles that appropriately delineate between the authority of international institutions and the discretion that should be left to individual states in resolving conflicts between rights.
