*Il s’agit d’un article rédigé à la
demande du professeur Antonio CASSESE, Président du Tribunal spécial pour le
Liban, et qui a été édité par les Editions « Oxford Publications », en
2012, avant son décès. L’article fait
partie du chapitre V relatif aux problèmes globaux en besoin d’une régulation sur
le plan international et dans le cadre de la publication globale intitulée :
“THE FUTURE OF INTERNATIONAL LAW-- TOWARDS A REALISTIC
UTOPIA
A CONTRIBUTION TO THE SHAPING OF THE WORLD
COMMUNITY’S LEGAL FOUNDATIONS FOR THE DECADES AHEAD”.
Introduction
There has been a rapid increase in scientific and
technological advances in the areas of genetics manipulation and genetics engineering
or biotechnology in the past thirty years and there is still a
great deal that remains to be discovered.
Although this fast growing
technology mainly applied to medicines and foodstuffs was promoted by its
potential effect on welfare and growth in the field of life sciences and
economy, it poses considerable risks (biodiversity, health of the human beings,
environment, etc) on
which researches are still scarce and thus regulatory challenges both in
regional and international law. The first question we might have in mind is
what was the reaction of international law to those challenges?
The evaluation of the
impact of biotechnology on international law requires a plurality of approaches
and different levels of inquiry, depending on the fundamental legal, social and
cultural distinction between human genetics resources and other genetic
resources (plants and animals), even if the gene of animals and human beings
are scientifically similar.
I. A fragmented and
pluralistic biotechnology’s regulation looking for its universality
Torn
between conflicting tendencies during the negotiation of many instruments
through the appropriate mechanisms of competent international organisations
(the UN, WTO, FAO, WHO, Council of Europe and
UNESCO) the international law appeared fragmented in its treatment of genetic
resources and biotechnology in general.
While the
freedom of trade managed to impose its universal values and its permissive
regulations through many instruments developed under the auspices
of what became the World Trade Organization (WTO), the UN Convention on Biological
Diversity (CBD) tried first to resist to the attraction power of the WTO on
this above questions
and was followed by the FAO International Treaty on Plant Genetic.
Except when
the principle of “equitable sharing of benefits” proclaimed by the CBD was
confronted with the practices left to the freedom of negotiation of agreements
between the private companies and the developing countries, the presumption
that these treaties should be implemented in a mutually supportive and
consistent manner with the WTO agreements was not problematic for the majority
of States.
The elusive
language of “sustainable development” as a common goal of all these treaties
was used as an argument for the presumed compatibility in addition to the fact
that access to genetic resources is subject to the sovereign rights of States
over their natural resources whether by reference to the general international
law or by reference to the treaties of the UN system and WTO.
This above
trend was also used by analogy to regulate the exploitation of human genetic
resources in order to open this new “market” for competition and production or
supply of biomedicines. The dilemma brought by this extension of
technological advance to the human genetic resources was the unsolved question
of compatibility of that trend with the human rights instruments, built on the
concept of human dignity.
Although
stem cell research, genetic testing and cloning, taken as examples of progress
in the life sciences, may be presented as giving human beings new power to
improve health and to control the development processes of all living species,
the concerns about the social, legal and ethical implications of such controversial
progress have led to one of the most significant debates of the past century,
in particular in the field of human genetic resources (the bioethics debate).
However, the reply to challenges of misuse of
human genetic resources was neither unified nor uniform in terms of normative
action and the international law did not succeed in providing a universal mandatory
framework coherent enough to face the current issues identified by the
bioethics studies.
The only legally
binding instruments (hard law) dealing with such issues are regional rather
than universal. It consists of the Council of Europe Convention on Human Rights
and Biomedicine and all its additional protocols dealing with research, cloning,
transplantation of organs, genetic data and the related technology ,without
prejudice to the European Community Directive 98/44/EC of 6 July 1998 on the
legal protection of biotechnological inventions.
It would
seem difficult to advance much further on the subject of binding international
instruments in the field of bioethics at the beginning of the 21st
century in the absence of consensus on the relevant issues.
For
example, there was no consensus on criminalising cloning on a global level, and
the attempt of the United Nations to produce hard law in the field of
international criminal law was unsuccessful. After
the failure to adopt any draft convention on cloning owing to lack of consensus
on the scope of such an instrument (regarding therapeutic cloning or
reproductive cloning), the United Nations General Assembly adopted resolution
in March 2005 to call for a ban on all forms of human cloning and on
genetic engineering techniques ‘that may be contrary to human dignity’. That resolution also refers to the
UNESCO’s instruments on this item. In addition to the UN resolution, the corpus
of this “emerging universal law” dealing with the human genetics mainly
consists of:
-
The Universal Declaration on the Human Genome and Human Rights drafted by the International
Bioethics Committee of UNESCCO (hereinafter referred to as IBC), which was
adopted by the UNESCO General Conference in 1997 and endorsed by the United Nations General Assembly in 1998;
-
The International Declaration on Human Genetic
Data adopted by the General Conference
of UNESCO on 16 October 2003; and
-
The Universal Declaration on Bioethics and Human Rights, which was
adopted at the General Conference of UNESCO during its 33rd session (17 October
2005).
The UNESCO
Declarations constitute a first, but very important, step in the pursuit of the
universal regulatory goals in the field of biotechnology, even if they are
considered as non legally binding instruments and thus described as “soft law”.
system based on reports to be presented by
the Member States on the implementation of the declared legal and ethical
principles to which they are addressed.
My focus will be on the priority which should
be given de lege lata and de lege ferenda to the
criteria proclaimed by both the Council of
Europe’s conventions and the UNESCO’s “Declarations” as an instrument of choice
dedicated to establish certain basic principles and standards on which there is
broad consensus among the members of the international community and that can
serve as the basis for internationally acceptable rules and regulations capable
of being incorporated into national legislation.
II. Incorporation of the Biotechnology’s
regulation into the international law of human rights
Both the
title and the content of Council of Europe’s instruments or UNESCO’s
Instruments as described above, are very indicative to the link between all the
normative standards regulating the research or the exploitation of human
genetic resources and the human rights instruments.
general approach of the decision-makers of those above instruments
sought to globalize the benefits of technical progress and its use in a way
that is compatible with respect for human rights– which confirms what Albert
Einstein put more simply when he said: “[s]cience is a powerful instrument. How
it is used […] depends on mankind and not on the instrument.”
To ensure
that humans are not dominated by their tools, the legal instruments of UNESCO
refer systematically to human rights instruments. As a result, this
“self-referential” mechanism organises the scope of the new ethical -legal
normative system regulating the use of human genetic resources, which appears
clearly to be rooted in the international human rights law.
This trend is illustrated by two proclamations
relating to the cultural diversity and to what we could call “bio-rights” in
order to ensure better compatibility between the “universal” freedom of
research or trade, applicable to human genetic resources, and the universal
human rights law as redefined and extended by the Council of Europe conventions
and the UNESCO’s Declarations to specific science cases of biotechnology.
Concerning
cultural diversity, Article 12 of the UNESCO’s UDBHR states that “such
considerations [relating to pluralism of ethical views
or to the principles of UNESCO’s Declaration on Cultural Diversity of 2001] are
not to be invoked to infringe upon human dignity, human rights and fundamental
freedoms, nor upon the principles set out in this Declaration or to limit their
scope”.
This proclamation, based on the need for
universal shared position, is completed by an other proclamation stating that “The
interests and welfare of the individual should have priority over the sole
interest of science or society” (Article 3 of the UNDBHR), similar to Article 2 of the Ovideo Convention of Council
of Europe, asserting the primacy of human being.
However, the added value of the Council of
Europe and UNESCO’s instruments resides in the emergence of a set of
“bio-rights” derived from the subjective rights as recognized by the two UN
international Covenants (Covenant on Civil and Political Rights and Covenant on
Economic, Social and Cultural Rights) as well as the Universal Declaration of
Human rights to which UNESCO’s Declarations referred expressly for its concrete
application in that specific field.
Admittedly, the Council of Europe Convention on
Human Rights and Biomedicine as well as its additional protocol relating to
biomedicine research pave the way for reconciliation between the freedom of
scientific research and the of dignity the human being by highlighting its roots
in international human rights law. It should be noted also that the Declarations of UNESCO
(on the human genome and on human genetic data as well as the one on Bioethics
in general) reaffirm the principle of freedom of scientific research and aspire
to capture the universal dimension of the bio rights it identified while
stressing that “such research and developments occur within the framework of
ethical principles set out in this Declaration” (Article 2(iv) of Universal
Declaration on Bioethics).
Therefore,
it is recognized that freedom of research on the human genome or any other
elements of the human body and the resulting applications open up vast
prospects for progress speculating on the tremendous potential of genetic
engineering to modify human living, provided that the individual rights of each
patient is respected, in particular the i) right not to be subjected without
free consent to medical or scientific experimentation ii) the right to the
highest attainable standard of physical and mental health and associated rights
to health care;
iii) the right to protection against
arbitrary interference with privacy or with the family and iv) the right to
enjoy the benefits of scientific progress and its application, etc.
In other terms, subject to the respect of the principles of
free consent, privacy and confidentiality, and without prejudice to the
principle of non–discrimination, and a risk assessment or prior assessment of
the potential risks and benefits pertaining to the intended biotechnological
project having been undertaken – all research, treatment, genetic test or
diagnosis affecting an individual’s genome can be undertaken and applied in a
manner allowing the decision-makers concerned by such projects to benefit from
the protection of the international law.
Furthermore, the collection, processing, treatment, use and storage of
human genetic data, in accordance with Articles 5 and 12 of the Human Genetic
Data Declaration, are permissible only for purposes of diagnosis and
healthcare, including screening and predictive testing, and medical and other
scientific research, without prejudice to the purposes of forensic medicine,
civil, criminal and other legal proceedings, taking into account the conditions
spelled out in Article 1(c) of the Declaration.
Consequently,
any biotechnological project on human genetics should be compatible with the
principles dealt with in the UNESCO declarations in such a way as to render
indivisible the three generations of human rights instruments, if one considers
its reference to vulnerable persons ( individuals , families and population
groups who are particularly vulnerable to or affected by disease or
disabilities of a genetic nature) and the sharing of the benefits of scientific
research and its provisions relating to social responsibility with respect to
the right to health and to development.
However, the fact that all the above
instruments are rooted by substance in the international human rights law
brought to this new biotechnical regulation the tensions which might occur in case of problem or
conflict between the freedoms and subjective rights of the patients or the
individual concerned, since the reference to human rights instruments could not
itself resolve all of the problems of interpretation.
Therefore,
the task of seeking balance the various rights in order to ensure the
compatibility between these two branches of law cannot be addressed on the
basic of generalities, but will require in depth analysis of different fields
of application and areas where biotechnology plays an important role,
To this
regard, the instruments of the Council of Europe and UNESCO refer explicitly to
the principles applied by the international law of human rights and go further
to establish procedural principles in order to give the States the guidance for
solving such conflicts between different human rights holders.
For example, article 27
of the Universal Declaration on Bioethics provides that “If the application of
the principles of this Declaration is to be limited, it should be by law,
including laws in the interests of public safety, for the investigation,
detection and prosecution of criminal offences, for the protection of public
health or for the protection of the rights and freedoms of others. Any such law
needs to be consistent with international human rights law”.
We are very
far from the proclamation of “underogeable bio-rights”, even if the issue of
legality of any limitation to any subjective right, such the right to life, the
right to privacy and the right to consent or not is left to the hard law and to
the customary law, without prejudice to the importance of concepts of human
dignity and heritage of humanity as emerged from the instruments of Council of
Europe and UNESCO.
III. The reconfirmation
of the human dignity as fundamental legal concept and as standard constraining
the tendency for permissive actions in the manipulation of human genetic
resources
Recalling Article 1 of the Universal
Declaration of Human Rights (UDHR), the preamble and Article 1 of the Oviedo Convention (Council of
Europe) refer to the protection of “dignity and identity of all human beings”
as well as the preamble and Article 1 of the Universal Declaration on the Human
Genome or Article 2 of the Universal Declaration on the Bioethics and Human
Rights, aimed to “to promote respect for human dignity and protect human Rights”. It is important to note the juxtaposition of the term “dignity” to the term “human rights” in
those instruments.
Looking at the value
of respect for human dignity through the lens of bio-rights as referred to in
the Council of Europe and UNESCO’s instruments has produced a very important
debate on the concept of dignity.
In the well
known case of Netherlands
v European Parliament and Council, Advocate General Jacobs stated that
human dignity is ‘perhaps the most fundamental right of all, and is now
expressed in Article 1 of the Charter’.
However, for David Feldman, dignity is not a right per se but a value
underpinning all fundamental rights and constitutional principles. In a rather similar vein,
Bertrand Mathieu suggested that safeguarding dignity can be best viewed
as a sort of meta-value or “matrix” providing a guiding pathway for the
configuration of other specific rights and duties or their reconciliation.
Finally, Roger Brownsword completed
this interesting debate by identifying two different roles for the concept of
dignity: in the first, the idea of dignity acts, under a rights-driven ethic,
in support of individual autonomy (human dignity as “empowerment”) and, in the second, it acts,
under a duty-driven ethic, as a constraint on autonomy (human dignity as
“constrains”).
This debate
was intensive when permissive actions to legitimate the euthanasia where linked
to the “right to die in dignity” or when actions where proposed for the use of
Embryonic Stem Cells in therapeutic research (so called therapeutic cloning) or
when paragraph 2 in Article 5 of Directive 98/44/EC on the legal
Protection of Biotechnological inventions admitted that “an element isolated
from the human body or otherwise produced by means of a technical process [….]
may constitute a patentable invention”. Furthermore, the failure at the United
Nations to achieve a treaty consensus against cloning was attributed in part to
the tension between human dignity as empowerment and human dignity as
constraint.
Whatever Scholars
argue whether human dignity can be properly viewed as a fundamental right (as
opposed to a constitutional principle or objective) or as empowerment or as
constrain for the right-holders, it is a fact that the hard law of the Council
of Europe was gradually supplemented by other reference to dignity in the
additional protocols which deal in detail with the prohibition of human cloning in order to justify this
ban. Even in the EC Directive on the Legal Protection of Biotechnological
Inventions, the need for patent law to respect dignity is emphasised. (Article
5.1).
Such use of the concept of dignity as
a constraint for reproductive cloning has also many objective justifications
derived from the UNESCO Declarations admitting a real dualism of the concept of
dignity. In that sense, the Declarations of UNESCO were in the vanguard of
attempts to forge a worldwide bioethical consensus in order to “moralize” international
trade and to ban human reproductive cloning as clearly proclaimed by Article 11
of the Universal Declaration on the Human Genome and Human Rights
or as stated in its Article 2 (b) “that dignity makes it imperative not to
reduce individuals to their genetic characteristics”.
Those of
UNESCO’s declarations that state that “a person’s identity should not be
reduced to genetic characteristics, since it involves complex educational,
environmental and personal factors and emotional, social, spiritual and
cultural bonds with others and implies a dimension of freedom” seek to affirm the reality of the
dualism in the legal concept of the human being, considered both as an
individual and as part of the human family, to which the concept of dignity is
attached and introduced in law in order to reconcile the international public
order with human rights. What is protected here is ‘humanity’, construed as
both the species and the family. But the concept also covers the indivisibility
of the human being, who should not be reduced to separate aspects of his or her
identity.
This means that “dignity” as a legal standard for the
concept of public order is part of an interpersonal relation that modifies the
scope of the principle of consent (for example, the free will of any individual seeking to be
cloned, even with his or her own consent).
It is not the first time that the international law
has imposed such a restriction on the principle of individual autonomy. For
example, Article 11 of the Geneva Protocol prohibits experimentation on the
civil population even if a member of the population has given his or her
consent to such experimentation. The same could be said about the prohibition
of slavery.
In fact, the public order nature of dignity occasionally makes it
possible to conceal in legal guise an ethic similar to that of the notion of
accepted standards of behaviour or of decency, the meaning of which is both
variable and imprecise in any legal system.
However, this analogy is limited in that dignity cannot be reduced to a
simple situation of fact, and implies a duality that is central to its value. The
dual nature of the principle of dignity is illustrated by the fact that the
rights arising from it must be made compatible with other rights and freedoms. On
the one hand, the subjective right is what gives value to the dignity and
personality of the individual. On the other hand, human dignity, the matrix
principle underlying all human rights, seems in the legal instruments of
Council of Europe and UNESCO to go beyond the subjective rights arising from
it, to merge with the notion of an international public order governing
humanity as a whole or to establish a normative standard in which freedom and
subjective rights can be reconciled. Council of Europe and UNESCO’s legal
discourse has thus transformed human dignity into a legal standard modifying
the concept of international public order, which is at the origin of the
limitation on both scientific power and the principle of the autonomy of the
patient’s will.
IV. The timid emergence of the concept of the
human genome as part of the common heritage of humanity
In
comparison with the instruments of Council of Europe in this field, the added
value of the UNESCO declarations is the linkage between the concept of
the common heritage of humanity and the of human dignity and as made right at
the beginning of the Universal Declaration on the Human Genome and Human Rights,
where the concept of “heritage of humanity” reflects a deep change in the
approach to human dignity proclaimed for humanity as a whole.
This idea
is reflected by Article 1 of the Human Genome Declaration, which proclaims that
“The human genome
underlies the fundamental unity of all members of the human family, as well as
the recognition of their inherent dignity and diversity. In a symbolic sense,
it is the heritage of humanity."
Under
international law, the expression “common heritage of humanity” is applicable
to resources the use of which it is deemed desirable to regulate in the
interests of humanity as a whole. The concept of common heritage was introduced
for the purpose of characterizing property considered to be of universal
interest and which the international community is duty-bound to safeguard, for
example, as in the UN Convention on the Law of the Sea or the UNESCO Convention
for the Protection of the World Cultural and Natural Heritage of 16 November
1972.
Thus, by
symbolically characterising the human genome as the heritage of humanity, the
Declaration was originally following the tradition of the legal texts mentioned
above to ensure the preservation of universal values in response the future
exploitation of human genetics, without trying to entirely assimilate the human
genome or human resources as constituting an object of law like any other good.
Speaking
generally, the declaration that the human genome is common heritage of humanity
was not immediately understandable, because of the dispute that occurred
between the UNESCO governmental experts on the expertise of those entitled to
dispose of or to take advantage of the said heritage, as well as on the legal
status of the genome, i.e. on
whether or not it should be considered as a good over which one could have
property, or intellectual property, rights.
With regard
to the qualification of the human genome as the heritage of humanity, in 1997
during the discussions of the IBC group of experts, it was suggested that the
Declaration should emphasize that, before being part of the common heritage,
the human genome was first and foremost the “property” of the individual. But,
other experts felt that, legally speaking, the notion of common heritage could
create tension between the individual heritage of a person and the heritage of
the species, for each gene is thus deemed to be the property of an individual,
and an inalienable property of humanity.
Several
experts felt it necessary to consider the specific legal consequences of the
adoption of such a notion. Mrs Noelle Lenoir, Chairperson of the IBC, pointed out that it would be difficult
to state in a declaration that the individual was the ‘owner’ of his or her
genome, since this would go against the legislation of certain countries, which
did not recognize ownership of the human body.
The same
tension was raised about the status of the human embryos which has never been
determined by the human rights instruments. In fact, those secular instruments
do not recognise a direct human right to life for an embryo, since the legal
personality enabling the human being to be subject of law is only recognised
for a person who has been born. It is thus legally inconsistent to speak about
the individual human dignity of the embryo.For this reasons, the experts were
discussing the necessity of a legal tool other than the dignity to protect the
human embryo.
The concept of the human genome as part of the
heritage of humanity was therefore designed to establish a dynamic balance
between the protection of the inalienable rights of the individual and the
common interests of humanity covered by the concept of human dignity. The
indivisibility of these values must be emphasized: the rights of the individual
with regard to his or her genome are subject solely to those constraints
arising from the need to respect the rights of others.
On this
above basis, there was an agreement on the necessity for maintaining the
symbolic reference to the genome as being part of the heritage of humanity in
order to insist on the moral obligation to preserve the universal value of
mankind. It is highly significant that the concept of heritage of humankind was
used for the first time not to limit the excess of States’ sovereignty over
spaces of communal interest, but explicitly as a limitation on the potential of
individuals to dispose of their human genome at will as well as an attempt to
secure the broadest possible protection of the human genome against damage that
might endanger the very survival of humankind. In addition, the notion of
heritage covers the knowledge accumulated by men and women about themselves as
a source of potential for the progress of humankind.
This idea
appears later on, in other provisions of the Universal Declaration on the Human
Genome and Human rights, as a restriction on the practice of the free
exploitation of human genetics by any individual, like the provisions of
Article 4 stating that
“the human genome in its natural state shall
not give rise to financial gains”.
In addition to this ban, the new Universal Declaration on Bioethics and Human Rights refers in its preamble to “the principles
already stated in the Universal Declaration on the Human Genome and Human
Rights and the International Declaration on Human Genetic Data” and provides by
its Article 21 (e) that:
“States should take appropriate
measures, both at the national and the international level, to combat
bioterrorism, illicit traffic in organs, tissues and samples, genetic resources
and genetic-related materials”
Those Articles emphasize
the principle of the “inalienability”of the human body,
including the human genome, and especially prohibits the commercialisation of
human genes.
Despite the
above-mentioned constraints, the prohibitions are not absolute, and there is a
graduation from ban, to restrictions, to permissive actions, the positioning
depending on the purposes of the medical or biotechnological scientific
researches or practices, including those relating to the genetics resources.
In fact,
the principle of non-appropriation of the human body and its elements, as
admitted by the UNESCO declarations and other hard law regional instruments and
many national internal laws, is designed to retain the indivisibility of the
legal personality of the human person, considered as subject of law and not as
an object. The slave trade, as prohibited by the human rights instruments, is
an example of the signification of that principle and of the danger of
considering the human being as object of law like any other “good” or property,
including animals and plants.
Surly, the use of the qualifying
phrase ‘heritage of humanity [..] in a symbolic sense’ has been understood as
weakening the legal strength of this Article. However, a more convincing
explanation given by Francesco Francioni is that “the adjective ‘symbolic’ is
rather intended to stress that the human genome is not to be treated in a
patrimonial sense, like the mineral resources of the sea bed, and that it is
not subject to forms of individual or collective appropriation. Its value for
humanity is thus not so much in is potential to yield economic benefits, as is
the case for the tangible natural resources to which the same concept had
previously been applied, but rather in its reflexive capacity to establish an
ethical obligation, owed to humanity as a whole, to preserve and safeguard the
continuity of the human species when faced with the unfathomable applications
of biotechnologies to human genetic engineering”.
Conclusion
Can such body of law, rich in potential legal concepts where the human
genome could form a symbolic part of the heritage of humanity, where dignity
could serve both as a democratic ideal and as the foundation for the
prohibition of the use of the human body for financial gain and, finally, where
bio-rights could be attributed both to the individual and to the communities
serve as the basis for a coherent international order regulating the use of
human genetics?
Notwithstanding
the uncertainties about the feasibility of a single hard-law instrument
embracing all the questions raised above that depend on a extraordinary and
rapid development of science and technology, Council of Europe and UNESCO’s
instruments are fed by potential norms that might feet the customary
international law and address the best balance between fast technology and
secure law, between ethic and legal norms, and finally, between compatible
norms in the trade field and in the field of medical or technological research.
This trend
in international law is not specific to biotechnology’s regulation on human
genetic, since the soft law approach exists also in the field of misuse of
other new technology (internet) or in the field of climate change,
despite many appropriate replies going beyond the self-regulation promoted by
the providers of those new technologies.
Time factor
is very important in this field, not only to determine the effectiveness of
those new rules in the field of biotechnology but also – and perhaps more
importantly – to check whether the therapeutic promises of science and
technology are revealed as being accurate before questioning the rational of
the restrictions introduced in this above fragmented corpus of mixed hard law
and soft law.
The Council
of Europe and UNESCO’s instruments are in fact serving as an experimental
normative mechanism. The results of this can be observed only after a certain
period of time, within the framework of an evaluation process aimed to
establish compatibility between the biotechnological regulations and trade
regulations.
Confronted with the current dramatic tensions
between the old society of states hinging on self-interest and reciprocity, on the one side, and emerging
community values, on the other, the Bioethics’ issues raised openly the gradual
need to transform the world society into a really international community so that public or collective concerns may prevail over private interests.
Otherwise,
a supermarket where human beings could change parts of their body and replace
it by other parts sold in the market could exist on the price of more legal
simplicity.
In fact, legal
simplicity has been generated as a result of strong industrial and scientific
pressure to provide a broad interpretation of the scope of freedom of trade in
services and goods. However, this is not in this case sufficient to encompass
the complexity of the scientific stakes and their relationship with the economy
without solving the problem of the status of genetic resources, the scope of
the rights recognised to patients and the principle of sharing benefits by
means of a new reconciliation of all the principles confirmed by the conventional
international law relating to human rights and trade. This complexity,
excluding the ethical dimension in the emergence of the new law, or reducing
the concept of heritage of humanity or the human dignity to simple questions of
free choice of each individual may in certain situations produce disadvantages
of which we must become aware now, in order to avoid finding later that it
generates more problems than it solves.
In this sense, the rich conceptual contribution of the Council of Europe
and UNESCO’s instruments, in particular in the following fields:
-
to establish the status of human genes as being
used for scientific purposes only in a way that would neither endanger the
value of mankind within the concept of the heritage of humanity nor affect the
concept of human dignity, construed both individually and collectively;
-
to
conciliate the principle of non-appropriation of the human body and its
elements with the need to benefit the mankind from the scientific progress in a
spirit of solidarity, equal treatment
and sharing benefits ;
-
to enhance the idea of an international public
order that monitors bioethics practices with the involvement of the States
requested to admit new duties that will also be the future rights of the
individual or of humanity in this area;
will enable the decisions-makers to review
their law, sometimes judged permissive or vague and sometimes restrictive or
poorly adapted depending on the technological and human issues at stake, even
if there is reasonable ground to understand the adoption of a gradual approach
in the codification of universal legal frameworks in this field, due to the
rapid scientific and technological development.
Article 11 of this
Declaration provides that “Practices
which are contrary to human dignity, such as reproductive cloning of human
beings, shall not be permitted.”
It is important to note that Article 2 (viii) of this
Declaration proclaims that its aim is
“to underline the importance of biodiversity and its conservation as a common
concern of humankind”.
UNESCO
created the World Commission on the Ethics of Scientific Knowledge and
Technology (COMEST) as a specific subsidiary body, dealing also with drafting a
study on the advisability of preparing a declaration of code of conduct for
States and other actors in relation with the consequences of climate change,
even if the Kyoto Protocol was adopted in 1997, since the UN Framework was
built on cycles of negotiation leaving a wide discretion for the parties (like
the soft law) in dealing with substantive items.
