International Biolaw and Shared Ethical Principles

The Universal Declaration on Bioethics and Human Rights

Cinzia Caporale, Ilja Richard Pavone, Cinzia Caporale, Ilja Richard Pavone

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781472483980
• eBook ISBN: 9781317114390
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Universal Declaration on Bioethics and Human Rights, 2005, marked a significant step towards the recognition of universal standards in the field of science and medicine. This book provides an overview of the ethical and legal developments which have occurred in the field of bioethics and human rights since then. The work critically analyzes the Declaration from an ethical and legal perspective, commenting on its implementation, and discussing the role of non-binding norms in international bioethics. The authors examine whether the Declaration has contributed to the understanding of universal or global bioethics, and to what degree states have implemented the principles in their domestic legislation. The volume explores the currency of the Declaration vis-à-vis the more recent developments in technology and medicine and looks ahead to envisage the major bioethical challenges of the next twenty years. In this context, the book offers a comprehensive ethical and legal study of the Declaration with an in-depth analysis of the meaning of the provisions, in order to clarify the extension of human rights in the field of medicine and the obligations incumbent upon UNESCO member States, with reference to their implementation practice.

Part I
UNESCO and global bioethics

I
The role of UNESCO in promoting universal human rights

From 1948 to 2005

Roberto Andorno

Introduction

UNESCO was created in the aftermath of the Second World War to reaffirm the conviction of the international community that intercultural dialogue and respect for justice and human rights are essential to build a durable peace. The UNESCO Constitution, which was adopted in November 1945, states that the first objective of the organization is “to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for human rights and fundamental freedoms”.

Consistent with this goal, UNESCO formed in 1947 a committee of intellectuals from different countries and cultural backgrounds, who made recommendations for the development of a universal human rights instrument. In this way, the Organization contributed to the preparatory work of the Universal Declaration of Human Rights (henceforth UDHR) of 1948, which would become the pillar upon which the entire human rights system is built. Almost 60 years later, in 2005, UNESCO served as a platform for the international community to develop the Universal Declaration of Bioethics and Human Rights (henceforth UDBHR), which is the first global legal instrument that comprehensively addresses the linkage between human rights and bioethics.

This chapter aims to draw a parallel between these two significant efforts of UNESCO in the promotion of universal human rights, and to emphasize that the UDBHR is ultimately an extension of international human rights law to the specific field of biomedicine.

A short history of UNESCO

Towards the end of 1942, in the middle of the Second World War, representatives of the European countries that were fighting Nazi Germany and its allies had a first meeting in London for what came to be known as the Conference of Allied Ministers of Education (CAME). They were examining ways and means to reconstruct their systems of education once the war had come to an end. In one of the subsequent meetings of CAME, it was proposed to create an international organization for education. Upon this proposal, the recently founded United Nations convened a conference in London in November 1945 for “the establishment of a United Nations Educational and Cultural Organization”.¹

Representatives of 44 countries took part at the London Conference, which was presided over by Ellen Wilkinson, Minister of Education of Great Britain. The delegates decided to create an organization that would embody a genuine culture of peace and establish the “intellectual and moral solidarity” of humankind in order to prevent the outbreak of another world war.² The driving idea shared by delegates was that fostering education and intercultural dialogue was the best way to promote peaceful relationships between countries. This inspiring idea was thereafter enshrined at the beginning of UNESCO’s Constitution, which states that “since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed”.

It is noteworthy that the initially planned organization was only concerned with educational and cultural issues. However, a number of scientists were pressing for the inclusion of science in both the title of the organization and in its programme of activities. In the fore-front of this effort to put the “S” for science in the organization’s name and goals were the British biologist and philosopher Julian Huxley, who would then become the first General Director of UNESCO, and the British biochemist Joseph Needham.³ Decisive support for the inclusion of science within the scope of the planned organization was the recent dropping of the atomic bomb on Hiroshima and Nagasaki. This dramatic event would brutally show the tremendous ambivalence of science and technology, which can be used for the best and for the worst. The mushroom clouds over Japan had suddenly made the ethics of scientific research the burning question of the day. It is therefore not surprising that in her opening speech at the Conference, Wilkinson declared:

Though Science was not included in the original title of the Organization, the British delegation will put forward a proposal that it be included, so that the title would run “Educational, Scientific and Cultural Organization”. In these days, when we are all wondering, perhaps apprehensively, what the scientists will do to us next, it is important that they should be linked closely with the humanities and should feel that they have a responsibility to mankind for the result of their labours. I do not believe any scientists will have survived the world catastrophe, who will still say that they are utterly uninterested in the social implications of their discoveries.

These words of Ellen Wilkinson summed up the anxieties felt by a majority of the delegates. On 6 November 1945, the “S” for Science was finally incorporated into the title of the new body, which should play a “humanization role in the education of scientists”.⁴ At the end of the conference, 37 countries founded the new UN agency. The Constitution of UNESCO, signed on 16 November 1945, came into force on 4 November 1946 after ratification by 20 countries: Australia, Brazil, Canada, China, Czechoslovakia, Denmark, Dominican Republic, Egypt, France, Greece, India, Lebanon, Mexico, New Zealand, Norway, Saudi Arabia, South Africa, Turkey, the United Kingdom and the United States. The first General Conference of the Organization was held in Paris from 19 November to 10 December 1946 with the participation of representatives from 30 member states entitled to vote and from 18 non-member states.⁵

Today, after 70 years of existence, UNESCO comprises 195 member states, that is, virtually all states in the world. In addition to its headquarters in Paris, the Organization has more than 50 field offices around the world. UNESCO implements its activities through the five program areas of Education, Natural Sciences, Social and Human Sciences, Culture, and Communication and Information. Sometimes referred to as “the intellectual agency” of the United Nations, UNESCO describes itself as a “laboratory of ideas and a standard-setter to forge universal agreements on emerging ethical issues”.⁶ Today, maybe more than ever, the Organization plays a crucial role in fostering intercultural dialogue and, at the same time, promoting respect for human rights.

UNESCO and human rights

From the very beginning of its foundation, UNESCO was inextricably linked to the human rights movement that emerged in the aftermath of the Second World War. In December 1948, the General Assembly of the recently created United Nations adopted the Universal Declaration of Human Rights. While this document was still being drafted by the Human Rights Commission, UNESCO decided to anticipate the philosophical questions that the elaboration of such a declaration would inevitably raise: Could any values be said to be common to all countries? What would it mean to speak of certain rights as “universal”?

In order to address these challenging questions, UNESCO recruited some leading thinkers of the time for a “Committee on the Theoretical Bases of Human Rights”. This panel, chaired by the British historian and diplomat Edward H. Carr, prepared a questionnaire dealing with various theoretical problems in the formulation of an “international declaration of human rights”, and sent it out to scholars and statesmen around the world. Among the notable figures who responded to the 8-page questionnaire were Mahatma Gandhi, Jacques Maritain, Pierre Teilhard de Chardin, Benedetto Croce and Aldous Huxley. The resulting 260-page volume captured an extremely broad spectrum of theoretical views and justifications for the human rights under consideration.⁷

The replies to the UNESCO enquiry were encouraging. They revealed that the principles underlying the draft Declaration were already present in many cultural and religious traditions, though not always articulated in terms of “rights”.⁸ For instance, Chinese Confucian philosopher Chung-Shu Lo pointed out in his reply that the absence of formal declarations of rights in China or the difficulties to translate the word “right” into Chinese did not signify “that the Chinese never claimed human rights”. He argued that, in fact, “the idea of human rights developed very early in China, and the right of the people to revolt against oppressive rulers was very early established”.⁹

Similarly, the Indian political scientist S. V. Puntambekar noted that “great thinkers like Manu and Buddha (…) have propounded a code, as it were, of ten essential human freedoms and controls or virtues necessary for good life”: five social freedoms (“freedom from violence, freedom from want, freedom from exploitation, freedom from violation and dishonour, and freedom from early death and disease”) and five individual virtues (“absence of intolerance, compassion or fellow-feeling, knowledge, freedom of thought and conscience and freedom from fear and frustration or despair”).¹⁰

Interestingly, despite the very different philosophical, religious and cultural backgrounds of the respondents to the UNESCO survey, the list of basic rights and values proposed by them were broadly similar. Certainly, the UNESCO philosophers were well aware of the lack of consensus on the ultimate foundations of those rights and values. However, they did not consider these discrepancies as an insurmountable obstacle for an international agreement. In his introduction to the volume that gathered the responses, Jacques Maritain insisted that the goal of the UN efforts was a practical, not a theoretical one, and pointed out that “agreement between minds can be reached spontaneously, not on the basis of common speculative ideas, but on common practical ideas, not on the affirmation of one and the same conception of the world, of man and of knowledge, but upon the affirmation of a single body of beliefs for guidance in action”.¹¹

Maritain also reported that in one of the UNESCO meetings someone expressed astonishment that representatives of very different and even opposed ideologies could be able to agree on a list of human rights. The man was told: “Yes, we agree about the rights, but on the condition that no one asks us why”.¹²

In line with these remarks, the Committee of experts expressed the view that the issue at stake was not to achieve doctrinal consensus on the foundations of human rights, but to achieve agreement concerning the list of rights that had to be recognized and also concerning the action aiming at the implementation of those rights.¹³ From this point of view, and after having examined the responses to the survey, the group concluded in July 1947 that “agreement is possible concerning such a declaration”.¹⁴

The Committee suggested that the agreement should include the following fifteen rights: 1) the right to live, 2) the right of protection of health, 3) the right to work, 4) the right to social assistance in cases of need such as unemployment, infancy, old age, and sickness, 5) the right to property, 6) the right to education, 7) the right to information, 8) the right to freedom of thought and inquiry, 9) the right to self-expression in art and science, 10) the right to justice, which includes the right to fair procedures and freedom from torture and any cruel punishment and illegal arrest, 11) the right to political participation, 12) the right to freedom of speech, assembly, association, press, and religion, 13) the right to citizenship, 14) the right to rebel against an unfair regime, and 15) the right to share in progress.¹⁵

It is difficult to assess the precise impact that the report of the UNESCO committee had on the Human Rights Commission that drafted the Declaration of Human Rights, but the fact is that all the rights proposed by the UNESCO committee were included, in one way or another, in the final version of the instrument adopted in December 1948.¹⁶

Intersection between human rights and bioethics

Human rights are legal entitlements to have or do something that people have simply by virtue of their humanity. These entitlements concern those basic conditions that are necessary for leading a minimally good life, such as physical and mental integrity, freedom, privacy, health, equal treatment and so on. From this it is not hard to see that there is a close and multifaceted relationship between human rights and medical and health-related issues. It is therefore not surprising that international instruments dealing with bioethics are framed using a rights-based approach. Moreover, they present themselves as an extension of international human rights law to the field of biomedicine.¹⁷ In other words, they are not merely ethical or political recommendations, but human rights instruments dealing with a particular kind of issues. This is to say that the new biolegal instruments do not intend to “regulate” or “subsume” bioethics,¹⁸ because bioethics or ethics cannot and should not be regulated by law. They simply stipulate minimal legal standards for promoting respect for human rights in the biomedical context. This is clearly the case of the Universal Declaration on Bioethics and Human Rights (henceforth UDBHR) adopted by UNESCO in 2005.¹⁹

The importance of the UDBHR lies precisely in the fact that it is the first global legal – though non-binding – instrument that comprehensively addresses the linkage between human rights and bioethics. In this regard, the Chairperson of the drafting group of the Declaration pointed out that the most significant achievement of this document consists precisely in having integrated the bioethical analysis into a human rights framework.²⁰ As noted by the Explanatory Memorandum to the Preliminary Draft Declaration, “the drafting group also stressed the importance of taking international human rights legislation as the essential framework and starting point for the development of bioethical principles.”²¹ The Explanatory Memorandum also points out that there are two broad streams at the origin of the norms dealing with bioethics. The first one can be traced to antiquity, in particular to Hippocrates, and is derived from reflections on the practice of medicine. The second one, conceptualized in more recent times, has drawn upon the developing international human rights law. Furthermore, the Memorandum states: “One of the important achievements of the declaration is that it seeks to unite these two streams. It clearly aims to establish the conformity of bioethics with international human rights law.”²²

Certainly, the UDBHR, like any intergovernmental declaration, belongs to the category of soft law instruments, which are weaker than conventions because they are no...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Contributing authors
• Preface
• Introduction
• PART I UNESCO and global bioethics
• PART II The contribution of the Universal Declaration on Bioethics and Human Rights to the construction of a shared bioethics
• Index