In October 2005, the member states of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) unanimously adopted the Universal Declaration on Bioethics and Human Rights. The Declaration aims to affirm “the commitment of the international community to respect a certain number of universal principles for humanity in the development and application of science and technology.” Since its affirmation, much has been written in support and as a critique of this document. Your review of this document and responses to it will help you to consider ethics within a global context.
Directions- ARTICLES ARE ATTACHED
1. Read the Declaration (included in the first article below) and review at least the following three articles in Blackboard.
a. UNESCO (2005) “The Universal Declaration on Bioethics and Human Rights.”
b. Andorno, R. (2007) “Global Bioethics at UNESCO: In Defense of the Universal
Declaration on Bioethics and Human Rights.”
c. ten Have, Henk. (2005) “Criticism of the Universal Declaration.”
In addition, it is optional if you would like to review additional articles that are provided on Blackboard or research other sources on your own. If you use additional sources, please be sure to cite the sources.
2. In 3-4 pages, double-spaced –
· Summarize the basic principles of this Declaration and the major arguments on both sides (supportive and critical).
· Which side do you think has the stronger case?
· What significance do you see for this document to health care in the US?
Purpose In October 2005, the member states of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) unanimously adopted the Universal Declaration on Bioethics and Human Rights
The Universal Declaration on Bioethics and Human Rights In October 2003, based on preliminary feasibility studies, UNESCO was mandated by its Member States to draw up a declaration setting out fundamental principles in the ﬁeld of bioethics. After two years of intense work, the Member States adopted, unanimously and by acclamation on 19 October 2005, the Universal Declaration on Bioethics and Human Rights, thus solemnly afﬁrming the commitment of the international community to respect a certain number of uni- versal principles for humanity in the development and application of science and technology. The full text of the Declaration is reproduced in this section. Introduction Due to globalization, not only scientiﬁc and technological advances, but also bioethical issues, spread around the globe. As the example of human cloning demonstrates, when a new technology has been developed in one country, it can be applied elsewhere, even if some countries want to ban its use. Medical research is increas- ingly multi-centred and international, with more and more research subjects recruited in devel- oping countries. In addition, healthcare prac- tices are global but guidelines and legal contexts differ and are sometimes absent. Rules for transplantation and procedures for organ dona- tion, for example, are varying among countries and these different approaches have led to abuses such as organ trafﬁcking and commer- cialization of transplantation practices. Many countries, however, only have a limited infrastructure in bioethics, lacking expertise, educational programmes, bioethics committeesand legal frameworks. The global nature of science and technology implies the need for a global approach to bioethics. Member States have mandated UNESCO to set universal ethical benchmarks covering issues raised within the ﬁeld of bioethics. They want to work together towards identifying basic principles and shared values regarding science, technology and health care. Standard-setting action in the ﬁeld of bioethics has become a necessity that is felt throughout the world, often expressed by scientists and practi- tioners themselves, as well as by legislators, policy-makers and citizens. It was in this context that UNESCO was mandated by its Member States to draw up a declaration setting out fundamental principles in the ﬁeld of bioethics. With the new Declaration, adopted unanimously and by acclamation on 19 October 2005, UNESCO strives to respond in particular to the needs of developing countries, indigenous communities and vulnerable groups or persons, all of whom are the object of special mention throughout the text. If UNESCO was considered by States to be the most appropriate forum for the elaboration of such a text, it is without doubt because the Organization has been able to conﬁrm its standard-setting role in the ﬁeld of bioethics. UNESCO, the only specialized body within the United Nations system that combines educa- tion, culture, science and social sciences in its ﬁeld of competence, has developed a bioethics programme over the past ten years that reﬂects the multidisciplinary and transcultural dimen- sion of this debate. UNESCO is engaged in carrying out actions that involve all countries in this international discussion in order to bring out fundamental principles common to all, with ISSJ 186r UNESCO 2005. Published by Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. respect for the cultural diversity of our societies. The success of the Universal Declaration on the Human Genome and Human Rights adopted in 1997 and of the International Declaration on Human Genetic Data adopted in 2003 has reinforced UNESCO in its standard-setting action in the ﬁeld of bioethics and allowed States to place conﬁdence in the Organization to ﬁnalize the Universal Declaration. Under the aegis of respect for human dignity, human rights and fundamental free- doms, the Universal Declaration deals with ethical issues raised by medicine, life sciences and associated technologies as applied to human beings, taking into account their social, legal and environmental dimensions. The Universal Declaration aims to deﬁne the universally acceptable norms, principles and procedures in the ﬁeld of bioethics, in confor- mity with human rights as enshrined in interna- tional law. It is thus conceived as a group of general provisions and principles that allow for a better evaluation of the implications of the ethical issues at stake in speciﬁc decisions and provide assistance in decision-making. The De- claration does not claim to resolve all the bioethical issues presently raised, which in any case evolve each day. Its aim is rather to constitute a basis for States wishing to endow themselves with legislation or policies in the ﬁeld of bioethics. It also aims, as far as possible, to inscribe scientiﬁc decisions and practices within the framework of, and respect for, a certain number of general principles common to all. And it aims to foster dialogue within societies on the implications of bioethics and the sharing of knowledge in the ﬁeld of science and technology. In order to achieve these goals, the Uni- versal Declaration presents a vested right which is reﬂected in its title: it anchors the principles it endorses in the rules that govern respect for human dignity, human rights and funda- mental freedoms. By drawing on the 1948 Uni- versal Declaration of Human Rights, it clearly sets bioethics within international human rights law in order to apply human rights to bioethical concerns. Apart from principles already well-estab- lished in the scientiﬁc community, such as informed consent, autonomy and individual responsibility, and respect for privacy and conﬁdentiality, the Declaration raises the issuesof access to quality health care and essential medicines, nutrition and provision of clean water, improvement of living conditions, and the environment and the reduction of poverty. The Universal Declaration thus opens perspec- tives for action that reach further than just medical ethics and reiterates the need to place bioethics within the context of reﬂection open to the political and social world. Today, bioethics goes far beyond the code of ethics of the various professional practices concerned. It implies reﬂection on the evolution of society and indeed on world stability, under the pressure of scientiﬁc and technological developments. The Universal Declaration paves the way for a new agenda of bioethics at the international level. Although the Universal Declaration con- stitutes a non-binding instrument in the eyes of international law, its value and its strength are in no way diminished. For the ﬁrst time in the history of bioethics, all States in the interna- tional community are solemnly committed to respect and to implement the basic principles of bioethics, set forth within a single text. The Universal Declaration helps put bioethics on the agenda of States. Furthermore, the elaboration process of the Universal Declaration, character- ized by the transparency and the active partici- pation of all the actors concerned, and involving extensive consultations, has already largely contributed to the visibility and general accep- tance of the text. The innovative dimension of the Declaration is that it constitutes, for the ﬁrst time, a commitment of governments to a set of bioethical principles. Previous international declarations, although sometimes very inﬂuen- tial, such as the Helsinki Declaration, were adopted by professional organizations (such as the World Medical Association). The timetable set out for the elaboration of the Declaration planned a ﬁrst year devoted to the drafting work of the International Bioethics Committee of UNESCO (IBC)Fa UNESCO advisory committee composed of independent expertsFand a second year devoted to intergovernmental negotiations on the basis of the text drawn up by the IBC. Nevertheless, broad consultations, hearings and conferences were carried out world wide throughout the process of elaboration in order to associate States, other specialized agencies of the United Nations system and other intergovernmental 746Documents rUNESCO 2005. organizations, non-governmental organizations voicing in particular vulnerable persons and groups, relevant national bodies and specialists. By means of the web site which made it possible to post regularly, and thereby make public, the results of each meeting or consultation held, all were free to present their views, remarks and comments to IBC on the different versions of the text. Thus, from the very beginning of the elaboration process, the Universal Declaration has promoted general recognition of bioethical concerns and has stimulated the bioethics debate in the four corners of the world, involving and nourishing intercultural dialogue on these issues. The Universal Declaration on Bioethics and Human Rights should be seen therefore not as the fruit of the reﬂection of just a few but as the result of a long and sustained common effort in which all actors have been involved. Henk ten Have Director Division of Ethics of Science and Technology Sector for Social and Human Sciences UNESCO Further information on the Universal Declaration and on the process of its elabora- tion can be found on Internet at the following address: www.unesco.org/bioethics. The Edi- tor encourages comment on the Declaration and on the social science implications of bioethics and bioethical standard-setting. Relevant contributions will be considered for publication in the Debate section of the forthcoming issues. Universal Declaration on Bioethics and Human Rights n The General Conference Consciousof the unique capacity of human beings to reﬂect upon their own existence and on their environment; to perceive injustice; to avoid danger; to assume responsibility; to seek co- operation and to exhibit the moral sense that gives expression to ethical principles, Reﬂectingon the rapid developments in science and technology, which increasingly affect our understanding of life and life itself,resulting in a strong demand for a global response to the ethical implications of such developments, Recognizingthat ethical issues raised by the rapid advances in science and their technological applications should be examined with due respect to the dignity of the human person and universal respect for, and observance of, human rights and fundamental freedoms, Resolvingthat it is necessary and timely for the international community to state universal principles that will provide a foundation for humanity’s response to the ever-increasing dilem- mas and controversies that science and technology present for humankind and for the environment, Recallingthe Universal Declaration of Hu- man Rights of 10 December 1948, the Universal Declaration on the Human Genome and Human Rights adopted by the General Conference of UNESCO on 11 November 1997 and the International Declaration on Human Genetic Data adopted by the General Conference of UNESCO on 16 October 2003, Notingthe United Nations International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights of 16 December 1966, the United Nations International Convention on the Elimination of All Forms of Racial Dis- crimination of 21 December 1965, the United Nations Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979, the United Nations Convention on the Rights of the Child of 20 November 1989, the United Nations Convention on Biological Diversity of 5 June 1992, the Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted by the General Assembly of the United Nations in 1993, the UNESCO Recommendation on the Status of Scientiﬁc Researchers of 20 November 1974, the UNESCO Declaration on Race and Racial Prejudice of 27 November 1978, the UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Genera- tions of 12 November 1997, the UNESCO Universal Declaration on Cultural Diversity of 2 November 2001, the ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries of 27 June 1989, the International Treaty on Plant Genetic Re- sources for Food and Agriculture which was adopted by the FAO Conference on 3 November The Universal Declaration on Bioethics and Human Rights747 rUNESCO 2005. 2001 and entered into force on 29 June 2004, the Agreement on Trade-Related Aspects of Intel- lectual Property Rights (TRIPS) annexed to the Marrakech Agreement establishing the World Trade Organization, which entered into force on 1 January 1995, the Doha Declaration on the TRIPS Agreement and Public Health of 14 November 2001 and other relevant interna- tional instruments adopted by the United Nations and the specialized agencies of the United Nations system, in particular the Food and Agriculture Organization of the United Nations (FAO) and the World Health Organi- zation (WHO), Also notinginternational and regional in- struments in the ﬁeld of bioethics, including the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Con- vention on Human Rights and Biomedicine of the Council of Europe, adopted in 1997 and entered into force in 1999, together with its additional protocols, as well as national legislation and regulations in the ﬁeld of bioethics and the international and regional codes of conduct and guidelines and other texts in the ﬁeld of bioethics, such as the Declaration of Helsinki of the World Medical Association on Ethical Principles for Medical Research Involving Human Subjects, adopted in 1964 and amended in 1975, 1983, 1989, 1996 and 2000 and the International Ethical Guidelines for Biomedical Research Involving Human Subjects of the Council for International Organizations of Medical Sciences adopted in 1982 and amended in 1993 and 2002, Recognizingthat this Declaration is to be understood in a manner consistent with domes- tic and international law in conformity with human rights law, Recallingthe Constitution of UNESCO adopted on 16 November 1945, ConsideringUNESCO’s role in identifying universal principles based on shared ethical values to guide scientiﬁc and technological development and social transformation in order to identify emerging challenges in science and technology taking into account the responsibility of the present generations towards future generations, and that questions of bioethics, which necessarily have an international dimension, should be treated as a whole, drawing on the principles already stated in the Universal Declaration on the HumanGenome and Human Rights and the International Declaration on Human Genetic Data, and taking account not only of the current scientiﬁc context but also of future developments, Awarethat human beings are an integral part of the biosphere, with an important role in protecting one another and other forms of life, in particular animals, Recognizingthat, based on the freedom of science and research, scientiﬁc and technological developments have been, and can be, of great beneﬁt to humankind in increasing,inter alia, life expectancy and improving quality of life, and emphasizing that such developments should always seek to promote the welfare of indivi- duals, families, groups or communities and humankind as a whole in the recognition of the dignity of the human person and the universal respect for, and observance of, human rights and fundamental freedoms, Recognizingthat health does not depend solely on scientiﬁc and technological research developments but also on psychosocial and cultural factors, Also recognizingthat decisions regarding ethical issues in medicine, life sciences and associated technologies may have an impact on individuals, families, groups or communities and humankind as a whole, Bearing in mindthat cultural diversity, as a source of exchange, innovation and creativity, is necessary for humankind and, in this sense, is the common heritage of humanity, butempha- sizingthat it may not be invoked at the expense of human rights and fundamental freedoms, Also bearing in mindthat a person’s identity includes biological, psychological, social, cultur- al and spiritual dimensions, Recognizingthat unethical scientiﬁc and technological conduct has had particular impact on indigenous and local communities, Convinced that moral sensitivity and ethical reﬂection should be an integral part of the process of scientiﬁc and technological developments and that bioethics should play a predominant role in the choices that need to be made concerning issues arising from such developments, Consideringthe desirability of developing new approaches to social responsibility to ensure that progress in science and technology con- tributes to justice, equity and to the interest of humanity, 748Documents rUNESCO 2005. Recognizingthat an important way to evaluate social realities and achieve equity is to pay attention to the position of women, Stressingthe need to reinforce international cooperation in the ﬁeld of bioethics, taking into account, in particular, the special needs of developing countries, indigenous communities and vulnerable populations, Consideringthat all human beings, without distinction, should beneﬁt from the same high ethical standards in medicine and life science research, Proclaimsthe principles that follow and adoptsthe present Declaration. General Provisions Article 1 – Scope a) This Declaration addresses ethical issues related to medicine, life sciences and asso- ciated technologies as applied to human beings, taking into account their social, legal and environmental dimensions. b) This Declaration is addressed to States. As appropriate and relevant, it also provides guidance to decisions or practices of indivi- duals, groups, communities, institutions and corporations, public and private. Article 2 – Aims The aims of this Declaration are: (i) to provide a universal framework of princi- ples and procedures to guide States in the formulation of their legislation, policies or other instruments in the ﬁeld of bioethics; (ii) to guide the actions of individuals, groups, communities, institutions and corpora- tions, public and private; (iii) to promote respect for human dignity and protect human rights, by ensuring respect for the life of human beings, and funda- mental freedoms, consistent with interna- tional human rights law; (iv) to recognize the importance of freedom of scientiﬁc research and the beneﬁts derived from scientiﬁc and technological develop- ments, while stressing the need that such research and developments occur withinthe framework of ethical principles set out in this Declaration and that they respect human dignity, human rights and funda- mental freedoms; (v) to foster multidisciplinary and pluralistic dialogue about bioethical issues between all stakeholders and within society as a whole; (vi) to promote equitable access to medical, scientiﬁc and technological developments as well as the greatest possible ﬂow and the rapid sharing of knowledge concerning those developments and the sharing of beneﬁts, with particular attention to the needs of developing countries; (vii) to safeguard and promote the interests of the present and future generations; and (viii) to underline the importance of biodiver- sity and its conservation as a common concern of humankind. Principles Within the scope of this Declaration, in deci- sions or practices taken or carried out by those to whom it is addressed, the following principles are to be respected. Article 3 – Human dignity and human rights 1. Human dignity, human rights and funda- mental freedoms are to be fully respected. 2. The interests and welfare of the individual should have priority over the sole interest of science or society. Article 4 – Bene t and harm In applying and advancing scientiﬁc knowledge, medical practice and associated technologies, direct and indirect beneﬁts to patients, research participants and other affected individuals should be maximized and any possible harm to such individuals should be minimized. Article 5 – Autonomy and individual responsibility The autonomy of persons to make decisions, while taking responsibility for those decisions The Universal Declaration on Bioethics and Human Rights749 rUNESCO 2005. and respecting the autonomy of others, is to be respected. For persons who are not capable of exercising autonomy, special measures are to be taken to protect their rights and interests. Article 6 – Consent 1. Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be with- drawn by the person concerned at any time and for any reason without disadvantage or prejudice. 2. Scientiﬁc research should only be carried out with the prior, free, express and informed consent of the person concerned. The infor- mation should be adequate, provided in a comprehensible form and should include the modalities for withdrawal of consent. Con- sent may be withdrawn by the person concerned at any time and for any reason without any disadvantage or prejudice. Ex- ceptions to this principle should be made only in accordance with ethical and legal stan- dards adopted by States, consistent with the principles and provisions set out in this Declaration, in particular in Article 27, and international human rights law. 3. In appropriate cases of research carried out on a group of persons or a community, additional agreement of the legal representa- tives of the group or community concerned may be sought. In no case should a collective community agreement or the consent of a community leader or other authority sub- stitute for an individual’s informed consent. Article 7 – Persons without the capacity to consent In accordance with domestic law, special protec- tion is to be given to persons who do not have the capacity to consent: a) authorization for research and medical prac- tice should be obtained in accordance with the best interest of the person concerned and in accordance with domestic law. However, the person concerned should be involved tothe greatest extent possible in the decision- making process of consent, as well as that of withdrawing consent; b) research should only be carried out for his or her direct health beneﬁt, subject to the authorization and the protective conditions prescribed by law, and if there is no research alternative of comparable effectiveness with research participants able to consent. Research which does not have potential direct health beneﬁt should only be under- taken by way of exception, with the utmost restraint, exposing the person only to a minimal risk and minimal burden and, if the research is expected to contribute to the health beneﬁt of other persons in the same category, subject to the conditions prescribed by law and compatible with the protection of the individual’s human rights. Refusal of such persons to take part in research should be respected. Article 8 – Respect for human vulnerability and personal integrity In applying and advancing scientiﬁc knowledge, medical practice and associated technologies, human vulnerability should be taken into account. Individuals and groups of special vulnerability should be protected and the personal integrity of such individuals respected. Article 9 – Privacy and con dentiality The privacy of the persons concerned and the conﬁdentiality of their personal information should be respected. To the greatest extent possible, such information should not be used or disclosed for purposes other than those for which it was collected or consented to, consistent with international law, in particular interna- tional human rights law. Article 10 – Equality, justice and equity The fundamental equality of all human beings in dignity and rights is to be respected so that they are treated justly and equitably. 750Documents rUNESCO 2005. Article 11 – Non-discrimination and non-stigmatization No individual or group should be discriminated against or stigmatized on any grounds, in violation of human dignity, human rights and fundamental freedoms. Article 12 – Respect for cultural diversity and pluralism The importance of cultural diversity and pluralism should be given due regard. However, such considerations are not to be invoked to infringe upon human dignity, human rights and fundamental freedoms, nor upon the principles set out in this Declaration, nor to limit their scope. Article 13 – Solidarity and cooperation Solidarity among human beings and interna- tional cooperation towards that end are to be encouraged. Article 14 – Social responsibility and health 1. The promotion of health and social develop- ment for their people is a central purpose of governments that all sectors of society share. 2. Taking into account that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition, progress in science and technology should advance: (a) access to quality health care and essential medicines, including especially for the health of women and children, because health is essential to life itself and must be considered as a social and human good; (b) access to adequate nutrition and water; (c) improvement of living conditions and the environment;(d) elimination of the marginalization and the exclusion of persons on the basis of any grounds; and (e) reduction of poverty and illiteracy. Article 15 – Sharing of bene ts 1. Beneﬁts resulting from any scientiﬁc research and its applications should be shared with society as a whole and within the interna- tional community, in particular with devel- oping countries. In giving effect to this principle, beneﬁts may take any of the following forms: (a) special and sustainable assistance to, and acknowledgement of, the persons and groups that have taken part in the research; (b) access to quality health care; (c) provision of new diagnostic and therapeutic modalities or products stemming from re- search; (d) support for health services; (e) access to scientiﬁc and technological knowl- edge; (f) capacity-building facilities for research pur- poses; and (g) other forms of beneﬁt consistent with the principles set out in this Declaration. 2. Beneﬁts should not constitute improper induce- ments to participate in research. Article 16 – Protecting future generations The impact of life sciences on future generations, including on their genetic constitution, should be given due regard. Article 17 – Protection of the environment, the biosphere and biodiversity Due regard is to be given to the interconnection between human beings and other forms of life, to the importance of appropriate access and utilization of biological and genetic resources, to respect for traditional knowledge and to the role of human beings in the protection of the environment, the biosphere and biodiversity. The Universal Declaration on Bioethics and Human Rights751 rUNESCO 2005. Application of the Principles Article 18 – Decision-making and addressing bioethical issues 1. Professionalism, honesty, integrity and trans- parency in decision-making should be pro- moted, in particular declarations of all conﬂicts of interest and appropriate sharing of knowledge. Every endeavour should be made to use the best available scientiﬁc knowledge and methodology in addressing and periodically reviewing bioethical issues. 2. Persons and professionals concerned and society as a whole should be engaged in dialogue on a regular basis. 3. Opportunities for informed pluralistic public debate, seeking the expression of all relevant opinions, should be promoted. Article 19 – Ethics committees Independent, multidisciplinary and pluralist ethics committees should be established, pro- moted and supported at the appropriate level in order to: (a) assess the relevant ethical, legal, scientiﬁc and social issues related to research projects involving human beings; (b) provide advice on ethical problems in clinical settings; (c) assess scientiﬁc and technological develop- ments, formulate recommendations and contribute to the preparation of guidelines on issues within the scope of this Declara- tion; and (d) foster debate, education, and public aware- ness of, and engagement in, bioethics. Article 20 – Risk assessment and management Appropriate assessment and adequate manage- ment of risk related to medicine, life sciences and associated technologies should be promoted. Article 21 – Transnational practices 1. States, public and private institutions, and professionals associated with transnationalactivities should endeavour to ensure that any activity within the scope of this Declara- tion, undertaken, funded or otherwise pur- sued in whole or in part in different States, is consistent with the principles set out in this Declaration. 2. When research is undertaken or otherwise pursued in one or more States (the host State(s)) and funded by a source in another State, such research should be the object of an appropriate level of ethical review in the host State(s) and the State in which the funder is located. This review should be based on ethical and legal standards that are consistent with the principles set out in this Declaration. 3. Transnational health research should be responsive to the needs of host countries, and the importance of research contributing to the alleviation of urgent global health problems should be recognized. 4. When negotiating a research agreement, terms for collaboration and agreement on beneﬁts of research should be established with equal participation by those party to the negotiation. 5. States should take appropriate measures, both at the national and international levels, to combat bioterrorism, illicit trafﬁc in organs, tissues and samples, genetic resources and genetic-related materials. Promotion of the Declaration Article 22 – Role of states 1. States should take all appropriate measures, whether of a legislative, administrative or other character, to give effectto the principles set out in this Declaration in accordance with interna- tional human rights law. Such measures should be supported by action in the spheres of education, training and public information. 2. States should encourage the establishment of independent, multidisciplinary and pluralist ethics committees, as set out in Article 19. Article 23 – Bioethics education, training and information 1. In order to promote the principles set out in this Declaration and to achieve a better understanding of the ethical implications of 752Documents rUNESCO 2005. scientiﬁc and technological developments, in particular for young people, States should endeavour to foster bioethics education and training at all levels as well as to encourage information and knowledge dissemination programmes about bioethics. 2. States should encourage the participation of international and regional intergovernmental organizations and international, regional and national non-governmental organizations in this endeavour. Article 24 – International cooperation 1. States should foster international dissemina- tion of scientiﬁc information and encourage the free ﬂow and sharing of scientiﬁc and technological knowledge. 2. Within the framework of international co- operation, States should promote cultural and scientiﬁc cooperation and enter into bi- lateral and multilateral agreements enabling developing countries to build up their capa- city to participate in generating and sharing scientiﬁc knowledge, the related know-how and the beneﬁts thereof. 3. States should respect and promote solidarity between and among States, as well as indivi- duals, families, groups and communities, with special regard for those rendered vulner- able by disease or disability or other personal, societal or environmental conditions and those with the most limited resources. Article 25 – Follow-up action by UNESCO a) UNESCO shall promote and disseminate the principles set out in this Declaration. In doing so, UNESCO should seek the help and assistance of the Intergovernmental BioethicsCommittee (IGBC) and the International Bioethics Committee (IBC). b) UNESCO shall reafﬁrm its commitment to dealing with bioethics and to promoting collaboration between IGBC and IBC. Final Provisions Article 26 – Interrelation and complementarity of the principles This Declaration is to be understood as a whole and the principles are to be understood as complementary and interrelated. Each principle is to be considered in the context of the other principles, as appropriate and relevant in the circumstances. Article 27 – Limitations on the application of the principles 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 protec- tion 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. Article 28 – Denial of acts contrary to human rights, fundamental freedoms and human dignity Nothing in this Declaration may be interpreted as implying for any State, group or person any claim to engage in any activity or to perform any act contrary to human rights, fundamental freedoms and human dignity. Note nAdopted by acclamation on 19 October 2005 by the 33 rdsession of the General Conference of UNESCO. The Universal Declaration on Bioethics and Human Rights753 rUNESCO 2005.
Purpose In October 2005, the member states of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) unanimously adopted the Universal Declaration on Bioethics and Human Rights
LAW, ETHICS AND MEDICINE Global bioethics at UNESCO: in defence of the Universal Declaration on Bioethics and Human Rights R Andorno ……………………………………………………… ……………………………………………………… ….. J Med Ethics 2007; 33:150–154. doi: 10.1136/jme.2006.016543 The Universal Declaration on Bioethics and Human Rights adopted by the United Nations Educational, Scientific, and Cultural Organisation (UNESCO) on 19 October 2005 is an important step in the search for global minimum standards in biomedical research and clinical practice. As a member of UNESCO International Bioethics Committee, I participated in the drafting of this document. Drawing on this experience, the principal features of the Declaration are outlined, before responding to two general charges that have been levelled at UNESCO’s bioethical activities and at this particular document, are outlined. One criticism is to the effect that UNESCO is exceeding its mandate by drafting such bioethical instruments— in particular, the charge is that it is trespassing on a topic that lies in the responsibility of the World Health Organization. The second criticism is that UNESCO’s reliance on international human rights norms is inappropriate. ……………………………………………………… ………….. …………………… Correspondence to:R Andorno, Ethics Centre,University of Zurich,Zollikerstrasse 115, 8008Zurich, Switzerland;[email protected] Received 28 February 2006Revised 10 April 2006Accepted 18 April 2006…………………… F ormer United Nations (UN) Secretary General Dag Hammarskjo ¨ld often said that the UN was not created to take humanity to heaven but to save it from hell .By this aphorism, he meant that although the UN has its weaknesses and limita- tions, it has an irreplaceable role in our conflictive world by promoting peace, respect for human rights, and social and economic development. The UN is imperfect because it mirrors the world, with its divisions and disagreements. Nevertheless, it is the only forum where humanity speaks in its entirety and where it is able to express, as best as it can, its collective hopes and convictions. If we consider the specific domain of bioethics, Hammarskjo ¨ld’s dictum could be applied to UN agencies that are engaged in this specialty. Although they are not able to guarantee that biomedical advances will always be used for the greatest well-being of humanity, they can at least contribute to prevent their use in a manner that would be contrary to human dignity and human rights. Among the means UN agencies use to achieve their goals (in this case, the promotion of responsible biomedical research and clinical prac- tice), the ‘‘standard setting activity’’ is one of the most salient ones. It is precisely in such a context and with such an expectation that the Universal Declaration on Bioethics and Human Rights was adopted on 19 October 2005, at the 33rd session of the General Conference of UN Education, Scientific, and Cultural Organisation (UNESCO), by representatives of 191 countries. It is interesting to point out that the drafting process was preceded by a report of an International Bioethics Committee (IBC) working group that considered the feasibility of such an instrument. The working group, chaired by Professors Leonardo De Castro (Philippines) and Giovanni Berlinguer (Italy), concluded by sup- porting the initiative and affirming the need to develop ‘‘a worldwide common sense to foster understanding and cohesion in relation to new ethical categories and new practical possibilities emerging from science and technology’’. 1With this background in mind, the IBC, chaired at the time by Mrs Miche `le Jean (Canada), prepared the preliminary draft declaration, after almost 2 years of discussions and public consultations with governmental and non-governmental organisa- tions. Justice Michael Kirby (Australia) chaired the drafting group, which was open to all IBC members. To ensure transparency in the process, the successive versions of the document were posted on the internet as they were being devel- oped. In January 2005, the draft was examined by the Intergovernmental Bioethics Committee and, finally, it was revised in two successive meetings of governmental representatives, who introduced several amendments. 2 Despite the great number of existing interna- tional guidelines, statements and declarations relating to bioethics, the new UNESCO Declaration makes its own remarkable contribu- tion to this topic. It is worth mentioning that this is the first international legal, though non-binding, instrument that comprehensively deals with the linkage between human rights and bioethics. Regardless of the weaknesses inherent to this kind of instrument, the very fact that virtually all states reached an agreement in this sensitive area is in itself a major achievement. It should be noted that most international declarations and guidelines in this topic do not have the status of legal instru- ments because they have been issued by non- governmental organisations such as the World Medical Association (WMA), the Council for International Organizations of Medical Sciences and other academic or professional institutions. Other documents, although adopted by intergo- vernmental bodies, cover only specific bioethical issues, such as the UN Declaration on Human Cloning of 2005 3and the UNESCO Universal Declaration on the Human Genome and Human Abbreviations: IBC, International Bioethics Committee; UNESCO, UN Educational, Scientific, and CulturalOrganisation; WMA, World Medical Association; WHO,World Health Organization 150 www.jmedethics.com Rights of 1997, or are regional but not global instruments, such as the European Convention on Human Rights and Biomedicine of 1997. It is important to indicate that the Declaration includes in its section II important substantive principles relating to bioethics, such as: N Respect for human dignity and human rights (Article 3.1) N Priority of the individual’s interests and welfare over the sole interest of science or society (Article 3.2) N Beneficence and non-maleficence (Article 4) N Autonomy (Article 5) N Informed consent (Article 6) N Protection of persons unable to consent (Article 7) N Special attention to vulnerable persons (Article 8) N Privacy and confidentiality (Article 9) N Equality, justice and equity (Article 10) N Non-discrimination and non-stigmatisation (Article 11) N Respect for cultural diversity and pluralism (Article 12) N Solidarity and cooperation (Article 13) N Access to healthcare and essential medicines (Article 14) N Benefit sharing (Article 15) N Protection of future generations (Article 16) N Protection of the environment, the biosphere and biodiver- sity (Article 17). Section III (‘‘Application of the principles’’) is devoted to principles of a more procedural nature such as: N The requirement for professionalism, honesty, integrity and transparency in the decision-making process regarding bioethical issues (Article 18) N The need to establish independent, multidisciplinary and pluralist ethics committees (Article 19) N The call for an appropriate risk assessment and management in the biomedical field (Article 20) N The need for justice in transnational research (Article 21). THREE BASIC FEATURES OF THE DECLARATION At this point, three basic features of the declaration should be emphasised. Firstly, the principles it contains are formulated in very general terms; the declaration does not give almost any definition of their precise meaning (which are only provided, to some extent, by the explanatory memorandum that accompanied the preliminary draft declaration). This method, which may surprise some, is in fact a common practice in law, in conformity with the old maxim ‘‘Omnis definitio in jure periculosa est’’. (Every definition in law is perilous.) Except for very technical terms, lawmakers normally prefer not to define precisely most of the words they use. Rather, they tend to leave that task to common understanding and, ultimately, to courts’ interpretation, in order not to be constricted in advance by rigid definitions. In the case of the UNESCO Declaration, this strategy can also be explained for practical reasons, because it would have been impossible to reach a global agreement on the precise meaning of terms such as ‘‘human dignity’’, ‘‘auton- omy’’, ‘‘justice’’, ‘‘benefit’’, ‘‘harm’’ or ‘‘solidarity’’, which hav e a long philosophical history and are, to some extent, conditioned by cultural factors. Thus, the generality in the formulation of the principles can ultimately be justified by the need to find a balance between the universalism of some bioethical norms and the respect for cultural diversity. A second feature of the declaration relates to the nature of UNESCO itself as an intergovernmental body. This should not be forgotten because it would be a mistake to assess with purely academic criteria an instrument such as the declaration, which is not the exclusive product of academic work, but rather a kind of compromise between a theoretical conceptualisation made by experts and what is practically achievable given the political choices of governments. We need to keep in mind that governments ,not independent experts, have the last word in every declaration or convention issued by UN agencies. This is not to say that the quality of such instruments is necessarily affected negatively by the requirements of governments. It is true that the IBC draft was more precise on several points than the version adopted by governmental representatives, as Justice Kirby himself has admitted. 4Personally, I regret for instance that the recognition of the precautionary principle as a risk management tool for public health purposes has been removed from the final version of the document. On the other hand, I acknowledge that some of the amendments introduced by governmental representatives really enhanced the declaration, such as the more detailed provision regarding research on people unable to consent (Article 7) and the reference to human vulnerability (Article 8). What I intend to argue here is that the approach to bioethics followed by international instruments such as the new declaration is not only an academic but also a political one, and therefore must be assessed with different, broader criteria. A third important characteristic of the declaration is its non- binding nature .Like any declaration adopted by UN agencies, the new UNESCO document makes up part of the so-called soft law instruments—that is, instruments that are weaker than conventions because they are not intended to oblige states to enact enforceable rules inspired by the common standards, but to encourage them to do so. This procedure permits states to take on commitments they otherwise would not have taken, because they assume just political obligations that are not legally binding. Furthermore, soft law instruments present the advantage of permitting countries to gradually become familiar with the proposed standards before they are confronted with the adoption of enforceable rules or with the development of a binding instrument—that is, a convention. 5In addition, it is helpful to remember that, if the same non-binding standards are reaffirmed in successive declarations, in the course of time they may become binding rules, in the form of customary law and jurisprudential criteria, as it happened with the Universal Declaration of Human Rights of 1948. 6 UNESCO’S INVOLVEMENT IN BIOETHICS The following sections of this paper will focus on two serious criticisms that have been levelled against the new declaration. The most fundamental one is the involvement of UNESCO itself in bioethics. The other one relates to the use of a human rights framework to achieve common standards in this discipline. Regarding the first charge, it has been advanced that UNESCO would be in an ‘‘obvious attempt at meddling in the professional domain of another UN agency, WHO’’ and that ‘‘it is entirely unclear why UNESCO should concern itself with such a matter’’. 7Similarly, it has been argued that ‘‘UNESCO is clearly overstepping its mandate and encroaching on that of the World Health Organization (WHO)’’. 8 In response to these objections, it should be noted, first of all, that a clear-cut division of competences between UN agencies is not always as simple as it may seem at first glance, especially in issues that are at the intersection of different disciplines. Secondly, what is really unclear is why the only UN agency specialised in sciences (both natural and human sciences) and having served for decades as a forum for philosophical Global bioethics at UNESCO 151 www.jmedethics.com discussion on cross-cultural issues would be excluded from making any contribution to the normative guidance for life sciences. It is helpful to remember here that the purpose of UNESCO is, according to its Constitution, to promote ‘‘colla- boration among nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms’’. 9Is it really then surprising that an organisation with such a mission may be interested in the establishment of some common standards for bioethics? In addition, it is noteworthy that, since its foundation in the aftermath of the Second World War, UNESCO has been associated in the preparation of some 28 international conven- tions, 12 declarations and about 31 recommendations, includ- ing the Convention against Discrimination in Education (1960), the Universal Copyright Convention (1971), the Convention concerning the Protection of the World Cultural and Natural Heritage (1972), the Declaration on Principles of International Cultural Cooperation (1966), the Declaration on Race and Racial Prejudice (1978), the Declaration on the Responsibilities of the Present Generations Towards Future Generations (1997), the Recommendation on the Status of Scientific Researchers (1974), the Recommendation concerning the International Standardization of Statistics on Science and Technology (1978) and, more recently, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005). Why could the international community not take advantage of this long experience regarding sciences, its cross-cultural effect and its significance for human rights to set up global bioethical standards? This is especially to be considered when one reflects on the fact that the UNESCO’s strong involvement in bioethics is not new. It dates back at least to 1993, when the IBC was established on the initiative of Dr Federico Mayor, Director- General of the organisation at that time. The first task of the Committee was the preparation of the preliminary draft of the Universal Declaration on the Human Genome and Human Rights, adopted in 1997. Thereafter, the IBC worked on the drafting of the International Declaration on Human Genetic Data, finalised in 2003. Additionally, since its creation, the IBC produced about 14 reports on various bioethical issues such as genetic counselling, ethics and neurosciences, confidentiality and genetic data, embryonic stem cells, ethics of intellectual property and genomics, and pre-implantation genetic diagnosis and germ-line interventions. In light of this, the question is: Are there many other global intergovernmental organisations that could claim the same level of experience at the intersection of sciences, ethics and human rights? The answer, at least at this stage, seems to be ‘‘no’’. 10 11 In reality, a conflict of competence between two or more UN agencies interested in this matter would be as absurd as a dispute between a philosopher and a doctor over the ‘‘owner- ship’’ of bioethics. Of course, bioethics does not belong in exclusivity to any of them. As it is by its very nature an interdisciplinary specialty, all related professions (and likewise, all related UN bodies) have the right—and the duty—to make their specific contribution to this emerging and complex domain. It is noteworthy that, in fact, UN agencies have already recognised their mutual interest in this matter and, on this ground, have established in 2003 the UN Inter-Agency Committee on Bioethics with the task of improving the coordination of activities in this area. Concerning the WHO, there is no doubt that, as it is the specialised UN agency for health, it is to have a major role in the standard-setting activities in biomedical sciences. Nevertheless, as some experts have pointed out, clearly, WHO cannot manage this task alone, for the following reasons: N The field is growing, rapidly encompassing more diverse and complex concerns, due to its interdisciplinary nature. N WHO has very limited experience in international health lawmaking. N Such a task would deplete the organisation’s limited resources and undermine its ability to fulfill its well- established and essential international health functions. N Member states are highly unlikely to limit their autonomy and freedom by granting to WHO alone such an expansive new mandate. N Decentralisation of the international lawmaking enterprise presents great advantages that cannot be ignored. 12 Furthermore, beyond the fact that UNESCO and WHO are, after all, composed of the same member states, there is a more substantial reason for favouring simultaneous participation of both UN agencies in the topic of bioethics: their standard- setting activities operate at different levels. While UNESCO tends to produce general normative frameworks of a predomi- nantly philosophical and legal nature, WHO’s guidelines are usually more technical and focused on specific health-related issues. Therefore, as the approach followed by both organisa- tions is different, their respective engagement in this matter can perfectly coexist. Moreover, it is to be hoped that sincere efforts will be made to stimulate greater cooperation between both UN agencies, which could be extremely fruitful given their complementary expertise in this domain. USE OF A HUMAN RIGHTS FRAMEWORK Another criticism of the UNESCO declaration relates to the use of a human rights framework .It has been reasoned that ‘‘human dignity and human rights, both strong features of European enlightenment philosophy, pervades this Declaration’’ and that UNESCO ‘‘chose an ideological frame- work (human rights) that does not feature particularly prominently in professional bioethical analyses’’. 5 In my opinion, these objections are misplaced. It is true that the current notion of human rights has its immediate origins in the insights of the European enlightenment philosophers. But this historical circumstance is not a good enough reason to discard the idea that human beings have inherent rights, just as it would not be enough to argue that Mozart or Bach were Europeans to deny the extraordinary beauty of their works. The relevant question is whether the notion that every human being has an inherent dignity and inherent rights makes sense, no matter where this idea comes from. My personal view on this is that the current widespread conviction that people have unconditional rights simply by virtue of their humanity is one of the major achievements of human civilisation, much more important than any scientific or technical development. This does not mean to ignore the fact that in many Western nations there has been an excessive emphasis on rights and freedoms for the individual, sometimes to the detriment of family and community values, which are of paramount importance to most non-Western societies. Neither does it mean to disregard the great philosophical discussion on whether, or how, the recognition of universal human rights can be conciliated with cultural diversity. However, the truth is that today these controversies have lost much of their practical significance—firstly, because of the increasing number of non- Western states that are party to international human rights treaties; secondly, because human rights emerge from interna- tional law instruments with sufficient flexibility to be compatible with full respect for cultural diversity. Far from imposing one cultural standard, human rights instruments set up a minimum protection necessary for human dignity. 12 13 152 Andorno www.jmedethics.com It has to be noted that, paradoxically, some of the most severe criticisms of the universality of human rights come from Western scholars. According to Amartya Sen, 15these views are often based on a misconception of non-Western (largely Asian) societies, as if people in these countries had little or no interest in their rights and were only concerned with issues of social order and discipline (misconception which is of course well exploited by authoritarian regimes …). In this connection, it is revealing that the only two papers written by non-Western authors that appear in a journal special issue on the declaration openly contradict the pessimistic view of the journal editorial and have a favourable opinion of the human rights approach adopted by UNESCO. 16 17 One of these papers 17even argues that the universality of the principles of human dignity and human rights … is not emphasised enough by the Declaration! Furthermore, the objection that the bioethical discourse is alien to a human rights approach is simply contrary to the facts: many, if not most, international policy documents relating to bioethics issued during the past two decades are framed on a rights-based approach and attach utmost importance to the notion of human dignity. A paradigmatic example in this respect is the Council of Europe’s Convention on Human Rights and Biomedicine (‘‘Oviedo Convention’’). 18Nevertheless, this is not an exclusive feature of Western instruments. Indeed, about 200 worldwide declarations, guidelines, recommendations, opinions and codes relating to bioethics adopted by very different institutions could be cited in support of this assertion. 19For illustrative purposes, a few examples can be mentioned. Firstly, the famous WMA Declaration of Helsinki on Research Involving Human Subjects (1964/2000), 20which refers in explicit terms to the rights of participants (paragraphs 8, 21 and 22) and regards the protection of human dignity of research subjects as the first basic principle for medical research, along with respect for their life, health and privacy (paragraph 10). 21Secondly, the UN Commission on Human Rights Resolution 2003/69 of 25 April 2003 entitled ‘‘Human rights and bioethics’’, 22which strongly insists on the need to ensure the protection of human rights in this field and makes a recurring appeal to the ‘‘dignity of the human being’’. Thirdly, the various statements of the ethics committee of the Human Genome Organisation (HUGO), 23which emphasise the need to ‘‘adhere to international norms of human rights’’ and to accept and uphold ‘‘human dignity and freedom’’. 24 Why this reliance on human rights to set up global bioethical standards? The first obvious reason is that, as biomedical activities deal with the most basic human prerogatives such as the right to life and to physical integrity, it is perfectly sound to have recourse to the umbrella of international human rights law to ensure their protection. Despite all its weaknesses, the existing human rights system, with its extensive body of international standards and wide range of mechanisms, represents a considerable achievement of our time. This is why it would be strange that a human rights framework could not be used to protect people from harm in the biomedical specialty. A more practical reason for this phenomenon is that ‘‘there are few mechanisms available other than human rights to function as a global ethical foundation, a Weltethik ’’.25In other words, ‘‘the human rights framework provides a more useful approach for analysing and responding to modern public health challenges than any framework thus far available within the biomedical tradition’’. 26 Regarding the idea of human dignity, it can be said that, far from being a useless notion as some have argued, 27it has a key role in international bioethics by providing the ultimate rationale for the norms relating to this discipline. 28Certainly, the appeal to human dignity in international law is neither new nor specific to instruments dealing with biomedical issues. On the contrary, this notion is at the cornerstone of the universal human rights movement that emerged after the Second World War. However, recent international biolaw instruments empha- sise the importance of human dignity in a more powerful way than traditional human rights law. Indeed, the contrast between the background role assigned to human dignity in international human rights instruments and the foreground role assigned to it in international biolaw could not be more impressive. 29 The UNESCO Declaration 2inscribes itself in this trend when it places at the top of its principles that of ‘‘human dignity, human rights and fundamental freedoms’’ (Article 3.1). Similarly, when it provides that ‘‘the interests and welfare of the individual should have priority over the sole interest of science or society’’ (Article 3.2). This provision of Article 3.2, which has surprisingly also been criticised, 7is in fact included, with almost the same wording, in several international documents relating to bioethics, such as the WMA Declaration of Helsinki (Article 5), 18the European Convention on Human Rights and Biomedicine (Article 2) and the UNESCO Declaration on the Human Genome and Human Rights (Article 10). Through this provision, the new UNESCO Declaration sought to emphasise a direct corollary of the principle of human dignity: that people should not simply become instruments for the benefit of science, because science is not an absolute, but only a means at the service of the human person. It is indeed hard to see what other bioethical principle could be more fundamental than this one. CONCLUSION The Universal Declaration on Bioethics and Human Rights is an important step in the search for global bioethical standards. Like any other international instrument of its kind, it is not free from shortcomings. However, in view of the sensitive nature of bioethical issues, the simple fact that virtually all states reached a comprehensive agreement in this discipline is in itself a major achievement. Certainly, most of the declaration’s principles are not original; they are derived from several existing interna- tional documents. This is why the greatest merit of this instrument is to gather those principles and to integrate them into a human rights framework. In sum, the purpose of the declaration is not to invent new bioethical principles or to provide the definitive solution to the growing list of bioethical dilemmas. Its main goal is much more modest: to assemble some basic standards to help states in their efforts to promote responsible biomedical research and clinical practice, in conformity with the principles of international human rights law. ACKNOWLEDGEMENTSI thank Calum MacKellar for his useful comments and also bothreviewers for their suggestions. Competing interests: None. 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