Abstract
The prescriptive function of international law, like domestic law, is to signal to states and other actors, including individual human beings, approved codes of behaviour. While multilateral treaty making has always been one way of making and clarifying what the law on a particular subject is, it was not until the establishment of the United Nations Charter system in 1945, that multilateral agreements slowly became a preferred mode of clarifying or making international law.1 The increasing concentration on concluding multilateral agreements began to reduce the incidence of customary development of the law and the general principles of law as two important sources of international law under Article 38 of the Statute of the International Court of Justice. There are other factors that contributed to the ascendance of treaties and decline of custom. But the consequence has been the increase in reliance on states’ express collective views and, as a result, the necessity of securing consensus on particular issues.
The views expressed are the author’s and do not necessarily represent those of the United Nations.
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Article 13 (a) of the Charter has often been used to encourage states in that direction. This Article is basis for the establishment of the International Law Commission.
Since the 1970s and the end of the decolonisation process and the increase in the membership of the United Nations, many newly independent states questioned the validity of certain rules of international law based on custom to the development of which they did not contribute. The notion of equal sovereignty of states led to the notion of democratisation of international law, hence the need for consensus and compromise. There is also the general view among many newly independent, smaller and developing states that, in case of doubt or conflict, they might do better to resolve their dispute by judicial means. This view has even become popular with many European states. This attitude reduces the norm-generative power of state behaviour and increases correspondingly the norm-generative power of judicial decisions. Similarly, the proliferation of courts and judicial bodies and the specialisation of international law which has led to the establishment of dispute settlement mechanisms compel states parties to the treaties to resort to those mechanisms.
The codification of international criminal law in the last decade and a half is a good example representing both the standard and classical requirements for codification as well as the unconventional factors affecting that process. The proposal for drafting the Rome Statute for the International Criminal Court was made before the Yugoslav Tribunal was established. That proposal was not viewed as feasible. It did not enjoy political support from critical states, there was no consensus among states on the general direction to the topic, and there was no pressing need, in the view of many governments, for the establishment of such a court. But two years later, the Balkan conflict and atrocities committed in that conflict changed the political mood. When the Statute of the Yugoslav Tribunal was drafted, there was political commitment on the part of critical states for an international criminal tribunal, not necessarily by enthusiasticchoice, but as a result of having no alternative. Expert reports were prepared by a handful of states which assisted the drafting of the Statute of the Yugoslav tribunal by the Secretariat of the United Nations. For the Rwanda Statute, the pressure from the non-governmental organisation was also a factor, not to mention the gruesome pictures of dead and maimed civilians publicised by the media and embarrassing the political leaders for lack of preventive actions. The two processes bred life into the proposal of drafting the Rome Statute. By then, there were models for similar statutes indicating some general and broad consensus among states as to the substance of such a treaty. It became more difficult for those states that had supported the two ad hoc criminal tribunals now to fiercely oppose a similar statute for a standing tribunal. An additional factor was the commitment of a good number of experts in criminal and humanitarian law who provided the intellectual and technical leadership for the development of the subject. There was also a growing active support by more than 200 organised non-governmental organisations using various modalities for influencing the process in favour of the creation of the court. In short, the convergence of a number of factors bred life to a process which appeared hopeless at the start.
Cloning and stem cell research are defined by the Inter Academy Panel as: “Cloning of an organism commonly involves a technique called somatic cell nuclear transfer, where the nucleus of an egg cell (containing its genetic material) is removed and replaced with the nucleus of a somatic cell taken from the body of an adult. If the reconstructed egg cell is then stimulated successfully to divide, it may develop to the pre-implantation blastocyst stage. In reproductive cloning, the cloned blastocyst is then implanted in the uterus of a female and allowed to continue its development until birth. However, in cloning for research or therapeutic purposes, instead of being implanted in the uterus the cloned blastocyst is converted into a tissue culture to make a stem cell line for research or clinical applications.”
A/56/192.
General Assembly Resolution 56/93 adopted on 12 December 2001. Reprinted in the annex of this volume, under I 8.
See the report of the Ad Hoc Committee in document A/57/51.
A/C.6/58/L.2. Reprinted in the annex of this volume, under I 4. The sponsors of the draft resolution proposed by Costa Rica rose to 68 states. See A/58/520, section II (A).
Sierra Leone and Uganda, members of the Islamic Conference, dissented from that view and supported complete banning of all forms of cloning.
A/C.6/58/L.8. Reprinted in the annex of this volume, under I 3.
For the report of the Working Group see A/C.6/58/L.9, reprinted in the annex of this volume, under I 2.
In explaining the reasons for the motion, the representative of Iran listed the lack of consensus among delegations on how to proceed on substance and uncertainty among the scientific community about the utility of therapeutic cloning. He stated the motion was intended to be without prejudice to any positions that delegations may have on either the proposal on a comprehensive ban as proposed by Costa Rica in A/C.6/58/L.2 or the partial ban proposed by Belgium in A/C.6/58/L.8. See A/C.6/58/SR.23.
The following states voted in favour of the motion: Algeria, Argentina, Armenia, Azerbaijan, Bahamas, Bahrain, Belarus, Belgium, Botswana, Brazil, Brunei Darussalam, Bulgaria, Cambodia, China, Comoros, Croatia, Cuba, Cyprus, Czech Republic, Democratic Peoples Republic of Korea, Denmark, Djibouti, Egypt, Estonia, Finland, France, Gabon, Germany, Greece, Hungary, Iceland, India, Indonesia, Islamic Republic of Iran, Japan, Jordan, Kuwait, Latvia, Lebanon, Liechtenstein, Lithuania, Luxembourg, Malaysia, Maldives, Mali, Mauritania, Mauritius, Mexico, Monaco, Morocco, Myanmar, Namibia, Netherlands, New Zealand, Niger, Oman, Pakistan, Qatar, Republic of Korea, Russian Federation, Saudi Arabia, Senegal, Singapore, Slovenia, South Africa, Sri Lanka, Sudan, Swaziland, Sweden, Switzerland, Syrian Arab Republic, Thailand, Tonga, Tunisia, Turkey, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, Viet Nam, Yemen and Zimbabwe.
The following states voted against the motion: Albania, Andorra, Angola, Antigua and Barbuda, Australia, Austria, Barbados, Belize, Bolivia, Bosnia and Herzegovina, Burundi, Central African Republic, Chile, Costa Rica, Democratic Republic of Congo, Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Ireland, Israel, Italy, Kazakhstan, Kenya, Kyrgyzstan, Lesotho, Madagascar, Malawi, Malta, Marshall Islands, Micronesia (the Federated States of), Nauru, Nepal, Nicaragua, Nigeria, Norway, Palau, Panama, Papua New Guinea, Paraguay, Philippines, Poland, Portugal, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Sierra Leone, Slovakia, Solomon Islands, Somalia, Spain, Suriname, Tajikistan, Timor-Leste, Trinidad and Tobago, Tuvalu, Uganda, United Republic of Tanzania, United States of America, Uzbekistan, Vanuatu, Venezuela and Zambia.
The following states abstained: Bangladesh, Bhutan, Burkina Faso, Cameroon, Canada, Cape Verde, Colombia, Jamaica, Peru, Republic of Moldova, Romania, Serbia and Montenegro, The Former Yugoslav Republic of Macedonia, Ukraine and Uruguay. See A/C.6/58/SR.23.
Costa Rica proposed a slightly revised resolution that it had proposed in the Sixth Committee to the General Assembly (A/58/L.37). Following further consultations among delegations, the General Assembly decided to include the item at its next session and not take any action on either the recommendation of the Sixth Committee or the draft resolution proposed by Costa Rica. See A/58/PV.72, 9 December 2003. The United Kingdom in explanation of position after the vote stated that it will neither participate in drafting a convention that would ban therapeutic cloning, nor becomes a party to such a treaty. See ibid.
These issues also came up during the 1998 Rome Diplomatic Conference in the context of definition of crimes against humanity.
See also Leon Kass, Chair of the President’s Council on Bioethics, who argues against cloning for reproductive purposes on the following ground: “We are repelled by the prospect of cloning human beings not because of the strangeness or novelty of the undertaking, but because we intuit and feel, immediately and without argument, the violation of things that we rightfully hold dear. Repugnance, here as elsewhere, revolts against the excesses of human willfulness, warning us not to transgress what is unspeakably profound.” L.R. Kass, The Wisdom of Repugnance, in The Ethics of Cloning (published for the American Enterprise Institute, 1998), 19. A somewhat similar view is expressed by Howard Markel, a pediatrician and historian of medicine at the University of Michigan. In his view “The political problem with the manufacture of human embryos, however early in their development, is not just that it upsets opponents of abortion. It is that it shifts a barrier that might become porous, weakening the sacral quality of the human. And once that takes place, the slippery slope becomes far more slippery. Where are lines to be drawn? Will human life forms ultimately be harvested for the sake of other humans?” See H. Markel, Life in a Bottle, in The New York Times Book Review, March 28, 2004. See also Being Human: Readings from The President’s Council on Bioethics (The President’s Council on Bioethics, Washington DC. December 2003).
See an editorial by D.C. Dennet, Brights of the World, Stand and be Counted, in International Herald Tribune, 15 July 2003, 9. He defines a “Bright” as “a person with a naturalist as opposed to a supernaturalist world view.” In his definition “Brights” “don’t believe in ghosts or elves or the Easter bunny — or God.” According to a 2002 survey by the Pew Forum on Religion and Public Life, there are 27 million Americans who are either atheist or agnostic or have no religious preference.
McDougal, Lasswell and Reisman define “human dignity” in the context of their jurisprudential theory of Law, Science and Policy as referring to a conception of the person as autonomous, a value in himself or herself equipped for making choices, and not as a means to an end.
See Article 12 (b) of the Universal Declaration on the Human Genome and Human Rights (1997). See also Articles 18 and 19 of the Universal Declaration of Human Rights (1948), which provide for the freedom of thought and expression; and Article 15 (3) of the International Covenant on Economic, Social and Cultural Rights (1966), which requires states to respect the freedom indispensable for scientific research.
IAP took the position that “Research studies using nuclear transfer techniques could be important for improving our basic knowledge of, for example, how the cell nucleus can be re-programmed to switch on the set of genes that characterizes a particular specialized cell, or for understanding the genetic basis for human diseases, or for enhancing our understanding of re-programming faulty human genes. A more long-term goal would be to learn how to re-program somatic cells into stem cells and thus provide a way of obtaining stem cells, genetically compatible with the patient without any need for the use of eggs and embryos. It is, of course, only justified to carry out this research using human eggs where animal studies fail to provide a suitable alternative.”
Document A/58/73. Reprinted in the annex of this volume, under I 5.
Ibid. Emphasis added.
Information provided to the Working Group of the Sixth Committee by-UNESCO on 29 September 2003.
Ibid.
On 18 November 2003, Massachusetts’ highest court ruled that gay couples have the right to marry under the state’s constitution, and it gave the legislature 180 days to make same-sex marriages possible. “Marriage by Gays gains big Victory in Massachusetts,” New York Times, November 19, 2003, A 1 and A 24. On June 26, 2003, the Supreme Court of the United States decided that Texas statute making it a crime for two persons of the same sex to engage in certain consensual intimate sexual conduct was unconstitutional. Lawrence v. Texas, 123 S.Ct. 2472. In that case, the Supreme Court referring to an earlier decision stated: It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’The European Court of Human Rights in 1981 also declared that the laws of Northern Ireland forbidding homosexual conduct among consenting adults were invalid under the European Convention on Human Rights, Dudgeon v. United Kingdom, Eur. Ct. H.R. 45 (1981), 52.
Leon Kass arguing against human cloning illustrates the difficulty with the culture of rationalism: “...It has become harder, not easier, to discern the true meaning of human cloning. [...] We have become accustomed to new practices in human reproduction: not just in vitro fertilization, but also embryo manipulation, embryo donation, and surrogate pregnancy. Animal biotechnology has yielded transgenic animals and a burgeoning science of genetic engineering, easily and soon to be transferable to humans. Even more important, changes in the broader culture make it now vastly more difficult to express a common and respectful understanding of sexuality, procreation, nascent life, family, and the meaning of motherhood, fatherhood, and the links between the generations. Twenty-five years ago, abortion was still illegal and thought to be immoral, the sexual revolution (...) was still in infancy, and few had yet heard about the reproductive rights of single women, homosexual men, and lesbians. [...] Today, defenders of stable, monogamous marriage risk charges of giving offense to those adults who are living in “new family forms” or to those children who, even without the benefit of assisted reproduction, have acquired either three or four parents or one or none at all. Today one must even apologize for voicing opinions that twenty-five years ago were nearly universally regarded as the core of our culture’s wisdom on those matters. In a world whose once-given natural boundaries are blurred by technological change and whose moral boundaries are seemingly up for grabs, it is much more difficult to make persuasive the still compelling case against cloning human beings.” See Kass, supra note 16, 6–8. On the question of morality, Svend Ranulf and Harold Lasswell have suggested that legislating morality was initiated by one social class to suppress another ascending cultural formation in an effort at social control. See S. Ranulf, Moral Indignation and Middle Class Psychology (1938, reprinted 1964). See also the Introduction to Ranulf s book by H. Lassewell, ibid., ix, xii.
See M. Duenwald, 25, In Vitro Fertilization has come of Age, in International Herald Tribune, 17 July 2003, 10.
For a review of early controversy over research in in vitro fertilization see R.M. Henig, Pandora’s Baby: How the First Test Tube Babies Sparked the Reproductive Revolution, 2004.
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Arsanjani, M.H. (2004). The Negotiations on a Treaty on Cloning: Some Reflections. In: Vöneky, S., Wolfrum, R. (eds) Human Dignity and Human Cloning. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6174-1_14
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