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Irresponsible Scienctists and Prohibiting Human Reproductive Cloning Before the First Clone Is Born

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Irresponsible Scienctists and Prohibiting Human Reproductive Cloning Before the First Clone Is Born 93 irresponsible scienctists and prohibiting human reproductive cloning before the first clone is born. Limiting the scope of a future UN Convention to a prohibition of reproductive cloning even seems promising taking into account those countries whose final goal is to reach a UN Convention on a complete ban of cloning.432 For it is notable that some of these countries signed the Council of Europe’s Protocol and thus agreed to a partial ban on reproductive cloning, namely Spain, Italy, and Portugal. Likewise, these same countries have, as UNESCO member states, agreed to the UNESCO Declaration which also just spells out a partial ban. Given the overall experience the international community has made with the two documents of UNESCO and of the Council of Europe, prohibiting reproductive cloning only at this point in time in a UN Convention seems preferable and more promising than to negotiate a comprehensive prohibition or regulation of human cloning. C. The history and the achievements of the UN negotiations aiming at a Convention against human reproductive cloning Over a period of almost three years, from February 2002 until November 2004, the member states of the United Nations were negotiating on a possible prohibition of human reproductive cloning through a UN Convention. The subject of biomedicine is new to international law and human cloning is even newer. The debates on a prohibition in the forum of the UN General Assembly, the Sixth Committee and special Sub- Committees have insofar broached questions, highlighted affinities 432 For a list of such countries, see the list of co-sponsors of a draft Convention against “human cloning” L.2. 94 and roused controversies that had, until then, at least to a large extent,433 been left plain by international treaty law. The first steps of the international community towards the formulation of a prohibition of human reproductive cloning therefore set an important precedent. We may assume that what the General Assembly failed to attain - the agreement on a mandate for negotiations on a Convention against reproductive cloning - will be revisited in other multi-lateral attempts at prohibiting cloning. The forthcoming report and analysis of the history and achievements of the negotiations shall help perceive the relevant issues and their consensual elements, but also the weak points of the German-French initiative as it was initially envisaged. I. Introduction: The initiative of Germany and France for an international Convention It was thanks to the idea of German diplomat Joachim Schemel in May of 2001 that foreign minister Joschka Fischer was sought to initiate negotiations at the United Nations aiming at a prohibition of human reproductive cloning. 1. Laying the headstone at the German foreign ministry In a letter to the minister434, it was held that while a comprehensive international Convention regulating human cloning comprehensively was desirable, a first step in that direction would be the prohibition of human reproductive cloning since, on this particular issue, consensus among UN member states was assumed. A comprehensive Convention on the other hand, regulating also therapeutic cloning, was, with regard to the ongoing international debate about ethical questions on embryo research, an unrealistic aim, at least for the time being. 433 See above at B.II.1. 434 The letter, dated 31 May 2001, is at the hands of the author. 95 The initiative would be in coherence with foregoing UN resolutions on “Human Rights and Bioethics” under the Commission on Human Rights,435 in particular resolution 2001/71 of the 57th Human Rights Commission, in which the UN Secretary-General was invited to “consider establishing a Working Group of independent experts … which would reflect, in particular, on the follow-up to the Universal Declaration on the Human Genome and Human Rights and report to the Secretary General within a period determined by him …” (operative paragraph 4). From among these comprehensive considerations, the German-French initiative against reproductive cloning would choose and consider one particular aspect. The proposed legal instrument would also build upon UN General Assembly resolution 53/152 of 1998 which endorsed that Declaration. France was considered as a lead partner to advocate the suggested negotiation goal. At the time, Germany and France had similarities in their respective national legislation.436 Also, a close collaboration of the two European states would send a welcome political signal to the international community of states. And France had, due to its significant contributions to the successful elaboration of UNESCO’s Human Genome Declaration, considerable experience on the substance matter. As for the venue for negotiations, it was argued that the United Nations General Assembly and its Sixth Committee would be the appropriate forum to negotiate such a Convention. The issue at hand was of a multi-disciplinary character and could not be dealt with comprehensively under other specialized UN agencies, such as 435 See UN Commission on Human Rights Resolution 2001/71 on Human Rights and Bioethics, 25 April 2001; Resolution 1999/63 on Human Rights and Bioethics, 28 April 1999; Resolution 1997/71 on Human Rights and Bioethics, 16 April 1997; Resolution 1995/82 on Human Rights and Bioethics, 8 March 1995; Resolution 1993/91 on Human Rights and Bioethics, 10 March 1993. 436 The French Bioethics Law of 1996 prohibited all types of cloning procedures, similar to the German Embryo Protection Act of 1999. 96 WHO, UNESCO or the Human Rights Commission, who naturally have a limited mandate and competence. Also, to refer this issue back to international agencies that had already “done the possible” in elaborating the respective instruments could be circular – rather, it had to be pushed forward in a new organizational framework. With respect to the idea of reaching as many states as possible with a Convention, the United Nations had the greater number of member states. The United States, for instance, was not a member state to UNESCO at the time of the decision on the venue437 and it would not serve the purpose of universality to leave out the politically most powerful state worldwide from this undertaking. Finally, according to the reasoning of German diplomats, a negotiation result could be accelerated within the context of the General Assembly, much rather than in the context of UNESCO, WHO, or the Human Rights Commission, mainly because the supreme body of the United Nations was the most experienced gathering of states in dealing with cross-cutting issues, and in negotiating treaties. Minister Fischer agreed to the proposal as it was made and ordered his diplomats in New York to get the move going at the United Nations. 2. Negotiations in the context of the UN General Assembly a) Development and codification of international law According to article 13(1)(a) of the UN Charter, the General Assembly shall initiate studies and make recommendations for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law 437 The United States had withdrawn from UNESCO in 1984 under President Ronald Reagan. It was only in late 2002 that President George Bush decided to rejoin the organization, see “Fact sheet: United States rejoins UNESCO”, 38(4) Weekly Comp. Pres. Doc. 1540 of 12 September 2002. 97 and its codification. Codification and progressive development of international law have since then become subject of ongoing debate among member states under the auspices of the United Nations: For the purpose of fulfilling the mandate of article 13(1)(a), the General Assembly has established the International Law Commission (ILC), the United Nations Commission on International Trade Law (UNCITRAL) and the Sixth Committee, as well as a variety of Ad Hoc Committees. The work of codification and progressive development in the institutional framework of the General Assembly is diplomatic in its nature as it aims at ministering to the interests of the member states.438 In practice, this means that the General Assembly is not entitled to legislate and impose new rules, rights, and obligations upon member states, since the community of states has not conferred such a power upon the General Assembly.439 Rather, the role of the General Assembly is limited to the deliberation, the drawing up of texts, adopting and recommending them for signature, ratification, and accession. It then lies in the descretion of the member states to make a decision according to their own political will and constitutional transgressions.440 Accordingly, decisions of the General Assembly are not legally binding and are taken by a simple majority by the states voting.441 438 See Fleischhauer, in: Simma (2002) at article 13, margin no. 4. 439 See id. 440 However, irrespective of the entry into force of individual Conventions, much of the materials produced by the General Assembly and its subsidiary organs in this field will have influence on the evolution of international law as a subsidiary means for determining rules of law similar to those mentioned in article 38(1)(d) of the ICJ Statute. 441 Among the legally binding decisions of the General Assembly are, for instance, the election of the non-permanent members of the Security Council, the elections of the member of ECOSOC, the initiation of new states as UN member states, see Tomuschat (1995) at 550. All such decisions need a two-third majority of the member states present. 98 b) The power to make recommendations The General Assembly, under article 10 of the UN Charter, also has the power to make “recommendations”. Whether the General Assembly makes use of its power of recommendation is generally at its discretion; in the case of article 13(1), it even has a duty to make recommendations. In practice, acts of the General Assembly are issued in the form of “resolutions”, “declarations” or “decisions”.
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