Human Cloning - UN Report 2007

8/2/2019 Human Cloning - UN Report 2007

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Is Human Reproductive Cloning Inevitable:Future Options for UN Governance

This report was prepared by:

Chamundeeswari Kuppuswamy

Darryl Macer

Mihaela Serbulea

Brendan Tobin

Comments and feedback on this are sought. Please contact the following:

Biodiplomacy Programme

United Nations University Institute of Advanced Studies,

6F, International Organizations Center, Pacifico Yokohama,

1-1-1 Minato Mirai, Nishi-ku, Yokohama 220-8502, Japan

Fax: +81-45-221-2303

Email: [email protected], [email protected], [email protected],

[email protected]

UNU-IAS Report


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1

Preface 2

Executive Summary 3

Introduction 4

Section I Cloning 5Understanding Cloning 5

Reproductive Cloning 6

Research Cloning 7

New Genetics and Cloning 8

Section II - Ethics and Cloning 9

Human Dignity 9

a) Persona, Perceived and Legal Dignity 10

b) Dignity of the individual or of Society 10

c) Research Cloning 11

Cloning and Nature 12

Human Health 12Social Justice 13

Freedon of Research and Choice 14

Input of Ethics into Governance 14

Section III - International Governance of Cloning 16

The General Assembly and the Cloning Debate 16

The Ad Hoc Committee 16

The Sixth Committee 16

The Deadlock 17

Pragmatism and Belief 17

From Convention to Declaration18The UN Declaration on Human Cloning 19

Legal Status of the Declarations 19

The Formation of Customary International Law 19

Reproductive Cloning and Customary International Law 20

State Practice Relating to Reproductive Cloning 21

The Problems and Advantages of Customary International Law 23

Research Cloning and International Law 23

Section IV - Future Options for International Governance of Cloning 26

a) A Total Ban on all Cloning Research 27

b) Ban on Reproductive Cloning 28

c) Ban Reproductive Cloning and Sllow Research Cloning 28d) Ban Reproductive Cloning, Allow Research Cloning for 10 years 28

e) Moratorium on Reproductive and Research Cloning 28

Conclusions 29

Contents


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is report eva uates t e responses o t e UniteNations to the questions of human cloning governance.

he difference between reproductive human cloningand using of cloning technology for research is explained

followed by an ethical analysis of cloning.

Discussion of ethics at the UN level often brings to mindt e notion o eep, pro oun , common y e princip esto guide human actions. While general ethical principles,suc as t e princip e o oing no arm in me ica practice,are widely respected, the question of what amounts to

arm is ess easi y e ne . T e e ate on repro uctiveand research cloning has demonstrated the diversityo et ica e ie s. It is interesting, or instance, t at

hile there is an almost complete consensus amongstcountries wit regar to t e nee to an repro uctivecloning, a number of academics and some religiousgroups o not necessari y e ieve t at suc c oning is

unethical. The analysis of the ethical considerationsrevo ves aroun t e questions o - uman ignity, w atis natural, human health, social justice, freedom ofresearc an c oices.

e UN Genera Assem y C oning e ate evo ve romcalls for a Convention to the formulation of a Declaration,as a way to ri ge t e ivision over t e internationagovernance issues. The United Nations Declaration onHuman Cloning (A/RES/59/280) was thus adopted on8th of March, 2005. The Declaration was passed with 84countries supporting it, 34 against, w i e 37 a staine .Comparisons are made between the reasoning ofcountries or an against t e Dec aration. Researcefforts on reproductive as well as therapeutic cloningcontinue to be governed by national law and policy.

he Formation of Customary International Law isreviewed, and the report concludes that an analysis ofexisting municipal legislation on cloning indicates strongevi ence o state practice an opinio juris supportingthe prohibition of reproductive cloning. In the case ofrepro uctive c oning, over 50 countries ave egis ateto ban reproductive cloning and there is no countryt at egis ate to a ow t e practice. T e UniversaDeclaration on the Human Genome and Human Rights,approve y UNESCO Genera Con erence in 1997, was

endorsed unanimously by the General Assembly, as apro i ition on repro uctive c oning. T ere is oweverno consensus on use of human embryos for researchc oning, as escri e .

Future options or internationa governance o c oningcould include further work by UNESCO IBC on the issueof reproductive and research cloning, in the contextof resolution A/RES/59/280 and also in the context of

the Universal Declaration on Bioethics and HumanRights, which was adopted by the General Conferenceof UNESCO on the 19th of October 2005. The UN GASixt committee ta es up t e issue o customaryinternational law on cloning. The current status quo isone option, ut t e report presents iscussion re evantto the different options that exist to establish temporarymoratorium, tota ans or to eave t e ecision to t enational governments. The report hopes to contribute to

issemination, iscussion an e ate on c oning issuesat the international level, so that all countries includingt e eve oping an east eve ope countries canparticipate and put forward their concerns regardingt is new tec no ogy. T is issue owever is one t at

affects all of humanity, and the report is intended toprovi e a asis on w ic t e internationa communitymay wish to revisit the issue of human cloning, at a timew ic may e not too istant.

Executive Summary


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T e prospect o uman c oning as een one o t e mostemotive and divisive issues to face UN negotiators andt e internationa community in recent years. Despitewidespread consensus amongst nations regarding the

esira i ity o anning repro uctive c oning, e orts tonegotiate an international convention ground to a haltdue to fundamental divisions regarding so-called researchor t erapeutic c oning. Researc c oning, viewe y someas a possible source of new therapeutic remedies for

egenerative iseases, see y ot ers as unet ica w ereit involves the production of embryos as a source of stemce s upon w ic suc t erapies are ase . Firm positionson both sides of the debate led to a compromise positionin t e orm o a non- in ing UN Dec aration on C oning,(A/RES/59/280).

As a resu t o t e ai ure to a opt an internationa y in ing

legal instrument to regulate reproductive cloning activity,scientists committe to carrying out researc in t is areacan do so in many countries where domestic regulationsa ow it, or in countries w ic ave not as yet regu atecloning research. Although claims to date reporting thegrowt o c one uman em ryos into eta stages orbeyond have not be substantiated, many predict thatt e irt o a uman c one is inevita e. T e attempteproduction of cloned human persons raises many ethical,mora , ega , socia an cu tura concerns.

T e Bio ip omacy Initiative at UNU-IAS as een carryingout analysis of the opportunities, challenges and options

for international governance of cloning. This study buildsupon an earlier working paper on governance options forc oning su mitte to parties at one o t e UN meetingsdiscussing the Declaration and critically examines theinternationa process or eve opment o measures toregulate cloning, from the perspectives of bioethics andnationa an internationa aw. It is ivi e into oursections. Section I provides an overview of cloning, andSection II examines et ica issues re ate to c oning.Section III, discusses national and international law,in particu ar customary internationa aw re ating tocloning. Section IV elaborates a range of options foruture internationa governance o c oning an ma es a

number of recommendations and conclusions to inform

t e eve opment o aw an po icy in t is area.

T e stu y conc u es t at regu ators misse anopportunity to develop clear and unequivocal measures

anning c oning inten e or t e purposes o ringingabout the birth of human life. However, the study argues,

t at espite ai ure y t e UN to eve op an internationaconvention on cloning, the adoption of the UN Declarationon Cloning is an important milestone on the road toformation of customary international law in this area.Although it can be argued that there is overwhelminginternationa opposition to repro uctive c oning, coup ewith numerous national legislation which make it acriminal offence, it is still difficult to establish that thereexists a clear custom that prohibits reproductive cloning.However, t ere are strong groun s to e ieve t at i suca case were to come before the International Court ofJustice, t e emerging custom against repro uctive c oningwill be a strong argument for the prosecution. The UnitedNations Dec aration on Human C oning is an important

milestone on the road to customary international law onc oning.

Introduction


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Understanding Cloning

Cloning in essence means making an exact copy. Cloningo ce s is a commonp ace proce ure in t e i e sciences

and reproductive cloning of some animals is now possible.Do y, t e s eep was t e rst suc mamma to e orn,in 1997. Although there has been some opposition to thec oning o mamma s, y an arge it as een genera yaccepted by society, however, it has brought the possibilityo t e c oning o uman eings too c ose or com ort.

hile the majority of people do not support cloning ofuman eings, t ere are a sma minority t at o arge y

base their positions on issues of scientific freedom,repro uctive rig ts an w at some see as t e inevita i itythat cloning will some day occur. .

Opponents have portrayed reproductive cloning as avio ation o uman ignity3, a position supporte y t einternational community, in the Universal Declarationon the Human Genome and Human Rights (hereinafterthe Universal Declaration) which was unanimouslyadopted by all member states of UNESCO in theirGeneral Conference in November 1997, and unanimouslyendorsed by the General Assembly in 1998.4 Article 11 ofthe Declaration states that practices which are contraryto human dignity, such as reproductive cloning of humanbeings, shall not be permitted. Although the UniversalDeclaration is not a legally binding instrument, it doesprovi e et ica gui ance t at a g o a unanimityin 1997, and a number of countries have subsequentlya opte egis ation anning repro uctive c oning. T e

concept of human dignity is further discussed in SectionII on Et ics an C oning.

e g o a community is sp it muc more even y witregard to debates over the way to govern scientificresearc using tec niques o uman c oning, w ic onot have the aim of reproduction. This split is in part due

to et ica concerns ut may a so e ue to a certain eveof confusion over what this term means in practice, thescienti c reasons or use o c oning tec niques or me icaresearch, and the actual relationship of such research to

uman repro uctive c oning.

hile reproductive cloning is meant to result in an animalith the exact genetic imprint as the person whose cells

are cloned, research cloning6 is meant to produce tissues,ic are an exact matc to t e person w ose ce s are

cloned. There could be other uses for research cloning, ast e name suggests.

Section I Cloning

1. ee generally Roslin Institute, http://www.ri.bbsrc.ac.uk/public/cloning.html

. Amongst t e arguments put forwar in efence of c oning are t ose w ic argue t at t e c one in ivi ua as a istinct persona ity, as in t e

ase of identical twins. There are those also believe that human cloning is going to happen sooner or later. Others view a ban on cloning as a

restriction of procreative liberty. The argument has also been raised that any impediment to cloning is an infringement of the human right to

have children and a family. See Riordan, P.J., Cloning Consensus: Creating a Convention to ban human reproductive cloning, 26, Suffolk Transnatl

L.Rev.411 at 412, w ere e iscusses t e potentia mar et an commercia app ication of t e tec no ogy; Tu y, P, Do ywoo Is Not Just A T eme

Park In Tennessee Anymore: Unwarranted Prohibitory Human Cloning Legislation And Policy Guidelines For A Regulatory Approach To Cloning, 31. Marshall L. Rev. 1385; Kunich Westport, J.C., The Naked Clone: How Cloning Bans Threaten Our Personal Rights, Praeger Publishers, 2003; Katz, K.D.,

he Clonal Child: Procreative Liberty and Asexual Reproduction, 8 Alb. L.J. Sci & Tech. 1, 40-51 (1997) Also see www.clonaid.com

3. Many scholars have a problem with viewing reproductive cloning as contrary to human dignity. See Caulfield, T., Human cloning laws, human

ignity an t e poverty of t e po icy ma ing ia ogue, BMC Me ica Et ics 2003, 4:3 ttp://www. iome centra .com/1472-6939/4/3. T e aut or

rgues that on most counts -autonomy, uniqueness, instrumentalisation and replication, reproductive cloning does not violate human dignity. He

is of the view that we are in danger of trivializing and degrading the potential normative value of human dignity and that unless we apply it in a

logical and coherent fashion, the notion of human dignity is in danger of being eroded to the point where it stands as nothing more than a symbol

f amorphous cultural anxiety. In Beyleveld D, Brownsword R: Human Dignity, Human Rights, and Human Genetics, The Modern Law Review 1998,

61:661-681, Beyleveld and Brownsword feel that from any perspective that values rational debate about human genetics, it is an a use of t e

oncept of human dignity to operate it as a veto on any practice that is intuitively disliked. In Wright TG: Second Thoughts: How Human Cloning

an Promote Human Dignity, Valparaiso University Law Review 2000, the author argues against a deterministic conception of a human being and

human dignity stating that Human cloning may well serve to highlight, to emphasise, and to set off with greater clarity, quite apart from anyones

intentions, the mysterious capacities that comprise and express our human dignity. (Quoting from the Article by Caulfield, T.)

. A/53/152

5. Box 1 lists several definitions of cloning

6. Research and Therapeutic cloning are used alternatively in this paper.


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The Human Genome Organization (HUGO) defines Theterm cloning, while used in a general sense to refer to the

production of genetic copies of individual organisms orcells without sexual reproduction, involves a number ofdifferent techniques, including embryo splitting; somatic cellnuclear transfer into an enucleated egg; and developmentof cell lines, derived from a somatic cell, in cell culture.Types of cloning may also be distinguished according tothe organism in question and to the purpose for which thetechnique is employed. Human cloning, for example may besubdivided according to the purposes for which it is carriedout reproductive cloning, basic research and therapeuticcloning.

The UNESCO/IUBS/Eubios Living Bioethics Dictionary

includes the following definitions:

CLONE: A collection of cells or organisms that are geneticallyidentical. An identical genetic copy of an organism - animal/plant/ human being.

CLONING: The process of asexually producing a groupof cells (clones), all genetically identical to the originalancestor. In recombinant DNA manipulation procedures toproduce multiple copies of a single gene or segment of DNA.The production of a cell or an organism from a somatic cellof an organism with the same nuclear genomic (genetic)characters - without fertilization.

REPRODUCTIVE CLONING: Use of CLONING technology to

produce one or more individuals genetically identical (apartfrom the genes in MITOCHONDRIA and CHLOROPLASTS) toanother individual. In the late 1990s reproductive cloningwas used to produce clones of the adults of a number ofmammalian species, including sheep, mice and pigs. Themost famous of these was DOLLY. Many countries rushed tooutlaw the possibility of reproductive cloning in humans.Most bioethicists supported such bans though a minority

were more ambivalent.

THERAPEUTIC CLONING / RESEARCH CLONING: Medicaland scientific applications of cloning technology, which donot result in the production of genetically identical fetusesor babies.

EMBRYONIC STEM CELLS: (Anglo-Saxon stemm tree or trunk& Latin ella storeroom). A formative cell whose daughtercells give rise to other cell types; for example, pluripotentembryonic stem cells are capable of generating all celltypes compared to the multipotent adult-derived stemcells which generate many but not all cell types. Thus, stemcells may originate from embryonic tissue and from adulttissue and both types are suitable for cloning technology;that is, therapeutic and/or reproductive. Therapeutic

cloning is the cloning of embryos containing DNA froman individuals own cell to generate a source of embryonicstem cell-progenitor cells that can differentiate into thedifferent cell types of the body. The aim is to producehealthy replacement tissue that would be readily availableand due to immunocompatibility, the recipients would nothave to take immunosuppressant drugs for the rest of theirlives. The ethical status of embryonic stem cells is a matterof controversy because the label embryo is associatedwith cloning technology when typically embryonic stemcells are used. Strictly speaking, the early preimplantationblastocyst is not yet an embryo and is more properlycalled a pre-embryo. For this reason ethics commissionsin several nations have approved research on the human

pre-embryo up to 14 days because the conceptus is notyet differentiated. In this sense, the pre-embryo cells areno different from those in standard tissue cultures. On theother hand, it is true that a human pre-embryo could, inunscrupulous hands, be guided to develop into a humanbeing. The protagonists against cloning maintain that byvirtue of the pre-embryos special status, its wrong to carryout destructive experiments on them.

ox Definition of Human Cloning

7. Available on website, http://eubios.info/biodict.htm

8. Asparagus is a common vegetable; Orchids are a common flower, reproduced by cloning. Many plants propagate vegetatively in nature, which is

t e same as c oning.

Reproductive Cloning

Reproductive cloning has been common place for somep ants t at we eat8, ut it as een possi e in anima s

for less than half a century. After the development of thetec nique o asexua repro uction o c ona rogs in t emid-1960s there was a period of much debate consideringt e possi i ity an et ics o c oning umans. Howeverthe 1950s and 1960s experiments in nuclear transfer inamp i ians t at cou generate c ones in some speciescould not be applied to mammals in scientific attempts atnuc ear trans er rom t e 1960s unti 1997.

Ro ert E war s, a pioneer o IVF, suggeste in 1984 t atmaking identical human twins could be useful in IVF astwin trans ers give ig er rates o imp antation t ansingle transfers. When it is only possible to obtain a

sing e em ryo rom co ecting eggs, it wou increase t echances of a pregnancy if that embryo was split. Animalstu ies suggest t is wou present no extra arm tothe babies born. In 1993 scientists reported experimentson sp itting uman em ryos, an t e growt o t esecloned twins. It has probably been technically possibleor a eca e. Most mamma ian em ryos can on y e sp it

into 2-4 clones, after that the cells lack the ability to starteve opment into a uman eing.


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In 1997 the paper in Nature reported the birth of the firstc one mamma rom t e trans er o an a u t nuc eus,Dolly the sheep.9 This followed a paper the year before

ic ma e Morag , t e rst c one mamma , a so a

sheep, made by nuclear transfer from embryonic stemES ce s ines into an enuc eate egg ce . Bot s eephave since died and their stuffed bodies are displayed inthe National Museum of Scotland, as symbols of scientificprogress.

On 24 Novem er 2001 in Worcester, Mass, USA, a companyreported in Scientific American The First Human ClonedEmbryo. It included cloned early-stage human embryosand human embryos generated only from eggs, in aprocess called parthenogenesis (http://www.sciam.com/). In 2002-2003 the Raelian religious cult claimedt at uman c one a ies a een orn, w ic is wi e ythought to be a publicity stunt. No scientific proof or baby

as een presente .

Research Cloning

Research or therapeutic cloning as it is often referred tosee s to eve op t erapeutic reme ies or egenerativediseases. This research requires the use of stem cells. Bothem ryonic an a u t stem ce s are eing uti ise in t isresearch. Results from the use of adult stem cells haveto ate prove genera y ess avoura e t an t ose witembryonic stem cells. There is a general consensus thatembryonic stem (ES) cells offer significantly more scientificchances of success than limiting research to adult cells.However, as iscusse ater, ES ce s are controversia touse from an ethical point of view, hard to grow, hard tocontrol (can become cancerous), are rejected in the bodyunless made to order for an individual by cloning or usedin an immune protecte site i e t e rain.

e pre erence o scientists to wor wit em ryonicstem cells is at the root of research cloning activity whichinvo ves t e eve opment o em ryos as a source ostem cells. This in turn has proved to be the catalyst foropposition to researc c oning, opposition w ic is aseon what is seen as the unethical an immoral developmentof embryo whose sole purpose is to provide stem cells.

In research that has subsequently been retracted, WooSuk Hwang and colleagues of Seoul National Universityin Korea announced in the journal cience in February20041 that they had successfully cloned healthy human

embryos, removed embryonic stem cells and grown themin mice. T is was t e rst c aim t at a uman em ryonicstem cell line could be made by research cloning in

umans. T ey o owe t is up in May 2005 wit c aims

of the successful cloning of stem cells from patients withLou Ge rig isease, w ic s owe proo o princip e orthe concept of making stem cells tailor-made to a patientfor therapeutic ends.11

he 2004 findings were later shown to be fraudulent inone of the highest profile fraud cases of modern science.

he media has been blamed as one of the causes for thei esprea utopia t at e many to argue or t e nee or

embryonic stem cell research.12 In spite of the continuouscriticisms rom ioet icists in Korea regar ing t e useof junior researchers as egg donors, Hwang was madea nationa ero an internationa star, u y supporteby the government, mass media and people. Thanks to

t e in ormation o a w ist e ower an t e tenaciousinvestigation by the producers of MBC TV, his research

as isc ose to e a uge a e. It was ortunate t atthe verification efforts of young scientists and promptinvestigation y Seou Nationa University roug t t ecase to conclusion. The Korean government hurriedly

egan to ma e a gui e ine or researc et ics, an researcintegrity committees are appearing in many universities.

e ig pro e case i ustrates ow a transparent researcendeavour is necessary.1

here were, however, other cases reporting similar researchresu ts, ut a ave oun it a major scienti c c a engeto improve success rates. There have also been reportedto e some positive resu ts rom a u t stem ce researc

ith conversion of cells from one human organ into cellso anot er.14 Ot ers ave restore norma unction to rats

hose spinal cords have been cut. Clinical trials using bonemarrow to rebuild heart muscle have been successful.Regeneration of adult brain has been seen using adultcells in animals. There has also been a report of makingliver cells from bone marrow of an adult - without cloningtechnology being needed.1 Having said that, there is stilla clear scientific consensus despite the Hwang case fromthe international community that research should beexp ore in ES ines ecause o t e promising resu ts todate. Support for ES research has been framed around a

variety o t emes, inc u ing ree om o scienti c researc ,the expectation of medical benefits, and rights of patientsto t eir ignity.

. i mut, I ., et a . 1997. Via e offspring erive from feta an a u t mammaian ce s. ature 385(Feb. 27):810

10. Woo Suk Hwang, et al, Evidence of a Pluripotent Human Embryonic Stem Cell Line Derived from a Cloned Blastocyst, Science 303, 1669 - 1674; 2004

(subsequently retracted)

11. Hwang, W. S.., Roh, S. I., Lee, B.C. et al (2005) Patient-specific embryonic stem cells derived from human SCNT blastocysts, Science, 308: 1777-1783.

12. Karori Mbugua, Stem Cell Research: Science, Ethics and the Popular Media, JAIB 17 (2007), 6-11.

13. Solbakk, J.H. (2006) Stem cell research and the ethics of transparency, egenerative Me icine 1 (2006), 831-5.

14. Professor Jonathan Slack at Bath University has managed to convert human adult liver cells into pancreas cells producing insulin, using a simple

chemical switch. Nature Cell Biology, 2, 879-887, 2000.

15. May 15, 2002Journal of Clinical Investigation. http://www.jci.org


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New Genetics and Cloning

C oning is mista en y consi ere y many to e a partof the genomics revolution, which it is not. Cloning

is usually considered in laws governing assistedrepro uctive tec no ogy, rat er t an genetics, ecausethe essential ethical debates regard human embryos andcontrol of reproduction. Nevertheless, representativesfrom numerous member states, for instance, have madereferences, in the General Assembly, to the genomicsrevolution and cloning as if they are part and parcel ofeac ot er. In act, c oning is more c ose y re ate to IVFpractices than to genetics.

In the words of Watson:

.. [O]ur research on DNA has had no impact on cloning.C oning cou ave een one wit out nowing a outthe structure of DNA. Its not a moral dilemma created y DNA researc , ut its create y un erstan ing t e

biology of human reproduction better. Human cloningis somet ing t at rea y ecame possi e as a resu t otechniques developed for in vitro fertilization. It didntrequire a t ese a vances in DNA -- it s somet ing t atactually could have happened a lot sooner. And it has not yet appene .1

Despite t is istinction, t ere is a growing ten ency to incloning issues with those of genetics in both internationalan nationa egis ation. T is appears at times to e morefor reasons of political expediency than for any sound

ega or et ica purpose. T e 1997 Genome Dec aration, orinstance, which focuses primarily on genetics and humanrights, also addresses the issue of cloning (Article 11).The reference to human cloning did not appear in draftsproduced by UNESCOs International Bioethics Committee(IBC), during over five years of deliberations. The IBCconsidered that no reference should be made to specifictec niques in t e Dec aration as t e ocument out inesgeneral ethical principles. However, the timing of the finalmeeting of government representatives to review the textbefore the UNESCO General Conference in mid-1997 wasin t e mi st o great concern raise y t e pu ication othe paper reporting the cloning of Dolly the sheep.

The overlap between regulations on germ-line geneticintervention an repro uctive c oning is re ectein Opinion 54 of The French National ConsultativeEt ics Committee in 199717 w ere it cite Art.16-4 o

the civil code, which prohibits genetic modification ofescen ants as an imp icit an on repro uctive c oning.

Another example is the Law on Healthcare in Georgia18,w ic states Human c oning t roug t e use o geneticengineering methods shall be prohibited. In the SixthCommittee, a e egate was o t e view t at t e greatexpansion in knowledge of the human genome couldea to important iscoveries an a so to serious a uses

(referring to cloning).19 Reprogenetics the combination ofnew genetics an c oning is no ou t very power u angives rise to a host of new ethical issues, beyond the scopeof the current study

The genomics revolution or the new genetics started

aroun t e mi -eig ties an in 1990 we saw t ecommencement of the human genome project. Ethicalissues on t e uman genome an researc on t e em ryooverlap but they have a distinctive legislative history and

e ate. Actua y, t e issue o c oning as een aroun eversince the British biologist John Gurdon successfully cloneda ta po e rom a somatic ce .2 T e et ica concerns a outcloning gathered pace with the birth of the first testtu e a y in 1978. Davi Rorvi s oo , In His Image: T eCloning of a Man, published in 1978 sparked a worldwidedebate. Theologians have seriously engaged the issuessurrounding human cloning almost from the outseto contemporary ioet ics in t e context o scienti c

studies of cloned frogs, expanded use of reproductivetechnologies (such as the birth control pill), and generalsocietal concern about prospective overpopulation .

16. TIME 100 Scientist & Thinker, Time Yahoo Chat with Dr. James Watson, Transcript from March 24, 1999 http://www.time.com/time/community/

transcripts/1999/032499watsontime100.html

17. National Legislation concerning human reproductive and therapeutic cloning, (SHS-2004/WS/10),

Division of science and technology UNESCO 2004

18. I i

19. A/C.6/56/SR.27 at para 11

20. Human cloning, Ethical issues, UNESCO 2004. The possibilities of human cloning began to be speculated even in 1938 when the Nobel Prize

winner, Hans Spemann proposed a fantastical experiment to transfer one cells nucleus into an egg without a nucleus, the basic method that

wou eventua y e use in c oning. He performe t e first nuc ear transfer experiment in 1928. ttp:// i rary.t in quest.org/24355/ ata/

details/media/spemannnt.html

21. Campbell, C.S., In Whose Image?, http://www.parkridgecenter.org/Page168.html; Cloning Human Beings, Religious Perspectives on Human Cloning,

Commissioned Paper by Campbell C.S., Oregon State University http://www.georgetown.edu/research/nrcbl/nbac/pubs/cloning2/cc4. pdf


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Section II - Ethics and Cloning

Discussion o et ics at t e UN eve o ten rings to minthe notion of deep, profound, commonly held principlesto gui e uman actions in accor ance wit some ig erpurpose, which may emanate from belief of a religious

nature, or rom concern or uman, anima , environmentaelfare. Definition of the boundaries and scope of any

et ica princip e an t e measures necessary to a ereto it faithfully is however not an exact science, especially

en recognizing t at t ere are severa t ousan i erentethnic groups in the world and their cultural ethos vary.

i e genera et ica princip es suc as t e princip e odoing no harm in medical practice are widely respected, thequestion o w at amounts to arm is ess easi y e ne .

he debate on reproductive and research cloning hasemonstrate t e ui ity an iversity o et ica e ie s

in this area. It is interesting for instance to note that whilet ere is an a most comp ete consensus amongst countries

ith regard to the need to ban reproductive cloning, a

num er o aca emics an some re igious groups o notnecessarily believe that such cloning is unethical.

Per aps unsurprising y, t e et ica e ate on c oningtended to blur the lines of separation between the churchan state, to an extent t at a not een so o vious atthe international level for some time. This highly chargedissue c a enges t e ases o many re igious e ie s anplaces science and religion at loggerheads. Questions

ere raise suc as, w et er it is appropriate to a owfor the creation and destruction of embryos for the solepurpose o arvesting stem ce s w ic may save t elife of a sick person is at the very heart of this debate.

et er responsi i ity to respect t e uman ignityof a person dying with a debilitating illness outweighsresponsi i ity to prevent scientists rom cu ing ce s romdestroyed cloned embryos is a dilemma which cannot beeasi y reso ve t roug impassione internationa e ate.In the search for a common ethical standard by which to

e gui e t e g o a community is requent y ampereby intransigence, dogma and personal and institutionalam ition. T is po arise atmosp ere is not con ucive todevelopment of a consensual position based upon thenee or respect o iverse an sometimes con ictingviews, and while national governance mechanisms can

e constructe to reac compromise ecisions, it as notproved possible at the global level.

Discussion of the broad range of ethical perspectivest at a ress t e issue o c oning is eyon t e scope othis study. However, it is considered important to providereaders with a brief overview of some of the key ethicalconcepts t at ave irect earing upon t e eve opmentof international law and policy in this area. To this ethical

consi erations wi e oo e at un er t e o owing veareas: a) Human Dignity, Cloning and Nature, HumanHea t , Socia Justice, Free om o Researc an C oices

uman DignityProtection o uman ignity is one o t e car ina princip esof bioethics and has been enshrined in a number ofinternationa instruments. Most nota e in re ation to t epresent discussion is the UNESCO Universal Declarationon t e Human Genome an Human Rig ts w ic statein article 11, that: Practices which are contrary to human

ignity, suc as repro uctive c oning o uman eings,

hall not be permitted. States and competent internationalorganizations are invite to co-operate in i enti ying suc

practices and in taking, at national or international level,

t e measures necessary to ensure t at t e princip es set outn this Declaration are respected.

his unequivocal statement on reproductive cloningis a clear indication of the existence of an emergingprinciple of customary international law banning suchcloning, an issue which will be discussed in detail below.

he Declaration does not specifically refer to researchcloning, which will be read by some as an indicationt at t e internationa community i not consi er t isto be contrary to human dignity. Conversely some willargue t at t e an exten s to a c oning w ic ringsabout life, which depending upon the definition of lifemay inc u e em ryos pro uce y c oning tec niques.

he Declaration did not therefore resolve the underlying

i erences regar ing t e et ics o c oning, an neit erdid the UNESCO International Bioethics Committee (IBC)iscuss c oning in t e eve opment o t at Dec aration

because, the publication of the Dolly paper came aftert e e i erations o t e IBC. T e IBC su sequent y re easea report on stem cell research in 2001.2

Dignity may be considered from both intrinsic and extrinsicperspectives. Intrinsic ignity re ates to t e interna senseof dignity felt by an individual due to their own feelingo se -wort , capacity or autonomous ecision ma ing,and ability to meet their responsibilities. Extrinsic dignityre ates to t e manner in w ic in ivi ua s respect t edignity of others and are entitled to be free from external

arm to t eir own ignity. T e concept o ignity isinherent in foundational UN texts that were written at theen o Wor War II w en t ere was po itica unanimitythat abuses of war were against human dignity, and it wasaccepted that everyone knew what was meant. However,60 years after there is a need to more fully explore thisconcept in the international context with respect for

2. UNESCO Proceedings of the Seventh Session of the IBC, report on the use of embryonic stem cells in therapeutic research


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23. Chadwick, Ruth (1982) Cloning, hilosophy57: 201-209.

24 Cherfas, Jeremy (1985) Make Way For the Female Clone, New Scientist108 (21 Nov.), 61-62.

25. Ramsey 1970, Glover 1984, LaBar 1984

26. Popular fantasy also imagines reviving dead beloved ones or creating new human beings to serve as organ donors for ailing members of the

family. This would simply be murder in the case the donors were human persons.

numerous cultures of the world, which will take moreresearc t an possi e in t is report.

Amongst t e arguments raise against c oning as een

concern that reproductive cloning would lessen the respector in ivi ua s ecause o t e ee ing t at t ey coueasily be replaced. 3 Every form of reproductive technologyraises some question o uman va ues, ignity, wort anjuridical rights, some linked to the notion that the persons ou not e use as a mere mec anica instrument, anthat every human individual is a non-repeatable being.24

Disruption o ami y re ations an sexua re ations ipshas been suggested to also be a common concern withot er orms o repro uctive tec no ogy. T e same istrue of other concerns include individual psychologicalpro ems o t e c one persons.25 A t ese issues are e tto influence the individuals sense of self and thereby theirsense o persona ignity.

One o t e ey consi erations in t e e ate on ignity ancloning relates to the science of cloning, its inexactnessand the extent to which it may case significant sufferingto humans. The issue of the scientific merits, challengesand impediments to cloning are discussed further belowas are issues regar ing uman ea t an we - eing. T issection will, therefore, focus primarily on the notion of

ignity an its re ations ip to i entity.

a) Persona, Perceived and Legal Dignity

T e re ations ip etween i entity an ignity asbeen the subject of debate for centuries. Identity may

e consi ere rom a num er o i erent stan pointsincluding, personal, perceived and legal. From thestan point o persona i entity t e question arises asto whether a cloned individual will have a full sense ofpersona i entity. In more recent times in ivi ua ismlinked to identity may be seen to have played an everincreasing ro e in t e conception o persona ignity. Asidentity becomes a more personal and less communityre ate concept t e notion o persona ignity astaken on new connotations which demand a degree ofin ivi ua recognition ess preva ent in more communa ybased societies. Consideration of the potential identitycrises o a c one uman is c ose y in e to consi eration

of the possible perception of the clone as a full humaneing. T ere may o course e cases w ere c oning may e

linked to the desire of an individual to continue their owni e in some orm or as ion t roug t e pro uction o

cloned offspring. However, the ontological identity of eachindividual is drawn from their education, relationshipsand life experiences and a cloned individual may be no

more condemned to live in the shoes or mind of theirio ogica parent t an are c i ren orn y natura means.

As the Universal Declaration on the Human Genome andHuman Rig ts states, a person cannot e re uce to t eir

genetic characteristics. While some parents may wishto rep ace ea c i ren, t e persons ma e t rougcloning would not be identical.2 There could be changesto socia structure y c ones, owever i we note t at t eclones would always be different to their predecessors. Ingovernance e ates we nee to separate science ctionimages of replacement persons from the facts, which

ave een intro uce in t e ocumentation o numerousscientific academies.

Many human societies have tended to identify andmargina ise a in s o peop e ase upon t eir rea orperceived difference to an accepted common standard,w et er racia , p ysica , cu tura or ot erwise. Fear o

diversity has led to prejudice, victimisation and oppression.It is ar y inconceiva e to imagine t at c one umans atleast during the early stages of introduction of clones intosociety may be the subject of abuse which runs contraryto t eir we eing. Preju ice an sma min e ness inthe population at large would not in itself however seemto e a strong argument against c oning, ut rat er anargument for the development of awareness buildingprograms to e ucate t e popu ace an protect umandignity of all humans.

The legal status and identity of a cloned individual is likelyto prove a comp ex ut not insurmounta e pro em orthe legal community to resolve. However, ethically asa uman eing any c one in ivi ua wou ave equarights under the UN Declaration of Human Rights.

The intrinsic and extrinsic dignity of a cloned individualepen s upon t e manner in w ic t ey are treate y

family, society and the law. Respect for any persons dignityan t e manner in w ic it is respecte is a societa issuerather than an individual one. The question then arisesw ose ignity wou e a ecte y t e c oning o umans,and why has the international community sought to banrepro uctive c oning as eing against uman ignity.

b) Dignity of the Individual or of Society

I it cannot e seen to e t e ignity o t e c one in ivi uawhich is in question then it must be the collective senseo uman ignity o society w ic wou e t e su jectof infringement by cloning. This may be viewed from anumber of differing angles. It is frequently argued, forinstance, t at repro uction s ou occur y c ance an


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through natural selection. This argument may be basedupon re igious ines, w ic e er to a supernatura orhigher power for choice, or to natural selection and theimportance o ensuring continue uman iversity.

More convincing for some are arguments againstt e commo itisation o i e. Fears exist t at a owingreproductive cloning will lead to a spare parts market forharvesting human organs from cloned brain-less bodiesfor the rich as they seek to extend their life-span 7 A resu t

hich many see as a contravention of individual andco ective uman ignity.

ese are not issues w ic can e ig t y ismisse ;however, it is clear that any debate on human dignitynee s to separate t e various e ements o t e e ate inorder to consider whether opposition to cloning stemsrom concern or uman ignity or respect or ivine

dignity. As well as to determine whether it is designed to

protect t e in ivi ua t at may e c one or t e societyhose sense of personal and collective identity might

e c a enge y t e concept o s aring t e wor witcloned individuals.

ere as een extensive e ate regar ing t e potentiaof cloning technology to help infertile couples to havec i ren w ic are genetica y in e to its parents. T ishas included claims that preventing couples from seekingout c oning as a means to rea ise t eir esires to e parentsis a breach of human rights and individual dignity whichis seen as eing in e to t e capacity to repro uce. T isis an emotive issue and one which further impassions the

e ate on c oning; it is owever, at t is time a istractionrather than an aid to dealing with the underlying ethicalquestions regar ing t e c oning o umans, w ic mustbe linked to the rights of any child or embryo which arisesrom t e use o c oning tec no ogy. I t ere is any rig t to

reproduce using safe reproductive cloning technology it isin a general sense of having a child, and not intended toallow making a copy of oneself.

e oregoing e ate is owever arge y super uous in t eface of the current level of cloning technology which couldnot guarantee t e irt o ea t y umans, an woube likely to lead to many failed births, deformities, andc one umans wit e i itating an wasting iseases. To

quote the InterAcademy Panel statement of 22 September2004, scienti c researc on repro uctive c oning - inmammals other than humans - shows that there is a

markedly higher than normal incidence of fetal disordersan oss t roug out pregnancy, an o ma ormation andeath among newborns, and that there is no reason tosuppose t at t e outcome wou e i erent in umans.

herefore, the statement asserted, even on a purelyscienti c asis, it wou e quite irresponsi e or anyoneto attempt human reproductive cloning given our currentlevel of scientific knowledge.28

Concerns about the level of technological capability makeit muc easier to ui a consensus regar ing t e neeto protect human dignity by preventing experimentationin c oning. For now t ere is an a iance etween otthe religious and scientific communities regarding thenee to an repro uctive c oning, t is a iance mayhowever, disappear in coming years as advances inc oning tec niques eve ope or anima c oning, as weas that carried out in research cloning for the purposes

o arvesting stem ce s s ow greater possi i ities oachieving successful cloning in humans. Failure to exploitt e current consensus on t e nee to an uman c oningmay in the future be seen as the defining moment after

hich human reproductive cloning became inevitable.

here could be changes to social structure by clones,owever i we note t at t e c ones wou a ways e

different to their predecessors. In governance debates wenee to separate science ction images o rep acementpersons from the facts, which have been introduced in the

ocumentation o numerous scienti c aca emies.

c) Research cloningere are a variety o re igious views t at oppose t e

destruction of human embryos that is needed in creationo ES ce ines. 9 A t oug T ai Bu ists accept t epossibility of human cloning as a technique they arereserved about therapeutic cloning primarily because itinvolves the destruction of embryos in the procedure,3

many Christian faiths consider human life to beginit conception an see t e estruction o em ryos as

equating with the destruction of life. Reproductive cloningas een viewe y t e Ho y See as t e creation o i e or

the purpose of its destruction. The official Roman Catholicposition is in t e 2000 Dec aration o t e Ponti ca

Academy for Life, which stems firstly on the destruction ofuman em ryos as uman i e.31

7. Patrick Dixon, The Genetic Revolution, May 1993

8. ttp://www.interaca emies.net/IAP/iap ome.nsf/

9. Leroy Walters, Human embryonic stem cell research: An intercultural perspective, ennedy Institute of Ethics Journal14 (2004), 3-38; Brock, D.

W. (2006) Is a moral consensus possible on stem cell research? Moral and political obstacles, Journal of Medical Ethics, 32: 36-42. In June 2007

cientists at the US-based Advanced Cell Technology (Worcester, Massachusetts) announced that they have successfully produced a human

embryonic stem cell (hESC) line without destroying an embryo, which if confirmed may make ES-cell research acceptable to more persons.

30. Ratana u , a ove.

31. Pontifical Academy for Life. Production and the Scientific and Therapeutic Use of Human Embryonic Stem Cells. 25 August 2000.


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In the area of research cloning an alliance between suchviews and science has not been achieved. In fact, thepotential of science in this area acts as a beacon for churchopposition to c oning, representing as it oes or some a

usurpation of Gods power and the commoditisation of life.Here t e c urc as oun new a ies amongst t e non-governmental and civil society organisations who haveoppose t e turning o i e into a new mar et pro uct.Books such as the Human Body Shop3 have helped to

ig ig t t e potentia a use o c oning tec niques orthe purpose of building life science industries, involvingnot on y commo itisation o o y parts ut t e a ocationof rights over the products of research and development.T ere is concern t at i t e mar et a ows, an inte ectuaproperty rights regimes and other instruments of marketcontro are avai a e t en c oning tec no ogy may eutilised to develop a spare parts industry based upon theuse o onor c ones, w ic are treate as ess t an uman.

In this scenario the possibilities for abuse of human dignityare in ee mu tip e. However, t e generation o iso atehuman organ parts such as valves, tissues such as skin,or even rep acement earts, are not usua y consi ereagainst human dignity.

Cloning and Nature

The issue of human control over reproduction is notun amenta y new, ut one o egree. A num er o

persons have said that human reproductive cloning isgoing too far because it is no longer sexual reproduction.T e ey concern ere is t e extent t at umans contronature, as well as the potential impact this control will

ave on genetic iversity an uman psyc o ogy. It isargued that design of persons takes away autonomyo c i ren w ose io ogica c aracteristics wou edue not to chance, as in sexual reproduction, but to thec oice o t e person responsi e or t e c oning. On t eother hand it has also long been argued that for a childto exist at a cannot e against t eir interests.

Human io ogica iversity is consi ere a un amentapart of human natural heritage, and diversity isrecognise as part o t e concept o uman ignityin the Universal Declaration on Human Genomean Human Rig ts. T is as e some to oppose any

attempts to clone persons who would be identical tot e ce nuc ei onors. However, io ogists wou arguethat a clone is not identical to its original. Not only

genes influence the development of an organism. Geneplasticity, environmental factors, and neural topographystructures differentiate clones from their parents. Thusw i e t ere are concerns o uman ignity wit respect

to decrease in human diversity, it would only becomesigni icant i it was very wi e y practice . T e continuousmix of genetic data via sexual reproduction is a basicmec anism o natura evo ution. T e possi i ity ocontinuously recombining genetic data allows adaptive

.

Human Health

T e et ica re ation etween c oning an umanhealth may be best considered from the perspective of

iome ica et ics. One o t e common approac es tomodern bioethics is principalism, which commonly assertsour princip es: autonomy, non-ma e cence, ene cence,

and justice. 3 Autonomy means respect for self-rule of thein ivi ua a n t eir a i ity to ma e c oices an ecisionswith regard to their own health and future. Beneficenceis t e princip e o oing goo , w ic argues t at weshould develop science and technology that may helpa . Non-ma e cence is t e princip e o avoi ing arm,well expressed in the ancient medical maxim, primum

(first do not harm). Justice in the ethical sensemeans social justice or distributive justice; being fair orjust to t e wi er community in terms o t e consequencesof an action. Some of these principles are discussed inthis paper under Human dignity and Social justice.Regarding beneficence and non-maleficence principles,there are arguments that cloning offers both potentialbenefits and potential harms to human health.

Researc c oning use or regenerative me icine is onearea which has been promoted as offering great hopeor pro ucing rep acement tissue wit out t e ear o

immunological rejection. This technique if successfulmay ena e mi ions o peop e su ering rom t e mostcommon diseases of the industrialized world - diabetes,stro e, spina injury, neuro egenerative iseases suc asAlzheimers or Parkinsons to be cured. Whether embryoss ou e use or researc an ow suc researc activityshould be regulated are crucial questions. The embryonicstem ce s are o taine rom a orte oetuses or spare

early-stage embryos donated by couples undergoing invitro fertilization (IVF) treatment for infertility. Their usesraises concerns about respect for human life and the extent

32. Andrew Kimbrell, The Human Body Shop: The Cloning, Engineering, and Marketing of Life, 1998

33. Eisenberg, Leon (1976) The outcome as cause; predestination and human cloning,Journal of Medicine and Philosophy 1: 318-331.

34. Glover, Jonathan et al. Fertility and the Family. The Glover Report on Reproductive Technologies to the European Commission (London: Fourth

Estate, 1989).

35. Gordon 1999

36. A recent enunciation of these is by Beauchamp T L, Childress: rinciples of Biomedical Ethics, 5th ed., 2001, J F. Oxford University Press,


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to which cell perhaps representing such life may be used orestroye to provi e materia or t erapy or researc .43

e serious sa ety concerns ase on t e non-ma e cence

principle apply to reproductive cloning. The high perinatalmorta ity rate suggests t at c one in ivi ua s avephysiological weakness. 4 Even if a few cloned babies are

orn apparent y norma we wi ave to wait up to 20years to be sure they are not going to have problems later- or examp e growing o too ast. T e ou ts inc u ethe current immature state of cloning technology, thepossi i ity o mutations, potentia p ysica arm angeneral long term health risks. The ethical impediment toc oning may c ange i tec no ogica a vances x t oseproblems at some point in the future.

he discussion also requires informed knowledge of thescienti c i erences in t e types o nuc ear trans er

cloning that have been used in animals45, because thereare signi cant i erences in morta ity etween c onesmade from adult cell nuclei, which is how human clonesare envisione to e ma e, an t e ig morta ity inanimals cloned from nuclei from embryonic stem celllines. There have been questions raised over the safetyof using stem cell therapy, as those techniques will haveto be subject to the same range of clinical trials as totheir safety and efficacy when they are developed. Thereare currently clinical trials of a variety of adult stem cellsun erway aroun t e wor .

Social Justice

Many critics have argued that the funds directed towardsresearc on uman c oning cou e put to etter useon pressing global issues such as famine, desertification,in ant morta ity an iseases, inc u ing t e umanimmunodeficiency virus/acquired immunodeficiencysyndrome (HIV/AIDS)47. T is question o istri utiveustice on the use of research funds can be applied to many

areas o scienti c tec no ogy, an even more roa y tothe utility of human activities including research and

eve opment or g o a we are.

Repeated UN declarations have promoted more equitablesharing of the benefits of human now e ge. T e

UN Millennium Development Goals call for a globalpartnership for development.48 Simi ar y t e UniversaDeclaration on the Human Genome and Human Rightsstates, The applications of research [] shall seek to offer

relief from suffering and improve the health of individualsand humankind as a whole. One of the most contentiousareas of global ethics discourse in recent years has beenre ate to access to patente p armaceutica s necessary

for dealing with major human diseases. This led to theacceptance in t e Do a Dec aration o commitments toallow for developing countries to manufacture generic

rugs an overri e patents e y major p armaceuticain times of national health crises. This marks the first WTOac now e gement t at prices o rugs manu actureby these large patent-holding companies are preventingaccess to me icine in eve oping countries. 9

At t e same time t at t e UN was e ating c oning,UNESCO was developing a Universal Declaration onBioet ics t at attempts to out ine some practicaexpressions of a principle of social responsibility. JusticeMic ae Kir y, c air o t e IBC ra ting committee state

that, Except in relatively few developed countries, the realurgencies o contemporary ioet ics inc u e access tohealthcare, to adequate nutrition and drinkable water, tot e re uction o poverty an i iteracy, t e improvementof living conditions and the elimination of unjustmarginalization of individuals and groups. 0

Concern that access to any eventual beneficial scientificdevelopments arising from human cloning technologyhas been raised. Some commentators have questioned theneed for such extensive UN GA debates on issues whichmay only bring benefit to a small and wealthy percentageo t e g o a community. T ere are a so ears, t at asresearch is curtailed in some countries, experimentation

ou e carrie out in eve oping countries wit wea ornon-existent governance mechanisms. In this case issueso socia justice can e seen to e re ate to respect or t ehuman dignity of all. This implies a global responsibility toprevent exp oitation o poverty an ac o nationa egacapacity which may allow for unethical research activitiesto procee , contrary to uman ignity.

ere is a anger t at c one uman eings may eexposed to the risk of discrimination, which needsto e prevente . 1 Orp ans o at er an mot er, t echildren produced by cloning would be simultaneouslyconsi ere to e t e o spring an t e twin o an a u t

person. Legal complexities would need to be carefullyexamine , an t ese are uture topics or governance oreproductive technology. Restrictions should not preventan improvement in t e proportion o persons w o can

37. Friedrich, M.J: Debating Pros and Cons of Stem Cell Research,JAMA, August 9, 2000, Vol.284, No.6, 681

38. Cohen 1998:4

39. Perry, ACF. Nuc ear transfer c oning an t e Unite Nations. ature Biotec no ogy22 (2004), 1506-8.

0. A/C.6/59/L.2

1. UN Millennium Development Goal 8.

2. http://library.thinkquest.org/04apr/00460/txt/knowledge/dohadeclaration.html

3. Kirby, Michael, The UNESCO Bioethics Declaration 12 points, Presentation to the UNESCO International Bieothics Committee and

Intergovernmenta Bioet ics Committee, ma e in Paris 24 January 2005.


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reproduce, noting that in some developing countriesin erti ity a ects a t ir o coup es.

Freedom of Research and Choice

Some commentators ave argue t at t ere are et icaissues in favour of cloning, including freedom of science,and research as freedom of expression. These argumentsare usua y app ie to researc c oning. Because t e groupsthat have led some campaigns against cloning have oftenre igious ties, some point out t at t e ethics of societyshould be secular, not religious. Freedom of science canta e various views epen ing on cu ture.52

In Septem er 2004 sixty-six mem ers o t e InterAca emyPanel on International Issues (IAP) called on the UN GeneralAssem y to avoi voting a secon time on a reso ution toban both therapeutic and human reproductive cloning.

T e IAP issue a statement t at c oning or researc antherapeutic purposes has considerable potential from ascienti c perspective, an s ou e exc u e rom t eban on human cloning." Such efforts could foster newt erapies or mi ions o peop e su ering rom ia etes,Parkinson's Disease and spinal cord injuries.53

There have been numerous academic societies that haveargue or t e nee to exp ore scienti c researc ontherapeutic cloning, while often at the same time rejectingresearc on repro uctive c oning, at east at t e currentstage of research. The Human Genome Organizationre ease suc a statement in Novem er 2004.54

W en it comes to repro uctive c oning, a ew personshave argued that cloning is part of reproductive freedom.As argue a ove, we can see it is wi e y agree t at toattempt such a dangerous technology now would beunet ica . However as tec no ogy eve ops, an i itis expected to be safe, support for the use of cloningtechnology may increase under the guise of promoting

human reproductive freedom. Arguments in favour of theuse o c oning tec no ogy ave soug t to use t e 1984UN recommendation on basic human rights, all couplesan in ivi ua s ave t e asic rig t to eci e ree y an

responsibly the number and spacing of their children andto ave t e in ormation, e ucation, an means to o so.This in turn has led to questions regarding human rightsto genetic freedom, such as the freedom to bring aboutthe conception of a child with any characters, be theygood or bad, or desired or undesired.55

Most experiments so far have been on cloning of otheranima s t an uman eings. In most societies t at useanimal breeding, and support wildlife conservation bycaptive ree ing programs, t ere may e ew moraconcerns over the use of animal cloning when appropriate,consistent wit t e princip es o ioet ics. For animacloning scientists see three clear areas of application, to

sa vage en angere anima s, to cu tivate ne species anto replicate transgenic animals of great agricultural and/or me ica va ue. T ere are sti arguments to restrict t efreedom of research against animal cloning because itmay pose unpre icta e ris s o arm to anima s ormein the process56.

Input of Ethics into Governance

Pursuit of better human health, increased reproductivec oices, an ree om o researc nee to e tempere yconcerns of human dignity. Similarly, freedom of research

as to e tempere y socia justice in t e interest ohuman dignity and peace and security. Is cloning a specialorm o science t at nee s its own governance T ese

tensions bring out the contesting freedoms involved inregu ating uman c oning. T e success u internationagovernance of human cloning can result only from acare u e i eration o t e interp ay among t ese issuesat the international level. The general conclusion of manyacademic studies is that reproductive human cloning is

44. Glover, Jonathan. What Sort of People Should There Be? (Harmondsworth: Penguin 1984).

45. An interesting reference to the ancient science of alchemy, which attempted for centuries to heal, to achieve immortality and transmute the

material world, is made by Laurie Zoloth. Stem cell research is not unique in this and it is especially tempting because it holds the promise, unlike

cloning or esoteric interventions, of actually being scalable, cheaper and more accessible to large numbers of patients and distributable. [Laurie

oloth Reasonable Magic and the Nature of Alchemy: Jewish Reflections on Human Embryonic Stem Cell Research, Kennedy Institute of Ethics

JournalVol 12, Nr 1, 65-93, March 2002]. The question about limits to knowledge is raised by also by a Chinese scholar and his proposed answer is

that creating a discerning global community, with overlapping ethical norms is indispensable for promoting responsible research.[Xu Zongliang

- Human Cloning: Reflections on the Meaning of Life and Morality in Macer, DRJ., ed., Challenges for Bioethics from Asia (Eubios Ethics Institute,

004).] Education and research in a way that allows for questions to be asked and even utter certainty and absolute authority to be queried, is

permitted. Even if sorcery challenges essential orders of creation, its study is permitted.

46. http://www4.nationalacademies.org/IAP/iaphome.nsf/Multi+Database+Search/8C0DAC1629962FAD85256DFE003040C2?OpenDocument.

47. HUGO Ethics Committee Statement on Stem Cells (November 2004), http://hugo.hgu.mrc.ac.uk/PDFs/ Statement%20on%20Stem%20Cells%2

0%202004.p f

48. Darryl Macer, Shaping Genes (Eubios Ethics Institute, 1990).

49. Maurizio Salvi, To what extent should animal cloning be permitted?, JAIB 12 (2002), 59-63.


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so nove t at uman society nee s to care u y consi erhether it wishes to allow this for a range of reasons,owever at east or a eca e or more any attempt to

clone a human baby would pose unacceptable risk of

arm to t e c i so orn t at existing internationaguidelines on medical research need to be applied toor i t is.57

Bioet ics consi ers t e et ica issues raise in io ogy anmedicine, and especially those raised by human activityin society and the environment using biotechnology. 8 Avariety of ethical arguments are used in the discussionson cloning, and these discussions have a long history. 9

here are a range of ethical perspectives regardingcloning, including a number of perspectives that gobeyond the dominant western, Anglo-Saxon, Judeo-Christian views that have been largely expressed in UNGA e ates unti now. T e question a out ignity o i e,

the moment when life has begun for a particular being isconsi ere in every cu ture. We nee to n w at issuesare raised for people in different cultures of the world.60

e UN is etter not to issue Dec arations i it cannotadequately represent the diversity of cultures acrosst e wor w en attempting to construct positions ondifficult ethical issues. The academic level of discussionrequire suggests it is etter to exp ore t ese ioet icaissues in existing forums inside the UN system such ast e UNESCO IBC.

50. HUGO Et ics Committee - Statement on c oning ubios Journal of Asian and International Bioethics 9 (1999), 70.

51. Macer, DRJ., Bioethics is Love of Life: An Alternative Textbook; 162pp. (Eubios Ethics Institute, 1998).

52. Labar, Martin (1984) The Pros and Cons of Human Cloning, Thought 59: 319-333.

53. Ethical Issues in Human Cloning-Cross Disciplinary Perspectives, ed. Michael Brannigan. New York: Seven Bridges Press, 2001.


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The General Assembly and the CloningDe ate

International attention to governance of human cloning

egan in earnest in August 2001 in t e UN GeneraAssembly, when under rule 14 of the rules of procedureo t e Genera Assem y, t e ermanent Missions oFrance and Germany requested the Secretary-Generalto inc u e a supp ementary item in t e agen a o t efifty-sixth session entitled International conventionagainst t e repro uctive c oning o uman eings .61

In the explanatory memorandum, they recalled Art.11o t e Universa Dec aration an state t at given itsmultidisciplinary nature, the issue could not be dealtwit in a its aspects in any o t e specia ize agencies(such as the Commission on Human Rights, UNESCO,WHO) and it therefore falls within the competence of theGeneral Assembly. They also recommended that the SixthCommittee ta e up t is issue.

The Sixth Committee (legal) considered the matter andadopted a resolution62 aimed at setting in motion a processthat would lead to the negotiation of a legally binding,universa y app ica e instrument anning repro uctivecloning of human beings. The German representativecalled for the mandate to be focused, by narrowing downthe issue to the cloning of human beings for reproductivepurposes in or er to win a spee y consensus t at woudeter irresponsible researchers.63

The first proposal to widen the scope of the mandate

was ma e y t e O server o t e Ho y See, in t at samemeeting, arguing that action must also be taken topro i it t e pro uction o uman em ryos as supp iers ospecialized stem cells. He observed that in the view of theHo y See em ryos ave an equa status as uman eingsand therefore the destruction of innocent human beingsfor the purpose of collecting stem cells constituted evenmore serious offences against human dignity and therig t to i e .

The Ad Hoc Committee

Base on t e report 4 o t e Sixt Committee, t e GeneraAssembly established an Ad Hoc Committee to consider

t e e a oration o a man ate or eve opment o aninternational instrument with the understanding that the

committee will open with an exchange of information andtec nica assessments provi e y experts on geneticsand bioethics. The resolution also recommended that aWor ing Group o t e Sixt Committee e set up uring

the next GA session.6

The Ad Hoc Committee was in broad agreement thatrepro uctive c oning s ou e pro i ite ut ivisionsexisted as to whether the scope of any convention should

e expan e to inc u e researc c oning. Concern t atthe first successful cloning of a human being could takep ace soon e some e egations to ca or a pragmaticapproach to the problem urging the Assembly toconcentrate on c osing t e ea on repro uctive c oning.66

The compromise solution put forward was for a step-by-step approach to cloning, beginning with a convention onbanning the reproductive cloning of human beings. 7 T isproposal did not, however, make much headway. The Ad

Hoc committee produced a lot of debate and it becameclear that research cloning was going to wrestle its wayinto t e agen a item.

The Sixth Committee

A Wor ing Group o t e Sixt Committee was convenefor consideration of the development of an internationalconvention against t e repro uctive c oning o umanbeings at the start of the 57t session of the GeneralAssem y in 2002. A c ear po arization o views among t edelegations can be seen from the report submitted to theSixt Committee68. Some e egations expresse t e view

that it was vital for the international community to senda c ear message t at t e repro uctive c oning o umanbeings was unethical, intolerable and illegal, by hasteningto raw up a convention. T ey supporte t e step- y-stepapproach. They considered the delay to ban reproductivec oning an a ront to t e prevai ing consensus. T ose w owanted a comprehensive ban on all types of cloning wereo t e view t at a an on y on repro uctive c oning wousend the wrong signal to the international community asit wou imp icit y aut orize t e creation an estructionof human embryos for experimentation. The issue wasentering a ea oc . However, t e pragmatists pointeout that the international ban on reproductive cloningsolely would not preclude tough national legislation on

researc c oning. Since t ere was no genera consensuson the issue of research cloning, it would be best left to

Section III - International Governance of Cloning

54. A/56/192

55. A/C.6/56/L.19

56. Ibid at para 5

57. A/56/599

58. Reso ution 56/93

59. First c one a y, 2n May, 2002,cnn.com/Sci-Tec , ttp://www.cnn.com/2002/TECH/science/04/06/ uman.c one/; First c one a y orn on

6 December, 27 December 2002, NewScientist.com news service, http://www.newscientist.com/news/news.jsp?id=ns99993217; Cloned baby

claim met with doubt, Friday, 27 December, 2002, BBC News, http://news.bbc.co.uk/1/hi/health/2608655.stm

60. A/57/51 at para 25

61. A/C.6/57/L.4 Annex II


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e ea t wit , y in ivi ua states. Various proposa s 9

ere submitted for the elaboration of a mandate for theconvention re ecting t ese views.

e Sixt Committee consi ere t e reports o ot t eorking Group of the Sixth Committee and the Ad Hoc

committee. In its series o meetings, e egations stressethat this was a race against time. T e all or nothingapproac it was argue ene te t e wrong si e -irresponsible researchers, fraudulent doctors promisingbabies for astronomical sums of money, and obscure sectssuc as t e Unite States ase Rae ians w o c aimethat pregnancies from cloned embryos were alreadyun er way. 0

However, t is position was not accepte y a an t eUS representative stated that because reproductivean t erapeutic coning were in ivisi e inte ectua y,

scientifically and practically, the international communitys ou out aw in its entirety t e most trou ing anserious assault on human dignity the United Nations hadever encountere . 71 A contrasting position e t at anyconvention should allow and regulate research cloningbearing in mind the potential dangers of restrictingthe development of scientific knowledge7 Followingrom its meetings an iscussions, t e Sixt Committee

recommended to the General Assembly that the WorkingGroup e reconvene in t e ty-eig t session o t eAssembly in order to continue the work undertaken

uring t e ty-sevent session. None o t e proposa sfor a mandate were recommended to the Assembly sincet ere was no consensus.

he Deadlock

As t e Genera Assem y convene or t e ty-eig tsession the stalemate that arose from powerfuluncompromising positions roug t a out rustration onboth sides.

One representative aired his views thus: it is clear thatthere is no consensus with respect to therapeutic cloningresearch. But, by ignoring that fact and pressing for actionto ban all cloning, [has] effectively destroyed thepossibility of action on the important area on which we

are all agreed - a ban on reproductive cloning.73

In contrastot ers c aime t at a an on repro uctive c oning

on y wou e a a se an since it wou e con using,ineffective and impossible to enforce7 and it would proveimpossi e to contro w at went on in a oratories .75partial ban they argued left ample room for wrongdoing

or regu atory a uses. T ose w o wante a compre ensiveban also believed that while the goal of finding cures toc ronic i nesses is au a e, a u t-stem-ce researc is apromising field of study that can provide an ethical sourceo stem ce s or scienti c investigation 76

Pragmatism and Belief

he realisation that a deadlock meant further delay gotmost delegations arguing for the United Nations [to] actimmediately, pragmatically and responsibly. 7 A sense ofurgency as een t e un er ying eature o t e e atein the General Assembly, because of the feeling that aconvention o ere a c ance to contro t e actions o

scientists such as the Italian doctor Antinori and theUnite States- ase octor Zavos, w o a announcethat the first cloned baby might be born within a yearor two. 8 One e egate note t at w et er or not t einternational community concludes such a convention

e ore attempts at repro uctive uman c oning actua ymaterialise, it is imperative that, through internationalaction an nationa egis ation, mem er states eny sa ehaven to those scientists willing to defy the internationalcommunity .79

In t e ty-eig t session w ic too p ace, attention wasdrawn to the fact that despite two years of discussingt e topic in t e Genera Assem y, imite progress abeen made.80 The initial proposal by Germany and Franceenvisage t at in view o t e urgency o t e issue, it

ould be desirable if the GA could consider at its fifty-seventh session the mandate for the negotiation of theconvention, so that the second stage, the elaboration ofthe convention, could proceed in 2003.81

Despite the urgency of the issue, the Sixth Committeevoted narrowly, 80 in favour of and 79 against, for anadjournment of the debate until the 60t session of theGA in 2005. T is recommen ation was, owever, not ta enup by the General Assembly, which decided to include theitem in t e provisiona agen a o its ty-nint session. No

provision was made for meetings of the Ad Hoc committeeor t e Wor ing Group ti t en.

62. By France and Germany, Mexico, Holy See, Brazil, United Kingdom of Great Britain and Northern Ireland, China.

63. A/C.6/57/SR.16 at para 6

64. A/C.6/57/SR.16 at para 43

65. A/C.6/56/SR.27 at para 10

66. A/58/PV.72 agenda item 158 at page 11


68. A/C.6/57/SR.17 at para 19

69. A/58/PV.17 at pg.12

0. A/C.6/57/SR.16 at para 14

1. A/C.6/57/SR.16 at para 6

2. A/57/PV.9 at page 12


4. A/C.6/56/SR.27 at para 4


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W i e t e GA e ate i not compre ensive y cover aissues related to cloning82 the need for cross border andinternationa regu ation was we emp asise . T e scopefor misuse of any technology across borders exists and

ence t e nee or a compre ensive e ate an aw at t enational and international level. Forum shopping is a realpro em t at wi ea to an atmosp ere o procreativetourism . There are precedents in the use of reproductivesurrogate mot er oo y persons iving in countrieswhere it is not available such as Germany and Japan whouse the services of clinics and persons in more permissive jurisdictions. The sponsors of the first resolution on theissue, while favouring the universal context of the UnitedNations sought to answer the challenge posed to humandignity based on international law since it would have animpact on the entire human family 5

The delegations felt that action against them (research

laboratories who might be planning to do reproductivecloning) at the national level would not be enough: thesituation calls for international cooperation to harmonisenationa approac es, set imits an provi e or eterrentmeasures. 6 Reproductive cloning of human beings poseda serious t reat to uman ignity an ence necessitatea legally binding instrument to prevent competitionamong researc institutes aroun t e wor . 87 Regulationof human cloning should be established at the globaleve since omestic measures are eit er non-existent or

[in]sufficient due to the complex ramifications of humanc oning 88 T e Presi ent o t e 59th GA session, in is

inaugura speec e ivere on t e 14 h o Septem er 2004,reiterated the importance of a harmonious internationalenvironment 9 to tac e t e pro em o repro uctivecloning. The importance of international law in the issue

o c oning as een rm y esta is e in t at t e currentGeneral Assembly, while adopting its Agenda approveda recommen ation o t e Sixt Committee to s i t t ecategorisation of the item on an international conventionagainst t e repro uctive c oning o uman eings romorganisational, administrative and other matters to thatof the promotion of justice and international law. 0

From Convention to Declaration

In the face of the political stalemate members of theUnited Nations agreed to abandon efforts to put inplace an international Convention for the prohibitiono uman repro uctive c oning. T e sixt committee

(legal) of the General Assembly was tasked with draftinga Dec aration rat er t an a Convention ecause oirreconcilable differences on the issue of research cloning.91T is ea eventua y to t e a option o t e UniteNations Declaration on Human Cloning was adopted ont e 8th of March 2005 (A/RES/59/280). The Declarationwas adopted in an acrimonious debate which went to avote, an un ortunate prece ent, w ic urt er mar ethe lines of division on this emotive issue. The Declarationwas passe wit 84 countries supporting it, 34 countriesvoting against, while 37 abstained. 2

75. It can be justified, since the GA debate was only a scoping discussion76. Greene, A., Note - The World after Dolly: International Regulation of Human Cloning, 33 Geo. Wash. Intl L. Rev. 341, 355-60 (2001) The examples

of Dr. Seed (US) and Dr. Cassim (South Africa) are discussed and the statement of Dr. Reed proposing to move to Tijuana, Mexico if the US

regu ate c oning. Greene argues t at as ong as t ere is one country w ere uman c oning researc is unregu ate , t is person wi ave a

locale to fulfil his mission.

77. Corsover J.T., The Logical Next Step? An International Perspective On The Issues Of Human Cloning And Genetic Technology, ILSA Journal of

International and Comparative Law Spring, 1998

78. A/56/192

79. A/C.6/56/SR.27 at para 26 See generally Development - Shanin E.L., International Response to Human Cloning, 3 Chi. J. Intl. L. 255

80. A /C.6/56/SR.27 at para 5

81. Statement by Indonesian Representative, 30th September 2003

82. 59th GA President in his inaugural speech, Press Release GA/10253 14th September 2004

83. Press Re ease GA/10256 17t Septem er 2004

84. Countries voting. In favour: Afghanistan, Albania, Andorra, Australia, Austria, Bahrain, Bangladesh, Belize, Benin, Bolivia, Bosnia and Herzegovina,

Brunei Darussalam, Burundi, Chile, Comoros, Costa Rica, Cte dIvoire, Croatia, Democratic Republic of the Congo, Djibouti, Dominican Republic,

Ecuador, El Salvador, Equatorial Guinea, Eritrea, Ethiopia, Georgia, Germany, Grenada, Guatemala, Guyana, Haiti, Honduras, Hungary, Iraq, Ireland,

Italy, Kazakhstan, Kenya, Kuwait, Lesotho, Liberia, Liechtenstein, Madagascar, Malta, Marshall Islands, Mauritius, Mexico, Federated States of

Micronesia, Monaco, Morocco, Nicaragua, Pa au, Panama, Paraguay, P i ippines, Po an , Portuga , Qatar, Rwan a, Saint Kitts an Nevis, Saint Lucia,

Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Slovakia, Slovenia, Solomon Islands,

Sudan, Suriname, Switzerland, Tajikistan, The former Yugoslav Republic of Macedonia, Timor-Leste, Trinidad and Tobago, Uganda, United Arab

Emirates, United Republic of Tanzania, United States, Uzbekistan, Zambia.

Against: Belarus, Belgium, Brazil, Bulgaria, Cambodia, Canada, China, Cuba, Cyprus, Czech Republic, Democratic Peoples Republic of Korea,

Denmar , Estonia, Fin an , France, Ga on, Ice an , In ia, Jamaica, Japan, Lao Peop es Democratic Repu ic, Latvia, Lit uania, Luxem ourg,

Netherlands, New Zealand, Norway, Republic of Korea, Singapore, Spain, Sweden, Thailand, Tonga, United Kingdom.

Abstain: Algeria, Angola, Argentina, Azerbaijan, Bahamas, Barbados, Burkina Faso, Cameroon, Cape Verde, Colombia, Egypt, Indonesia, Iran,

Israel, Jordan, Lebanon, Malaysia, Maldives, Mongolia, Myanmar, Namibia, Nepal, Oman, Pakistan, Republic of Moldova, Romania, Serbia and

Montenegro, Soma ia, Sout Africa, Sri Lan a, Syria, Tunisia, Tur ey, U raine, Uruguay, Yemen, Zim a we.

Absent: Antigua and Barbuda, Armenia, Bhutan, Botswana, Central African Republic, Chad, Congo, Dominica, Fiji, Gambia, Ghana, Greece, Guinea,

Guinea-Bissau, Kiribati, Kyrgyzstan, Libya, Malawi, Mali, Mauritania, Mozambique, Nauru, Niger, Nigeria, Papua New Guinea, Peru, Russian

Federation, Senegal, Seychelles, Swaziland, Togo, Turkmenistan, Tuvalu, Vanuatu, Venezuela, Vietnam.

85. UN vote urges human cloning ban, 8 March, 2005 BBC News: http://news.bbc.co.uk/2/hi/health/4328919.stm


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e Dec aration w ic oes not ave ega y in ing e ectill not achieve the purpose which was originally sought

y France an Germany w en t ey roug t t e issue oreproductive cloning before the UN. There intention was to

ring a out an internationa an on uman repro uctivecloning so as to effectively stall forum shopping foractivities t ey consi ere to e contrary to uman ignity.

he UN Declaration cannot of itself achieve this purpose.Researc e orts on repro uctive as we as t erapeuticcloning continue, therefore, to be governed by nationallaw and policy. . As a result maverick scientists, whoseannouncements of plans to clone human beings first ledthe General Assembly to take up the issue, will be free tocarry on experiments in certain juris ictions. T e scientists

ho want to clone embryos for research purposes canalso breathe sigh of relief, as there does not seem to bea threat to ban research cloning in the near future. Suchresearc is current y a owe in many countries un er very

strict regulation. The scientific and economic interests ofcountries in encouraging scienti c researc ave p ayean important role in bringing about the present outcome.

he UN Declaration on Human Cloning

he Declaration calls upon member states to (a) prohibita orms o uman c oning in as muc as t ey areincompatible with human dignity and the protection of

uman i e . Section D ca s upon mem er states to a optand implement without delay national legislation to bringinto effect sec (a). Although there is no direct reference toresearch cloning the section can be construed as urgingcountries to an a types o c oning.

e Dec aration may or some e seen as a victory orcountries which stood opposed to research cloning ont e groun s t at any type o researc was impermissi ebecause it was destructive of human life. They evenmanage to insert t e p rase protection o uman i ealongside protection of human dignity in sections (a) and(b) of the Declaration. While a ban solely on reproductivecloning, as envisaged by the French and German initiativeback in 2001 would have tacitly accepted the practiceof research cloning, the Declaration makes no suchconcession. Rather it has brought into question the totalityof cloning procedures, thereby drawing sharp remarks

from scientists in countries where research cloning ispermissi e. Pro essor Ric ar Gar ner, C air o t e UKRoyal Societys working group on stem cell research andcloning, for instance has called the result an ambiguousand badly-worded political Declaration9 .

he developing countries scored a point as their lobbymanaged to draw attention in section (f) of the Declaration

to t e prioritising o nancing o me ica researc intopressing global issues, such as HIV/AIDS, tuberculosis andma aria w ic a ect vast num ers o peop e.

Legal Status of Declarations

he 2005 Declaration discussed above and the UniversalDec aration on t e Human Genome an Human Rig ts, 1997are both resolutions passed in the General Assembly. They

ave no imme iate in ing e ect. T ey p ay a signi cantrole in the formation of customary international law. Thereare many i erent orms o aw ma ing in internationalaw and although an international convention or atreaty is a source o in ing ru es, t e importance oother methods of formation of international law cannot

e un erestimate . It is our argument t e GA e atesneed to take into account customary law in the area ofreproductive cloning. It is also our claim that the 1997 and

2005 Dec arations ma e an important contri ution to anemerging principle of customary law, which relates to thebanning of reproductive cloning. 4 It is notewort y t atcustomary law relating to reproductive cloning also didnot figure in the list of legal issues that was drawn up forconsideration, in the course of debating a draft conventionin t e ega committee. T is emonstrates eit er a acof awareness of issues of customary law or a belief thatstate practice as as yet not e ne c ear gui e ines rom

hich a customary principle of international law coulde i enti e . It is pertinent to note t at regu ation o

biomedical research is relatively a new area and it is onlynow coming wit in t e purview o internationa aw as aseparate discipline in need of regulation.

he analysis below attempts to shed some light on theissue o repro uctive c oning an customary internationalaw. It concludes that there is enough evidence to seriouslyconsi er t e emergence o customary aw pro i itingreproductive cloning.

he Formation o Customarynternat ona Law

Artic e 38 o t e Statute o t e Internationa Court oJustice lists the sources of international law that are to berelied upon by the Court in matters of dispute. Art.38 (1)

(b) states that the court shall apply international custom,as evi ence o a genera practice accepte as aw inresolving disputes. According to Mark Villiger, analysis ofcustomary international law will need to concentrate ontwo main e ements: materia practice an opinio juris, i.e.the acceptance of the practice as law95. Material practice,in ot er wor s, state practice, accor ing to Vi ig er is t eraw material of customary law. He defines state practice

86. The Biodiplomacy Initiative is highlighting the fact that the GA debates scarcely address the issue of customary law.

87. Mark E Villiger, Customary International Law and Treaties, Martinus Nijhoff Publishers, 1985 Dordrecht, page 3,4

88. Ric ar K. Gar iner, Internationa Law, Pearson E ucation Limite , Essex, 2003 page 103


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as inc u ing any act, articu ation, or ot er e aviour o astate, as long as the behaviour in question discloses thestate s conscious attitu e wit respect to-its recognitionof- a customary rule. The understanding of this element

o custom is t at t ere must e s own to e sustaineand consistent practice such as will establish a clear caset at a particu ar mo e o e aviour as ecome t enorm 6. In 1950, the International Law Commission listednationa egis ation, ip omatic correspon ence, opinionsof national legal advisers and practice of internationalorganisations among the evidences of customaryinternationa aw. T is is owever not ex austive anthe decisions of national tribunals and the work of theILC, am

Documents

Human Cloning - UN Report 2007