Bioethics, Human Rights and Universalisation: a

Troubled Relationship?
Observations on UNESCOs Universal Declaration on
Bioethics and Human Rights
Harald Schmidt*

I. Introduction
The Universal Declaration on Bioethics and Human Rights (UDBHR) was
adopted by the United Nations Educational and Scientific Organisation

Research Associate, LSE Health, and Assistant Director, Nuffield Council on

Bioethics, London/GB. The author has contributed to comments on several drafts
of the UDBHR submitted by the Nuffield Council on Bioethics, and was a member
of the UK Delegation attending UNESCOs Intergovernmental Meetings of Experts held in Spring/Summer 2005. However, the views expressed here are the authors alone and must not be attributed to LSE Health or the Nuffield Council.
by Max-Planck-Gesellschaft zur Frderung der Wissenschaften e.V., to be exercised by
Max-Planck-Institut fr auslndisches ffentliches Recht und Vlkerrecht, Heidelberg, 2008.
Bitte die endgltigen Seitenzahlen des Beitrages in der Druckfassung beachten, die in Krze im
Springer Verlag erscheint: Silja Vneky/Cornelia Hagedorn/Miriam Clados/Jelena von Achenbach (Hrsg.), Legitimation ethischer Enscheidungen im Recht - Interdisziplinre Untersuchungen, in: Max-Planck-Institut fr auslndisches ffentliches Recht und Vlkerrecht, Beitrge zum auslndischen ffentlichen Recht und Vlkerrecht herausgegeben von Armin von Bogdandy und Rdiger Wolfrum, Springer Verlag (Berlin, Heidelberg, New York), 2008.

Schmidt

(UNESCO) in October 2005.1 However, it has not met with universal approval, and in fact attracted considerable criticism. Commenting on the
near-final version of the UDBHR, which was substantively equivalent to
the text ultimately adopted, some felt that a decision about whether its development had been worthwhile was premature and depended on
whether it would do some good, which could not yet be assessed.2 Others
opined that the document did not represent significant progress and was
disappointingly vague and lacking in force in key areas.3 In a hostile editorial in Developing World Bioethics, the editors of the journal took the
view that in producing the Declaration UNESCO had overstepped the
boundaries of its portfolio within the UN organisation, and had made a
surprising and misguided choice in adopting an ideological framework
(human rights) that does not feature particularly prominently in professional bioethical analyses. The authors mocked the form and content of
several articles and questioned whether in the absence of an international
consensus on many of the material propositions made [in the UDBHR]
such a declaration is called for at present. They concluded that bioethics,
as we understand it, is an academic discipline and not a playground for government appointed politician-experts to muse in an inconsequential and arguably not very sophisticated manner about ethics.4 John Williams, Director of Ethics at the World Medical Association (WMA), writing in a personal capacity, described the Declaration as a major disappointment, among
other things, because it lists desirable goals without specifying how they
can be achieved [and] for the most part [it] does not even identify, much less
1

UNESCO Universal Declaration on Bioethics and Human Rights, C/Res.24

of 19 October 2005.
2

D. Benatar, The trouble with universal declarations, Developing World Bioethics 5 (2005), 220 et seq.
3

R.A. Ashcroft, Nothing to declare: UNESCO on ethics, human rights, SciDev.Net 2005 available at http://www.scidev.net/en/opinions/nothing-to-declareunesco-on-ethics-human-rights.html; see also C. Macpherson, Global bioethics:
did the universal declaration on bioethics and human rights miss the boat?, J Med
Ethics 33 (2007), 588 et seq.
4

W. Landman/U. Schklenk, UNESCO declares universals on bioethics and

human rights - many unexpected universal truths unearthed by UN body, Developing World Bioethics 5 (2005), iii et seq.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

resolve, the major issues in bioethics. Williams goes on to criticise the

formal process5 of producing the UDBHR, as well as the content and coherence of its provisions, and voices substantial concern about the qualifications of those finalising the text at two meetings of government experts,
proposing that the final Declaration should exclude health care and medicine from the scope of the document as UNESCO would otherwise encroach on [the mandate] of the World Health Organization.6
I will not, in the following, try to unfold the background that led to these
reactions, nor seek to adjudicate in detail on the different claims about territoriality that shine through the latter two quotations above. I will, however,
start from the assumption that research in bioethics deals with questions
about what is right and wrong with regard to different forms of biological
life, which, paradigmatically,7 include plant, animal and human life. Conceptually, therefore, it makes sense to expect the scope of a universal declaration on bioethics to extend to all these different forms of life, and the
proposal to exclude health and medicine is not a particularly useful one.
The issue of whether it was right for UNESCO (rather than another agency) to lead on the Declaration may be of interest to those studying the divi5

See also Macpherson, see note 3, 588 et seq and note 49. Williams criticism is
interesting in light of the WMAs practice of engaging with stakeholders. At the time
of writing the WMA was consulting on a new version of the Declaration of Helsinki. The declaration is widely regarded as the pre-eminent guidance on medical research. However, the consultation process has been set up in a way that restricts input to the extent that comments are invited exclusively via the WMAs national organisations (or the experts they choose to consult). A previous consultation inviting
general comments over the summer of 2007 was poorly advertised, and the results
were not made publicly available. See also H. Schmidt/A. Schulz-Baldes, The 2007
Draft Declaration of Helsinki - Plus a Change...?, Hastings Center Bioethics Forum, available at http://www.bioethicsforum.org/Declaration-of-Helsinki-newdraft.asp.
6

J.R. Williams, UNESCOs proposed declaration on bioethics and human

rights - a bland compromise, Developing World Bioethics 5 (2005), 210 et seq.
7

New advances in research indicate that this apparently clear-cut mapping is in

need of revision. For example, bioethical issues considered in relation to advances in
synthetic biology or research on animal-human hybrids (or chimeras) show that the
three categories are neither exclusive nor exhaustive. Nonetheless, they can probably be seen as marking the core areas with which bioethicists are concerned.

Schmidt

sion of labour between different UN agencies, which is generally far from

straightforward.8 With regard to the disputed question of UNESCOs
mandate in terms of bioethics, it is noteworthy that since 1993 the organisation has provided a forum for the International Bioethics Committee (IBC)
as well as the Intergovernmental Bioethics Committee (IGBC, established
in 1998) and the World Commission on the Ethics of Scientific Knowledge
and Technology (COMEST, established in 1998). Whatever one may think
of the activities of these committees and the extent of their interactions with
other stakeholders such as the WMA or the World Health Organization
(the effectiveness of which is determined not by the UNESCO bodies alone), the charge that a universal declaration of bioethics is not within the remit of UNESCO would require some further explanation in order to have
force.
Leaving aside these issues, and accepting the simple fact that UNESCO has
after all adopted the UDBHR, I will focus below on two points of criticism
which I consider to be of far more interest and relevance in relation to the
current and future interpretation and use of the UDBHR. These concern,
first, the criticised reference within a declaration on bioethics to human
rights; and secondly, the charge that the UDBHR has not contributed anything new and is at best superfluous.

II. Bioethics and Human Rights in the UDBHR-Background

The title and several important provisions of the UDBHR make explicit reference to human rights and the United Nations (UN) Universal Declaration of Human Rights of 1948 (UDHR). It is instructive to summarise
briefly the process that led to this linkage.
Resolution 24 of UNESCOs 2003 General Conference invited the Director
General to elaborate a declaration on universal norms on bioethics.9 At
this stage, the working title of the Declaration made no reference to human
8

See R. Andorno, Global bioethics at UNESCO: in defence of the Universal

Declaration on Bioethics and Human Rights, J Med Ethics 33 (2007), 150 et seq.
9

UNESCO Records of the General Conference, 32C/Res.24 of 29 September

to 17 October 2003.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

rights. However, in line with UNESCOs constitution,10 the mandate also

required that the development of the document was to be pursued with
due regard for human dignity and human rights and freedoms, in the spirit
of cultural pluralism inherent in bioethics.11 Furthermore, a preparatory
report by the IBC12 which was considered at this session made the claim
that modern bioethics is indisputably founded on the pedestal of the values enshrined in the Universal Declaration of Human Rights.13 The IBCs
report also referred to the prominence of human rights in UNESCOs previous Universal Declaration on the Human Genome and Human Rights of
1997, and the Council of Europes Convention for the Protection of Human Rights and the Dignity of the Human Being with regard to the Application of Biology and Medicine, of 1996 (Oviedo Convention).14 Accordingly, the IBC recommended the eventual title of Universal Declaration on
Bioethics and Human Rights in its fourth outline of the draft Declaration,15 referring also to the UDHR and the Oviedo Convention in the Recitals of that draft.

10

See Article 1 of UNESCOs Constitution: The purpose of the Organization

is to contribute to peace and security by promoting collaboration among the nations
through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which
are affirmed for the peoples of the world, without distinction of race, sex, language
or religion, by the Charter of the United Nations; see also Recital 9 of the
UDBHR.
11

UNESCO Records of the General Conference, see note 9, para. 46 et seq.

12

UNESCO Report of the International Bioethics Committee on the Possibility

of Elaborating a Universal Instrument on Bioethics, SHS/EST/02/CIB-9/5 (Rev. 3)
of 13 June 2003.
13

Ibid., para. 5; see also IBC, Explanatory Memorandum on the Elaboration of

the preliminary Draft Declaration on Universal Norms on Bioethics,
SHS/EST/05/CONF.203/4 of 6 April 2005, para. 34.
14

Council of Europe European Convention for the Protection of Human Rights

and Dignity of the Human Being with Regard to the Application of Biology and
Medicine: Convention on Human Rights and Biomedicine, ETS No.164 of 4 April
1997.
15

IBC, Sixth meeting of the IBC Drafting Group for the Elaboration of a Declaration on Universal Norms on Bioethics, SHS/EST/04/CIB-Gred-2/4 (Rev. 3) of 12-

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While there is no explanatory memorandum for the final UDBHR, such a

document has been developed for the fifth draft of the Declaration of February 2005. This comments on the title and the general reference to human
rights as follows:
A most important achievement of the draft declaration is that it anchors the principles that it espouses firmly in the rules governing human
dignity, human rights and fundamental freedoms. Bioethics has hitherto
developed substantially along two broad streams. One of these, present
since the ancient times, derives from reflections on medical practice and
on the conduct of medical professionals. The other, conceptualized in
more recent times, has drawn upon the developing international human
rights law. One of the important achievements of the declaration is that
it seeks to unite these two streams. It clearly aims to establish the conformity of bioethics with international human rights law.16
The analysis of the two streams feeding into modern bioethics that is presented here is both confusing and illuminating. It is confusing because the
alleged focus on medical ethics in the description of the first stream is too
narrow, ignoring the work around environmental issues and the status of
animals. At the same time, the description is illuminating in the sense that a
picture of bioethics that did not include human rights would be an incomplete one.
The first mention of the concept of bioethics is widely attributed to Van
Rensselaer Potter, who introduced the term in 1970, broadly around the
time that the academic field began to develop. However, the birth of bioethics is commonly associated with an event that also marks the beginning
of modern human rights: the International Military Tribunal in Nuremberg

14 December 2004. The previous, third, outline offered several options for the title:
Declaration on Universal Norms on Bioethics or Universal Declaration on Bioethics and Humanity [Humankind/Human Beings], see IBC, Elaboration of the
Declaration on Universal Norms on Bioethics: Third Outline of a Text,
SHS/EST/04/CIB-Gred-2/4 (Rev. 2) of 27 August 2004.
16

IBC, see note 13, para. 12, see also para. 125: It is this harmonization of bioethical principles and human rights norms that constitutes a major achievement of
the declaration.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

in 1945.17 The Tribunal led both to the UDHR and to the Nuremberg Code
of 1949.18 The Code was produced in response to the atrocities committed
by doctors of the Nazi regime, who forced people held in concentration
camps and prisoners of war to be involved in perverse research projects.19
The document established the principle of voluntary consent as a necessary
condition for the ethical acceptability of research involving humans. This
principle also formed the basis of the World Medical Associations Declaration of Helsinki which was first adopted in 1964.20
The ur-publication of bioethics is thus a policy document. The Nuremberg
Code may well have been motivated by deep ethical revulsion about outrageous violations of the principle of autonomy by Nazi physicians. But such
sentiment was not expressed in a series of academic papers, or in the foundation of an academic bioethics centre. Rather, it led to the establishment of
a professional code of conduct which aimed at securing certain standards of
practice. The motivation and objectives of the Nuremberg Code were therefore absolutely parallel to those of the UDHR: to set out norms that have
authority irrespective of national law.
It is clear, then, that the history of bioethics is indeed closely intertwined
with human rights, both in its origins and in subsequent policy documents
such as the Declaration of Helsinki or the Oviedo Convention, which set
out guidance in conformity with human rights norms. Equally, jurispru17

G.J. Annas/M.A. Grodin (eds.), The Nazi Doctors and the Nuremberg Code:
Human Rights in Human Experimentation, 1992.
18

National Institute of Health (Office of Human Subject Research) (ed.), The

Nuremberg Code - Reprint from: Trials of War Criminals before the Nuremberg
Military Tribunals under Control Council Law, No.10, Vol.2 (October 1946 April
1949), 181 et seq., available at http://ohsr.od.nih.gov/guidelines/nuremberg.html.
19

U. Schmidt/A. Frewer (eds.), History and Theory of Human Experimentation:

The Declaration of Helsinki and Modern Medical Ethics, 2007.
20

D. Human/S. Fluss, The World Medical Associations Declaration of Helsinki:

Historical and contemporary perspectives, 2001, available at http://www.wma.net/
e/ethicsunit/pdf/draft_historical_contemporary_perspectives.pdf. Note that one
significant change between the Nuremberg Code and the Declaration of Helsinki is
that the latter permits research on persons unable to consent, which was precluded
by the former; see also R. Michels, Are Research Ethics Bad for Our Mental
Health? N Engl J Med 340 (1999), 1427, 1427 et seq.

Schmidt

dence at national or, for example, the regional level mixes references to bioethical policy documents and human rights.21 And academic bioethicists,
while working principally on theoretical issues, have on countless occasions
given evidence and responded to consultations on policy proposals that included some references to human rights. Of course, historical precedent and
practice alone do not necessarily justify by themselves a continuation of
this trend in the UDBHR. I will return below to the issue of justification
for the approach taken there. For now I conclude that the reference to human rights in the UDBHR is far from surprising, and was in fact to be expected by anyone vaguely familiar with the history of bioethics and the UN
approach.22

III. Bioethics and Human Rights a Competing or

Complementary Relationship?
Even if one acknowledges that the human rights approach may constitute
an integral component of high level policy-making, it is reasonable to ask
what the general relationship between bioethics and human rights is sup-

21

See, for example European Court of Human Rights, Glass v United Kingdom,
Application No.61827/00 of 9 March 2004, FLR 1 (2004), 1019; European Court of
Human Rights, Vo v France, Application No.53924/00 of 8 July 2004, EHRR 10
(2005), 71.
22

See also Andorno, see note 8, 153: the objection that the bioethical discourse is alien to a human rights approach is simply contrary to the facts: many, if
not most, international policy documents relating to bioethics issued during the past
two decades are framed on a rights-based approach and attach utmost importance to
the notion of human dignity. A paradigmatic example in this respect is the Council
of Europes Convention on Human Rights and Biomedicine (Oviedo Convention).
Nevertheless, this is not an exclusive feature of Western instruments. Indeed, [according to the University of Minnesota Human Rights Library] about 200 worldwide declarations, guidelines, recommendations, opinions and codes relating to bioethics adopted by very different institutions could be cited in support of this assertion.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

posed to be.23 In this sense, IBCs explanation quoted above is not only
confusing and illuminating, but it is also incomplete. For although the authors note two separate streams, they do not explain in exactly what way
these streams relate to each other, or what their distinct features are. While
the first stream is described as being centered around the activity of reflection, a similar characterization of the actual activity of the second stream,
which we know only as having drawn upon the developing international
human rights law, is lacking. It therefore remains unclear in what sense the
two streams are said to differ. Is one supposed to have a more theoretical,
and the other a more practical, angle? Alternatively, should one be taken to
approach matters from an ethical, and the other from a legal, perspective?
Should the two streams be seen as independent equals? Or is the relationship such that there is a hierarchy between them, with (mere) reflection being inferior to a somehow superior human rights approach which might
even threaten to subsume bioethics?24
In what follows I will assume that it is plausible to view the general relationship between bioethics and human rights as a complementary one. On
this view, academic bioethics - in the various disciplines that contribute to
this field, which is in itself an inter-disciplinary one - legitimately addresses
many of the same questions as the human rights branch, whether in the
context of academic research, jurisprudence, politics, the setting out of human rights policy documents or grass roots activism. I take this overlap to
be unproblematic as long as one is clear about the scope and limitations of
the respective approaches. Accordingly, while both streams have a clear and
robust theoretical element, with distinct methodologies and normative frameworks to draw on, the human rights stream is closer to the sphere of politics and jurisprudence, and thus to the actual implementation of normative
provisions, whether at a national or global level. The role of bioethics is
primarily to provide input into the process of establishing legal norms gen23

For a more detailed discussion about the general relationship between bioethics and human rights see R.A. Ashcroft, The troubled relationship between bioethics and human rights, in: M. Freeman (ed.), Law and Bioethics: Current Legal
Issues, forthcoming.
24

T.A. Faunce, Will international human rights subsume medical ethics? Intersections in the UNESCO Universal Bioethics Declaration, J Med Ethics 31 (2005),
173 et seq.

Schmidt

10

erated at the human rights level, and to give constructive criticism on the
appropriateness of norms once they have been established.
Although I argued that the above quotation from the explanatory memorandum is incomplete in determining the general relationship between bioethics and human rights, the IBC is quite clear about the relationship between the two streams within the UDBHR. For the authors state that the
Declaration: anchors the principles firmly in human dignity, human
rights and fundamental freedoms [] It clearly aims to establish the conformity of bioethics with international human rights law. Therefore, the
principles set out in the UDBHR are not to be understood as human rights
norms themselves. Nor are they reducible to human rights. Rather, they
should be seen as bioethical norms that have strong normative support in
human rights norms; they are anchored and in conformity with them.25
It seems clear, therefore, that the concept of complementarity as a descriptor of the relationship between human rights and bioethics is applicable not
only with regard to the general relationships between the two fields, but also if we analyse the conceptualisation within the Declaration. I contend that
the wording of Articles 2 (c), 2 (d), 3, 5-7, 9-12, and 22, which comment on
the role of human rights in this way, supports this view. Here, I will not review these articles in detail, but aim to illustrate the reference to human
rights within the UDBHR, and the complementary relationship between
human rights and bioethics, with two examples.
The first concerns debates around the moral status of prenatal life. The arguments centre primarily around the extent to which a vulnerable entity
should be protected against the interests of others, an issue that, in some
sense, has been the mainstay of a sizeable proportion of the bioethics literature in recent decades, much of which has taken an anti-authoritarian stance.26 The second example focuses on a very different level: that of entitlements of whole populations. It can be argued that, in an analogy to the lin25
26

See also Recitals 3, 8 and Articles 1 (1), 1 (2), 2 (a), 2 (c), 3 (1).

There is a clear anti-authoritarian pattern in such different contexts as research

involving human subjects, the animal rights debate or abortion both in pro-life
arguments, that seek to protect the unborn life against the interests of the pregnant
woman, and in pro-choice arguments, where the focus is on arguing in favour of the
interests of the woman versus societal expectations or pressures from healthcare
professionals or others.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

11

guistic turn in early 20th century philosophy (when the focus of much philosophical research shifted to analyses of the structure and role of language)
within bioethics we currently see the beginning of a population turn, in
which the emphasis in research shifts considerably from the individual to
the population level.27 Ways of responding to SARS, bird flu, or other pandemics are considered in this context, as well as priority-setting decisions in
healthcare, or public health measures. Recent work has also addressed inequities in health between different groups globally, as, increasingly, the obscenity of the 10/90 gap is recognized.28 The HIV/AIDS epidemic in much
of sub-Saharan Africa and India, and limited access to drugs more generally,
have focused debate on the responsibilities of pharmaceutical companies,
researchers and governments in developed and developing countries towards whole populations. It is instructive to review the way in which this
trend is reflected in the UDBHR and the human rights discourse more generally, in order better to understand the relationship between the two
streams of bioethics and human rights, to be clearer about the appropriate
role of the UDBHR, and, finally, to clarify the question whether the Declaration has added anything new.

IV. Reference to Human Rights within the UDBHR the

Individual Level
Further to the documents already mentioned above, the UDBHR refers to
a number of human rights related legal or policy instruments in the Recitals. Twelve29 of the Declarations 28 articles refer explicitly to human rights.
27

D. Brock/D. Wikler, Population-level Bioethics: Mapping a New Agenda,

in: A. Dawson/M. Verweij (eds.), Ethics, Prevention, and Public Health, 2007, 64 et
seq.
28

The Global Forum for Health Research was established in 1998 to help correct the dramatic imbalance in expenditure on health research globally. Broadly 90
per cent of the worldwide expenditure is spent on 10 per cent of the population, and
conversely, only 10 per cent is spent on 90 per cent of the global population. See
http://www.globalforumhealth.org/Site/000__Home.php.
29

Articles 2 (c) and (d) Aims; Article 3 Human dignity and human rights;
Article 5 Autonomy and individual responsibility; Article 6 Consent; Article 7

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12

Article 2 (c), specifying the Declarations aims, reads: to promote respect

for human dignity and protect human rights, by ensuring respect for the life
of human beings, and fundamental freedoms, consistent with international
human rights law. Article 3 (1) states: Human dignity, human rights and
fundamental freedoms are to be fully respected.
One of the key issues in recent and current academic bioethical debates
concerns the moral status of the embryo and other pre-natal forms of human life, principally because of the implications for debates around abortion, pre-implantation genetic diagnosis, and different forms of stem cell research. As much as bioethicists may like to think that the moral status debate is exclusively their territory, it has already been addressed prominently
in the UDHR, the paradigm case of a human rights tool. Article 1 states:
All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in
a spirit of brotherhood.30
The use of born is striking, and discussion about its inclusion is documented in Johannes Morsinks seminal monograph.31 The UDHR drafters
were clear about the implications of the wording of Article 1 for debates on
abortion. Some delegates wished it to refer to conception as the moment at
which people had dignity and rights. Others suggested simply omitting
born, as then the question of whether human rights began at birth or
at conception would not arise.32 However, the wording was passed in the
form reproduced above.
The result is noteworthy as, in terms of universalising the norm, the drafters secured what at some level might have been the lowest common de-

Persons without the capacity to consent; Article 9 Privacy and confidentiality; Article 10 Equality, justice and equity; Article 11 Non-discrimination and nonstigmatization; Article 12 Respect for cultural diversity and pluralism; Article 22
Role of States; Article 27 Limitations on the application of the principles; Article
28 Denial of acts contrary to human rights, fundamental freedoms and human
dignity.
30

Emphasis added by the author.

31

J. Morsink, The Universal Declaration of Human Rights: Origins, Drafting

and Intent, 1999.
32

Morsink, see note 31, 291.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

13

nominator. But doing so also enabled them to present the most robust
form. In addition, this form was compatible with a body of literature in
philosophy that was concerned with the concept of human dignity and the
specification of entitlements and obligations in relation to born, living people. The vast majority of this work was silent on the status of prenatal
forms of life, if not overtly acknowledging that it had significantly different
status.33 Along similar lines, when the drafters of the UDHR established
that human dignity and human rights can clearly and with certainty be
ascribed only to born human beings, the implication was that the same cannot be claimed automatically for prenatal human life. Nonetheless, the
wording of Article 1 can be seen as having the advantage of not necessarily
excluding such views, while making it clear that such claims are far from
obvious truths and are hence in need of special justification.34

33

For example, Kants discussion of the concepts of autonomy and human dignity is widely regarded as foundational. While some have tried to argue that his approach can be used in support of extending a normatively thick concept of human
dignity to prenatal forms of life, such proposals are, among other things, at odds
with the fact that - against the then Zeitgeist - Kant argued in the Metaphysic of
Morals in favour of infanticide of children born out of wedlock, to preserve the
sense of honour of the mother (A 204 et seq./B 234 et. seq.), see H. Schmidt, Primplantationsdiagnostik: Jenseits des Rubikons? Individual- und sozialethische Aspekte der PID/PGD, 2003, 98 et seq.
34

Focusing on the meaning of Article 1 in isolation, it could be interpreted in

three ways: (1) as saying that humans are equal in dignity and rights if and only if
they are born; (2) that they may have had rights and dignity before being born, but
that the ascription for this period is less straightforward, and that it can be made
with certainty only in the case of humans who have been born; or (3) that born is
chosen merely to emphasise the continuity from documents such as the French
Declaration of the Rights of Man and of the Citizen (1789), which provides in Article 1 that Les hommes naissent et demeurent libres et gaux en droits. Accordingly, it might be argued that Article 1 UDHR is neutral vis a vis bioethical questions such as those concerning the moral status of the embryo. However, analysed
in context, and following Morsink, see note 31, 291 it becomes clear that only option (2) is an accurate interpretation.

14

Schmidt

As I have considered more fully elsewhere,35 the UDBHR is unfortunately

much less clear in expressing the crucial emphatic asymmetry enshrined in
the language of Article 1 UDHR, with potentially significant implications
for the interpretation of other articles, as well as policy and practice. In
part, this is because Article 2 (c) UDBHR, quoted above, confuses matters
somewhat by connecting dignity and rights with the concept of respect for
the life of human beings. This may appear to suggest that respecting human dignity is a matter of respecting equally all developmental forms of
human life. But Article 2 (c) is also unequivocal in stating that respect for
human dignity and human rights is to be realised in a way consistent with
international human rights law. Since the pre-eminent guidance here is of
course the UDHR, it is clear that neither Declaration can be used to support the view that all forms of prenatal human life must be seen as having
the same status as born, living humans.
The example shows, first, that the UDBHRs reference to human rights law
can help to clarify otherwise troubling ambiguities in the document. Secondly, it demonstrates that high level and necessarily abstract declarations
can provide helpful guidance by establishing that the applicability of particular values admits of degrees of certainty. Thirdly, the example illustrates
the complementarity, rather than competitiveness, between bioethics and
human rights. Neither the UDHR nor the UDBHR pretends to have silenced all questions on the matter, and both leave scope for further interpretation. In not ruling out the possibility that values such as dignity might
possibly be ascribed at an earlier stage than birth, the Declarations have
simply marked the area in which justification is required, requiring, in a
sense, a higher threshold of justification for claims that the values should be
ascribed at an earlier stage. These debates are typically had by bioethicists.
Fourthly, as the description of UNESCOs drafting process and the historical development of bioethics already indicated, in view of its constitution
and the wider context of bioethics-related policy at high levels, it is consistent and plausible that the UDBHR should, in part, draw on a human rights
framework. As Roberto Andorno emphasises:

35

H. Schmidt, Whose dignity? Resolving ambiguities in the scope of human

dignity in the Universal Declaration on Bioethics and Human Rights, J Med Ethics 33 (2007), 578 et seq.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

15

The first obvious reason [for a human rights focus] is that, as biomedical activities deal with the most basic human prerogatives such as the
right to life and to physical integrity, it is perfectly sound to have recourse to the umbrella of international human rights law to ensure their
protection. Despite all its weaknesses, the existing human rights system,
with its extensive body of international standards and wide range of
mechanisms, represents a considerable achievement of our time. This is
why it would be strange that a human rights framework could not be
used to protect people from harm in the biomedical specialty. A more
practical reason for this phenomenon is that there are few mechanisms
available other than human rights to function as a global ethical foundation, a Weltethik. In other words, the human rights framework provides a more useful approach for analysing and responding to modern
public health challenges than any framework thus far available within
the biomedical tradition36
It therefore becomes clear that Willem Landman and Udo Schklenk - quoted above with the charge that the focus on human rights in the UDBHR
was surprising and misguided since the approach did not feature prominently in professional bioethical analyses37 - are easily understood as making a category mistake. The Declaration draws on a different framework
precisely because it is not a product of academic work (even though parts
are clearly informed by it). This point also becomes clear when we ask what
the alternative should be. Should UNESCO perhaps simply have adopted
Tom Beauchamps and James Childress Principles of Biomedical Ethics38 arguably one of the most influential products of academic bioethics? It is
not obvious that doing so would have been ideologically neutral and/or
would have avoided the charges brought by many critics according to
whom, as referred above, the Declaration is overly vague.

36

Andorno, see note 8, 155. The first citation included in Andornos quotation
refers to D. Thomasma, Proposing a new agenda: bioethics and international human rights, Camb Q Healthc Ethics 10 (2001), 299 et seq., the second to J. Mann,
Health and human rights. Protecting human rights is essential for promoting
health, BMJ 312 (1996), 924 et seq.
37
38

See note 4, iv.

T. Beauchamp/J. Childress, Principles of Biomedical Ethics, 1994.

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International organisations of the UN, by virtue of their constitution, are

likely to draw on human rights based approaches. Such approaches can be
legitimate pillars in seeking to contribute to frameworks that can help to
achieve effective protection of individuals from harm: first, because of their
compatibility with established rights-frameworks; secondly, as Jrgen Habermas notes on the role of human rights more generally, because they institutionalise the conditions of communication for the formation of reasonable political decision-making processes.39 In the absence of viable alternatives, seeking to specify the areas in which justification is owed is the most
appropriate option for achieving focused trans-national dialogue and a degree of reasonable harmonisation on key issues in bioethics. In principle,
reference to human rights norms can become a problem where the focus on
rights becomes so strong that it unjustifiably excludes other legitimate approaches. However, in the case of the UDBHR it is far from obvious that
this is the case, as the discussion around the highly controversial status of
prenatal forms of human life has shown.

V. Reference to Human Rights within the UDBHR the

Social Level
The UDHR is widely regarded as marking the beginning of a new phase in
human rights. In addition to the political and civil rights that were most
prominently enshrined in the Virginia Bill of Rights of 1776 and the French
Declaration of the Rights of Man and of the Citizen of 1789, the UDHR also established a range of social, economic and cultural rights. Its Articles 22
and 25 emphasise the importance of food, clothing, housing, medical care
and social services for acceptable standards of living, as well as social security provisions relating to unemployment, sickness, disability, old age or
other lack of livelihood due to circumstances that are beyond peoples individual control. The relevance of international cooperation is especially
stressed in this regard. Several of the provisions of the UDBHR map fairly
accurately onto the UDHRs very general outline of social and economic
39

J. Habermas, Zur Legitimation durch Menschenrechte, in: J. Habermas (ed.)

Die Postnationale Konstellation. Politische Essays, 1998, 175 et seq.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

17

rights, and specify in more detail their precise meaning and implications. In
doing so, they also map onto the aforementioned population turn in bioethics.
Recitals 19 and 21 and Article 1340 of the UDBHR emphasise the concepts
of solidarity and social responsibility and stress the need for international
cooperation, in particular with respect to the special needs of developing
countries, indigenous communities and vulnerable populations.41 Article 2
(f) lists as one of the aims of the UDBHR:
to promote equitable access to medical, scientific and technological developments as well as the greatest possible flow and the rapid sharing of
knowledge concerning those developments and the sharing of benefits,
with particular attention to the needs of developing countries.
Article 15 Sharing of benefits reads:
Benefits resulting from any scientific research and its applications
should be shared with society as a whole and within the international
community, in particular with developing countries. In giving effect to
this principle, benefits may take any of the following forms:
(a) special and sustainable assistance to, and acknowledgement of, the
persons and groups that have taken part in the research;
(b) access to quality health care;
(c) provision of new diagnostic and therapeutic modalities or products
stemming from research;
(d) support for health services;
(e) access to scientific and technological knowledge;
(f) capacity-building facilities for research purposes;
(g) other forms of benefit consistent with the principles set out in this
Declaration.

40

Article 13 - Solidarity and Cooperation: Solidarity among human beings and

international cooperation towards that end are to be encouraged. See also Article
10, IBC, Explanatory memorandum of the elaboration on the preliminary draft declaration on universal norms on bioethics, see note 13, para. 74.
41

Recital 21.

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2. Benefits should not constitute improper inducements to participate in

research.
Article 21 Transnational Practices urges: public and private institutions,
and professionals associated with transnational activities [to] endeavour to
ensure that any activity [is] within the scope of this Declaration.
It also states that externally sponsored research projects should be reviewed
both in the sponsoring country and the country where research takes place,
and appeals to states to take measures to combat bioterrorism and illicit
traffic in organs, tissues, samples, and genetic resources and materials.
To come back to the question of the relationship between bioethics and
human rights, it is clear that in relation to the UDHR these provisions are,
in the IBCs language quoted above,42 anchored in human rights, and in
conformity with it. At the same time, they are not mere rehearsals of abstract human rights norms, nor are they reducible to them. Rather, they
take up debates that are at the forefront of recent controversies in academic
bioethics, illustrating again the above-asserted complementarity of human
rights and bioethics.
Are these provisions new? Taking the perspective of academic bioethics,
they may well not be. However, as noted above, seeing such comparisons as
the only relevant ones amounts to a category mistake, as the methodologies
and objectives differ between academic bioethics and bioethics in the policy
area. A more appropriate comparison is therefore to be had within the
sphere of policy documents. The most obvious comparator here is the
Oviedo Convention. While both documents address the central issues of
consent, privacy, confidentiality, non-discrimination, or review of research,
there are also several noteworthy differences.
First, equitable access is addressed in the Oviedo Convention merely in
relation to healthcare,43 despite the fact that one of the Recitals stresses the
need for international co-operation so that all humanity may enjoy the
benefits of biology and medicine. The UDBHR, by contrast, also empha42
43

See note 16.

Article 3 of the Oviedo Convention reads: Parties, taking into account health
needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. See note 14.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

19

sizes access to scientific and technological developments and the sharing of

knowledge. The UDBHR furthermore differs in noting explicitly the particular importance of making such arrangements with regard to developing
countries, indigenous communities and vulnerable populations, as referred
to above. This emphasis is of significant relevance with regard to recent debates about intellectual property rights, access to essential medicines, the
World Trade Organizations (WTO) Doha Declaration on the TRIPS
Agreement and Public Health of 200144 and other related policies, as well as
the general conduct of healthcare research in developing countries, and
ways of addressing the aforementioned 10/90 gap.
Secondly, the UDBHR differs from the Oviedo Convention as its Article
21 specifies obligations not only for public institutions and professional organisations in trans-national practices but also for private institutions, such
as pharmaceutical companies carrying out healthcare research in developing
countries. The UDBHR furthermore requires dual review of such research.
Both of these provisions are of considerable significance for high-profile
controversies in the context of commercial research activities in developing
countries.45 The reference to taking measures to prevent the trade in organs
and other tissue equally concerns an important recent development requiring good practice and regulation.
Thirdly, the UDBHR makes two points that are somewhat more tangential
to the scope of the Oviedo Convention but nonetheless relevant; Article 16
of the UDBHR urges that due regard be given to the impact of life sciences
on future generations. And Article 17 of the UDBHR on the Protection of
the environment, the biosphere and biodiversity concerns, among other
things, access to and utilization of biological and genetic resources and respect for traditional knowledge. Again these provisions relate to crucial aspects of recent debates in bioethics and policy, in particular around the
UNs Convention on Biological Diversity of 199246 (preceding the Oviedo
44

WTO, Doha Declaration on the TRIPS Agreement and Public Health,

WT/MIN(01)/DEC/W/2 of 14 November 2001.
45

See Nuffield Council on Bioethics, The Ethics of research related to healthcare

in developing countries, 2002, available at http://www.nuffieldbioethics.org/go/
ourwork/developingcountries/introduction.
46

1992.

UN, Convention on Biological Diversity, UNTS Vol.1760, I-30690 of 5 June

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Convention by eight years). It is noteworthy that these issues have been

addressed only quite recently in the UDBHR.

VI. Conclusion
Clearly, future generations will not be protected simply because obligations
towards them are set out as a desirable goal in UNESCOs UDBHR, nor
will pharmaceutical companies and individual researchers behave responsibly as a result of the wording of the relevant articles, nor will knowledge
and scientific and medical developments be shared fairly from the moment
that the Declaration has found its way into the lecture theatres, parliaments
and boardrooms around the world. While some may wish that such documents will resolve the major issues in bioethics, which, as noted above,
some of the critics appear to view as a reasonable aim, this is clearly an unrealistic expectation.
Granted, there is considerable difference in the degree of specificity between different articles of the UDBHR, with some very detailed provisions
for very discrete areas (for example Articles 6, 7, 15, 19 and 21) and some
rather broad-brush wordings for areas that in fact give rise to a very wide
range of issues (such as paragraphs 10, 16 and 17). In particular, responsibilities towards the environment and animals have received rather scant attention.
Nonetheless, as the discussion has shown, the UDBHR has also established
a number of highly important new provisions. Their inclusion in the Declaration will not by itself bring about their realisation. But it has made it harder to ignore them. For they have been placed clearly on the political map,
and it is in this sense that Henk ten Have, Director of UNESCOs Division
of Science and Technology, argues that the Declaration has pave[d] the
way for a new agenda of bioethics at the international level.47 Equally,
bringing together under one umbrella the remaining provisions of the Declaration (that, to some extent, can also be found in comparable documents
which generally deal with more narrow areas of bioethics) has underlined
47

H. ten Have, The activities of UNESCO in the area of ethics, Institute of

Ethics Journal 16 (2006), 341 seq.

Bioethics, Human Rights and Universalisation: a Troubled Relationship?

21

their relevance again, and added momentum to the project of reasonable

universalisation of bioethical norms and processes.
The discussion here has also shown that it is plausible to view the relationship between bioethics and human rights as a complementary, rather than a
competing one. In general terms, the complementarity of the two fields can
be traced to the same historical origins, and the fact that both deal with similar questions from different angles. The human rights approach is closer
to the implementation of norms, and the bioethics stream more preoccupied with providing input into the development of such norms, as well as
scrutiny and constructive criticism once they have been established. In the
specific context of the UDBHR, the complementary relationship is found
in the content of the provisions. These are not human rights norms in
themselves, but supported by them. While practically all the norms relate
closely to debates in academic bioethics, the framework of human rights offers the most promising option in terms of universalisation, in the absence
of obvious alternatives.
Reference in the UDBHR to the UDHR helps both to clarify crucial ambiguities and to strengthen the human rights system. To some extent, the
UDBHR might be said to expand this system, but, more importantly, it
helps make it more concrete, as can be seen from the above discussion of
the relationship between the social and economic rights in the UDHR and
the corresponding sections in the UDBHR. Nonetheless, many of the provisions rely on further interpretation. Some of this vagueness is simply an
inevitable feature of high level policy documents. As Andorno highlights,
here, as also in other areas of law, the old adage applies that omnis definitio
in jure periculosa est.48 Other elements of the indeterminacy may more appropriately be attributed to process constraints.49 But irrespective of the
48

Broadly translatable as: Every definition in law is perilous, see note 8, 210 et

seq.
49

Much of the criticism concerns the process of the development of the

UDBHR and in particular the extent to which stakeholders had the opportunity to
provide input. See Williams, see note 6, 210 et seq.; Macpherson, see note 3, 588 et
seq.; Benatar, see note 2, 220 et seq. UNESCO held a written consultation on the
third outline of the Declaration prepared by the IBC from October to December
2004, and the results were published in January 2005. Arguably, a second consultation on the more advanced draft which was finalised at two meetings of government

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reasons behind a certain degree of (avoidable or unavoidable) vagueness, the

provisions still have the advantage that, in a minimal sense, they spell out
clearly key areas in which justification for actions is required. This is particularly so in cases where actions are intended that would be contrary to
the direction indicated by the UDBHRs principles and procedural arrangements. It is clear, then, that the UDBHR is neither the first nor the
last word on the matter, and that bioethicists can play a valuable, and in fact
crucial, role in the process of shaping future interpretations of the Declaration and its implications for theory, policy and practice.

experts in Spring 2005 might have been useful to provide further scrutiny, quality
control and transparency, and would have been a way of increasing buy-in by the
wide range of stakeholders. However, it is also clear that the appropriateness of such
arrangements needs to be evaluated in the context of UNESCOs general procedural
standards, and the time that can reasonably be allocated to the production of such
high level documents. The 22 months UNESCO spent on the UDBHR could be
seen as rather short, given the breadth of the scope of the document. However, note
that the UDHR was completed in 24 months, and that it is not entirely clear what
timeframe would be sufficient to satisfy all stakeholders that they have had a fair
chance to provide comment. It is likely that there would always be dissatisfaction in
some quarters that the ultimate text was agreed by government experts, who do not
always include people with a track record in academic bioethics since it is up to
member states to decide the composition of their delegations. Such constraints aside
it seems however clear that the process of producing the UDBHR would be easier
to defend had a second stage of consultation on a more advanced, near final draft
been scheduled. A slightly expanded timeframe might also have allowed for more
detailed consideration of issues in relation to the environment and the treatment of
animals, both of which are addressed in a somewhat abbreviated manner in the final
UDBHR.