US embassy cable - 05PARIS5195

UNCLAS SECTION 01 OF 03 PARIS 005195 
 
SIPDIS 
 
FROM USMISSION UNESCO PARIS 
 
STATE PASS HHS - BILL STEIGER 
STATE PASS OSTP - GENE WHITNEY 
 
E.O. 12958: N/A 
TAGS: TBIO, UNESCO, KSCI, HHS 
SUBJECT:  USUNESCO:  NEGOTIATIONS ON BIOETHICS DECLARATION 
 
1.  SUMMARY. The second and final session of the 
Intergovernmental Meeting of Experts met June 20-24 at 
UNESCO and reached consensus on a draft "Universal 
Declaration on Bioethics and Human Rights."  The US was 
successful in adding to the draft Declaration a statement 
that one of the aims of the Declaration is ensuring respect 
for the life of human beings and in deflecting efforts to 
have the document include "right to health," "special 
responsibility of human beings for the protection of the 
environment," and various other social agendas as bioethical 
principles.  The United States received appreciation for its 
proposal concerning the "social responsibility" article, and 
this was instrumental in helping the US successfully oppose 
objectionable provisions.   The draft declaration will be 
sent forward to the UNESCO General Conference in October 
2005 for consideration and likely adoption. The negotiations 
were challenging but were generally conducted with respect. 
However, the process was deficient in several respects, 
resulting, inter alia, in insufficient time for governments 
to review and comment on the final revised text and meeting 
report.    END OF SUMMARY 
 
BACKGROUND 
 
2.  The first session of the Intergovernmental Meeting of 
Experts Aimed at Finalizing a Draft Declaration on Universal 
Norms on Bioethics was held April 4-6, 2005.  It considered 
the Preliminary Draft Declaration prepared by the 
independent International Bioethics Committee (IBC).  The 
April session demonstrated widespread dissatisfaction by 
member countries with the IBC draft, but no consensus on the 
major issues, including the scope of the Declaration. 
Following this meeting, an informal discussion was convened 
by Ambassador Pablo Sader (from Uruguay), Chairman of the 
Meeting.  Sader attempted to find compromise on the basis of 
that discussion and other consultations. 
 
RESPECT FOR HUMAN LIFE 
 
3.  The Second Session of the Intergovernmental Meeting was 
held at UNESCO headquarters, June 20-24, 2005.  At that 
meeting, the U.S. was successful in adding to the article on 
Aims (Article 2(iii) of the draft Declaration) a provision 
on respect for the life of human beings.  Any reference to 
respect for the life of human beings had been vigorously 
opposed by a number of states in the previous meeting.  The 
draft Declaration now states that one of its aims is "to 
promote respect for human dignity and protect human rights, 
by ensuring respect for the life of human beings.."  The 
Declaration recognizes human life (or respect for it) as a 
part of human rights and thus incorporates it into the 
various provisions of the Declaration in which  the term 
"human rights" is used. The ability to obtain consensus for 
this provision was facilitated by inclusion at the urging of 
the U.S. of language in the preamble that the Declaration is 
to be understood consistent with domestic and international 
law (see paragraph 6). 
 
SCOPE 
 
4. The U.S. delegation was successful in limiting the 
explicit scope of the draft Declaration to medicine and the 
life sciences; the definition of bioethics in the IBC draft 
that had included the social sciences and relationship to 
the biosphere was deleted.  In addition, the U.S. was 
successful in limiting the explicit application of the draft 
Declaration to States to guide them in the formulation of 
their legislation, policies, or other instruments in the 
field of bioethics, with a reference to its also providing 
guidance to decisions or practices of private actors. 
(However, some of the actual provisions appear to be 
relevant only to private actors.) 
 
DOMESTIC LAW 
 
5.  The U.S. insisted on a provision (in the Preamble, and 
accepted with revisions in a similar provision in Article 
27) that the draft Declaration is to be understood in a 
manner consistent with domestic and international law; some 
articles also contain a provision referring to domestic law. 
(The French delegation attempted to delete the preambular 
provision at the last moment, even though, as the Chairman 
stated, the consensus that had been reached on other items 
was made possible by the understanding that the preamble 
would contain this provision.)   The U.S. successfully 
opposed inclusion of an explicit savings clause, pursuant to 
our policy for negotiating declarations. 
 
CONSENT 
 
6.  The meeting had difficulty drafting the provisions on 
informed consent (now Articles 6 and 7).  A large informal 
working group presented language to the plenary meeting for 
discussion.  The Chairman gaveled it as agreed to after only 
brief discussion.   Several countries objected strongly to 
the approval without meaningful discussion.  Canada in 
particular objected to the fact that there was only minimal 
discussion and expressed formal reservations on the 
articles.  The U.S. supported the Canadian objection. 
Article 6 contains a new paragraph (c), which had not 
previously been tabled, providing that in addition to 
obtaining the consent of individuals for research, 
researchers "may" obtain the "additional agreement of the 
legal representatives of the group or community concerned." 
(Comment: It is uncertain whether this has the potential to 
create additional expense and delay for research without 
benefit for the patient. End Comment) 
 
SOCIAL RESPONSIBILITY AND HEALTH 
 
7.  Brazil proposed an amendment to the already problematic 
Article 13 in the IBC Preliminary Draft (now Article 14 in 
the Draft Declaration).  Its amendment received broad 
support in the meeting (particularly from Andean countries). 
Its amendment made promotion of health and social 
development a "duty" of governments.  It also drew from the 
WHO Constitution and referred to the enjoyment of the 
highest attainable standard of health as one of the 
fundamental rights of every human being.  The U.S. countered 
with language referring to health and social development 
"for their people" as a "central purpose" of governments and 
restored the language from the WHO constitution left out of 
the Brazilian amendment  (highest attainable standard of 
health is a fundamental right "without distinction of race, 
religion, political belief, economic or social condition"). 
The U.S. language also deleted the reference to 
"reproductive health."  The U.S. compromise was adopted, and 
the U.S. was thanked for its constructive contribution and 
its cooperation. This increased support for the U.S. 
position on other items of concern to the U.S. 
 
ENVIRONMENT 
 
8.  The U.S. was successful in changing a provision that 
would have made it a principle of bioethics that any 
decision or practice should take due regard of its effect on 
all forms of life and that there was a "special 
responsibility" of human beings for the protection of the 
environment.  The agreed language (Article 17) deletes the 
reference to "special responsibility" and says that "due 
regard" is to be given to the interconnection between humans 
and other forms of life, to the importance of appropriate 
access and utilization of biological and genetic resources, 
to the respect for traditional knowledge and to the "role" 
of human beings in the protection of the environment.  The 
U.S. was also successful in opposing addition (in Article 
21) of references to "biopiracy" proposed by Brazil and 
supported by the Andean states. 
 
PRECAUTIONARY PRINCIPLE 
 
9.  The Preliminary Draft contained a muddled and 
potentially troublesome version of the precautionary 
principle.  The U.S. was successful in substituting for it a 
provision (Article 20) saying that  "appropriate assessment 
and adequate management of risk" should be promoted. 
 
DECLARATION NOT CONVENTION 
 
10.  The U.S. was successful in changing the tone and words 
of the Declaration in several ways to make it consistent 
with the fact it is a declaration, not a binding instrument: 
the word "shall" was replaced in each instance by "is (are) 
to be" or "should"; the concept of "implementation" was 
removed; the provision for reports to UNESCO by states was 
deleted; the roles envisaged for  the IBC and IGBC (the 
Intergovernmental Bioethics Committee) were reduced 
considerably, and UNESCO was directed to promote cooperation 
between them; and the reference to future instruments was 
deleted. 
 
PROCESS 
 
11. UNESCO seemed to be focused more on having a product for 
the General Conference than on the quality of that product. 
The overall process for developing the Declaration was not 
satisfactory.  The amount of de facto control given to the 
IBC (a group of independent "experts") was particularly 
troublesome.  The IBC was directed to prepare a recommended 
draft.  It met 6 times over an 18-month period.  Member 
states had only limited input through the IGBC, and the 
suggestions made by the IGBC were not reflected in the IBC's 
Preliminary Draft.  The IBC asked for more time to develop a 
draft but was pressured into finalizing its draft.  This was 
presented to Member States as a consensus draft when in fact 
there were major disagreements among the members of the IBC 
itself and there was no consensus among Member States. The 
IBC prided itself on expanding the notion of bioethics to 
include protection of the environment and social 
responsibility and its "independence" from governments. 
The resulting Preliminary Draft presented by the IBC was not 
acceptable to Member States.  They were presented with an 
unacceptable text that they had to fix, and to do it in only 
two sessions of the intergovernmental meeting, in which 90 
states participated. 
 
12. In addition, pressure from the Secretariat to have the 
document ready for this fall's General Conference meant 
there was not time for full consideration and good drafting. 
And there was little opportunity for any reflection or 
consultation with capitals about the language being drafted. 
The draft Declaration in fact was adopted after midnight as 
the translators were leaving without a chance for full 
consideration; there was no debate on the consent article. 
In addition, there was no opportunity to read or consider 
the report accompanying the draft.   It was an uphill battle 
against a draft prepared in secret, by a small, 
nonrepresentative, and supposedly expert group who had been 
given no guidance by the Member States.  The process was 
essentially upside down. 
 
COMMENT 
 
13.  The U.S. was successful in blunting some of the most 
troublesome aspects of the Preliminary Draft presented by 
the IBC and of amendments that member states sought to make 
in the Intergovernmental Meeting. It succeeded in obtaining 
a reference to respect for human life.  The result was 
better than could have been expected, particularly 
considering the poor process.  There will be more 
discussions about the terms of the Declaration, and we will 
monitor efforts to change it.  At the same time we await 
reactions as to whether there are provisions that would 
prevent the U.S. from joining consensus.  We also will be 
vigilant to any efforts to turn the Declaration into a 
Convention and make clear our opposition to any such effort. 
 
OLIVER