Tying Prometheus Down: the International Law of Human Genetic Manipulation

"Le jour est venu que l'homme, se rendant moins dependant de la nature, devient fe-sclave de l'anti-nature, la contre-nature, fruit de la science de la nature." Paul Valery1 I. INTRODUCTION The growing literature on the bioethics of the human genome has begun to extend into international law. In particular, the field of genetic engineering, which began some thirty years ago, and is rapidly evolving due to the spectacular growth of biotechnology, has been the subject of international law-making. This field is fraught, however, with controversy due to the uncertainty about the risks involved, the deep philosophical implications, and the economic stakes. The focus of this article is the state of international law relating to the potentially harmful technological manipulation of the human genome, primarily through human reproductive cloning and inheritable genetic modification (germline genetic engineering).2 A central concern is with those methods that some fear will threaten human existence as we know it because, in this view, the genome of future generations will undergo unpredictable mutations and thus alter human nature itself. Others see in this technology the promise of improving human well-being by eliminating lifethreatening diseases and enhancing the quality of life and the capacities of human beings. The Human Genome Project ("HGP") has fueled perceptions that genetic manipulation can result in either the improvement of human lives or uncontrollable mutation and economic exploitation. International law cannot resolve this tension between hope for, and fear of, advances in biotechnology and genetics, but it is already deeply engaged in the issue through international trade and intellectual property law, human rights law, and specific instruments relating to biomedicine. International legal regulation is required either to protect humans from potential harm-an interest all governments share-or to protect proprietary or financial interests of significance to international commerce-a concern of governments supportive of the business interests of individuals or corporations under their jurisdiction. What international law there is in this field appears to respond to these two sets of often conflicting concerns. I will begin with the assumptions underlying the specific instruments of international law that address genetic manipulation and then focus on the human rights implications of these technologies. In conclusion, I will refer to the push for new treaties coming from several directions. II. UNDERLYING ASSUMPTIONS OF THE INTERNATIONAL LAW OF HUMAN GENETIC MANIPULATION Developments in biotechnology involving modification of the genetic structure of human beings have attracted the attention of ethicists and legislators at the national level in Europe and North America, but much less so in developing countries for the obvious reason that both research and the potential application of such technology are beyond the means of a majority of countries in the political South. The three principal instruments of international law that address human genetic manipulation all result from initiatives by European states, namely the Universal Declaration on the Human Genome and Human Rights ("UNESCO Declaration" or "Declaration"), the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine ("European Biomedicine Convention"), and the Additional Protocol on the Prohibition of Cloning Human Beings ("Additional Protocol"). A fourth instrument, in preparation, is the FrancoGerman proposal to the United Nations for an International Convention Against Reproductive Cloning of Human Beings.3 These instruments are based on several assumptions underlying the current thinking on this subject in Europe, where the principal instruments have been drafted. Other conflicting assumptions are more common in the United States, although these geographical distinctions have many exceptions. …