pp. 59-63 in
Bioethics in Asia
Editors: Norio Fujiki and Darryl R. J. Macer, Ph.D.
Eubios Ethics Institute
Copyright 2000, Eubios Ethics Institute
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1.8. Human Genome as Common Heritage of Mankind - with a proposal -
Member of the UNESCO IBC; Kyoto University Law School, Japan
The Draft Universal Declaration on Human Genome and Human Rights recognizes in its article 1 that, in a symbolic sense, the human genome is the heritage of humanity. This provision originated in fact from article 1 of the Preliminary Draft Declaration elaborated by UNESCO's IBC, with a slightly different wording; it provided: "the human genome is the common heritage of humanity." The present article 1 is the result of a compromise between those countries who are anxious about the collective and financial impression this concept of "common heritage of humanity" might give and those who emphasize its symbolic meaning of the unity and solidarity of the humanity. The author of this paper shares the latter view and tried to maintain the original version during the Government Experts Meeting July 1997, but without success. However, the present formula has not lost its basic conception. We will examine here what will be the implication of this new concept of international law will be.
1. The Concept of the "Common Heritage of Humanity"
a) Formation of the concept in international law
The concept, "Common Heritage of Mankind (humanity)", was presented in 1967 by Arvid Pardo, Ambassador of Malta, who had become anxious about the probable monopolization of resources situated in the deep sea and on the ocean floor by the developed countries. Before this, the ocean and its resources outside territorial waters had been free and deemed as "res nullius", meaning it was open to the public for free utilization. However, technological developments had lead humanity to the exploitation of resources situated outside territorial jurisdiction.
The origin of this idea goes back to 1945, when the President of the United States, Harry Truman, declared that from then on all the resources in the continental shelf underlying the high seas and contiguous to the United States' coast would belong to the United States. Many other States followed this monopolistic practice, so that the Conference of Geneva on the law of the sea of 1958 concluded the Convention on the Continental Shelf, separately from its other three conventions.
The Convention of 1958 declares that the coastal States have the sovereign right to exploit and explore the resources of the continental shelf as defined by two criteria, i.e., being two hundred meters or less in depth and being exploitable. In fact, the technological developments after 1958 changed completely the applicability of these criteria, and States got the possibilities of access to the deepest seabed and ocean floor. Such a situation would authorize, according to Ambassador Pardo, a coastal State to divide the deep seabed and its resources with another coastal State on the opposite side of the sea. The resources there would be necessarily and exclusively for those who have sufficient technological capacity.
The technological capacity of each State, however, being quite different, States who did not have the necessary technological capacity for the exploitation of resources criticized this kind of system for free exploitation up to the maximum depth of the sea. The developing countries, in particular, extremely sensitive to the possibility of a global carve-up of the sea-bed and all its resources, wished to reserve their rights to those resources. Such a situation seems almost identical to that we face with the human genome.
Ambassador Pardo's proposal came up under these circumstance. The solution he proposed was to assign the deep sea-bed area and its resources to the "Common Heritage of humanity" subject to international control. Thus the biological and mineral resources should be preserved and exploited only for the benefit of humanity as a whole, and for the developing countries in particular. The core idea of this new concept is the conservation of resources for humanity as a whole. Here we find the notion of "community," by which we promote the welfare of each and every member.
b) Introduction of this concept into international law
Adopting this new concept, the International Community established, in the United Nations Convention on the Law of the Sea of 1982, an international regime managed by an international organization named "the Authority" and an apparatus for direct exploitation of resources named the "Enterprise." The Convention of 1982 stipulate, among others, (1)the sea-bed and its subsoil beyond the limits of national jurisdiction (the "Area") and their resources belong to the common heritage of humanity, (2) activities in the Area should be done for the benefit of the humanity, taking into account the interests and the needs of developing countries, (3) no State may claim sovereignty nor sovereign rights on the Area itself nor its resources, (4) an international organization shall be established in order to control the States' activities in the Area.
The concept of "common heritage of humanity" is also applied to the Moon. The Agreement governing the activities of States on the Moon and others celestial bodies in the solar system other than the Earth was adopted on 18 December 1979. The legal status of outer space has already been defined by two principles of internationalization: the principle of non-appropriation and the principle of peaceful utilization for the interest of humanity. The Agreement on the Moon is thus an application of these principles. The Agreement states, (1) the Moon and its resources are part of the common heritage of humanity, (2) an international regime governs the exploitation of resources of the Moon, the objectives of this regime being rational exploitation, reasonable control and equitable distribution of profits, (3) the Moon itself will not be the object of any national appropriation, and any resource on the Moon will not become a State's property, (4) the exploitation and the utilization of the Moon are activities authorized by humanity as a whole, and (5) scientific research may be freely carried out on the Moon.
c) The basic elements of the concept
These precedents leads us to deduce some basic elements concerning the concept of the common heritage of humanity.
First, to say that a place(the deep sea floor, the moon) and its resources are the common heritage of humanity means that they are deemed to be "res communis" or "res humanis." Appropriation by States or claims of sovereignty are prohibited here. Such places and their resources will never belong to individual States but to the International Community. If the high seas are "res nullius" and thus open to free exploitation, the deep sea-bed and its resources are reserved for the welfare of humanity as a whole, i.e., all human beings. Here, is found no basis for the principle of free competition or "laissez-faire".
Second, activities in these places as relates to their resources should be carried out for the profit of the humanity as a whole. The interest of the humanity being the ultimate objective, the exclusive and arbitrary utilization and exploitation by a State are duly discarded. Needless to say that the monopolization of the place or the resources by technologically advanced States is incompatible with the concept of the common heritage of mankind. Humanity appears here as a subject of law. All human activities are not free, but only those for the sake of our International Community.
Third and last, the common heritage of the humanity is subject to an international regime and controlled by an international organization. The exploitation itself is done by States or private or public enterprises as well as by an international organ. For this purpose, the UN Convention of 1982 established the Authority and the Enterprise, and the Agreement on the Moon provides for the possible creation of an international organization governing activities on the Moon and other celestial bodies.
2. Human Genome as common heritage of mankind
What will be then the implications of recognition of the human genome as common heritage of mankind?
a) Similarities and particularities of the human genome as common heritage of humanity
The human genome consists of the genes and genetic information as a whole. Today, resources are no longer always tangible, but also intangible, such as services, information and so on. The human genome, as information on the life of humanity, should be considered as a resource. In addition, genes themselves are the place where this genetic information is stored. Thus, the place (genes) and the resources (genetic information) form a common heritage of humanity.
As far as the technological conditions are concerned, since the concept of common heritage of humanity was conceived when facing the probable monopolization of resources of the deep sea-bed by highly developed countries, the situation seems similar to that surrounding the human genome. The research and analysis on the structure and the functions of the human genome require extremely advanced technology and very large funding availability for research. So it is often the State who takes charge of it, otherwise medical or pharmacological enterprises may support financing of the research as part of their investments. But such contributions from the State or private enterprise may hardly, if ever, be expected in the case of developing countries.
The objective of research or activities concerning the human genome is the improvement of human life. This is above all a public interest. The human genome concerns the past, the present and the future of the humanity. Results and applications of the research on the human genome might influence, or even decide, the future of each human person, and, through that, of the humanity as a whole. Thus, the human genome cannot become the object of, or rather is not suitable for appropriation by the State or any other entity or person.
It remains to be asked if an international control raises obstacles to the ambitions of researchers to let the science advance. The will and the efforts of researchers to undertake research in a creative spirit are generally rewarded through the exclusive rights given to researchers by the intellectual property rights system. However, this exclusiveness seems hardly compatible with the concept of the common heritage of humanity, since the latter is based on community interest, and not on the interest of individuals. Thus it is difficult to conceive that the human genome is by its nature be the object of patents or intellectual property rights.
How then to reconcile the reward of honour and special rights accorded to researchers on the one hand, and the interests of the Human Community to which belongs the common heritage of humanity, on the other? A basic framework might be conceived as follows:
The patent system is not applicable to the human genome . The researcher is not rewarded in a traditional way. The results of the research on the human genome are registered with an international organization which holds a genetic data bank in this regard. All utilizations and applications of the results of human genome research are subject to a utilization fee, which corresponds to the patent royalty fee. A part of this fee is reserved for the benefit of humanity, and the remaining portion is transferred to the researcher.
b) The international system of control
The research on the human genome cannot be viewed the same as the exploration of resources of the deep sea-bed. The latter always has a territorial link, while the human genome concerns only individual human beings, and is thus non-territorial.
The research has in itself a high intellectual value, and should be allowed to proceed freely. Research is an intellectual activity unique to humanity. Thus freedom of research, as part of freedom of thought is a fundamental human right. No one can hamper or limit research activities without a recognized reason.
Thus, the research should neither be controlled nor limited, even if the result of the research in question may possibly contain some unfavourable effects or be exploited for a bad or illegal purpose. The research has a supreme value of itself. There is no good research nor bad research. There is no question of controlling research of any kind.
The necessity for control comes at the level of methodology and process of research and experimentation. Research on the human genome begins by obtaining cells of a particular person, but, of course, is carried out in anonymity. Since this research field as well as the relevant technology are at the forefront of human progress, we are confronted by both the requirements of the welfare of the humanity and the passion of the researchers. There is some risk, or even some danger, of arbitrariness on the part of researchers in medicine, biology, etc. In the passion of pursuit for the truth, natural or social, the limits demanded by human dignity may be exceeded during the process of research. The value of the research do never prevail over the human dignity. For example, a genetic test without informed consent of the patient or an abusive experiment on the human body is strictly prohibited.
On the other hand, control at the research level would not necessarily need to be international. Once guiding principles are established concerning research, control would be carried out on a national level. Each State would set its own proper ethical and legal norms, following the common global guidelines which would be established beforehand. It is important to recognize that each country and each people and nation has its own proper concept of life and death and of human existence. In this regard, national legislation will be indispensable for each State.
Therefore, concerning this point, it is crucial that a competent international organization of universal nature, such as UNESCO or eventually the United Nations, sets up the fundamental norms or guidelines. The work of the Legal Commission of the International Bio-ethics Committee of UNESCO on the drafting of a universal declaration on human genome will serve for the establishment of such norms. As UNESCO has no legislative power, the future declaration will not be legally binding but only of moral or political value, or in other words, of para-legal effect. Nevertheless, we may expect that one day this declaration will have some real legal and binding force. We already have a good example: the Universal Declaration of Human Rights, which was, at the beginning, considered as a recommendation and not binding, but has now an uncontested legal value.
Moreover, the follow-up mechanism would also have a decisive role in assuring the freedom of research. Any abuse of research, once discovered, would narrow the road for the progress of humanity which is based on fundamental freedoms. This follow-up mechanism should have as its function both the prevention of abusive research and the dissemination of norms. Only sanctions against illegal research practices would then remain within the national jurisdiction.
(ii) Application level
Unlike the research itself, the application of research results are not entirely free, and should be subject to international control. Applications might have damaging consequences to the life or death of a human person as well as the existence of humanity. It follows that the findings should not be available for appropriation or exclusive possession by a particular State, a private enterprise or an individual researcher.
We might propose here that an international regime for the registration of research findings be set up and managed by an international organization. All the findings of the research, either financed by States or by private enterprises or otherwise, should be registered with this organization. There will be thus a unified world data bank on the results of human genome research. We would call it the "Human Genetic Data Bank (HGDB)".
We can distinguish two categories of research results. The one concerns the analysis of genetic structure, and the other, that of genetic function. For the former, the results should be open to all, as is actually done. The free circulation of the obtained data would be assured by the proposed organization. There would be no international control that could hamper the freedom of information. The control, if any, should be applied to eliminate various barriers likely to limit the circulation of data.
For the latter category of results, a procedure for the application of research findings would need to be created. Those who wish to make use of the results for scientific or practical purposes would have to follow this procedure. A possible procedure may be envisaged as follows: the request for authorization of use would first be made to the organization, which will examine the request in through a commission composed of experts; once the authorization is given, the application of the research findings would be subject to a kind of application tax, corresponding to royalty payments on a patent. Moreover, the new results obtained through the authorized application would also then be registered.
The concept of common heritage of humanity has only a symbolic sense in the human genome field, as has also been so in the case of the sea-bed and the Moon. This concept is also applied to cultural heritage. Contrary to the image given by the terms "common" and "heritage," this concept has no meaning corresponding to a possible use or application of human genome by a particular community, nor does it mean a kind of property, like a house or a land. The message it contains is that the human genome should be the basis of the progress of humanity and that we share the mission of passing on the torch of human genome to the next generation in the form and substance as were handed down to us.
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