by Francesco Francioni (ed). Oxford and Portland, Hart Publishing, 2007. 438pp. Hardback. $126.00/£60.00. ISBN: 9781841137032.
Reviewed by Upendra Baxi, Professor of Law, University of Warwick. Email: U.Baxi [at] warwick.ac.uk.
The relation between technosciences (such as biotechnologies, digitalization, nanotechnologies and neurobiology) and human rights is intimate as well as fatal. It is intimate because modern technologies, especially biotechnologies, are said to create, and often do, the material conditions for exercise and enjoyment of human rights. It is fatal because the technosciences put together at the same moment provide the vanishing ground of the idea of being and remaining human and having rights (Baxi 2008), indeed to a point where it becomes entirely sensible to speak of ‘posthuman’ rights (Baxi 2007).
It is amazing but true that so little has been written concerning so important a subject. Francesco Francioni and his colleagues, in this important and useful collection of essays, insightfully address the important interfaces between biotechnologies, human rights, and bioethics. For this reason alone, this volume makes a singular contribution towards renovation enabling transformation of the conventional ways of doing jurisprudence and political theory.
The pluralization of biotechnology is extremely pertinent because this directs attention to several ways in which commercial biotechnologies operate. Biotechnologies have varied applications in agriculture and agribusiness, pharmaceutical and biomedical industries, sustainable development technologies, feats of related genetic engineering especially exemplified in cloning technologies, and the uncertain promise signified by the various Human Genome projects. Further, biotechnologies remain nested, as it were, with the literally fantastic developments in digital technologies and now the new frontiers already constituted by nanotechnologies.
The accelerated rate of production of new knowledge and techniques presents at the threshold the intransigent problem of technoscientific illiteracy, for the communities of regulators and adjudicators as well as for most human rights theory and movement folks. Reductionist forms of understanding biotechnologies no doubt may help the latter to dramatize the inherent risks, but these also provide an equal scope for dramatization of the benefits by biotech entrepreneurs and their normative cohorts who thus stand to gain the most (in terms of profit and power.) How then should the diverse communities – human rights and social movement actors, regulators and lawmakers, lawyers and adjudicators, among others – proceed? Clearly, increases in TSIQ (technoscientific intelligent quotient) remain imperative. So remains the escalation in HRIQ (human rights [*120] intelligence quotient) among others – the technoscientific communities, biotech venture capitalists, corporate governors, and those who cultivate the field of business ethics. It needs saying that United Nations-NGO based coalition that has so notably pioneered HRE (human rights education) ought to address the cause of promotion of both TSLQ and HRIQ. Towards this task, BIOTECHNOLOGIES AND INTERNATIONAL HUMAN RIGHTS makes a significant contribution.
Biotechnologies significantly resituate conventional understandings of the term ‘human’ in human rights and what it may mean to speak of being and remaining human and having rights. These significantly affect some received cultural and civilizational understandings of human life, the individual human body as a unique site, seat, and source of identity, the relationships between self, others, environment, and sentient and non-sentient beings and entities in ‘nature.’ And further cultural, religious, and civilizational theorists offer different and difficult understandings concerning being, remaining human and having rights (e.g., differences between the Vatican and other religious outlooks on the use of foetal tissue research and the possibilities of human cloning and the Jewish, Islamic, Hindu, and Buddhist traditions so abundantly reveal). How various cultural and civilizational traditions mediate the reception of biotech research, application, use, and regulation remains an important question, not here explicitly addressed outside minor engagement with some distinctive Euro-american or transatlantic concerns.
Aside from all this, this volume invites us to rethink the discourse of human rights. Comparative social theory of human rights may no longer be regarded as sufficiently constituting the construction of human rights as deliberative objects of juristic and juridical doctrines, and as subjects of metaphysical/postmetaphysical enquiry and critique (deconstruction). The new technologies invite further contemplation in terms of the materiality, or the infrastructure of human rights. A new reflexivity about human rights (as we now know them) requires engaging the materiality – the new forces of production constituted by technoscientific estates and the varieties of technopolitics that these forces generate (Baxi 2007, at 211-220). This volume facilitates fashioning a new type of human rights reflexivity.
The emergence (and ‘consolidation’) of a new genre of human rights, named as ‘bio-rights’ (see, Susan Millns, Chapter 4) or perhaps more accurately, ‘biopolitical’ human rights, acutely poses the problem of treading ‘a fine line between support for innovation and scientific research and the maintenance of high ethical and moral standards’ (p.72.) How then may a new cartography of human (and also of human rights – or as Millns puts this ‘the new navigational map’ (p.73) – be narratively located in the context of the emerging pan-European value–formation, and yet at the same moment eventually going beyond?
Put another way, if human rights were to be constructed as social technologies – the languages of a shared ethical sentiment or the ‘cultural software,’ to evoke the phrase of J. M. Balkin (see [*121] Baxi 2008, at 21-22) – how may we juxtapose these with the technoscience hardware? And how may we find, or fashion, a common strategic alliance among the related but distinctively autonomous discursive regimes of international law, human rights, and bioethics? Do this, when all put together, via the conflated and conflicted regimes of ‘sustainable development’ and a singular focus on intellectual property rights regimes (hereafter IPRR), provide the only or the best way ahead?
Discussion of this policy dilemma, especially of Part IV, suggests that IPRR require close deliberative attention. I read this work further as suggesting that even ‘more’ is required; if so how do we define this ‘dangerous supplement’ (to evoke Jacques Derrida’s fecund phrase here)? Does this volume, in so fully illustrating the poverty of human rights theory (and perhaps also human rights movement), suggest new practices of transformative politics reconstructing the political, or the ways towards its just enrichment?
Intellectual Property Rights Regimes
IPRR constitute a triumphal, even when a hybrid, saga of the translation of the much-vaunted human right to freedom of speech and expression for the scientific communities in terms of their fundamental human right to pursue freedom of scientific research (whether ‘pure’ or ‘applied’). This translation at least signifies a constitutive condition for the very existence of these epistemic communities, for whom this basic human right and accompanying freedoms means at least their rights to: [a] pursue, without hindrance, free experimental research; [b] communicate the incremental results thus arising with peer-groups that validate or refute, these, as the case may be;  raise the stakes for resources in an increasingly competitive scramble (in both state and private sectors) for capital intensive ‘big science’ research. Put starkly, this order of human rights may thrive only under the auspices of global public dedication to some charismatic orders of the protection and promotion of the IPRR subsuming the ancient virtue of the pursuit of knowledge for its own sake (free scientific enquiry and research) always under the signature of the forever ordained practices of primitive global capital accumulation.
IPRR present at the same moment a register of troubled narratives. How far any fully informed human rights and/or biotethically informed regulatory endeavour proceed? Prohibition of technoscientific research, experimentation, and application as a form of state/law response remains a deeply flawed response. For one thing, outright criminalization of some ways of producing new knowledge seems ethically (in human rights terms) offensive; for another, any effort at full national enforcement of such a measure carries exorbitant social costs, including creating grey markets in research and application, and escalating corruption in law enforcement. Besides, national prohibition regimes forfeit the logics of contemporary economic globalization of the world. Biotechnologies constitute multi-billion dollar strategic industries; a prohibitory strategy may end up conferring competitive advantages to other technologically advanced nations.
The next best form that prohibition may take (contemplated from time to time in US policy as with the use of foetal [*122] tissue/stem cell research) means only the withdrawal of governmental, especially the heavily federal, research support from biohazardous research and application. However this scarcely addresses the flow of immense corporate funding fully outweighing such effete gesturing. Understandably, BIOTECHNOLOGIES AND INTERNATIONAL HUMAN RIGHTS does not seriously engage this strategy. Further, it remains common knowledge that self-regulatory corporate governance remains tethered to the ends of competitive aggrandisement in the global marketplace.
Most, if not all contributors to this volume pose, as well as endorse, other forms of international/transnational, even when ‘soft,’ regulation, informed by bioethics and human rights to address the promise and peril inherent to biotechnologies. Put another way, the volume accentuates the paradigmatic conflict of rights, wherein the logic of IPRR is not denied, yet a corresponding search for reasoned limits on the exercise of rights is presented as a global (bio)-ethical necessity. It thus focuses on the invention of moral limits on the logics of privatization/secretization (sanctified otherwise via the law of patents and trade secrets) inciting regulations which ‘balance’ huge corporate investment returns on initial investments with the postures of policy, law, and administration that aspire to the tasks of ‘public reason.’
John Rawls puts to heavy use the notion of ‘public reason’ (See especially, Rawls 1993; Rawls 1999). Rawls offers little scope for thinking through the relationships between technoscience, human rights, and the tasks of global justice. In turn, and in a large measure, the Francioni volume returns the compliment by evading the ways in which justice theory may still inform the programschrift of bioethics/human rights based ‘regulation’ of biotechnologies. The tasks of ‘public reason’ always entail the labours of construction of politics and of the political in ways which also preserve the integrity of human rights while imposing limits on their exercise. This remains a difficult endeavour, indeed, even when surely worthy of the fullest pursuit.
International standard-setting is the new public virtue or mantra that the Francioni collection celebrates, however differentially. Almost by definition, the painstakingly negotiated standards remain so heavily generalized as to provide poor guide to public choice and action. Their jurispotence remains heavily contested in regulatory and adjudicative performances, all too often resulting in privileging the biotech ‘haves’ over the ‘have-nots.’ The standards often build from differentially constituted logics, paralogics, and rhetorics not always recognizing validity in competing orders of contemporary human rights norms and bioethics based discursivity. If the later remain far from being lucid, ‘bioethics’ also furnishes a fluctuating, fluid, and inherently unstable habitus or episteme, providing no safe harbour. In part, this remains so because regulation remains beset by the fact that the object of regulation does not remain ordinarily accessible to the knowledge-base of the elected representatives somehow entrusted with the power and authority of making laws. Put provocatively, the expertise necessary to achieve the ends of regulation is captured by multinational [*123] capital, who owe accountability, transparency, and participation obligations neither to governments nor to the governed! Moreover, it seems to be the case that corporate funding of election campaigns in the transatlantic regions benefits increasingly, and even aggravatingly, by the captains of biotech, digital, and nanotech industries.
Fashioning Regulatory Frameworks and Standards
Does a human rights based international legal framework articulating these basic principles exist? Francioni suggests that it does (Chapter 1.) The reference here is to a complex series of instruments: in particular, the UDHG (the 1998 UN General Assembly adopted Universal Declaration on the Human Genome and Human Rights) and the UDBHR (the 2005 Universal Declaration on Bioethics and Human Rights) with associated instruments (statements/declarations). In a three-step analysis, Francioni straddles ‘the competing entitlements – property rights, sovereignty, and common heritage of humankind (thus proclaimed by UDHG); the ‘general interest of humanity;’ and the sine qua non articulated by human rights discourse’ for the legitimate exercise of the freedom of science and business in the development and application of modern biotechnology’ (p.7). This illuminating analysis leads to the conclusion (and the steps leading to it remain well worth close deliberative attention) that we should ‘develop a more rational approach,’ going beyond the ‘race to privatization of and propertization of genes, the human body, plans, new discoveries and everything else (p.31).
These provocative issues are further addressed by Pierre-Marie Dupuy (Chapter 2), who urges the need for developing, if I may so put this, a new future history of mentalities in which the ‘classical tools’ offered by international law regarding responsibility of state actors and agencies may be extended to reach ‘private entities interested in biotechnologies’ (p.42). The task stands well-named, but the difficulties inherent to this perhaps remain underestimated (see Baxi 2008, Ch.8).
The difficulties of this task stand amply illustrated, however, by the sterling contributions in Chapters 4-6. Susan Millns thus addresses the birthing of the European ‘new generation of bio-rights’ and suggests how this nascent agenda ought to be further extended’ (p.81); so does Abdulqawi A. Yusuf (Chapter 5) urging a ‘pan-European dialog, moving beyond the logics and rhetorics of harmonization’ (p.84).
However, the order of difficulties, intrinsic as well as instrumental, in moving towards this end is most fully presented by Helene Bouusard (Chapter 6.) She resolutely addresses the intransigent difficulties in any desired or attainable ‘convergence and reconciliation of ethical and legal principles’ (pp.113-126) and alerts us to the ‘possibility of a backlash (p.126) fully entailed in approaches towards such construction. This is an excellent contribution, indeed, inviting the fuller consideration and enriching analysis presented by Ernst-Ulrich Petersmann (Chapter 10), who further traverses the complexity and contradiction in a WTO-based regime of international economic law. His quest for ‘a more coherent and more legitimate framework for enhancing the legitimacy of international economic law’ (p.271), even when [*124] contestable (and in some respects already contested; see Alston 2002; Petersmann 2002a; Petersmann 2002b), still makes an important order of claims concerning reciprocal exchanges [trade-offs] between human rights law and international trade law. Petersmann insightfully suggests that just as economic laws and policies ought to be guided by human rights, we may not ignore the global social fact that most new technologies also ‘help citizens more effectively in benefiting technologies and from the worldwide division of labour through international trade law based on WTO law’(p.273).
This claim becomes further complicated by Thomas Cottier’s concluding observation (Chapter 11) that ‘human rights – except for the ban on biological weapons and nuclear warfare and weapons – do not offer a general foundation for the regulation of technology, because the ‘substantial’ human rights claims, as applied to genetic engineering, remain ambivalent’ in that their ‘application may be both beneficial and ambivalent’ (pp.312-313).
One would have thought precisely that this ‘ambivalence,’ far from representing a natural ‘order of things,’ stands multifariously and also nefariously fully constituted by the global markets for biotechnologies, and further by the fact that the precise pertinence of contemporary practices of human rights and social movements may lie in the deconstructive performances of this ambivalence! This surely is the message, at least as I read parts of this volume, which discuss the consolidating prowess of global biotech capital formation, at times contrasted with the dissipating powers of the so-called regime of substantial ‘human rights-claims, as applied to genetic engineering.’
This order of claims is justifiably disaggregated via the narratives of ‘agricultural biotechnology and the right to food’ (Chapter 7), the new ‘health, consumer rights claims’ pitted against the logic and paralogic of ‘economic freedom’ (the case study of GM regulation offered in Chapter 8), and the explorations of the human rights of indigenous peoples confronted with the genetic ‘gold rush’ (Chapter 9). Space-constraints forbid any further analyses of the ways in which human rights heterogeneity stands thus constituted, save saying two things. First, there exists no master narrative frame compelling obeisance to ‘substantial’ human rights claims; and secondly, the potential for talking about reciprocal exchanges between human rights values, principles, sentiments, norms and standards on the one hand, and the notion that technoscience will provide the infrastructures to enhance human rights futures must remain, on the other, open to diverse contention.
Standards Of and For Judgment
This invites, all over again, the intractable question of fashioning the standards for ethical judgment amidst the ineluctable forms of ‘ethical plurality,’ a set of issues specifically addressed by Roger Brownsword (Chapter 3.) He helps us to consider the so-called ‘bioethical triangle’ comprising three ‘ethical constituencies,’ the utilitarian, human rightists, and the ‘dignitarian alliance’ (p.49). Provocatively, Brownsword suggests that in an ‘ethical plurality human rights will not always prevail’ because human rights language, logic, and paralogic [*125] have to ‘compete with both utilitarian and dignitarian views’ (pp.53-54). Given this, he does not merely suggest that the calls for ‘human rights’ based forms of regulation regarding new technologies are unlikely to meet the intentions of their authors, but more crucially that they further privilege the bioethics that some consider to be a final solution to the orders of ‘interpretive deficit’ (pp.63-69).
The deeper point that Brownsword makes is this: of course, biotechnology and human genome type regulation may assume a ‘willingness to repair human rights deficit’ (p.68), and given the scarcity of any genuine (that is, enduring) effort in this direction, everything ‘must’ be done to foster ‘a willingness to repair’ this deficit. Yet, at the same moment, respect for plurality may also invite ‘regulatory failure (p.63). This, as Brownsword suggests, entails winning at least ‘three battles’—first, ‘in a larger plurality the battle for ethics;’ second, ‘within ethics’ must also be won ‘the battle for human rights;’ third, in a major way the third battle invites agonized attention to the tasks of the fashioning of a human rights ethical minimalism, that is the moral architecture of the ‘procedures for settling issues that might divide’ human rights communities, such as public and individual choices concerning ‘the priority of privacy and freedom of expression, the status of the human embryo and so on’ (pp.69-70).
In sum, we stand confronted not so much by ethical concerns as perhaps by meta-ethical considerations. To more fully address this, we must surely add to this troublesome quotient what remains at stake in some recent, and nascent, approaches to the problem of global justice. What obligations of the various strands of justice are owed to here-and-now communities injured by contemporary manifestations of the biopolitical prowess of commercial biotechnologies? How may their justice-obligations address similarly constituted future human communities? As has not been frequently noted, an ethic that addresses future generations remains tension-ridden. First, how may present generations conceive future ones (the epistemic problem)? Second, how may it define membership of that class (the descriptive realism problem)? In other words, who will decide whether human rights in the future will extend to new forms of artificial intelligence and new forms of artificial life? (Incidentally, this problem of future exclusion from membership of human species remains most acutely raised by population planning measures!) Third, the ethical problem: how may present generations prescribe/legislate the obligations owed to unknowable future ones? Fourth, ( and without being exhaustive, the loyalty problem), one could raise issues related to climate change (global warming), and the obligations of current populations to future ones. The postulates of bioethics and ‘sustainable development’ require traversing these and related critical thresholds.
Finally, by what normative/ethical standards may we attempt a critique of the logic of providing immunity to multinational corporate biotechnologies in light of contemporary human rights? In raising this range of concerns, this volume indeed makes a remarkable statement. [*126]
A Concluding Remark
I conclude by offering a series of supplementary observations. How, for example, may we ever aspire to receive in the context of the human right to food, the messages concerning the ‘manner in which’ IPRR lead ‘to a bypassing,’ via the ‘privatization of knowledge’ of ‘the needs of the poor’ (p.180)? One may pause to note that impoverishment stands already defined/delineated in language of the digital and biotech/nanotech global, and within-‘nation,’ divide. Material impoverishment exists as cyber-impoverishment, although anticipated future-world historic ‘developments’ are promised to bridge the gaps between cyber-improvised and cyber-rich (and therefore also biotech rich and poor) peoples and societies. To say the very least, this de-materialization of causes and conditions of material impoverishment invites further anguished reflection.
What indeed, without gainsaying at all the distinctiveness of the pan-European regulatory adventure, may thus constitute the ‘available policy space’ within the heavily mandated logic and language of the IPRR? Is it, indeed the case, despite a somewhat persuasive showing by Elisabetta Righini ( Chapter 8 outlining the regulatory controls over GMO food) that ‘in Europe [at least] the development and use of biotechnology always takes place consistently with a number of fundamental [human] rights and freedoms,’ thus ensuring ‘the primacy of the rule of law . . . over auto-regulated market’ (p.168)? In a related context, how may we address the conclusion of Federico Lenzerini (Chapter 9) that the IPRR must be reshaped ‘on the holistic vision of life’ of the indigenous peoples’ autonomy to decide ‘whether or not they wish to utilize their biological resources and/or related knowledges for commercial or industrial purposes and in the event that they wish to do so, to determine the terms for this commercial exploitation’ (p.226)?
This is surely not all, as Part V1 of this volume so fully suggests, notably in the solitary contribution by Lucia Vierucci, who calls for further re-visiting of the ‘the offensive uses of biotechnology,’ specifically noting ‘a few examples of the advantages that defensive military applications may bring to the modern armed forces’(p.363). How then may we understand the commercial/industrial biotechnologies, given their history of imperialistic and militarized origins and deployments, when considering the language of bioethics and human rights? Specifically in these intertwined contexts, how may we resituate the important presentation by DJ Galligan (Chapter 13) who suggests that ‘the effectiveness of legal norms is not an arcane art but a reasonably rational process [based somehow in terms of ‘taking forward the idea of civil society engagement in regulation’] that now needs to be applied to biotechnology (p.359, emphasis added)? Is it possible that this ‘reasonably rational’ can overcome the distinction offered by John Rawls, suggesting that the ‘rational’ (understood in terms of means-end rationality) may always contrast with the ‘reasonable’ in the sense which describes the ethical limits of the instrumental reason?
To thus so summarily invite attention to the embarrassment de riches of this volume is also to reiterate an important [*127] concern made once-upon-a-time (and the nostalgia is here fully intentionally summoned) famous by the ELEVENTH THESIS: adapting this thesis here, one may say that the task is not to explain the complex and contradictory terrain confronting bioethics and human rights, but rather how to transform them. It is, indeed, high praise but still much deserves saying that this remarkable volume assists both these enterprises.
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© Copyright 2008 by the author, Upendra Baxi.