The starting point for this thesis is the observation that legal (hard and soft law) approaches to bioethics, i.e. the framing of bioethical concerns in the language and logic of the law, have become dominant frameworks for addressing many bioethical concerns at the international level. For example, the United Nations General Assembly, although failing in the end, has long attempted to regulate human cloning processes through a Convention on the matter. Similarly, the patenting of genetic material is dealt with in several WTO agreements and UNESCO in 2005 adopted a Declaration on Bioethics and Human Rights, the first such document that attempts a comprehensive approach to the matter.
The dominant role of international law in framing globally relevant bioethical issues raises questions about the former’s legitimacy in addressing and resolving the latter. Since at the international level the yardstick for measuring legitimacy cannot simply be the degree of compliance with democratic standards and premises alternative forms of legitimacy need to be examined. This thesis will take the suitability and efficiency of international law as measurements of its legitimacy.
Hence, the first part of the thesis analyzes what happens when the language of law and legal discourse become part of daily bioethical discourses, how this affects the way bioethical issues are approached and dealt with, and how well-suited legal language is to resolve current bioethical questions at the international level. The hypothesis is that international legal discourse on bioethics makes important contributions to current international debates in the area of bioethics, particularly by offering a well probed, long established and systematic framework and language for thinking about bioethical issues. But it has also certain shortcomings. International law, for example, builds on certain premises and structures that might make it ill-suited for resolving bioethical issues. Its structural requirement to strive for mainly consensual agreements among states, for example, often shapes the outcome legal discourse takes in that it regularly results in the adoption of minimum standards, i.e. standards that are based on the lowest common denominator among states. Another frequent consequence is that international legal provisions employ broad and sweeping language or concepts that can disguise states’ actual dissent on the issues concerned by leaving it to each single state to interpret this language or concept in the way it sees fit. Together these factors can for example result in a significant dilution of international and consequently national standards in the area of bioethics.
The thesis does not aim to abrogate legal approaches to bioethics. Rather it reflects on some of the implications that follow from such an approach. As a result it hopes to close a gap in the literature on bioethics and international law that so far has hardly addressed the suitability of legal language in the resolution of bioethical problems.
| Projektkategorie: | Dissertation |
| Projektstatus: | Abgeschlossen |
Doktorandin
Miriam Clados