On November 6, 2003, after two years of debate and no substantive action, the United Nations voted to suspend until late 2005 any further consideration of a French-German proposal for an international treaty to ban human cloning.

The vote in the Legal (Sixth) Committee of the UN General Assembly was very close: 80 countries voted for the suspension, 79 wished to continue negotiations, 15 formally abstained, and 17 were not present.

What happened, and why? What are the implications for global governance of the new human genetic technologies? What is likely to happen next, and what can be done?

The Original Proposal

France and Germany initiated the cloning treaty process in September 2001. They limited their proposed ban to reproductive cloning because they recognized that a broader proposal - in particular, one that also banned research cloning - would not be able to attain the effective consensus required to successfully conclude a treaty within the UN structure. They believed that a treaty banning reproductive cloning would be a critically important contribution in itself, and would establish a precedent and structure for addressing more difficult human genetics topics later.

The proposed French-German treaty would not have prevented any countries from regulating research cloning as they saw fit. In fact, France and Germany themselves had prohibited it.

Some UN members, notably the United States and Spain (along with the Vatican, which has observer status at the UN) favored a treaty banning all human cloning. But supporters of the French-German proposal thought that these states would see the strategic advantage of first achieving a victory where a broad consensus was already in place, and hoped that the United States, while voicing its opposition to the treaty, might refrain from actively blocking it.

Opposition

These hopes proved to be misplaced. By early 2002 the United States had come out strongly against the French-German proposal, and was lobbying other UN delegations to oppose it as well. Further, a larger than anticipated number of other countries also felt that research cloning should be banned and that the treaty should address this. These included countries in Europe (Norway, Spain, Italy), South America (Venezuela, Bolivia, Chile), Africa (Uganda, Ethiopia, Nigeria), the Pacific (Australia, Fiji, Micronesia) and elsewhere.

By fall 2002, about 40 countries had indicated their support for treaty language that would include bans on research cloning-enough to block the needed consensus. The UN extended its discussions for another year to explore alternatives.

A Way Forward?

Discussions in search of an alternative shifted significantly when the German Bundestag voted early in 2003 to instruct its UN delegation to change its position on the cloning treaty. Germany has the strictest embryo research prohibitions in the world (a policy born of experience with the eugenic and genocidal policies of the Third Reich), and members of the Bundestag - particularly those from the Greens and Christian Democrats, but also including many Social Democrats - were unhappy that the government was advocating a treaty that appeared to sanction, at least indirectly, research cloning. Greens and others in the Bundestag argued that Germany, France, and the rest of Europe should in effect join forces with the United States and the Catholic countries, since as a matter of domestic policy they were all opposed to research cloning.

There were also indications that the Islamic countries (which seek to vote as a bloc), the majority of African countries, and a fair number of Asian countries were also inclined to support a complete cloning ban. But even this considerable coalition did not represent an effective consensus, in part because those uncomfortable with a complete ban included significant countries such as the UK, China, Singapore and Sweden. Thus a new fissure developed between those countries that supported a complete ban but were willing to include some language allowing countries like these four to sign, and countries like the US that were not willing to do so.

Throughout 2003 possible compromise proposals were discussed. These included proposals for treaty language that would:

• commit the UN to begin negotiations on research cloning after the treaty banning reproductive cloning had been successfully concluded;
  
  
• conduct separate but simultaneous negotiations on treaties banning reproductive cloning and research cloning;
  
  
• ban research cloning in general but allow countries that had begun research cloning prior to signing the treaty to continue to do so;
  
  
• allow research cloning only after countries had established effective regulatory structures.

These and other proposals were either too permissive for countries that objected to research cloning, or too restrictive for those that favored it, or both at once. No consensus was achieved.

By September 2003 it appeared that a majority of countries favored a treaty that included bans on research cloning. At the same time, however, sentiments were beginning to polarize. Whereas the original French-German proposal was silent regarding research cloning, Belgium and other active supporters of research cloning now proposed treaty language that would explicitly affirm it, and some reportedly announced their intention to boycott any treaty negotiations designed to curtail it. And for the first time, the international scientific community began lobbying in support of research cloning as an issue of scientific freedom.

Deciding to Postpone

The question before the UN as it approached its November 2003 decision deadline was whether to initiate formal treaty negotiations with a mandate that included bans on research cloning, despite the lack of consensus, or to postpone further discussion until some later date.

Those who favored postponement were of several sorts. They included countries like the UK and Singapore that supported research cloning and did not want to risk initiating a treaty that might prohibit it. Many were countries like Germany and France that opposed research cloning, but recognized that a negotiating process fraught with acrimony and division, in which the very purpose of the negotiations would become the first and primary point of conflict, could hinder rather than encourage meaningful progress. And many were countries that had not made up their minds about research cloning, and did not want to have to do so under contentious conditions.

Those who opposed postponement saw things differently. They knew they had the votes to initiate a treaty negotiation process that included bans on research cloning in its mandate. They acknowledged that their majority was not as strong as they would prefer, but believed that once serious negotiations began more countries would come over to their position. They argued that urgent action was needed because scientists were rushing to begin research cloning before the UN acted. And they believed that they were right in a very fundamental sense and wanted to send a message that would help spark worldwide concern, regardless of whether or not the treaty negotiations themselves were successful in the short run.

Civil Society Involvement

Most UN treaty negotiations engage the attentions of large networks of civil society constituencies concerned about the issues at hand. This was not the case with the cloning treaty. The only major constituency to play an active, ongoing role lobbying delegates was the international network of religious organizations associated with "pro-life" issues.

The world scientific community did not become active until late in the second year of treaty discussions, when they released a statement endorsed by academies of science of 66 countries supporting the Belgian proposal that would ban reproductive cloning as a matter of international policy but declare that research cloning would remain a matter of domestic policy.

Social and economic justice organizations based in the United States organized a series of briefings for UN delegates. These organizations held mixed views on the question of research cloning but supported the French-German proposal as a necessary policy at this time and a useful first step. But many activist NGO's, especially outside the United States, tended to feel more strongly that a full ban on human cloning should be called for. These differences made it difficult to present a clear message to delegates and the media.

The Vote

On November 6, the UN General Assembly's Sixth Committee voted on a motion by the current Chair of the group of Islamic countries, Iran, to suspend further discussion of the cloning treaty until late 2005. Approval required a majority of those present and voting; the motion passed by a single vote, as noted above.

If a single additional delegation had voted to continue discussion, Iran's motion to postpone would have failed. In that event delegates would have voted immediately on a prior resolution, offered by Costa Rica, that would mandate a negotiating process including bans on research cloning. It was widely assumed in the Sixth Committee that the Costa Rican resolution would have attracted more "yes" votes than "no" votes, with an unknown number of abstentions. Supporters of the Costa Rican proposal believe they would have received over 100 votes; others dispute this.

A display of the votes can be seen here, along with displays of domestic policies on cloning. In summary:

• While most European countries ban research cloning, most of them voted to postpone further consideration of a cloning treaty.
  
  
• By contrast Latin American countries, many of which also have domestic policies banning research cloning, voted strongly to continue the negotiations.
  
  
• As of yet no Islamic countries have adopted domestic policies on cloning, and all voted as a bloc to postpone further discussion at the UN (except for Uganda, Nigeria and Sierra Leone).
  
  
• The five Central Asian Republics acted as their own bloc in support of the US position.
  
  
• No obvious patterns apply to countries in the Asia/Pacific region, except that those voting to continue negotiations were, with few exceptions (Australia, Nepal), small island nations with traditionally strong ties to the US (Micronesia, Nauru, Palau, Tuvalu, Vanuatu). All the major Asian countries (China, India, Japan, South Korea, Indonesia, Malaysia) joined Europe in voting for postponement.
  
  
• The African countries were about evenly divided on whether or not to postpone negotiations. Thirteen had earlier declared their support for a treaty that prohibited research cloning.

What Next?

At this point, it's clear that there is little likelihood of a cloning treaty of the sort originally proposed by France and Germany (ban reproductive cloning only), or of the sort they subsequently proposed (ban reproductive cloning, and address research cloning in some manner that would gain consensus).

Because the vote at the Sixth Committee was so close, there is some possibility that cloning treaty negotiations as proposed by Costa Rica, the United States and others (ban all cloning) could be launched before the end of the current session. This could happen if the UN General Assembly decides to consider and vote on the Sixth Committee's report rather than to simply accept it.

UN observers sympathetic to the desire for strong controls on cloning, but opposed to the US/Costa Rican strategy, point out that a treaty negotiated under such divisive conditions would be as ineffective as, say, a ban on nuclear arms not supported by the nuclear powers.

A cloning treaty that a preponderance of countries around the world could easily embrace is thus unlikely; the disagreements over fundamentals are too great. What is to be done?

One option is for the UN, or some other international organization or set of organizations, to work at this time to facilitate national and regional policies on these issues, rather than to seek a global consensus. Some observers have suggested that a "human genetics policy initiative" be established to inventory existing national policies, prepare model policies that represent a range of political orientations, and provide technical and other assistance to all countries that want to establish laws and regulations on these topics. Another option is for a set of countries concerned about the current stalemate to prepare model laws on human genetic technologies outside the UN structure.

In either scenario, alternative types of model laws could be drafted. One type might be appropriate for countries that want to ban all forms of human cloning and genetic modification, and another type for countries interested in exploring research cloning, albeit under tight and responsible safeguards. Countries could adopt the type of model law that best suits their respective ethical and scientific background. Assuming that many provisions of such laws would nonetheless be shared, on balance responsible societal control over these technologies would be enhanced.

Another possibility is that regional intergovernmental bodies in Latin America, Africa, Asia and elsewhere might facilitate policy agreement in their regions, as the Council of Europe did when it prepared the 1997 Convention on Biomedicine and Human Rights.

Any of these ad hoc policy initiatives would require significant encouragement from civil society constituencies in order to move forward successfully. The economic and cultural power of the world biotech and bioscience community is formidable, and the corporations and scientific organizations involved in biotechnology are usually intolerant of laws that they believe could restrict their professional autonomy or commercial prospects.

None of these efforts will be easy but the stakes are enormous. Disagreements over the proper use of the new human genetic technologies must be resolved in contexts of mutual respect, or risk becoming new justifications for national, international, or even civilizational conflict.