information (UNESCO n.d.). Standard-setting is one of the organization's main con-
stitutional functions. In this regard, the declarations adopted by UNESCO's General
Conference promulgate principles and norms that are intended to inspire the action
of member states in specific fields of activity (UNESCO 2007 ).
The declarations are legal instruments, promulgated in accordance with the
procedure provided for under article IV, paragraph 4, of UNESCO's constitution
(UNESCO 1945 ). It is important to note, however, that UNESCO's declarations
are not legally binding as international law. This is evident from article 38(1) of
the Statute of the International Court of Justice, which defines the scope of inter-
national law to include the following:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. … judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law (ICJ n.d.).
Faunce has argued, however, that 'such declarations can come to be accepted as
representing international customary law if sufficient states implement them with
the sense of being obliged to do so' (Faunce 2005 ), as we noted earlier.
The two declarations that are relevant to this chapter are the Universal
Declaration on the Human Genome and Human Rights, adopted by the General
Conference of UNESCO at its 29th session in 1997, and the Universal Declaration
on Bioethics and Human Rights, adopted by the General Conference at its 33rd
session in October 2005.
The specific articles in these declarations which address the issue of benefit
sharing are outlined below.
3.6.1 Universal Declaration on the Human Genome
and Human Rights
Article 12(a) of the 1997 declaration seems to embrace the idea of sharing benefits
on the basis of common property and distributive justice.
Benefits from advances in biology, genetics and medicine, concerning the human genome,
shall be made available to all, with due regard for the dignity and human rights of each
individual [emphasis added] (UNESCO 1997 ).
This article implies that benefits from advances concerning the human genome
are considered common property and as such should be made available to all. The
additional point that there should be due regard for the dignity and human rights of
each individual brings the notion of distributive justice into play. This means that,
apart from considering all human beings to be beneficiaries of such advances, each
individual's needs ought to be considered in turn on the basis of the principle of