Hofferberth (2015: 616) is critical of the assumption that “global problems are tractable and solutions feasible if actors will only come and work together to solve them”. As shown above, some members of the IBC and IGBC believed that the reason why they failed to reach consensus during the first 4 years of debate on human cloning (2008–2011) was the inherently irresolvable nature of the problem itself. But other controversial areas, such as business and human rights, have not proved immune to recent efforts towards policy and norm convergence (Ruggie, 2014: 6). Another possible explanation for the failure, then, is that the legal and organizational structures directing the deliberation did not lend themselves to consensual decision-making. In the early 2000s the UN General Assembly had found that the old model of state-based treaty negotiation did not work for human cloning, when it failed to agree on a convention and chose a non-binding declaration instead. UNESCO’s experience was similar, although it was not negotiations on treaty content that failed, but the preceding stage of deciding whether or not to attempt to draft a treaty. In raising the possibility of a convention in 2008, UNESCO was going against the emerging trend within global governance towards voluntary rather than binding regulation, combined with capacity building. Germany, for example, which was one of the states that originally espoused the idea of a human cloning convention at the UN in 2001, now looks for other, less rigid means by which the goals of a proposed treaty can be reached (Pauwelyn et al., 2014: 739). Within UNESCO, as in other intergovernmental organizations, it is states that make the final decisions, so even if in 2011 the IBC (made up of independent experts) had continued to insist on the desirability of a convention, it would only have had the power to recommend to member states that they take the idea forward.

Pauwelyn et al. (2014: 734) advocate “thick stakeholder consensus” over the “thin state consent” that is the hallmark of the old hierarchical approach to governance. As a treaty could be based on back-room deals between undemocratic states and yet be recognized as international law, they argue that formality is no guarantee of legitimacy, if the latter is assessed in terms of inclusiveness and effectiveness rather than tradition. Rather, the process by which agreement is reached is crucial, as well as the outcome. Careful, open and expert deliberation can lead to high quality outputs, which may or may not be legally binding (Pauwelyn et al., 2014: 748–749). One way to achieve both process and output would be to loosen UNESCO’s understanding of “consensus”. By sticking to a rigid definition of consensus at its 2011 meeting, the IBC effectively gave each member a veto. Pauwelyn et al. (2014: 754–755) contrast this type of arrangement with the “standards world” (that is, the International Organization for Standardization and the International Electrotechnical Commission), which sits outside the intergovernmental system. Here, where governance is seen to be nimbler and more flexible than in traditional governance settings, “consensus” means that “the views of all parties concerned must be taken into any account and an attempt must be made to reconcile conflicting arguments”, so that general agreement can be reached. This level of consensus might be a more realistic target for the IBC and IGBC, enabling them to move forward.

One problem the Bioethics Programme has faced consistently is lack of time for in-depth discussion. At the IBC meeting in May–June 2011, for instance, the public session devoted to cloning lasted little more than an hour (although the committee later continued its discussions in a private meeting). This was not unusual. At the IGBC’s September 2013 meeting (Eighth Session), which reviewed 20 years of the Bioethics Programme, one delegate stated that their government would stop funding their attendance at such meetings unless more time were given to dialogue and papers were sent out early enough for delegates to consult with the relevant ministries on what position they should take (personal observations, Eighteenth Session of the IBC, May–June 2011 and Eighth Session of the IGBC, September 20134). The Bioethics Programme has already started to implement such changes. More time was allocated to each discussion topic at the IBC and joint IBC–IGBC meetings of September 2014 than at previous sessions, an online forum for past and present IBC members has been established and concept notes to invite written comments from the IGBC on the IBC’s work ahead of meetings have been introduced (UNESCO, 2015d: 2 and 17).

If deliberations were to emulate recent innovations in other intergovernmental fora, they might be improved further. After its disappointing Copenhagen round in 2009, the Conference of the Parties to the United Nations Framework Convention on Climate Change has moved from formal treaty negotiations that encouraged bargaining and confrontation to workshops and roundtables designed to foster knowledge exchange. This has resulted in “positive competitive dynamics” among states wishing to be leaders in the field of climate change mitigation (Rietig, 2014: 372–374). Other stakeholders have also been given a stronger voice; the Paris conference of 2015 made space for NGOs, businesses and cities to share best practices. Furthermore, the Paris Agreement of December 2015 takes a bottom-up approach, in that it is based on Intended Nationally Determined Contributions (pledged targets and actions) by individual states (Busby, 2016: 3, 4 and 7). Similarly, after the UN failed to adopt both a code of conduct and a set of norms on business and human rights after several years of trying, it piloted a different standard-setting method. Based on a series of site visits to firms and communities, extensive research and testing of key proposals through feasibility studies, pilot grievance mechanisms and scenario-based exercises, as well as multistakeholder consultations, the Guiding Principles on Business and Human Rights were endorsed by the Human Rights Council in 2011 and have since been adopted by several other bodies, including business associations. Ruggie (2014: 5–6 and 10), who directed the consultation process, claims that producing the guiding principles through this “polycentric governance” enabled them to achieve the “thick” consensus advocated by Pauwelyn et al.

Ruggie (2014: 10) argues that conceptual arguments must be supported by experiential ones if they are to persuade people of the need for change. The cloning debate is necessarily conceptual, as while questions over safety prevail there is no way to experience cloning to see whether fears (about autonomy and individuality, for example) are founded or unfounded. The closest proxies are animal cloning and twin studies. Yet sharing of national regulations and policies on cloning via workshops and roundtables and scenario-based exercises involving potential stakeholders would be feasible. Similar exercises (collating examples of legal frameworks, best practices and case studies) were suggested by the IGBC in their response to the IBC’s 2015 draft report on the human genome and human rights. Such activities could meet developing countries’ needs for something on which to base national cloning legislation, identified by all three IBC Working Groups (2008–2009, 2010–2011 and 2014–2015), by alternative means to a binding international convention, the latest recommendations of the IBC on this (and the IGBC’s endorsement of them) notwithstanding. Continuing to develop the Bioethics Programme’s deliberative format, away from short, formal discussions within committees towards more in-depth information exchange between a broader range of stakeholders, bottom-up pledges of action and development of best practice through feasibility studies, may not result in a decision to begin negotiating a treaty (or even a softer declaration), but could lead to a set of resources and commitments that might prove equally effective in promoting ethical behaviour on the part of states and other actors. An added benefit would be that this type of less legalistic, more flexible deliberative output could be more easily adapted and developed to take account of future scientific advances (Pauwelyn et al., 2014: 742–743). Even if UNESCO were to decide to follow the IBC’s 2015 recommendation to pursue the elaboration a further international legal instrument on human cloning, adopting these measures could result in a qualitatively stronger instrument than the Universal Declaration of Bioethics and Human Rights, for example, as there would be less interest-based bargaining and more buy-in from stakeholders.