Dr. Jan Christoph Bublitz's (Universität Hamburg) has published a blog post regarding the UNESCO report on neuroethics. Here is the blog post:
The International Bioethics Committee (IBC) of UNESCO just published a Report on the Ethical Issues of Neurotechnology that merits the attention of the neuroethics and neurolaw communities, not least because it may serve as the basis for a subsequent UNESCO instrument. This blog post provides a brief overview of the report and a critical comment on one aspect, namely the promotion of so called neurorights. Instead of adopting them, a future UNESCO instrument should reaffirm and strengthen existing human rights.
Established in 1993 to promote reflection on ethical and legal issues in the life sciences, the IBC is composed of 36 independent scientific experts, renowned scholars from various fields and countries who act in their personal capacity and are appointed for a fixed term. The IBC is the driving force behind the UNESCO Bioethics Program and is complemented by the Intergovernmental Bioethics Committee (IGBC) which is composed of representatives of member states. Although recommendations by UNESCO or its committees are not binding, they are relevant soft-law material that is, and should be, taken into consideration by member states, policy makers, regulators, ethics committees and review boards. Non-binding soft law can be effective in a variety of ways at many levels.
The IBC report on neurotechnology is neither a work of philosophy, nor a contribution to an academic debate; most issues and proposed solutions will not surprise people working in neuroethics. However, they are not the target audience of such documents. They are primarily directed at UNESCO and its member states, and secondarily at other stakeholders; this report directly addresses industry, media, the public, and researchers.
The report is well-informed about technological developments and ethical discussions. In substance, it commendably addresses many worries of neurotechnologies infringing upon human rights in sometimes novel and intense ways by either intervening into brains or reading out brain activity (or by methods combining both). These unparalleled powers over the human brain and the human person might be exploited by governments and private actors for various illegitimate purposes. More concretely, the report discusses topics diverse as threats to personal identity through deep brain stimulation, blending of Artificial Intelligence with neurotech, care for vulnerable groups and developing brains of children, enhancement, public engagement, public-private partnerships and open science. While documents of this kind typically remain at a general level, the report makes a few concrete normative recommendations. For instance, it suggests treating brain data as a type of sensitive data in data-protection regulations such as the EU General Data Protection Regulation (at 103). It further holds that brain data “must never been used for surveillance or profiling without informed consent” or for “potential discrimination based on cognitive or other mental features” (at 188b).
In addition to usual suspects of medical ethics, the report also addresses a few topics not yet in the focus of neuroethics. For instance, it formulates a right “not to be socially bombarded by neurotechnology in order to promote a supposed human improvement” (at 191f). It also identifies a right “to refuse the use of neurotechnologies and not be excluded or devalued for doing so” (at 191d). Alternatives to neurotechnologies with the same effectiveness should be sought (at 191e). These are interesting suggestions about a life free form neurotechnologies, and surely merits neuroethical discussion. Moreover, it might also be worthwhile to examine which aspects are left out of the report; one area that seems underexplored is the use of neurotechnologies for forensic and law enforcement purposes (lie detection, Guilty Knowledge Test); another is the voluntary use of older neurotechnologies such as mind-altering pharmaceuticals (e.g., with respect to the “psychedelic renaissance”).
Importantly, the report envisions that UNESCO draws up an additional soft law instrument, a “UNESCO Convention on the Human Brain and Human Rights” (at 167). Such a convention would notably be a binding international treaty upon ratification (elsewhere, the report speaks about a non-binding and supposedly politically more realistic declaration). It is now up to the IGBC to review the recommendations and up to UNESCO to initiate further actions.
The impetus to create a novel international document is to be appreciated. But before work on it commences, one should pause and consider what this instrument might be about. For instance, one may wonder how it goes beyond the UNESCO Declaration on Bioethics and Human Rights (2005), which already addresses a range of concerns from human dignity to justice. One may also wonder whether it should also more aspirational goals such as combatting climate change or ending the (alleged) discrimination of “neurodiverse” populations? Issues as the latter are intriguing but would require more profound normative analysis. Also, xould transcultural perspective on the human brain and human existence provide a less reductionistic and more holistic document focusing on human subjectivity, interpersonal relations and socio-economic effects on the brain? And how does the new instrument relate to existing and established human rights? It this latter point that I wish to comment on.
Criticism of neurorights
In the beginning, the report asks whether questions raised by neuroscience “are so important and so novel that we need a new set of neuro-specific human rights … or whether those rights challenged by neurotechnology are already enshrined in existing human rights, but need more explicit protection through precisely worded guarantees” (at 17). This question about the need for novel human rights has recently gained attention of international organizations and scholars. The report does not provide an unequivocal answer. It “considers that neurorights embrace certain human rights that are already recognized” (at 185). At the same time, it recommends that UNESCO not only explores and adapts existing rights, but also “the proclamation of new human rights” along with comprehensive gloval efforts to clarify their substance (at 186). It further “encourages Member States to guarantee neurorights. Granting neurorights a positive status will empower citizens to claim respect for these rights” (at 190). These remarks seem to imply that neurorights are not guaranteed at the moment, that their content exceeds existing rights and that additional legal guarantees are required. This stance is exemplified by the report’s discussion of the suggested novel right to cognitive liberty, which is described as not identical to the existing right to freedom of thought (IV.4).
While the call for adapting existing rights to novel challenges is laudable, the call for novel rights is unfortunate and the suggested class of neurorights misleading. The IGBC and drafters of a future instruments should not pursue them and strengthen existing rights instead; properly constructed, they suffice to address the dangers of neurotechnologies. (To not do injustice to the important work of the IBC, it should be emphasized that the report also recommends strengthening existing rights and that its endorsement of neurorights is ambivalent; the final report is less outspoken than a previous draft report or media statements on UNESCO’s website. The following is thus not a criticism of the report, only of the recommendation of neurorights that it puts to discussion).
The term “neurorights” is unfamiliar in international law. The IBC report is the first document by an international organization that refers to it, this makes this comment necessary. A recent report authored by Marcello Ienca and commissioned by the Bioethics Committee of the Council of Europe provides the best overview of the concept so far. It denotes a loosely defined set of rights ranging from the preservation of personal identity over mental privacy and data protection to freedom from biases. Their adoption is most visibly advocated by a NeuroRights Initiative that lobbies for a list of five specific rights in several countries and before international organizations. The report of the IBC is influenced by their suggestions at several places. These activist interventions are without doubt important contributions from civil society to the development of human rights law and express valid concerns of scientists about societal concerns arising from their field. The problem is just that these suggestions are not good legal advice and should not be mistaken for such by international organizations, policy makers, or regulators. Here are five problems with neurorights:
The first problem is that the class as well as the individual rights are at best vaguely defined and that the need for their recognition is anything but obvious. After reading the reports by the IBC and others, one still wonders whether there is any case outside the domain of science fiction that established first generation rights fail to address. To name just the most important rights and principles that protect persons from neurotechnological interventions into their brains or unwanted measurements of their brain activity: the rights to physical and mental integrity (sometimes part of the right to the security of the person); the right to freedom of thought and conscience; the right to privacy (which implies mental privacy); the value of human dignity and the principle of autonomy. These are well established rights in international and regional instruments. The report notes their existence and calls for effective guarantees of them. Their shortcomings, however, have not been shown but seems to be assumed.
Moreover, even if current law fails to adequately address challenges of neurotechnologies (which it likely does), the preferable approach is to further develop and reinterpret existing rights rather than conjuring up novel ones. For instance, the mentioned right to freedom of thought has not yet found firm contours; it is not addressed by more than a handful of cases on the international level. It suggests itself to examine and develop it further to see whether it can accommodate issues which the idea of cognitive liberty encompasses.
The second problem with the call for novel neurorights is that implies that existing rights are unfit to adequately address neurotechnological challenges, supposedly because their scopes are too narrow or their strength too limited. As such assessments may diminish and weaken existing rights, they should be made with caution, especially if forwarded by an international standard-setting organization with soft law powers. Diminutive interpretations by such actors can have shaping effects weakening these rights. This should not be done without need and substantial argument. Rather than declaring them as insufficient, impotent, or inapplicable, existing rights should be strengthened and their importance reaffirmed.
A third topic is well-familiar in human rights law: Rights inflationism, the creation of more and more human rights, may lead to the devaluing of existing rights. Roughly, the fewer human rights are recognized, the more significant they are, and the higher the chances that legal systems and institutions effectively guarantee, monitor, and enforce them. The rule to not unnecessarily multiply entities also applies to human rights.
Fourth, the class of neurorights might not be a suitable solution to fill existing gaps. Bound to specific technologies, they pose problems of consistency. There are neither car-rights nor internet-rights because defining rights at this level of generality is not consistent with the abstract and general nature of human rights. The class of neurorights inserts an alien element into a somewhat coherent system; neurorights are a category mistake.
A final group of concerns is of practical nature. Recommending new entities or a class of rights will direct resources of international organizations, institutions, member states, legal scholars, and policy makers to the examination of these rights. It shifts attention from the interpretation and application of existing rights to the creation of novel ones. This is a misallocation of resources. Future work of UNESCO would be most effective if it promotes and shapes existing rights, e.g., by clarifying their scope and philosophical underpinnings, by making them operationalizable and rendering them more concrete with respect to specific threats, or by developing good policy proposals that reasonably balance human rights with public and private interests. Also, the term “neurorights” has been visibly taken up by a group of scholars promoting their own specific conception. Their proposal faces severe objections (three examples: 1,2,3). Rather than relying on a specific and contested proposal, work on a future instrument should be open to a wide variety of voices and diverse inputs. Finally, with respect to legitimacy, adopting novel human rights is a different ballgame than further developing existing rights by means of evolutive interpretation in light of changing socio-technological circumstances. A binding convention including novel rights is politically not feasible, and probably, a declaration is neither.
For these reasons, the concept of neurorights should be dropped. Again, this does not entail that human rights, as currently understood, adequately address neurotechnological challenges. But they should be further developed rather than diminished, and future UNESCO work should be directed towards this end. The worries raised by the IBC are valid, its recommendations deserve appreciation by all stakeholders. Its efforts to place the concerns which ethicists and legal scholars pointed to for many years on the agenda of a primary international human rights institutions are laudable and continue the long-lasting contribution of UNESCO to the development of human rights. A future international document provides a welcome opportunity for the neuroethics and neurolaw communities to advance debates about the scope and limits of existing human rights, to develop innovative and more imaginative ideas and shed light on topics that may have been neglected so far.
Further reading
For a deeper critique of neurorights: Bublitz, Jan Christoph. Novel Neurorights: From Nonsense to Substance. Neuroethics 2022 (15:1).
More generally about the need for novel human rights because of neuroscience: Ienca, Marcello & Andorno, Roberto. Towards new human rights in the age of neuroscience and neurotechnology. Life Sciences, Society and Policy 13:5, (2017)
Cf. the papers in the topical collection Neurorights and Mental Freedom: Emerging Challenges to Debates on Human Dignity and Neurotechnologies, ed. by Eric García-López; José M. Muñoz and Roberto Andorno.
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