Sjors Ligthart (Tilburg University and postdoc at Utrecht University) and Christoph Bublitz (University of Hamburg) have submitted the following guest post: Are New Human Rights Needed for Neurotechnologies? A Comment to the Recent Report by the NeuroRights Foundation:
Does the protection of persons against threats by neurotechnologies require novel human rights? This question is currently debated among neuroscientists, ethicists, and lawyers, and reached international organizations including UNESCO and the Council of Europe. One of the most visible actors in the field is the NeuroRights Foundation. Its mission is to “incorporate five specific Neuro-Rights (…) into international human rights law, national legal and regulatory frameworks, and ethical guidelines.” It recently published a fifty-page analysis about alleged gaps in the human rights system, titled International Human Rights Protection Gaps in the Age of Neurotechnology (the “report”). Its central finding: “Our report ultimately concludes that the existing body of international human rights treaties, general comments, and jurisprudence is ill-equipped to protect neurorights” (p5). On this basis, it makes several recommendations to international stakeholders and the United Nations about reforming the law.
We much appreciate these endeavors to reflect on potential negative impacts of novel technologies on individuals and society. This is important and timely work. Nonetheless, we wish to draw attention to some critical points to the main conclusion of the report. The suggestion of gaps and insufficiency of existing human rights is receiving media attention, and the report is explicitly written as policy advice for international stakeholders. It therefore deserves scrutiny. And as many in this highly interdisciplinary field are not trained in law, we would like to share our legal perspective on the matter. In short, we will argue that the idea of gaps is largely unfounded or at least premature. Without some critical appraisal, it could misdirect scholarly efforts and institutional resources and divert attention from the actual concerns that deserve our careful consideration, which are also mentioned in the report.
This post only addresses the central finding: the alleged gaps in the law. We raise four methodological and two exemplary substantive concerns to the analysis and its conclusion that, in another formulation, “existing international human rights treaties, in their current forms, cannot provide the robust and comprehensive human rights protection that a neurotechnological world requires” (p13). In our understanding, this means that current international human rights law does not have norms that apply to possible neurotechnological interferences; that such interferences are not within the protective scope of human rights. This is what gaps in the law usually mean. As we argue below, this claim is not persuasive.
The first point concerns the scope of the report. It is restricted to a set of human rights instruments of the United Nations, leaving out parallel regional instruments that are important for the protection of human rights as well, such as the American and the European Conventions on Human Rights. They are the instruments where most of the legal action takes place, where rights are applied and developed by courts. While every investigation is free to set its scope, we wish to note that a firm diagnosis of gaps in human rights protection would require a comprehensive approach that exposes possible and implausible ways for the evolutionary interpretation of existing rights in relation to novel developments. It is not a coincidence that standard commentaries on specific human rights systems cross-refer to similar rights guaranteed by parallel treaties and covenants.
Secondly, the report considers only a little part of the secondary literature. The debate about the implications of neuroscience for the law spans over two decades. Many peer-reviewed publications have analyzed them, sometimes in great detail, at many levels: from moral rights over domestic constitutions to human rights law (e.g. Boire 2002; Sententia 2004; Bublitz & Merkel 2014; Shen 2013; Lavazza 2018; Farahany 2019; McCarthy-jones 2019; Michalowski 2020; Ligthart et al. 2021; López-Silva & Valera 2022). Although we understand that a selection must be made, we wish to note that much of the existing literature pertains to the rights and threats that the report addresses. However, the report only cites a few scholarly articles without further explanation. It is in this context important to acknowledge that, ultimately, cases will not be decided by human rights alone, but always in conjunction with domestic law. Not considering the second part when a lot of relevant work has been done there, provides an unbalanced perspective on the state of the law. As such, the state of the debate with respect to fundamental rights is ahead of the report. Accordingly, already on formal grounds, the conclusion that “international human rights law is ill-equipped” cannot be sustained.
The third point concerns the methodology of the analysis. The main strategy is testing neurorights against existing treaties. The analysis goes through treaties and screens whether they contain rights related to the neurorights proposed by the foundation. But this strategy begs the question against anyone who may not endorse neurorights. The identification of gaps is premised on the assumption that specific neurorights ought to be protected. But that remains unargued for, while there have been several recent critiques towards the recognition of neurorights, often from legal scholars (e.g. Zúñiga-Fajuri et al. 2021; Bublitz 2022a).
This allows a comment on the second finding of the report: the contention that the “neurorights framework is a growing source of consensus for characterizing potential misuse and abuse of neurotechnology (p7).” We are not entirely sure what this means but wish to register our dissenting opinion, as the neurorights framework seems not the right solution for the ethical and legal concerns neurotechnologies raise regarding fundamental rights (Bublitz 2022b). In our view, the actual question is whether existing human rights fail to adequately address a concrete scenario in which neurotechnologies are used against holders of human rights. Examples of such cases cannot be found in the report.
This leads to the fourth methodological point, concerning the criteria for identifying gaps. The report contains several statements that seem to be taken as evidence for gaps (often highlighted in bold), such as: “Currently, none of the ICCPR’s articles, general comments, or associated jurisprudence mention neurotechnology” (p17, 38, 45, 47). These observations are true. But the fact that a court or comment has not explicitly addressed an issue neither indicates that the law is unable to address it, nor the existence of gaps. This does not follow. On the contrary, it results from the fact that no such cases have yet come before courts, which is not all too surprising regarding technologies that are not even on the market yet. The same is true for general comments, which are brief explanations on the main elements of a right and not comprehensive statements including all possible forms of interferences – even not yet existing ones. As such, the analysis does not convincingly show gaps in the law. Doing so would require that courts or commentators are unable to address a neuro-related case for lack of applicable norms. The report is free from any such example, while various legal scholars have argued for the opposite (e.g. Michalowski 2020; Ligthart 2022). Let us now turn to two substantive points.
One of the supposed gaps concerns identity. According to the report, this is the “worst protected” neuroright (p7). Identity is an ambiguous term, here we understand it to mean personality, the central traits of a person. Is it not protected by human rights law? That is hard to believe as the personality of a person seems to be among the core objects of the classic first-generation rights. It begins with Article 22 UDHR, securing the conditions for “dignity and the free development of his personality.” In Article 1 of the Oviedo Convention, identity is protected alongside dignity, the meta-principle of human rights law: “respect the dignity and identity of all human beings”. The European Court of Human Rights writes that private life “embrace[s] multiple aspects of the person’s physical and social identity” (at 95). The report did not look into these instruments, but the idea can also be found in the ICCPR. According to a standard commentary, the right to privacy pursuant to Article 17 ICCPR means respect for the physical, spiritual, legal existence of the person and “respect for her peculiar, individual nature, appearance, honor and reputation” (Nowak 2005, p378). As a different influential commentary observes: “another logical grouping of rights turns on the individual’s identity and autonomy (…) safeguarded through the status-based protection of the non-discrimination provisions (…) and by the Article 17 right against interference with privacy” (Taylor 2021, p4). International human rights law protects identity in many forms and through many norms.
Another supposedly ill-protected neuroright is mental privacy. International human rights law does, however, cover a right to privacy, as the report correctly notes. As a general rule of interpretation, generic concepts entail more concrete instantiations. Just as a right to use the kitchen entails the right to use the oven and sink, the right to privacy entails mental privacy, and many other forms, from DNA over emails to the bedroom. The report manages to write three pages on the right to privacy without addressing this point (p23-26). A legal analysis, however, requires this to be taken into account.
These two examples may suffice to show that the report’s analysis as it stands is not sufficiently thorough and the concerns it raises require further research. Especially with an eye to policymaking, we should be careful declaring human rights insufficient before we have comprehensively studied the matter.
In sum, the report raises valuable concerns and awareness. It shows the significance of research on human rights protection in light of neurotechnology. However, for conclusions about gaps, it is still too early. The better characterization of the state of the law is that as of yet, cases involving neurotechnologies did not come before human rights courts. When reasonably construed, the scopes of many established rights cover potential neurotechnological interventions, especially the rights to privacy, bodily and mental integrity, security of the person, freedom of thought, freedom of expression, and human dignity. In general, the present human rights framework seems well-positioned to address challenges from neurotechnologies. What needs to be done – and here we agree with the report – is to reasonably interpret these rights and adapt them to novel conditions. This is the daily business of the law. But it presupposes an adequate understanding of rights. Legal scholarship and international organizations can contribute to this by suggesting constructions and standards, and by initiating fora for debates about the many open value and policy questions that need to be addressed in pluralistic and democratic ways, before more fine-grained regulations can be made.
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