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ABSTRACT
International human rights institutions and scholars are debating whether established human rights suffice to address challenges raised by neurotechnologies which measure or alter brain activity; UNESCO intends developing a novel standard-setting instrument for neurotechnologies. This paper analyses how core human rights pertain to neurotechnologies and might be interpreted in this context. Contrary to claims about gaps in the law, several rights, especially the underexplored rights to mental integrity and freedom of thought, as well as some features of human dignity provide resources to protect persons against reading their minds or tampering with their brains against their will. Proposals for the construction of these rights are submitted. They specify and actualise the multi-layered protection of the person that core human rights provide.
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Notes
1 OECD, ‘Recommendation of the Council on Responsible Innovation in Neurotechnology’, OECD/LEGAL/0457 (2019).
2 International Bioethics Committee of UNESCO, ‘Report On The Ethical Issues Of Neurotechnology’, December 15, 2021. UNESCO Doc. SHS/BIO/IBC-28/2021/3 Rev. See also Marta Sosa Navarro et al., eds., The Risks and Challenges of Neurotechnologies for Human Rights (UNESCO, 2022), https://unesdoc.unesco.org/ark:/48223/pf0000384185.
3 The Interamerican Juridical Committee (ICJ), ‘Declaration On Neuroscience, Neurotechnologies and Human Rights: New Legal Challenges for the Americas’, November 8, 2021. CJI/DEC. 01 (XCIX-O/21).
4 Committee on Bioethics of the Council of Europe, ‘Strategic Action Plan on Human Rights and Technologies in Biomedicine (2020–2025)’, 2019; Marcello Ienca, ‘Common Human Rights Challenges Raised by Different Applications of Neurotechnologies in the Biomedical Field’ (Report for the Committee on Bioethics of the Council of Europe, 2021), https://rm.coe.int/report-final-en/1680a429f3. European Parliament Resolution P9_TA(2022)0140 on Artificial Intelligence in a Digital Age, at 247. See also the remark that consideration should be given to ‘updating and clarifying … human rights frameworks and standards to address frontier issues [such as] neuro-technology’ by the UN Secretary General, Our Common Agenda, 2021, p. 33, at 35.
5 UN Human Rights Council, ‘Neurotechnology and Human Rights. UN Doc. A/HRC/51/L.3’, 2022. See also the preparatory document UN Human Rights Council, ‘UN Doc. A/HRC/AC/28/2’, 2022.
6 International Bioethics Committee of UNESCO, supra note 2 at 186.
7 ibid, at 168.
8 UNESCO Doc. 42 C/30, cf. Jan Christoph Bublitz, ‘What an International Declaration on Neurotechnologies and Human Rights Could Look like: Ideas, Suggestions, Desiderata’, AJOB Neuroscience (November 3, 2023): 1–17, https://doi.org/10.1080/21507740.2023.2270512.
9 The UNESCO report speaks about investments of more than § 33 billion in 2021, Sosa Navarro et al., The Risks and Challenges of Neurotechnologies for Human Rights.
10 The term ‘neurorights’ is unfortunate because it is inconsistent with established categories of rights. An initiative calling for them released a report concluding that ‘the existing body of international human rights treaties, general comments, and jurisprudence is ill-equipped to protect neurorights’. Jared Genser et al., International Human Rights Protection Gaps in the Age of Neurotechnology, 2022, p. 5. The so far best scholarly paper supportive of such rights is Marcello Ienca and Roberto Andorno, ‘Towards New Human Rights in the Age of Neuroscience and Neurotechnology’, Life Sciences, Society and Policy 13, no. 1 (December 2017): 1–27; see also Sara Goering et al., ‘Recommendations for Responsible Development and Application of Neurotechnologies’, Neuroethics 14, no. 3 (December 2021): 365–86, https://doi.org/10.1007/s12152-021-09468-6; Karen S. Rommelfanger, Amanda Pustilnik, and Arleen Salles, ‘Mind the Gap: Lessons Learned from Neurorights’, Science & Diplomacy (2022), https://doi.org/10.1126/scidip.ade6797; Sjors Ligthart et al., ‘Minding Rights: Mapping Ethical and Legal Foundations of “Neurorights”’, Cambridge Quarterly of Healthcare Ethics (2023): 1–21; Karen Herrera-Ferrá et al., ‘Contextual and Cultural Perspectives on Neurorights: Reflections Toward an International Consensus’, AJOB Neuroscience 14, no. 4 (October 2, 2023): 360–68, https://doi.org/10.1080/21507740.2022.2048722. For a critical view on these rights: Jan Christoph Bublitz, ‘Novel Neurorights: From Nonsense to Substance’, Neuroethics 15, no. 1 (April 2022): 7, https://doi.org/10.1007/s12152-022-09481-3; Alejandra Zúñiga-Fajuri et al., ‘Neurorights in Chile: Between Neuroscience and Legal Science’, in Developments in Neuroethics and Bioethics, vol. 4 (Elsevier, 2021), 165–79, https://doi.org/10.1016/bs.dnb.2021.06.001; Diego Borbón and Luisa Borbón, ‘A Critical Perspective on NeuroRights: Comments Regarding Ethics and Law’, Frontiers in Human Neuroscience 15 (October 25, 2021): 703121, https://doi.org/10.3389/fnhum.2021.703121.
11 Two recent contributions in that direction are Timo Istace, ‘Protecting the Mental Realm: What Does Human Rights Law Bring to the Table?’ Netherlands Quarterly of Human Rights 41, no. 4 (2023): 214–34; Marta Sosa Navarro and Salvador Dura-Bernal, ‘Human Rights Systems of Protection from Neurotechnologies that Alter Brain Activity’, Drexel L. Rev. 15 (2023): 893.
12 OECD, Recommendation of the Council on Responsible Innovation in Neurotechnology, 6.
13 Typical methods include deep brain stimulation (DBS), for which electrodes are surgically implanted deep inside the brain, or transcranial direct current stimulation (tCDS) which stimulating the brain from the outside through the cranium.
14 It should be made clear that alterations of the brain are not exclusive to neurointerventions: The brain changes also through ordinary forms of interaction and communication. A scholarly lecture may induce long-lasting alterations of brain connectivity. For an overview: Dresler, Martin, et al. ‘Hacking the Brain: Dimensions of Cognitive Enhancement’, ACS Chemical Neuroscience 10, no. 3 (2018): 1137–148.
15 Andrés Molero-Chamizo et al., ‘Bilateral Prefrontal Cortex Anodal tDCS Effects on Self-Reported Aggressiveness in Imprisoned Violent Offenders’, Neuroscience 397 (January 15, 2019): 31–40, https://doi.org/10.1016/j.neuroscience.2018.11.018; Christoph Bublitz, ‘“The Soul is the Prison of the Body” – Mandatory Moral Enhancement, Punishment & Rights Against Neuro-Rehabilitation’, in Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice, ed. David Birks and Thomas Douglas (Oxford: Oxford University Press, 2018), 289–320. Thomas Douglas, ‘Criminal Rehabilitation through Medical Intervention: Moral Liability and the Right to Bodily Integrity’, The Journal of Ethics 18, no. 2 (2014): 101–22.
16 Owen D Jones et al., ‘Brain Imaging for Legal Thinkers: A Guide for the Perplexed’, Stanford Technology Law Review (2009): 5; Russell A. Poldrack, The New Mind Readers: What Neuroimaging Can and Cannot Reveal about Our Thoughts (Princeton: Princeton University Press, 2018).
17 John-Dylan Haynes et al., ‘Reading Hidden Intentions in the Human Brain’, Current Biology 17, no. 4 (February 2007): 323–28; Nikolas Rose, ‘Reading the Human Brain: How the Mind Became Legible’, Body & Society 22, no. 2 (June 2016): 140–77. But see recent progress Jerry Tang et al., ‘Semantic Reconstruction of Continuous Language from Non-Invasive Brain Recordings’, Nature Neuroscience (2023), 858-866, https://doi.org/10.1101/2022.09.29.509744.
18 Lyn M Gaudet, ‘Brain Fingerprinting, Scientific Evidence, And Daubert: A Cautionary Lesson from India’, Jurimetrics 51 (2011): 293–318.
19 J. Peter Rosenfeld, ‘P300 in Detecting Concealed Information and Deception: A Review’, Psychophysiology 57, no. 7 (2020): e13362, https://doi.org/10.1111/psyp.13362; Linda M. Geven et al., ‘Memory-Based Deception Detection: Extending the Cognitive Signature of Lying from Instructed to Self-Initiated Cheating’, Topics in Cognitive Science (June 15, 2018), https://doi.org/10.1111/tops.12353. Benjamin Clemens et al., ‘Accurate Machine Learning Prediction of Sexual Orientation Based on Brain Morphology and Intrinsic Functional Connectivity’, Cerebral Cortex (September 14, 2022): bhac323, https://doi.org/10.1093/cercor/bhac323; Seo Eun Yang et al., ‘Functional Connectivity Signatures of Political Ideology’, PNAS Nexus 1, no. 3 (July 1, 2022): pgac066, https://doi.org/10.1093/pnasnexus/pgac066; Huanhuan Cai, Jiajia Zhu, and Yongqiang Yu, ‘Robust Prediction of Individual Personality from Brain Functional Connectome’, Social Cognitive and Affective Neuroscience 15, no. 3 (May 19, 2020): 359–69, https://doi.org/10.1093/scan/nsaa044. Bruno Hebling Vieira et al., ‘On the Prediction of Human Intelligence from Neuroimaging: A Systematic Review of Methods and Reporting’, Intelligence 93 (July 1, 2022): 101654, https://doi.org/10.1016/j.intell.2022.101654.
20 Mario Frank et al., ‘Using EEG-Based BCI Devices to Subliminally Probe for Private Information’, in Proceedings of the 2017 on Workshop on Privacy in the Electronic Society (CCS ’17: 2017 ACM SIGSAC Conference on Computer and Communications Security, Dallas Texas USA: ACM, 2017), 133–36, https://doi.org/10.1145/3139550.3139559; S.M. Hadi Hosseini et al., ‘Decoding What One Likes or Dislikes from Single-Trial fNIRS Measurements’, Neuroreport 22, no. 6 (2011): 269–73; A. Gibbings et al., ‘EEG and Behavioural Correlates of Mild Sleep Deprivation and Vigilance’, Clinical Neurophysiology 132, no. 1 (January 1, 2021): 45–55, https://doi.org/10.1016/j.clinph.2020.10.010.
21 Jonathan R. Wolpaw and Elizabeth Winter Wolpaw, eds., Brain-Computer Interfaces: Principles and Practice (Oxford ; New York: Oxford University Press, 2012).
22 Steffen Steinert et al., ‘Doing Things with Thoughts: Brain-Computer Interfaces and Disembodied Agency’, Philosophy & Technology (2018): 457–82.
23 Philipp Kellmeyer et al., ‘The Effects of Closed-Loop Medical Devices on the Autonomy and Accountability of Persons and Systems’, Cambridge Quarterly of Healthcare Ethics 25, no. 04 (October 2016): 623–33.
24 Elliot S. Valenstein, ed., Great and Desperate Cures: The Rise and Decline of Psychosurgery and Other Radical Treatments for Mental Illness (New York: Basic Books, 1986); José Manuel Rodríguez Delgado, Physical Control of the Mind: Toward a Psychocivilized Society (New York: Harper & Row, 1969); Kathleen E. Taylor, Brainwashing: The Science of Thought Control, 2nd ed., (Oxford: Oxford University Press, 2017).
25 It may often be the case that rightholders consent to being subjected to neurotechnologies, so that no negative rights claim arises. This constellation, along with the conditions for consent and possible limits to it (e.g., based on non-waivable dignity considerations) must be left aside here.
26 Art. 17 ICCPR, see Manfred Nowak, U.N. Covenant on Civil and Political Rights: Commentary, 2nd rev. ed. (Kehl: Engel, 2005), 387 (privacy ‘also covers the inviolability of one’s own body’).
27 EU Network of Independent Experts on Fundamental Rights, Commentary of The Charter of Fundamental Rights of The European Union, 2006, 36.
28 ECtHR Y.F. v. Turkey (Application no. 24209/94), 22.10.2003.
29 The ‘respect for private life involves respect for a person’s physical integrity and the taking of a blood and saliva sample constitute a compulsory medical intervention which, even if it is of minor importance, must consequently be considered as an interference’. ECtHR Caruana vs. Malta (Application no. 41079/16), 15.05.2018, at 26.
30 It might of course constitute battery according to domestic positive law.
31 Trivial everyday examples include putting too much sugar in someone's drink or raising the room temperature significantly, causing broader changes in bodily processes. Also note that there will often be gaps with respect to criminal offenses as they frequently presuppose infliction of physical harm. This might not suffice. Jan Christoph Bublitz and Reinhard Merkel, ‘Crimes against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination’, Criminal Law and Philosophy 8, no. 1 (2014): 51–77.
32 Human Rights Committee, ‘General Comment No. 35’, December 16, 2014, para. 3. UN Doc. CCPR/C/GC/35.
33 Overview in Christoph Bublitz, ‘The Nascent Right to Psychological Integrity and Mental Self-Determination’, in The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric, ed. Andreas von Arnauld, Kerstin von der Decken, and Mart Susi (Cambridge University Press, 2020), 387–403. Skeptical: Sabine Michalowski, ‘Critical Reflections on the Need for a Right to Mental Self-Determination’, in The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric, ed. Andreas von Arnauld, Kerstin von der Decken, and Mart Susi (Cambridge University Press, 2020), 404–12.
34 For the controversy around the adoption see Stephen Gorove, ‘The Problem of ‘Mental Harm’ in the Genocide Convention’, Washington University Law Review, no. 2 (1951): 174. Drugs and pharmaceuticals may qualify as neurotechnologies according to the foregoing broad definition as they alter activity of the CNS. As many specific norms apply to them at the national and international level such as the Single Convention on Narcotic Drugs (1961) and the Convention on Psychotropic Substances (1971), they are be excluded in this analysis.
35 IACtHR V.R.P., V.P.C. et al. v. Nicaragua, Judgment of March 8, 2018, at 327, 333, concerning revictimization through judicial proceedings.
36 Hennebel Ludovic and Tigroudja Hélène, The American Convention on Human Rights: A Commentary (Oxford University Press, 2022), 206.
37 IACtHR, Xákmok Kásek Indigenous Community v. Paraguay, Judgment of August 24, 2010, at 243.
38 ECtHR, Bensaid v. UK (Application no. 44599/98), 06.02.2001, at 46: ‘Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity’.
39 Borowsky, in Meyer (ed.), Kommentar zur Charta der Grundrechte der Europäischen Union, 2nd ed. 2006. The draft prepared by the Praesidium explicitly stated that this a general text that ‘can always be adapted to technical progress’, CHARTE 4123/1/00/REV 1, p.4.
40 Harvey Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Oxford: Hart Pub., 2009).
41 A word should be said about the dualistic protection of bodies and minds, mentioned in the commentary on the IACtHR case law and sometimes called into question by ethicists. Put simply, the criticism is that the law is premised on crude metaphysics between mind and brain (or body). But this is a misreading. The law does not need to commit itself to any position on the relationship between the mind and brain (or body); it is well-advised to avoid doing so as it is a largely open scientific and metaphysical question. The law entertains a normative dualism with respect to the effects of interferences; some are currently better described at the bodily level, whereas others are at the mental level. Whether one can be reduced to the other in the future is irrelevant. Even if all mental states were ultimately fully reducible to brain states, phenomena such as pain, sorrow, mental anguish, or cognitive capacities would still exist. They are and will remain the objects of legal regulation, irrespective of how their physical realization. The legally relevant question is whether these categories are meaningful with respect to normative purposes–and this they are.
42 Betsey J. Grey, ‘Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims’, Law and Neuroscience 13 (2011): 203.
43 Christoph Bublitz, ‘Means Matter: On the Legal Relevance of the Distinction between Direct and Indirect Mind-Interventions’, in Neuro-Interventions and the Law: Regulating Human Mental Capacity, ed. Nicole Vincent (New York: Oxford University Press, 2020).
44 Art. 17 ICCPR, Art. 8 ECHR, Art. 11 ACHR.
45 For the ECHR, Jill Marshall, Personal Freedom through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Leiden; Boston: Martinus Nijhoff Publishers, 2009).
46 EU Network of Independent Experts on Fundamental Rights, Commentary of The Charter of Fundamental Rights of The European Union, 79.
47 Human Rights Committee, ‘General Comment No. 16’, April 8, 1988, para. 8. UN Doc. HRI/GEN/1/Rev.9. Brain based lie-detection and related methods such as the Guilty Knowledge Test are already in use in some States. Depending on details of their deployment, they raise several legal questions exceeding the scope of this paper and strongly related to domestic provisions about criminal procedure. But structurally, the approach of drawing inferences about the mind from physiological data is roughly the same. Case law on polygraphs may thus serve as precedent for neuroimaging, underscoring the point that legal systems may often already have resources to address novel challenges.
48 E.g., Art. 8.1 ECFR (Protection of Personal Data – Everyone has the right to the protection of personal data concerning him or her).
49 Neurorights Foundation, Ienca, ‘Common Human Rights Challenges Raised by Different Applications of Neurotechnologies in the Biomedical Field’; Ienca and Andorno, ‘Towards New Human Rights in the Age of Neuroscience and Neurotechnology’.
50 Ienca, ‘Common Human Rights Challenges Raised by Different Applications of Neurotechnologies in the Biomedical Field’.
51 The applicability of the general right to privacy to novel technologies is a staple of reasoning about privacy, see only the recent reports of the Special Rapporteur on the right to privacy, e.g. UN Docs. A/HRC/46/37; A/HRC/40/63.
52 Sjors Ligthart et al., ‘Forensic Brain-Reading and Mental Privacy in European Human Rights Law: Foundations and Challenges’, Neuroethics 14 (2021): 191–203, https://doi.org/10.1007/s12152-020-09438-4.
53 A separate right to mental privacy raises concerns about rights inflationism, seems redundant and may not meet the standards for novel rights. See Philip Alston, ‘Conjuring up New Human Rights: A Proposal for Quality Control’, The American Journal of International Law 78, no. 3 (July 1984): 607.
54 Art. 9.1 of the European Convention on Human Rights (ECHR), Art. 10 of the European Charter of Fundamental Rights and Freedoms (ECFR); Art. 22 of the ASEAN Human Rights Declaration (AHRD). Art. 30.1. Arab Charter on Human Rights. Art. 13 American Convention. The exception is the African Charter of Human Rights, which only covers freedom of conscience and religion (Art. 8).
55 Human Rights Committee, General Comment No. 34, UN Doc. CCPR/C/GC/34, at 9.
56 The importance is underscored by Art. 18 being non-derogable pursuant to Art. 4.2 ICCPR.
57 The only case in which a violation of freedom of thought was found within the ambit of the ICCPR is Kang v. Korea. It concerns a prisoner who was offered release from longterm (and largely solitary) confinement in exchange for renouncing communism. The Committee found a violation of Art. 18.1 and Art. 19.1 ICCPR, in conjunction with Art. 26 ICCPR (non-discrimination on political grounds). Human Rights Committee, Communication No. 878/1999, Views adopted 15 July 2003.
58 The Special Rapporteur on Freedom of Religion or Belief recently submitted the first report on the right in the UN sphere, Special Rapporteur on Freedom of Belief or Religion, ‘Annual Report to the General Assembly on Freedom of Thought. UN Doc. A/76/380’, 2021.
59 From the sparse legal literature, e.g., Loukis Loucaides, ‘The Right to Freedom of Thought as Protected by the European Convention on Human Rights’, Cyprus Human Rights Law Review 1 (2012): 79–87; Patrick O’Callaghan and Bethany Shiner, ‘The Right to Freedom of Thought in the European Convention of Human Rights’, European Journal of Comparative Law and Governance (2021): 1–34; Susie Alegre, ‘Rethinking Freedom of Thought for the 21st Century’, European Human Rights Law Review, no. 3 (2017): 221–33; Christoph Bublitz, ‘Freedom of Thought in the Age of Neuroscience’, Archiv Fuer Rechts- Und Sozialphilosophie (2014): 1–25; Sjors Ligthart et al., ‘Rethinking the Right to Freedom of Thought: A Multidisciplinary Analysis’, Human Rights Law Review 22, no. 4 (December 1, 2022): ngac028, https://doi.org/10.1093/hrlr/ngac028; Nora Hertz, ‘Neurorights–Do We Need New Human Rights? A Reconsideration of the Right to Freedom of Thought’, Neuroethics 16, no. 1 (2023): 5. Some scholars suggest modernized versions of the right by the name of cognitive liberty, e.g., Nita A Farahany, ‘The Costs of Changing Our Minds’, Emory Law Journal 69 (2019): 75–110; Richard G Boire, ‘On Cognitive Liberty’, The Journal of Cognitive Liberties 2, no. 1 (2001): 7–22.
60 Bublitz, ‘Freedom of Thought in the Age of Neuroscience’.
61 It notes in General Comment No. 22: Art 18.1 ICCPR is ‘far-reaching and profound; it encompasses freedom of thought on all matters’ (at 1). Human Rights Committee (1993), CCPR/C/21/Rev.1/Add.4.
62 Christoph Bublitz, 'The mind and conscience are the person’s most sacred possessions' – The origins of freedom of thought in the Universal Declaration and the Covenant on Civil and Political Rights', ed. Patrick O’Callaghan and Bethany Shiner, The Cambridge Handbook of the Right to Freedom of Thought (Cambridge: Cambridge University Press, forthcoming).
63 Quotes are from the verbatim record of the Fourteenth Meeting of the Commission on Human Rights, 4 February 1947, as reproduced in Eleanor Roosevelt et al., The Eleanor Roosevelt Papers: The Human Rights Years, 1945-1948 (Detroit: Thomson Gale, 2007), 506.
64 UN Doc. E/CN.4/SR.60, p.11.
65 UN Doc. E/CN.4/95, p. 30.
66 Bublitz, ‘Freedom of Thought in the Age of Neuroscience’..
67 Human Rights Committee, General Comment No. 22, UN Doc. CCPR/C/21/Rev.1/Add.4, at 2: ‘no one can be compelled to reveal his thoughts or adherence to a religion or belief’.
68 A similar construction is suggested by the Special Rapporteur on Freedom of Religion or Belief in his report Special Rapporteur on Freedom of Belief or Religion, ‘Annual Report to the General Assembly on Freedom of Thought. UN Doc. A/76/380’.
69 ‘[F]orced neurological interventions, indoctrination programmes … or threats of violence designed to compel individuals to form particular opinions or change their opinion violate article 19’; Special Rapporteur on Freedom of Opinion and Expression, Annual Thematic Report to the General Assembly, 2018, UN Doc. A/73/348, at 26. Similar questions were raised with respect to psychosurgery in the 70ies. Although a much cruder (and crueler) method, the general approach of altering the brain to alter mental aspects is structurally similar.
70 Special Rapporteur on Freedom of Belief or Religion, ‘Annual Report to the General Assembly on Freedom of Thought. UN Doc. A/76/380’.
71 Finer tests and definitions need to be developed, also regarding the other freedoms of Articles 18 and 19. For a thorough discussion and more refined tests, see Jan Christoph Bublitz, ‘Freedom of Thought as an International Human Right: Elements of a Theory of a Living Right’, in The Law and Ethics of Freedom of Thought, Volume 1: Neuroscience, Autonomy, and Individual Rights, ed. Marc Jonathan Blitz and Jan Christoph Bublitz (Cham: Springer International Publishing, 2021).
72 Special Rapporteur on Freedom of Belief or Religion, ‘Annual Report to the General Assembly on Freedom of Thought. UN Doc. A/76/380’.
73 See, e.g., the so called ‘Russell Tribunal on Human Rights in Psychiatry’ (https://www.freedom-of-thought.de); Mari Stenlund, ‘Cognitive Liberty of the Person with a Psychotic Disorder’, in The Law and Ethics of Freedom of Thought, Volume 1: Neuroscience, Autonomy, and Individual Rights, ed. Marc Jonathan Blitz and Jan Christoph Bublitz (Cham: Springer International Publishing, 2021), 241–58.
74 For a more thorough argument to this end see Bublitz, ‘Freedom of Thought as an International Human Right: Elements of a Theory of a Living Right’.
75 E.g., Art. 3.1. UNESCO General Conference, ‘Universal Declaration on Bioethics and Human Rights’, 33 C/Resolution 36; adopted 19 October 2005 (2005); Art. 1; Art. 1 ECFR.
76 A GA resolution about standard setting in the field of human rights notes that new instruments should ‘derive from the inherent dignity and worth of the human person’ UN Doc. A/RES/41/120 at 4b.
77 A good broad overview is C. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, European Journal of International Law 19, no. 4 (September 1, 2008): 655–724, https://doi.org/10.1093/ejil/chn043.
78 Ruth Macklin, ‘Dignity Is a Useless Concept’, British Medical Journal 327, no. 7429 (2003): 1419–20.
79 See e.g, George Kateb, Human Dignity (Cambridge, MA: Belknap Press of Harvard University Press, 2011).
80 Arendt surely used this phrase critically of the Rights of Man, pointing to the inconsistency in affirming inalienable rights of everyone but requiring nation states as guarantors; especially when the latter are not bound to recognize everyone as a citizen. This creates displaced persons who, either de facto or de jure, may lack the right to have rights. Hannah Arendt, The Origins of Totalitarianism, New ed. (New York: Harcourt Brace Jovanovich, 1973).
81 The distinction between personhood and capacity was controversial during the drafting of Art. 16 ICCPR, which protects only the former not the latter (Nowak, U.N. Covenant on Civil and Political Rights). It does not demand treating everyone as having legal capacity. But this does not speak against understanding legal capacity as a matter of dignity and States as obliged to protect and promote its factual conditions. The claim is not that dignity demands to accord legal capacity to everyone, but weaker, that dignity protects against depriving people of this status by undercutting factual preconditions. This reading remains uncommitted about current controversies around legal capacity and mental disorders in the context of Art. 12 CRPD. In fact, Art. 12.2 CRPD provides some support for the foregoing argument insofar as it obliges States to ensure proper conditions for the exercise of rights.
82 German Federal Constitutional Court, BVerfGE 115, 118, at 125 (‘Verdinglichung’ – turning into a thing).
83 Martha C. Nussbaum, ‘Objectification’, Philosophy & Public Affairs 24, no. 4 (1995): 257.
84 Nussbaum, ‘Objectification’, 257.
85 Ginger A. Hoffman, ‘Treating Yourself as an Object: Self-Objectification and the Ethical Dimensions of Antidepressant Use’, Neuroethics 6, no. 1 (April 2013): 165–78; Christoph Bublitz, ‘Objectification: Ethical and Epistemic Concern of Neurobiological Approaches to the Mind’, in Psychiatry Reborn: Biopsychosocial Psychiatry in Modern Medicine, ed. Will Davies et al., (Oxford; New York, NY: Oxford University Press, 2020), 325–60.
86 To be clear, neurotechnologies will likely play an important part in addressing such problems, but they should not be the exclusive answer and be complemented by non-objectifying elements.
87 Respect for personality is named in the same breath as dignity in Article 22 UDHR.
88 Frederic Gilbert, ‘Deep Brain Stimulation: Inducing Self-Estrangement’, Neuroethics 11, no. 2 (July 2018): 157–65; Frederic Gilbert et al., ‘I Miss Being Me: Phenomenological Effects of Deep Brain Stimulation’, AJOB Neuroscience 8, no. 2 (April 3, 2017): 96–109.
89 Note that this reading of dignity does not presuppose an unchanged essence of the person. Personalities change and develop over time, but usually in response to life experience rather than through disruptive alterations of the brain.
90 E.g. Art. 4.1. UNESCO General Conference, Universal Declaration on Bioethics and Human Rights. (‘autonomy of persons to make decisions … is to be respected’); Art. 1 (‘protect dignity and identity’).
91 It is recognized as a distinct right in the EU, see Netherlands v Parliament and Council of the EU, No. C-377/98 (CJEU October 9, 2001) at 70.
92 Ujwal Chaudhary et al., ‘Spelling Interface Using Intracortical Signals in a Completely Locked-in Patient Enabled via Auditory Neurofeedback Training’, Nature Communications 13, no. 1 (December 2022): 1236.
93 Martin M. Monti et al., ‘Willful Modulation of Brain Activity in Disorders of Consciousness’, New England Journal of Medicine 362, no. 7 (February 18, 2010): 579–89.; A related case concerns people in minimally conscious states, who are falsely diagnosed and treated as being unconscious. Even in the US, this happens in around 40% of cases, see Tamar Ezer, Megan Wright, and Joseph Fins, ‘The Neglect of Persons with Severe Brain Injury in the United States: An International Human Rights Analysis’, Health and Human Rights Journal 22, no. 1 (2020): 265–78. Screening them properly with neurotechnologies to avoid misclassifications is equally demanded by dignity as respect for subjectivity entails its recognition.
94 See e.g. for the European context EU Network of Independent Experts on Fundamental Rights, Commentary of The Charter of Fundamental Rights of The European Union, 81.
95 UNESCO General Conference, ‘Universal Declaration on Bioethics and Human Rights’, 33 C/Resolution 36; adopted 19 October 2005. According to Article 1.1, the Declaration addresses ‘ethical issues related to medicine, life sciences and associated technologies as applied to human beings’. This comprises neurotechnologies which directly interact with the human nervous system. Likewise, the Oviedo Convention is concerned with the ‘misuse of biology and medicine’ (Preamble). Article 1 obliges parties to protect the ‘dignity and identity’ of persons ‘with regard to the application of biology and medicine’. As neuroscience concerns neurobiology and neurotechnologies interact with neurobiology, the Oviedo Convention applies to neurotechnologies as well (Council of Europe, ‘Convention on Human Rights and Biomedicine (Oviedo Convention)’, European Treaty Series No. 164, adopted 04 April 1997). Some provisions in both instruments refer to ‘health’ or ‘medicine’. One may wonder whether they also apply to neurotechnologies without a medical purpose, e.g., consumer neurotech. The outer boundaries of the sphere of medicine are unclear in this regard. The Oviedo Convention was understood by drafters to cover ‘all medicinal and biological applications’ (Council of Europe, ‘Explanatory Report to the Ovideo Convention’, April 4, 1997, para. 8). Neurotechnologies are clear instances of the latter. Also, EU medical device regulation explicitly encompasses brain stimulation technologies without intended medical purposes, as the medical framework is deemed most suitable for them as well (European Union, ‘Regulation EU 2017/ 745 on Medical Devices’ (2017). Annex XVI). However, some norms of these instruments use a more restricted language. A clarifying amendment or explanation through treaty bodies might be helpful.
96 Sjors L.T.J. Ligthart, ‘Coercive Neuroimaging, Criminal Law, and Privacy: A European Perspective’, Journal of Law and the Biosciences 6, no. 1 (October 25, 2019): 289–309; Nita A. Farahany, ‘Incriminating Thoughts’, Stanford Law Review 64 (2012): 352–408.
97 The Declaration by the IJC comes to a similar conclusion, The Interamerican Juridical Committee, ‘Declaration on Neuroscience, Neurotechnologies And Human Rights: New Legal Challenges for the Americas’.
98 UN Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework. UN Doc. A/HRC/17/31.’, March 21, 2011.
99 So the Council of Europe about the aims of the Oviedo Convention, Council of Europe, ‘Explanatory Report to the Ovideo Convention’, 3.
100 For a critical view on these activities, Makau Mutua, ‘Standard Setting in Human Rights: Critique and Prognosis’, Human Rights Quarterly 29, no. 3 (2007).
101 UNESCO, ‘Recommendation on the Ethics of Artificial Intelligence’, November 23, 2021.
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Christoph Bublitz
Christoph Bublitz is a legal scholar at the University of Hamburg who works at the intersection of criminal and human rights law, legal philosophy, psychology and neuroscience.