Beyond Substance: Structural and Political Questions for Neurotechnologies and Human Rights

This article refers to:

Brain Data in Context: Are New Rights the Way to Mental and Brain Privacy?

What an International Declaration on Neurotechnologies and Human Rights Could Look like: Ideas, Suggestions, Desiderata

The last several years have seen vibrant debates among policymakers and scholars on whether to craft new human rights (or novel interpretations of existing ones) around neurotechnologies. These conversations have thus far centered on the substance of what those norms could or should include. Potential “neurorights” under discussion could include cognitive liberty, mental privacy, or psychological continuity (Ienca 2021). These proposals have generated controversy in academic and policy circles, raising questions with divergent answers around issues such as the capacity of existing rights instruments and potential for rights inflation. Susser and Cabrera (2024) make a compelling contribution to these discussions by exploring how a focus on “mental privacy” could interfere with or disrupt broader movements around existing privacy rights. Bublitz (2024) recently provided a thorough assessment and arguments on the types of topics, norms, and related considerations that such a process at UNESCO should consider in an international instrument. Setting new norms at the global level could both guide and constrain national level decision-making in the coming years.

However, these conversations about the substance of neurorights norms often overlook structural and political considerations that will likely mediate the types of norms set and their path to implementation. Such questions hide just below the surface of ongoing scholarly debate. If proposals for mental privacy norms are set aside in favor of existing privacy rights (Susser and Cabrera 2024), for example, which actors have the expertise, resources, and political will to reinterpret and enforce those current rights? Similarly, little debate has occurred over which international organizations (IOs) should (or should not) weigh in on the human rights implications of neurotechnologies (c.f. Bublitz 2024) or how to manage multiple IOs operating in the same space. The UN Human Rights Council, Council of Europe, and Organization of American States all have ongoing projects around human rights and neurotechnologies—does this augur the introduction of several IOs with divergent constituents or different agendas and interpretations of rights? Where and how will local and nonstate actors enter these processes? Various groups and organizations, especially in the Global North, have already produced documents on the ethics of neurotechnologies which converge on some broader themes, but still reflect diverse geographies and constituencies (see O’Shaughnessy et al. 2023).

This commentary calls for greater scholarly attention to how structural and political factors may impact the norms developed on neurotechnologies and human rights. While questions of whether new (neuro)rights are needed and what norms should be included in an instrument remain pertinent, issues of who would build and administer such an instrument—and how—often remain underexplored in scholarly and policy conversations. These insights raise vital questions for the democratic legitimacy of moving forward with an international instrument for neurotechnology and human rights that go beyond substantive issues yet have significant implications for the near- and long-term content and acceptability of norms. Three strands of literature may be helpful in beginning such a conversation.

First, the substance of global norms depends tightly on the processes through which norms are set. Who is meaningfully involved in or excluded from these processes will, of course, impact outcomes by altering whose values, visions, and agendas become either legible or contested. Moreover, procedures that govern discussions and disparities in resources (e.g., finances, perceived expertise) among actors can mediate the types of norms produced (Block-Lieb and Halliday 2017). Patient and consumer groups, for example, often have fewer resources than high-income state actors or private sector entities. As the private sector begins to become more active in bringing neurotechnological products to market, they may find new incentives to become directly or indirectly involved in global lawmaking processes. Narrow private preferences can become encoded in public international law in the absence of open and accountable settings where all relevant stakeholders, including those from lower-income states and civil society, have a meaningful role in the process (Sell 2003). As UNESCO or other IOs move forward with efforts to set some form of international norms on neurotechnologies, too little scholarly attention has yet been paid to which stakeholders will be involved, what types of procedures will mediate discussion and participation, and whether or how the voices of some will be given greater weight than others.

Second, different global authorities can and do compete for preeminence in setting, interpreting, and administering international law (Downie 2022). An established literature demonstrates that IOs use their authority to expand their missions and generate new tasks for themselves (Barnett and Finnemore 2004), which can lead to multiple organizations moving into the same novel space. The dizzying array of global bodies simultaneously responding to climate-related topics offers a contemporary example (see Downie 2022). Beyond normative questions of whether a particular IO is in the “best” position to set new norms, the incentive structures driving expansion may—as an empirical matter—prompt multiple organizations to enter the space and compete with one another. For neurotechnology and human rights, it is possible that different international bodies will take different positions on, for example, whether mental privacy is a unique right or merely an extension of existing privacy norms (Susser and Cabrera 2024). Such an outcome may in part depend on whether and how different sets of stakeholders become involved in various norm-setting processes, and why. If multiple international and regional organizations arrive at different novel norms or interpretations of existing law, this could inject uncertainty into the universal status of human rights for neurotechnologies and create a fractured international legal landscape. Such a setting may produce new challenges around coordinating or mediating between authorities and providing compliance assistance to state and nonstate actors.

Third, the sociolegal literature has demonstrated that local actors inevitably transform “universal” norms set at the global level. Such translations are important for rendering abstract and technical norms appealing and applicable to various (sub)national contexts with their unique and complex cultural, religious, and historical landscapes (Merry 2006). Such variations can make global standards more acceptable and aid in their implementation, and hold promise for improving global policy. Under the right conditions, these myriad processes of local contextualization and experimentation can bring insights back up to the global level to inform and improve norms set at multilateral organizations (Kauffman 2017). However, conversations around neurotechnology and human rights have focused more on the international level and global actors such as UNESCO (e.g. Bublitz 2024; Susser and Cabrera 2024). The ongoing and future roles of national and local (especially civil society) actors in interpreting and implementing any norms set at the global level have received comparatively little attention. Without the meaningful engagement and participation of local actors, lofty global norms around cognitive liberty or psychological continuity may not readily apply to various local contexts—especially given cultural differences around notions of, for instance, identity or privacy (see O’Shaughnessy et al. 2023). Greater attention may be required around mechanisms for the ongoing engagement of varied local actors, from diverse geographies and cultures, in processes for discussing and evaluating proposed norms on neurotechnologies and human rights. Conversations on the substance of potential norms may also need to leave meaningful room for local variation (Bublitz 2024), as adaptation and experimentation could facilitate applying and improving those global standards.

These literatures point to new, vital lines of inquiry in debates around neurotechnologies and human rights. Ultimately, greater research and dialogue is needed that simultaneously engages with the substance of rights issues and critically considers structural and political questions surrounding participation, coordination, and transnational processes of setting and (re)interpreting norms over time. Situating the substantive debates around neurorights within a broader understanding of global lawmaking and politics may assist in anticipating and addressing issues with governance itself, rather than merely considering which issues require “more” governance.

ACKNOWLEDGEMENTS

The author is grateful to John Noel M. Viaña, Kathryn Henne, and Lucille M. Tournas for comments on an earlier version of this commentary. This work is supported by the Australian National University under the Australian Government Research Training Program Scholarship.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).