These are just a few examples of the increasing
sophistication of neurotechnology. However, they
also demonstrate that neurotechnologies inevitably
raised significant concerns regarding possible
human rights violations.51 For example, if mice can
be controlled, could the technology be used to
manipulate human thoughts and actions?
Neurotechnology, especially when used in
conjunction with AI, draws into question the
traditional boundaries placed around an individual’s
internal thoughts and processes. There is a growing
body of literature and international policy which
considers the need to ensure that human rights
frameworks protect the mind of an individual.
It is likely that neurotechnologies will only become
more pervasive and embedded in the everyday
lives of individuals over the coming decade.52
While it is important to harness the benefits of
neurotechnologies, there must also be greater
scrutiny of the legal, ethical and safety implications
of its development and deployment.
Government, academics, policymakers and civil
society are starting to work towards protecting the
human mind from the human rights risks. However,
despite significant discourse in this field there are
divergent opinions.
2.1 Protecting the human mind
There are three broad approaches to protecting
the human mind from the adverse impacts of
neurotechnologies according to the relevant literature.
The first school of thought claims that it is necessary
to create novel human rights which specifically
protect the brain. This is on the basis that existing
fundamental rights and freedoms are insufficient
to protect against the misuse of neurotechnology.
When traditional rights and freedoms were
introduced, the ability to monitor, store and alter
neural activity was science fiction, barely conceivable
as being real. Accordingly, new rights may be
necessary due to the impact of neurotechnologies.53
The proposal of novel rights has generated
lively debate as many question their necessity,
effectiveness and if it might lead to ‘rights inflation’.54
The second school of thought provides that
adaptive interpretations and applications of
existing rights and freedoms are required to protect
the brain. Those proposing such an approach
generally agree with the view of the first school of
thought, that existing rights and freedoms in their
current form and application offer inadequate
protection. However, these advocates believe it
is preferable to further interpret existing human
rights law to ensure protection from the misuse
of neurotechnologies. There are certainly existing
rights, provided for by international human rights
law and various regional bodies, which can be
positioned to address neurotechnologies, with the
right to privacy, the right to freedom of thought, and
the right to bodily integrity being clear examples.55
The final group considers that no novel rights or
new interpretations are necessary to protect the
human mind. This position is largely outdated and
rarely raised.56
2.2 Neurorights
‘Neurorights’ is an umbrella term often taken
to encompass several rights related risks to the
human mind.57 There is no consensus across civil
society or academia on the exact content of these
rights or their mode of application (i.e. if they
should be embedded as new human rights or via
further interpretation of existing rights).58 Several
bodies are considering ways in which international
neurorights can best protect the human mind,
most notably the United Nations Advisory Body
to the Human Rights Council’s inquiry into
neurotechnology and human rights.
While existing human rights already protect against
the misuse or abuse of neurotechnologies in certain
ways, novel ‘neurorights’ raise questions about the
sufficiency of these existing rights.59
The question of whether it is best to introduce
novel neurorights or to adapt existing human
rights requires careful consideration. One key risk
of introducing new rights is that it may contribute
to the phenomenon of ‘rights inflation’ which
threatens to dilute the core idea (and universal
nature) of human rights.60