It has previously been suggested that existing treaties
do not offer the robust and comprehensive human
rights protection that a neurotechnological world
requires. Instead, they advocate that today’s era calls
for a novel protective framework of neurorights.61
The neurorights of mental integrity and mental
privacy are partly protected by international and
regional instruments such as the:
Given the profound ways in which neurotechnology
can change the way people live, there has been
great attention paid to how the boundaries of the
brain and mental lives of people can be protected.
European Convention on Human Rights (ECHR)
The Universal Declaration of Human Rights (UDHR)
provides a set of agreed fundamental rights and
freedoms to guide how all humans should treat
others and be treated. Since its adoption in 1948,
it has been followed by binding international
human rights instruments, such as the International
Covenant on Civil and Political Rights (ICCPR), which
has been adopted by 173 countries, covering 90% of
the world’s population.62
International Covenant
on Civil and Political Rights (ICCPR)
adopted by
173
countries
covering
%
90
of the world’s
population
Since 1948, technology has redefined how humans
live and interact with one another. While much of
this usage has led to improvements in quality of life,
the widespread adoption of digital technologies also
brings significant challenges, including challenges to
human rights.
Neurotechnology poses an especially novel risk to
human rights as it can leap the boundary between
the external world and the internal human mind,
invading our private emotions, thoughts and
memories. The brain is what makes us who we are as
individual human beings. While neurotechnologies
present many opportunities for scientific and
medical breakthroughs, human rights must be
protected, as this technology poses special risks
because of its interaction with the human brain.
The real challenge of this technology will be how
to create frameworks and guardrails to protect
against human rights violations – responding to the
current risks posed by the technology, and forward
thinking and flexible enough to adapt as the
technology improves.
10
ICCPR
American Convention on Human Rights (ACHR)
Charter of Fundamental Rights of the European
Union (CFR)63
Model Law on Neurorights for Latin America and
the Caribbean.64
This has been further built upon by projects to
determine the prospective scope of establishing
human rights in respect of thoughts, emotions, and
other mental states, both now and in the future.65
These projects have been initiated by organisations
such as the:
United Nations
Inter‑American Juridical Committee
Committee on Bioethics of the Council of Europe
United Nations Educational, Scientific and
Cultural Organization (UNESCO)
Organization for Economic Co‑operation and
Development (OECD).66
The significant attention being focused on
neurotechnology and human rights is largely in
response to the novel challenges the technology
poses.67 In one publication by Dr Allan McCay, an
expert on neurotechnology and Deputy Director
of the Sydney Institute of Criminology, several
pertinent legal and ethical questions are posed:
What if a person commits a criminal act by
using the implanted microchip. Who would be
responsible for the criminal violation? So, if
another person somehow manages to control the
electronic device to commit a violation, how would
the courts address the legal issues? In essence,
how do we regulate human mental capacity?
There are other questions that can come
up when implementing this technology. For
example, could solicitors one day be instructed
to use a microchip to enhance their mental
capabilities? Could the courts force known
offenders to use special microchips, so their
brain activities are monitored and controlled by
a government agency?68
Protecting Cognition: Background Paper on Human Rights and Neurotechnology