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Towards Neurorights: An interview with neurorights advocate Marcello Ienca, PhD

On October 6 2022, the draft resolution A_HRC_51_L.3 on neurotechnology and human rights (also known as Neurorights) was adopted by consensus (without a vote) by the United Nations Human Rights Council (UNHCR). Dr. Marcello Ienca, a leading neuroethicists and neurorights advocate, who served as an expert advisor to the UNHCR, gave us a breakdown of the recent events. Here’s what you should know:

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1. What are Neurorights?

Neurorights are a subset of fundamental rights related to the sphere of the human brain and mind. They concern fundamental human entitlements such as freedom of thought, agency, mental integrity and privacy of mental information. Proponents of neurorights including myself are of the view that the brain and mind are a fundamental dimension of the human being, therefore that the validity of neurorights transcends state law. In fact, we argue that these rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color, religion, language, or any other status. Reflection on neurorights in the narrow sense began with two articles published in 2017: one appeared in the spring and authored by Roberto Andorno and myself, another published later that year and co-authored by a group of more than twenty scholars coordinated by neuroscientist Rafael Yuste. However, neurorights in the broad sense have always been part of philosophical and legal thought. Just look at the recurrence in the history of ideas of concepts such as freedom of thought and freedom of belief.

2. Why is there a movement to implement Neurorights?

In recent years neurorights have ceased to be solely a subject of academic study and have also become a matter of public engagement in various parts of the world and policy initiatives by governments and intergovernmental organizations. However, I am not sure I would call this trend a "movement" as it is not an organized endavour. However, I think the reason for the proliferation of neurorights-focused initiatives may have to do with a twofold factor: - A general consensus that the brain and mind constitute a fundamental dimension of the human being, therefore entitled to special protections. - The observation that humanity is building technologies increasingly capable of reading and influencing the brain and mind: from neurotechnology to artificial intelligence, from social media to virtual reality and the so-called metaverse. 3. On October 06 2022, the UNHCR has accepted the adoption of a draft on neurotechnology and human rights. What does this mean for researchers, the public, neurotech companies, and governments?

Draft resolutions are proposals submitted by one or more member of the UNHRC. These proposals are drafted and negotiated among States with the aim to advance and bring forward specific human rights issues. The adoption of this draft resolution implies, in the immediate term, that neurorights are recognized by the UN as a major human rights issue. In addition, the UNHRC recognizes that neurorights are an area of human rights that is still poorly understood, and therefore requires more study. In practical terms, it implies that the Advisory Committee of the Human Rights Council will be tasked to prepare a study on the impacts, opportunities and challenges of neurotechnology with regard to the promotion and protection of human rights, including recommendations on how human rights opportunities, challenges and gaps arising from neurotechnology could be addressed by the Human Rights Council. Depending on how the UNHRC will decide to address these challenges and gaps, additional implications may emerge for the stakeholders you named. 4. What role did you (and other ethicists like yourself) play in this decision?

We were invited to participate in various hearings on the topic and were asked to prepare presentations elucidating both scientific (e.g., current technological possibilities) and ethical/legal aspects. We engaged directly with diplomats and other policy-makers. My colleagues Ricardo Chavarriaga, Stephanie Hermann and I were also invited to participate in a UNHRC working session in the famous Human Rights and Alliance of Civilizations Room in Geneva. Overall, in my view, it was a very positive example of science and technology policy. 5. Do you believe this will be the solution to all neurotech-related ethical issues concerning privacy and security? Or is there more to be done?

Neurorights are more than just ensuring the privacy and security of neurotechnologies. They are also about issues such as cognitive freedom, sense of self, agency, etc. However, if we focus on mental privacy I think it is important to base the normative analysis on fundamental rights. However, it is also necessary to better understand where brain and mental data are to be located in the landscape of international data protection laws. In addition, technical and procedural standards need to be stipulated. For example, my colleague Gianclaudio Malgieri and I have proposed a test called the Mental Privacy Impact Assessment.

6. How does this influence third-world countries, where neurotechnologies are not a priority?

In my view, neurorights are not only negative rights aimed at protecting against neurotechnology (freedom from external restraint). They are also positive rights aimed at ensuring that everyone has the power and resources for what we might call mental self-mastery. In my view, the fact that hundreds of millions of people worldwide do not have access to neurotechnology is a matter of eminent importance from a neurorights perspective, as it concerns fundamental issues of fairness, equality and global justice. Moreover, neurorights are not just about neurotechnology but about anything that can analyze and influence the brain and mind. If in a hundred years all current neurotechnologies are as obsolete as cassette tapes are today and will be replaced by technologies that use completely different mechanisms (e.g., light or quantum computation) neurorights will continue to have validity. Neurorights are not about neurotechnology. They are about the brain and the mind, and these belong to every human being.

7. Looking into the future, what is next?

Only time will tell. I hope that reflection on neurorights will lead to greater public awareness of the importance of the brain and mind in human life and to greater sociopolitical recognition of that importance. Moreover, I hope that this reflection, and the policy work that results from it, will be able to ensure more responsible and globally just technological innovation, thus contribute to promoting human wellbeing and preventing novel forms of human rights violations (for example associated with the use of military neurotechnology during warfare). I believe that if neurorights are guaranteed, all other human rights will better promoted and protected and technological innovation will be more likely to benefit humanity at large.

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